[Federal Register Volume 91, Number 137 (Monday, July 20, 2026)]
[Rules and Regulations]
[Pages 45324-45477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-14539]
[[Page 45323]]
Vol. 91
Monday,
No. 137
July 20, 2026
Part II
Department of Homeland Security
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8 CFR Parts 103 and 212
Public Charge Ground of Inadmissibility; Final Rule
Federal Register / Vol. 91, No. 137 / Monday, July 20, 2026 / Rules
and Regulations
[[Page 45324]]
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DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103 and 212
[CIS No. 2857-26; 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: Final rule.
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SUMMARY: DHS is rescinding the 2022 public charge ground of
inadmissibility regulations (``2022 Final Rule''). The 2022 Final Rule
was not the best implementation of the statute. It was inconsistent
with congressional intent, unduly restrictive, and hampered 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 restores broader discretion for DHS officers to
evaluate all pertinent facts and aligns with long-standing policy that
aliens in the United States should be self-reliant and government
benefits should not incentivize immigration. This rule also revises the
breach and cancellation of public charge bonds regulations.
DATES: The final rule is effective on September 18, 2026. This rule
applies to applications for admission made on or after September 18,
2026 or applications for adjustment of status postmarked or
electronically submitted on or after September 18, 2026. Receipt of
means-tested public benefits before September 18, 2026 will be
considered consistently with the 2022 Final Rule.
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. Executive Summary
A. Purpose of the Regulatory Action
B. Legal Authority
C. Summary of the Proposed Rule
D. Implementation
E. Costs and Benefits
II. Background
A. Legal Authority
B. Grounds of Inadmissibility Generally
C. Public Charge Ground of Inadmissibility
III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments
B. Comments Expressing General Support for the Proposed Rule
C. Comments Expressing General Opposition to the Proposed Rule
D. Comments Regarding Legal Authority and Statutory Provisions
1. Statutory Authority
2. Congressional Intent and Historical Application
3. Administrative Law Concerns
4. Constitutional Concerns
5. Prospective Application of the Final Rule and Retroactivity
Concerns
E. Negative Impacts on DHS and Immigration Policy Objectives
1. Concerns About Immigration Officer Discretion
2. Lack of Replacement Language or Framework
3. Immigration System Impacts, Operational Burdens, and
Processing Delays
4. Misalignment With Longstanding Immigration Policies or U.S.
Values
F. Negative Impacts on Applicants, Petitioners, Beneficiaries,
and Support Systems
1. Chilling Effects on Benefit Usage
2. Concerns About Clarity and Discrimination
G. Negative Impacts on U.S. Economy, Businesses, and Communities
1. Workforce Impacts
2. Impacts of Reduced Consumer Spending
3. Concerns About U.S. Demographics
4. Impacts on Housing
5. Impacts to Innovation
6. Other Economic Effects
7. Impacts on the Military and Veterans
H. DHS's Rationale and Justification for the Rule
1. Insufficient Evidence or Reasoned Justification To Change
Policy
2. Insufficient Connection Between Receipt and Dependency on the
Government
3. Would Not Accomplish Stated Goal To Reduce Public
Expenditures
4. Agreement With Stated Need for Proposed Rule
I. Amendments to Cancellation and Breach of Public Charge Bond
Provisions
J. Removal of 8 CFR 212.20, ``Applicability of Public Charge
Inadmissibility''
K. Removal of the Public Charge Regulatory Definitions
1. General Comments
2. Definition of ``Likely at Any Time To Become a Public
Charge''
3. Definition of ``Public Benefits''
4. Definition of ``Receipt (of Public Benefits)''
5. Definitions of ``Government'' and ``Household''
L. Removal of the Public Charge Inadmissibility Determination
Framework
1. Minimum Factors
2. Consideration of the Affidavit of Support
3. Consideration of Current and/or Past Receipt of Public
Benefits
4. Disability Alone Is Not Sufficient
5. Totality of the Circumstances
6. Written Denial Requirement
7. Receipt of Public Benefits While an Alien Is in an
Immigration Category Exempt From the Public Charge Ground of
Inadmissibility, or of Benefits Available to Refugees
M. Elimination of List of Exemptions and Waivers (8 CFR 212.23)
1. General Opposition to Removal
2. General Support for Removal
3. Certain Cubans and Haitians
4. Commonwealth of the Northern Mariana Islands
N. Comments Unrelated to Specific Regulatory Sections
1. General Comments
2. Comments on the Development of Future Public Charge
Inadmissibility Policy Interpretive Tool
3. Privacy and Personal Data Concerns
4. Recommendations for Public Charge Inadmissibility Regulations
or Subregulatory Guidance
5. Recommendations for Implementation
6. Severability
7. Other Comments
O. Statutory and Regulatory Requirements
1. Costs, Benefits, and Transfer Payments
2. Regulatory Flexibility Act
3. Paperwork Reduction Act (PRA)
4. Other Statutory and Regulatory Requirements
P. Out-of-Scope
1. Support for Immigration and Opposition to Restrictive
Immigration Policies
2. Opposition to Immigration Generally
3. Miscellaneous
IV. 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 of Changes From the Notice of Proposed Rulemaking to
the Final Rule
2. Summary of the Regulatory Changes
3. Background and Purpose
4. Population
5. Cost-Benefit Analysis
B. Regulatory Flexibility Act
C. Unfunded Mandates Reform Act of 1995
D. Small Business Enforcement Fairness Act of 1996
(Congressional Review Act)
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice Reform)
G. Family Assessment
H. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
I. National Environmental Policy Act
J. Paperwork Reduction Act
Table of Abbreviations
APA--Administrative Procedure Act
ASC--Application Support Center
BIA--Board of Immigration Appeals
CCBG--Child Care and Development Block Grant
CBO--Congressional Budget Office
CBP--U.S. Customs and Border Protection
CFR--Code of Federal Regulations
CHIP--Children's Health Insurance Program
CMS--Centers for Medicare & Medicaid Services
CNMI--Commonwealth of the Northern Mariana Islands
COVID-19--Coronavirus Disease 2019
CPI-U--Consumer Price Index for All Urban Consumers
[[Page 45325]]
CPS--Current Population Survey
CTC--Child Tax Credit
DHS--U.S. Department of Homeland Security
DOJ--Department of Justice
DOS--U.S. Department of State
EAD--Employment Authorization Document
eFMAP--Enhanced Federal Medical Assistance Percentage
EITC--Earned Income Tax Credit
E.O.--Executive Order
FAM--Department of State Foreign Affairs Manual
FAS--Freely Associated States
FFP--Federal Financial Participation
FMAP--Federal Medical Assistance Percentage
FOIA--Freedom of Information Act
FR--Federal Register
FY--Fiscal Year
GW--George Washington University
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
ICE--U.S. Immigration and Customs Enforcement
ICR--Information Collection Request
IIRIRA--Illegal Immigration Reform and Immigrant Responsibility Act
of 1996
IMF--International Monetary Fund
INA--Immigration and Nationality Act
INS--Immigration and Naturalization Service
IRCA--Immigration Reform and Control Act
KFF--Kaiser Family Foundation
LPR--Lawful Permanent Resident
NDAA--National Defense Authorization Act
NEPA--National Environmental Policy Act
NHTSA--U.S. National Highway Traffic Safety Administration
NOID--Notice of Intent to Deny
NPRM--Notice of Proposed Rulemaking
NTA--Notice to Appear
NTMVS Act--National Traffic and Motor Vehicle Safety Act of 1966
OBBBA--One Big Beautiful Bill Act
OHP--Oregon Health Plan
OMB--Office of Management and Budget
PII--Personally Identifiable Information
PRA--Paperwork Reduction Act
PRWORA--Personal Responsibility and Work Opportunity Reconciliation
Act of 1996
RFA--Regulatory Flexibility Act of 1980
RFE--Request for Evidence
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
UBI--Universal Basic Income
UMRA--Unfunded Mandates Reform Act of 1995
U.S.C.--United States Code
USCIS--U.S. Citizenship and Immigration Services
USDA--U.S. Department of Agriculture
VAWA--Violence Against Women Act
WIC--Special Supplemental Nutrition Program for Women, Infants, and
Children
I. Executive Summary
A. Purpose of the Regulatory Action
The purpose of this rule is to remove from the Code of Federal
Regulations the 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 imposed narrow definitions of statutory terms and minimum factors
as well as limited the public benefits that DHS could consider in a
public charge inadmissibility determination. 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\
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\1\ 87 FR 55472 (Sept. 9, 2022).
\2\ The Fourth Circuit emphasized the provision indicates 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, 243-244 (4th Cir. 2020) (request for rehearing
en banc granted on December 3, 2020, but the appeal was later
dismissed). DHS believes this rescission is more consistent with
congressional intent as it restores 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 is moving away from a bright line primary dependence standard.
By removing most \3\ of the regulatory provisions in the 2022 Final
Rule, DHS can implement policy and interpretive tools guiding officers
in making individualized, fact-specific public charge inadmissibility
determinations, based on a totality of the alien's circumstances,
consistent with the statute, congressional intent, and precedent.\4\
These tools will guide public charge inadmissibility determinations
while empowering officers to consider: (1) the mandatory statutory
factors in section 212(a)(4)(B) of the Immigration and Nationality Act
(INA), 8 U.S.C. 1182(a)(4)(B); (2) the alien's receipt of means-tested
public benefits; (3) any other individualized case-specific factors and
circumstances relevant to an alien's case; and (4) any empirical data
relevant to an alien's self-sufficiency. Using good judgment and
discretion, officers will more accurately assess an alien's likelihood
at any time of becoming a public charge, in the totality of the
circumstances, as Congress intended.
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\3\ Except certain public charge bond provisions, which this
final rule amends.
\4\ 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 reviewed and considered the feedback and recommendations
submitted in response to the notice of proposed rulemaking (NPRM).
B. Legal Authority
The authority of the Secretary of Homeland Security (Secretary) for
the rescissions and regulatory amendments is found in section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4), (public charge inadmissibility
determinations); section 235 of the INA, 8 U.S.C. 1225, (applicants for
admission); and section 245 of the INA, 8 U.S.C. 1255, (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 deemed necessary for
carrying out the Secretary's authority under the INA.
C. Summary of the Proposed Rule
On November 19, 2025, DHS published an NPRM titled Public Charge
Ground of Inadmissibility. 90 FR 52168 (Nov. 19, 2025). In the NPRM,
DHS proposed the following changes:
Amend 8 CFR 103.6(c), Cancellation and breach--Clarifying
that receipt of any means-tested public benefit, or being otherwise
noncompliant with any condition of the public charge bond, results in a
breach of that bond and eliminating language stating that ``USCIS may
cancel a public charge bond at any time after determining that the
alien is not likely at any time to become a public charge.''
Remove 8 CFR 212.20, Applicability of public charge
inadmissibility--Removal in its entirety of the language defining the
categories
[[Page 45326]]
of aliens subject to the public charge ground of inadmissibility.
Remove 8 CFR 212.21, Definitions--Removal of the
definitions, including the definitions of ``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.''
Remove 8 CFR 212.22, Public charge inadmissibility
determination--Removal of the overly restrictive language relating to
an alien's current and/or past receipt of means-tested public benefits,
the totality of the circumstances analysis, and receipt of public
benefits by an alien in an exempt category.
Remove 8 CFR 212.23, Exemptions and waivers for public
charge ground of inadmissibility--Removal of the language listing
exemptions and waivers to the public charge ground of inadmissibility.
DHS received 8,846 \5\ comments on the proposed rule, the majority
of which opposed the rule. Following careful consideration of public
comments received, DHS is issuing this final rule as proposed. The
preamble to this final rule includes summaries of significant issues
raised by the comments and includes responsive explanations for policy
changes.
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\5\ DHS received 5,882 comments during the 30-day comment period
applicable to the rule, and 2,964 during the overlapping 60-day
comment period applicable to the associated information collection.
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D. Implementation
DHS will begin implementing this final rule on its effective date.
This final rule will apply to applications for adjustment of status
that are postmarked or electronically submitted on or after the
effective date and applications for admission made on or after the
effective date. On or before the effective date, USCIS will issue
subregulatory guidance to inform, but not prescribe, the outcome of
USCIS officers' public charge inadmissibility determinations made under
this final rule in the totality of the circumstances. In addition, DHS
will only consider the receipt of public cash assistance for income
maintenance and long-term institutionalization at government expense
before the effective date of this final rule and will consider the
receipt of any means tested public benefits on or after that date.
E. Costs and Benefits
DHS is removing most of the 2022 Final Rule provisions to allow DHS
to better implement the public charge ground of inadmissibility. The
final rule is expected to impose new benefits and transfers. To assess
the impacts of the 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 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 rule ensures that officers can make highly individualized, fact-
specific, case-by-case public charge inadmissibility decisions based on
the totality of each alien's individual circumstances. This approach
will prevent the application of overly restrictive criteria that
straitjackets DHS officers' ability to make public charge
inadmissibility determinations.
The rule will also result in a reduction in transfer payments from
Federal and State governments 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 $13.05 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 rule could be approximately $111.28
billion at a 3-percent discount rate and about $91.62 billion at a 7-
percent discount rate. This total includes DHS's estimate that Federal
transfer payments could decrease by approximately $65.76 billion at a
3-percent discount rate and about $54.14 billion at a 7-percent
discount rate. Using the average Federal Medical Assistance Percentage
(FMAP), DHS further estimates that State transfer payments could
decrease by approximately $45.52 billion at a 3-percent discount rate
and approximately $37.48 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 rule. For example, the
recent changes to Medicaid and the Supplemental Nutrition Assistance
Program (SNAP) included in H.R. 1 are expected to impact enrollment
rates, adding complexity to quantification efforts.\6\ DHS anticipates
that disenrollment or forgone enrollment rates may fluctuate
independently of this rule, potentially affecting the transfer payment
estimates presented. However, those external factors are separate and
independent of this rule.
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\6\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
\7\ For a complete list of regulatory changes in this rule,
please see section V. ``List of Subjects and Regulatory
Amendments.''
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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. Landlords participating in federally
funded housing programs may also experience financial strain, such as
increased tenant turnover and higher administrative costs.
Table I.1 provides a detailed summary of the regulatory changes and
the estimated costs, benefits, and transfers associated with the
expected impacts.\7\
BILLING CODE 9111-97-P
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[GRAPHIC] [TIFF OMITTED] TR20JY26.000
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BILLING CODE 9111-97-C
II. Background
A. Legal Authority
The Secretary's authority for issuing this rule is found in various
sections of the INA, 8 U.S.C. 1101 et seq., and the Homeland Security
Act of 2002 (HSA).\8\ 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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\8\ 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 (Form I-864) 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 \9\ during the period
in which the affidavit is enforceable. The Form I-864 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.
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\9\ Sponsors on active duty (other than active duty for
training) in the Armed Forces of the United States who are
petitioning for the admission of their spouse or child only need to
demonstrate the means to maintain an annual income equal to at least
100 percent of the Federal poverty line.
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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 excluded aliens who pose a threat to the safety
or general welfare of the country or who seek to violate immigration
laws.\10\
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\10\ 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 \11\ and inadmissibility in the INA.\12\ Aliens
are inadmissible due to a range of acts, conditions, and conduct.\13\
If an alien is inadmissible that alien is ineligible to be admitted to
the United States and ineligible to receive a visa, unless he or she
applies for and receives a waiver of inadmissibility or other form of
relief. Congress 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 an LPR.\14\ If an
alien is inadmissible, that alien is also ineligible for those benefits
unless the alien is eligible to apply for and received waiver of
inadmissibility or other form of relief, where available and
appropriate.\15\
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\11\ 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).
\12\ See INA sec. 212(a), 8 U.S.C. 1182(a).
\13\ Id.
\14\ See INA sec. 245(a)(2), 8 U.S.C. 1255(a)(2).
\15\ 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
and Other Forms of Relief, https://www.uscis.gov/policy-manual/volume-9 (last updated Feb. 3, 2026). 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 45330]]
C. Public Charge Ground of Inadmissibility
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), states 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,\16\ and for adjustment of status to that of an LPR.\17\ 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 may be invited to submit a public
charge bond.\18\
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\16\ DHS notes that due to differences in the information
collected from aliens and operational limitations at and between the
ports of entry, the information and evidence considered in the
totality of the circumstances by USCIS may be different from that
which is considered by U.S. Customs and Border Protection (CBP).
\17\ 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.
\18\ See INA secs. 212(d)(3)(A), 213, 245(d)(2)(B), and 245(j),
8 U.S.C. 1182(d)(3)(A), 1183, 1255(d)(2)(B), and 1255(j), and 8 CFR
213.1 and 8 CFR 245.11.
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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) (emphasis added). Section
212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits
consular officers or immigration officers to consider any Form I-864
submitted on the alien's behalf, when determining whether the alien is
likely at any time to become a public charge.\19\ In fact, with very
limited exceptions, most aliens seeking family-based immigrant visas
and adjustment of status, and certain aliens seeking employment-based
immigrant visas or adjustment of status, must submit a sufficient Form
I-864 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).
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\19\ 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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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.
D. Current Rulemaking
On November 19, 2025, DHS published the NPRM, Public Charge Ground
of Inadmissibility, 90 FR 52168 (Nov. 19, 2025). The public comment
period on the NPRM closed on December 19, 2025, and the public comment
period on the associated information collection closed on January 20,
2026.\20\ Following careful consideration of public comments received,
DHS is issuing this final rule as proposed. The following section of
the preamble includes a detailed summary and analysis of public
comments received. Comments received may be reviewed at the Federal
Docket Management System (FDMS) at https://www.regulations.gov, docket
number USCIS-2025-0304.
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\20\ DHS received 5,882 comments during the first comment
period, and 2,964 during the second comment period. Comments on the
NPRM were to be submitted during the first comment period. Comments
on the information collection described in the Paperwork Reduction
Act section could be submitted during both comment periods.
---------------------------------------------------------------------------
For a detailed description of the history of the public charge
ground of inadmissibility, public benefits under PRWORA, and prior
public charge rulemakings, please refer to the NPRM.
E. Severability
DHS intends the changes to 8 CFR 103.6(c) to be severable from the
full rescission of regulatory provisions in 8 CFR part 212. To the
extent a court finds this final rule rescinding the public charge
inadmissibility regulations in 8 CFR 212.20 through 212.23 is invalid
or unenforceable, DHS intends that certain 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 they are also held to be
wholly invalid and unenforceable. Specifically, 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 the NPRM, 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 8 CFR 212.20 through 212.23. 90 FR
52168, 52185 (Nov. 19, 2025). Similarly, if not separately invalidated
or deemed unenforceable, DHS intends to keep the revised restructuring
of 8 CFR 103.6(c)(1), separating the cancelation and breach provisions
into paragraphs (c)(1)(i) and (c)(1)(ii) for clarity.
III. Response to Public Comments on the Proposed Rule
A. Summary of Public Comments
On November 19, 2025, DHS published an NPRM titled Public Charge
Ground of Inadmissibility. 90 FR 52168 (Nov. 19, 2025). DHS received
8,846 comments on the proposed rule, the majority of which opposed the
rule. Most of the comment submissions were from individual or anonymous
commenters, including attorneys and academic researchers. Other
commenters included healthcare providers, legal service providers,
research and religious organizations, advocacy groups, social and
community organizations, professional associations, State and local
government agencies and elected officials, trade and business
organizations, unions, schools and universities, and a foreign
government entity.
B. Comments Expressing General Support for the Proposed Rule
Comment: Several commenters were generally in favor of the proposed
rule. Some of the commenters who supported the proposal stated that
public benefit programs are intended for Americans and that the
government should put America first.
Many commenters who supported the rule expressed concern about the
burden of benefit use by immigrants on available resources, stating the
government should not allow immigrants to burden the benefit systems
for Americans. Several commenters stated that the United
[[Page 45331]]
States should eliminate the potential for aliens to be incentivized to
immigrate for public benefits, with some commenters referencing aliens'
fraud and abuse of public benefit programs, taking advantage of the
United States, draining resources, or disproportionately benefiting
from assistance at taxpayer expense. One commenter stated that
resources for new immigrants should be limited, with another stating
that when conditions for U.S. citizens in America improve immigrants
can be helped. One commenter expressed their belief that supplemental
programs are meant to be a temporary aid but that there are
insufficient regulations to prevent such aid from becoming a lifestyle.
Other commenters expressed support for the rule, remarking that
immigrants should demonstrate advanced education, personal savings, and
value provided to the United States upon admission.
Response: DHS agrees that aliens applying for admission and
adjustment of status who are subject to the public charge ground of
inadmissibility should be self-sufficient and should not depend on the
government to meet their needs. DHS also agrees that the availability
of public benefits should not constitute an incentive for immigration
to the United States, as Congress indicated in PRWORA.\21\ This
rulemaking seeks to align public charge inadmissibility determinations
with those concepts. DHS firmly believes that this was Congress's
intent in enacting section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
\21\ See Public Law 104-193, sec. 400, 110 Stat. 2105, 2260
(codified at 8 U.S.C. 1601).
---------------------------------------------------------------------------
This rulemaking will empower officers to consider not only the
mandatory statutory factors and an alien's receipt of means-tested
public benefits, but also all relevant evidence and information in the
record specific to the alien as the officers determine whether the
alien is likely at any time to become a public charge. This will
restore a public charge inadmissibility determination that relies on
DHS officers' good judgment and sound discretion as envisioned by
Congress.
DHS emphasizes neither the public charge ground of inadmissibility
nor this final rule govern eligibility for means-tested public
benefits; rather they govern which aliens are inadmissible and,
therefore, ineligible for admission and adjustment of status. This
final rule does not address the government's responsibility to care for
aliens or which aliens are, or should be, eligible to receive means-
tested public benefits.
C. Comments Expressing General Opposition to the Proposed Rule
Comment: Many commenters expressed general opposition to the rule.
Some stated that the rule is unfair, cruel and inhumane or barbaric,
that previous poverty is not a reason to penalize a person today, and
that every human deserves to be cared for and treated respectfully.
Some disagreed with the basis of the rule, commenting that the rule is
not right for the country. One commenter called the rule pointless,
with another stating the rule is unnecessary and would negatively
impact children.
Response: DHS strongly disagrees that the rule is pointless,
unnecessary, or unfair. The purpose of this rule is to remove the
public charge inadmissibility provisions promulgated by the 2022 Final
Rule, 87 FR 55472 (Sept. 9, 2022), as these provisions straitjacketed
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 PRWORA.\22\ The 2022
Final Rule imposed narrow definitions of statutory terms and minimum
factors as well as limited the public benefits that DHS could consider
in a public charge inadmissibility determination, preventing officers
from considering all factors and information relevant to an alien's
likelihood at any time of becoming a public charge, as Congress
intended. See 90 FR 52168, 52185 (Nov. 19, 2025). Rescission of the
2022 Final Rule allows officers to more accurately assess an alien's
likelihood at any time of becoming a public charge using good judgment
and discretion, consider the mandatory statutory factors in section
212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), the alien's receipt of
means-tested public benefits, all individualized case-specific factors
and circumstances relevant to an alien's case, and any empirical data
relevant to an alien's self-sufficiency.
---------------------------------------------------------------------------
\22\ See Public Law 104-193, section 400, 110 Stat. 2105, 2260
(codified at 8 U.S.C. 1601).
---------------------------------------------------------------------------
Comment: A commenter wrote that the proposed rule is not practical
and instead driven by a desire to resurrect a punitive approach that
was widely rejected by public health experts, State and local
governments, and advocates.
Response: DHS rejects the suggestion that it is resurrecting the
public charge ground of inadmissibility approach found in the 2019
Final Rule, 84 FR 41292 (Aug. 14, 2019). As it made clear in the NPRM,
previous regulations relating to the public charge ground of
inadmissibility were overly restrictive.\23\ By removing (not replacing
or amending) the rigid definitions and factors, this final rule will
allow officers to consider all case-specific factors and circumstances
relevant to the public charge inadmissibility determination, in the
totality of the circumstances. This in turn enables officers to more
accurately assess an alien's likelihood at any time of becoming a
public charge. DHS is not implementing the provisions of the 2019 Final
Rule in this final rule.
---------------------------------------------------------------------------
\23\ 90 FR 52180-52181 (Nov. 19, 2025).
---------------------------------------------------------------------------
D. Comments Regarding Legal Authority and Statutory Provisions
1. Statutory Authority
Comment: One commenter stated that this rule is intended to reduce
immigration to the United States, which only Congress can do via
statute.
Response: While it is possible this rule may decrease the number of
aliens who will be admitted into or granted adjustment of status in the
United States, as explained elsewhere in this final rule, DHS is unable
to quantify those impacts due to the nature of the individualized case-
by-case determination required by statute. DHS strongly disagrees that
it is aiming to reduce immigration in excess of its statutory
authority. While Congress established annual numerical limitations for
certain immigrant and nonimmigrant visa classifications, Congress has
not mandated, nor would it be practical to mandate, that these limits
be fully utilized given specific eligibility criteria and other
congressionally imposed restrictions, such as specific grounds of
inadmissibility. See e.g., INA secs. 202, 203, 212 and 214; 8 U.S.C.
1152, 1153, 1182, and 1184. In fact, Congress provided for the rollover
or reallocation of immigrant visas in certain circumstances. See e.g.,
INA sec. 201, 203, and 206, 8 U.S.C. 1151, 1153, and 1156.
The very purpose of the public charge ground of inadmissibility is
to prevent the admission and adjustment of status of aliens who are
determined by an officer to be likely at any time to become a public
charge. Indeed, since 1882, Congress has clearly decided to limit the
admission of such aliens.\24\ To the extent the commenter does not like
that this ground of inadmissibility prevents the admission and
adjustment of status of certain aliens, the complaint is for Congress,
not DHS. More than 70 years ago Congress recognized that setting the
parameters for determining whether an
[[Page 45332]]
alien is likely at any time to become a public charge is best left to
the judgment and interpretation of the executive branch and the courts
because the elements constituting public charge are so varied.\25\ If
Congress wanted to conclusively define what it means to be ``likely at
any time to become a public charge'' it would have done so when
enacting immigration statutes in 1882,\26\ 1891,\27\ 1903,\28\
1907,\29\ 1917,\30\ 1952,\31\ 1990,\32\ or 1996.\33\ However, Congress,
at no point during the history of the public charge inadmissibility
ground, limited the manner in which the executive branch made public
charge inadmissibility determinations save providing a non-exhaustive
list of factors that must be considered, in 1996.
---------------------------------------------------------------------------
\24\ Immigration Act of 1882, 22 Stat. 214 (Aug. 3, 1882).
\25\ See The 1950 Omnibus Report of the Senate Judiciary
Committee, S. Rep. No. 81-1515, at 349 (1950).
\26\ Immigration Act of 1882, 22 Stat. 214 (Aug. 3, 1882).
\27\ Immigration Act of 1891, ch. 551, 26 Stat. 1084 (Mar. 3,
1891).
\28\ Immigration Act of 1903, 32 Stat. 825 (Feb. 13, 1903).
\29\ Immigration Act of 1907, 36 Stat 264 (Feb. 20, 1907).
\30\ Immigration Act of 1917, 39 Stat. 874 (Feb. 5, 1917).
\31\ INA of 1952, 66 Stat. 163 (June 27, 1952).
\32\ 603 See Immigration Act of 1990, Public Law 101-649,
section 601, 110 Stat. 4978, 5072 (Nov. 29, 1990).
\33\ IIRIRA, See, e.g., Cyan, Inc. v. Beaver Cty. Emp. Ret.
Fund, 138 S. Ct. 1061, 1070 (2018) (explaining that, if Congress had
wanted to deprive State courts of jurisdiction over certain class
actions, it could have easily done so by inserting a provision).
---------------------------------------------------------------------------
As referenced in the NPRM and this final rule, with the rescission
of the 2022 Final Rule DHS is eliminating a rigid regulatory framework
and restoring broader officer discretion, which ensures that aliens
whom DHS has determined are likely at any time to become a public
charge are not admitted or granted adjustment of status, as Congress
intended.
Comment: Several commenters said this rulemaking overreached the
powers granted in the statute by Congress. Another said removal of the
2022 Final Rule is unlawful.
Response: DHS strongly disagrees that the removal of the 2022 Final
Rule is unlawful or goes beyond the powers granted to DHS by Congress.
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 HSA. 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. Indeed, this rulemaking is
within DHS's express authority to enforce and administer the
immigration laws of the United States, section 103(a)(1) of the INA, 8
U.S.C. 1103(a)(1), including the public charge ground of
inadmissibility, section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). For
these reasons as well as those discussed previously, the rescission of
the 2022 Final Rule does not exceed the Secretary's authority.
The removal of the 2022 Final Rule in favor of a broader exercise
of discretion on a case-by-case basis is a permissible implementation
of the public charge inadmissibility statute enacted by Congress. See
INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). DHS believes that the express
language of sections 212(a)(4)(A) and (B) of the INA, 8 U.S.C.
1182(a)(4)(A) and (B), the longstanding national policy on immigration
and welfare, and the precedent decisions that have guided public charge
inadmissibility determinations for decades provide sufficient guidance
for DHS officers to make public charge inadmissibility determinations.
Comment: Some commenters stated that section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), does not authorize DHS to consider the past or
present receipt of non-cash public benefits, and added that such
consideration would constitute an impermissible expansion of the
statutory criteria and undermine the intent of section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4). Another commenter similarly stated that the
expansion of the public charge definition to include non-cash benefits
lacks a clear basis in section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), or precedent decisions.
Response: DHS is neither promulgating definitions for the terms
``public charge'' or ``public benefits'' through this rulemaking. As
proposed in the NPRM, DHS believes that retaining regulations that
disregard receipt of certain means-tested public benefits, when such
receipt is relevant to assessing an alien's likelihood of becoming a
public charge, is not the best reading of the statute. DHS is therefore
removing the rigid provisions in the 2022 Final Rule, including
limitations on what public benefits may be considered in a public
charge inadmissibility determination, which prevented officers from
making public charge inadmissibility determinations consistent with the
clear self-sufficiency goals articulated by Congress in PRWORA.
Consideration of non-cash public benefits in a public charge
inadmissibility determination is neither precluded by section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4), nor inconsistent with precedent
decisions.\34\
---------------------------------------------------------------------------
\34\ See Matter of Vindman, 16 I&N Dec. 131, 132 (BIA 1977)
(considering receipt of cash benefits and other public funds as part
of a public charge inadmissibility determination); Matter of M-, 2
I&N Dec. 131, 131 (BIA 1944) (considering alien's receipt of public
aid as part of public charge inadmissibility determination).
---------------------------------------------------------------------------
In fact, when passing the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA), Congress added a list of minimum,
but not exclusive, factors to consider in public charge inadmissibility
determinations but did not preclude consideration of any other factors
including the alien's receipt of non-cash public benefits. INA sec.
212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). Moreover, DHS disagrees that
Congress intended to exclude consideration of non-cash benefits when it
enacted section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Congress
does not mention public benefits at all in section 212(a)(4), 8 U.S.C.
1182(a)(4), leaving it to the agencies administering the public charge
ground of inadmissibility \35\ to specify how public benefits should be
considered in a public charge inadmissibility determination. However,
Congress did prohibit consideration of any public benefits under 8
U.S.C. 1641(c) for certain battered aliens, without reference to cash
versus non-cash benefits, which strongly suggests Congress understood
and accepted DHS's consideration of past receipt of any public
benefits--cash and non-cash alike--in all other circumstances. INA sec.
212(s), 8 U.S.C. 1182(s). DHS further disagrees that precedent
decisions preclude consideration of non-cash benefits. On the contrary,
as concluded in past precedent decisions that have informed public
charge inadmissibility determinations for decades, receipt of public
support of any kind is an appropriate consideration in a public charge
inadmissibility determination.\36\
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\35\ DHS, DOJ, and DOS all administer this ground of
inadmissibility.
\36\ See, e.g., Matter of Vindman, 16 I&N Dec. 131 (Reg'l Comm's
1977) (consideration of past public benefits in determining the
likelihood of becoming a public charge in the future); 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).
---------------------------------------------------------------------------
Comment: A commenter stated removal of 2022 Final Rule contradicts
DHS's statutory obligation to administer immigration laws fairly,
equitably, and without discrimination.
Response: DHS disagrees. As noted above, DHS has the authority to
enforce
[[Page 45333]]
and administer the immigration laws of the United States, including the
public charge ground of inadmissibility and to prescribe regulations
necessary to carry out that authority. INA sec. 103(a)(1), 8 U.S.C.
1103(a)(1), INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). By removing
regulations that the Secretary determined are rigid, overly-
restrictive, and not the best implementation of the statute, DHS is
returning the administration of the public charge ground of
inadmissibility to a broader exercise of discretion on a case-by-case
basis, consistent with Congress's express national policy on
immigration and welfare and in line with the spirit of section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). With this rulemaking, DHS
returns to a standard which permits DHS officers to consider any and
all factors, in the totality of the circumstances, relevant to each
individual alien's likelihood at any time of becoming a public
charge.\37\ As discussed in other comment responses, DHS disagrees any
changes in this final rule risk inviting discriminatory decision-
making.
---------------------------------------------------------------------------
\37\ 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.'').
---------------------------------------------------------------------------
Comment: One commenter, citing Loper Bright v. Raimondo,\38\ stated
that ``legal interpretation'' of statutes--even statutes Congress
expressly authorized agencies to implement, like section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4)--is a judicial function driven by
``traditional tools of statutory interpretation,'' not the ``policy
preferences'' of the Executive, adding the statute has a fixed, single
best meaning which courts (and not the Supreme Court alone) must
interpret and agencies must implement. The commenter said DHS
mistakenly treats statutory meaning merely as a regulatory choice and
mischaracterizes ``primary dependence on the government for
subsistence'' as a ``bright-line . . . standard'' rather than
acknowledging it is the statute's single best meaning. Another
commenter indicated the rule suffers from the same defects which led
courts to enjoin the 2019 Final Rule under the more deferential Chevron
\39\ framework, adding that Loper Bright requires agencies to adopt a
statute's best reading and asserted the existing regulatory framework
reflects a better, if not the best reading. Another cited to Loper
Bright, stating the Administration is not entitled to any deference
when interpreting a statute in a way that is contrary to its plain
meaning, history, and tradition. Another commenter said DHS does not
have unchecked power, authority, or flexibility in defining the term
public charge contrary to congressional intent.
---------------------------------------------------------------------------
\38\ 603 U.S. 369 (2024).
\39\ Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467
U.S. 837 (1984).
---------------------------------------------------------------------------
Response: The Supreme Court in Loper Bright held that courts are no
longer required to defer to an agency's ``reasonable'' interpretations
of ambiguous statutes. DHS strongly disagrees with the commenters'
suggestion that rescission of the 2022 Final Rule is simply a policy
decision. On the contrary, it is a direct result of the Secretary's
determination that the 2022 Final Rule is not the best reading of the
statute, as well as congressional intent on immigration and welfare. As
noted in the NPRM, DHS is removing the 2022 Final Rule to restore the
longstanding case-by-case and inherently discretionary nature of public
charge inadmissibility determinations expressly intended by Congress
when mandating officers make these determinations in their opinion
considering certain enumerated non-exhaustive factors at a minimum. 90
FR 52168, 52189 (Nov. 19, 2025). INA sec. 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B). The Secretary determined rescission of the 2022 Final
Rule is appropriate to ensure officers are making public charge
inadmissibility determinations in line with the statute and relevant
precedent. 90 FR 52168, 52186-87 (Nov. 19, 2025). DHS believes relevant
precedent decisions that guided public charge inadmissibility
determinations for decades and, where applicable, recent circuit case
law will provide officers with sufficient guidance to conduct
individualized determinations based on the specific facts and
circumstances of each alien's case. DHS believes this approach falls
within the explicit discretionary authority Congress delegated to the
Secretary.\40\ Therefore, DHS's rescission of the 2022 Final Rule, and
subsequent administration of the public charge ground of
inadmissibility consistent with the statute and applicable precedent,
is well within the Secretary's authority. It is also consistent with
Congress's express national policy on welfare and immigration enacted
in PRWORA. See 8 U.S.C. 1601. Therefore, this final rule does not
reflect an exercise of unchecked power or unauthorized flexibility
contrary to congressional intent.
---------------------------------------------------------------------------
\40\ See Loper Bright Enterprises v. Raimondo, 603 U.S. 369,
394-395 (2024) (explaining that in some cases, a statute may
authorize an agency to exercise discretion, such as by expressly
delegating authority to define a particular statutory term, by
empowering an agency to prescribe rules to fill up the details of a
statutory scheme, or by authorizing an agency to regulate, subject
to certain limits).
---------------------------------------------------------------------------
Finally, DHS disagrees that it is interpreting the term ``public
charge'' in this final rule, or that any such interpretation is
contrary to its plain meaning, history, or tradition. As proposed and
discussed previously, this final rule is putting forth no definition of
the term ``public charge.'' As discussed in the NPRM, there is no
single settled meaning of the term and courts have differed in their
positions regarding what the term encompasses, as well as what DHS can
consider when making public charge inadmissibility determinations.\41\
DHS does not dispute that the Supreme Court has tasked courts with
ascertaining the best meaning of ambiguous statutes or that a number of
federal courts found different meanings for the term. DHS, in operating
the national immigration system, is not precluded from eliminating
regulatory definitions and rigid frameworks that have not been
definitively or uniformly endorsed as reflecting the best meaning of
statutory terms, particularly where Congress delegated broad discretion
to DHS over immigration and the public charge
[[Page 45334]]
ground of inadmissibility. DHS is returning the administration of the
public charge ground of inadmissibility to decades of agency practice,
consistent with statute and binding precedent.
---------------------------------------------------------------------------
\41\ 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
but did not reach mutually consistent decisions. The Fourth Circuit,
for example, disagreed that the primarily dependent standard is
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 voluntarily dismissed). Other circuits
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 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
held that the term ``public charge'' has a ``floor inherent in the
words,'' which requires a degree of dependence that goes beyond
temporary receipt of supplemental in-kind benefits from any type of
public agency. Id.
---------------------------------------------------------------------------
Comment: A commenter stated that the ``extraordinary breadth'' of
authority DHS exerts with the proposed rule, coupled with the economic
significance of the action, also opens the proposed rule to major
questions doctrine concerns under West Virginia v. EPA.\42\ The
commenter warned that courts would be skeptical to conclude Congress
meant to confer this level of political and economic authority to DHS,
writing that ``reliance on Executive Orders to enact policy unmoored
from statutory text and agency discretion has given rise to claims
during this Administration that agency action is preordained.''
---------------------------------------------------------------------------
\42\ 597 U.S. 697 (2022).
---------------------------------------------------------------------------
Response: DHS disagrees that this final rule implicates the major
questions doctrine as articulated in West Virgina v. EPA. The major
questions doctrine is triggered when the agency claims regulatory
authority of vast economic and political significance, and the asserted
authority lacks clear congressional authorization.\43\
---------------------------------------------------------------------------
\43\ Id. at 724.
---------------------------------------------------------------------------
First, DHS has clear congressional authorization for this final
rule. As discussed throughout this preamble, the INA provides that an
alien is inadmissible if, ``in the opinion of the consular officer or
the Attorney General'' (now the Secretary of Homeland Security), the
alien is likely at any time to become a public charge. INA sec.
212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A). The statutory text does not
define public charge or likely at any time to become a public charge
and only requires officers to consider a non-exhaustive list of
specified minimum factors. The Supreme Court has long recognized that
the political branches possess plenary authority over admission of
aliens.\44\ And the Board of Immigration Appeals (BIA) repeatedly
recognized the inherently discretionary nature of the public charge
inadmissibility determinations.\45\ This statutory structure reflects
an express delegation from Congress to the Secretary, explicit
discretionary language (``in the opinion of''), and mandatory but non-
exhaustive factors. Unlike the statutes at issue in West Virgina v.
EPA, or Biden v. Nebraska,\46\ Congress did not assign a narrow,
technical function that DHS has transformed into sweeping economic
regulation. Congress instead gave DHS broad discretion in an
immigration inadmissibility context. Unlike cases where agencies argued
for an expansion of authority or claimed transformative new regulatory
powers, in this final rule DHS is doing the opposite: it is rescinding
rigid regulatory definitions adopted in 2022; restoring individualized,
discretionary adjudications that track the plain language of the
statute; and returning to long-standing totality of the circumstances
analysis. This administrative calibration is within the precise domain
Congress delegated: immigration admissibility.
---------------------------------------------------------------------------
\44\ Fiallo v. Bell, 430 U.S. 787, 792 (1977).
\45\ See, e.g., Matter of Harutunian, 14 I&N Dec. 583 (Reg'l
Comm'r 1974); Matter of Martinez-Lopez, 10 I&N Dec. 409 (BIA 1962;
Att'y Gen. 1964); Matter of Vindman, 16 I&N Dec. 131 (BIA 1977).
\46\ 600 U.S. 477 (2023).
---------------------------------------------------------------------------
Furthermore, the economic impact of this final rule does not alone
trigger the major questions doctrine. The Regulatory Impact Analysis
(RIA) estimates potential transfer effects related to public benefits
disenrollment, which is an indirect impact of the final rule. But the
Supreme Court has made clear economic impact alone does not trigger the
doctrine. In West Virginia v. EPA, the Court emphasized the doctrine
applies when agencies claim the power to make decisions of ``vast
economic and political significance'' in a manner inconsistent with
their statutory design.\47\ Admissibility determinations, which could
impact aliens' decisions to disenroll from public benefits programs,
are squarely within DHS's statutory domain. Importantly, this final
rule does not purport to regulate public benefit eligibility; rather,
public benefits eligibility remains governed by PRWORA and other
statutes. Any economic effects are incidental to admissibility
determinations Congress explicitly authorized DHS to make. Finally,
immigration is an area of heightened executive authority given that the
Supreme Court repeatedly emphasized the political branches' broad
authority over admission and exclusion.\48\ This final rule pertains to
admission eligibility and adjustment of status, but it does not more
broadly regulate aliens' or citizens' conduct or restructure domestic
industries.
---------------------------------------------------------------------------
\47\ West Virginia, 597 U.S. 697, 716 (2022).
\48\ See Fiallo v. Bell, 430 U.S. 787, 792 (1977).
---------------------------------------------------------------------------
Finally, this final rule does not reflect a transformative
expansion of agency power, it simply implicates existing delegated
authority that DHS is tailoring to more closely reflect the plain
language of the statute, national policy on self-sufficiency of aliens,
and longstanding agency practice.
Comment: Citing section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3),
a commenter remarked DHS's choice to rescind the public charge
regulations without promulgating a replacement regulation is
inconsistent with the INA, which explicitly provides that the Secretary
``shall establish such regulations . . . as he deems necessary for
carrying out his authority under the provisions of this chapter.''
Response: DHS disagrees that it is required to promulgate a
regulation to replace the rescinded 2022 Final Rule and notes this
rulemaking is a permissible change in the manner in which DHS makes
public charge inadmissibility determinations given prior
interpretations of the statute were not the best interpretation. 90 FR
52168, 52185 (Nov. 19, 2025). On the contrary, while the Administrative
Procedure Act (APA) mandates the process agencies must follow when
issuing, amending, and rescinding regulations, it does not require
agencies to replace a rescinded regulation. 5 U.S.C. 551 et seq.
Indeed, an agency may change or rescind regulations as long as it
provides a reasoned justification,\49\ but it is not required to
replace a rescinded regulation unless required by law. There is nothing
in the express language of section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), requiring DHS to replace the rescinded 2022 Final Rule with
a new rule. Further, DHS notes there were no regulations governing
public charge inadmissibility determinations from 1882 until the 2019
Final Rule.
---------------------------------------------------------------------------
\49\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16
(2009).
---------------------------------------------------------------------------
Although this is a change from the frameworks established since
1999, DHS emphasizes that it provided a reasoned justification for the
rescission of the 2022 Final Rule in the NPRM and throughout this final
rule, as well as an explanation as to why prior frameworks were
lacking.\50\ This position aligns with the plain language of section
103(a)(3) of the INA, 8 U.S.C. 1103(a)(3), which the commenter cites--
which by incorporating the phrase ``as he deems necessary for carrying
out his authority'' grants the Secretary both authority and discretion
over issuing regulations. In this case, the Secretary has determined
that issuing replacement regulations is not necessary for carrying out
his authority. Therefore, DHS will not issue a replacement rule.
---------------------------------------------------------------------------
\50\ Id.
---------------------------------------------------------------------------
Comment: Some commenters said DHS's emphasis on the subjective
nature of the public charge inadmissibility determination contradicts
the INA, which vests
[[Page 45335]]
discretionary authority with the Attorney General, not DHS.
Specifically, the commenter suggests that it is only the opinion of the
Attorney General, not the opinion of an individual DHS officer, that is
relevant to public charge inadmissibility determinations.
Response: DHS disagrees with the commenters' interpretations of
DHS' statutory authority. On March 1, 2003, functions of the
Immigration and Naturalization Service (INS) were transferred from the
Department of Justice (DOJ) to DHS.\51\ Although several provisions of
the INA discussed in this final rule refer exclusively to the
``Attorney General,'' such provisions are now read as referring to the
Secretary by operation of the HSA.\52\ DHS rejects the suggestion that
only the Attorney General's (now, the Secretary's) opinion is relevant
in the context of a public charge inadmissibility determination when an
alien applies for admission or adjustment of status. Congress
understood that the Attorney General and Secretary delegate authorities
throughout the INA to officials serving under them.\53\ DHS notes that
no ground of inadmissibility in section 212(a) of the INA, 8 U.S.C.
1182(a), contains language referencing DHS or DOJ officers; throughout
the section, Congress referred to consular officers, the Attorney
General, or the Secretary. DHS also notes that section 245(a) of the
INA, 8 U.S.C. 1255(a), states that the status of an alien ``may be
adjusted by the Attorney General, in his discretion'' to that of an
LPR. Congress knew that the Attorney General would not personally make
millions of admissibility, adjustment of status, admission, and
deportation decisions annually.
---------------------------------------------------------------------------
\51\ See Homeland Security Act of 2002, Public Law 107-296,
sections 402(3), 441, 116 Stat. 2135, 2178, 2192.
\52\ See 6 U.S.C. 202(3), 251, 271(b), 542 note, 557; 8 U.S.C.
1103(a)(1), (g), 1551 note; Nielsen v. Preap, 586 U.S. 392, 397 n.2
(2019).
\53\ Specifically, section 102(b) of the HSA, 6 U.S.C. 112(b),
states that the Secretary ``. . . may delegate any of the
Secretary's functions to any officer, employee, or organization unit
of the Department.'' In addition, section 103(a)(4) of the INA, 8
U.S.C. 1103(a)(4), states that ``[the Secretary] may authorize any
employee of the Service or the Department of Justice to perform or
exercise any of the powers, privileges, or duties conferred or
imposed by this chapter. . .'' See also, DHS Delegation No. 0150.1
(Jun. 5, 2003); DHS Delegation 07010.3 Rev. 03.2 (May 11, 2005).
---------------------------------------------------------------------------
Comment: One commenter suggested that the rule is unjustified
because DHS does not identify relevant post-1999 or post-2022 laws,
data, or experience not already considered by INS, USCIS, or any other
component or predecessor of DHS that would justify this change. The
commenter requested that DHS identify and describe the legal
authorities and other information, apart from those that predated the
1999 Interim Field Guidance and the 2022 Final Rule, that DHS relied on
in developing a new framework.
Response: DHS's rescission of the 2022 Final Rule and return to a
broader exercise of case-by-case discretion is based on the same
statutes, authorities, and other resources that served as the basis and
justification for the 2022 Final Rule. DHS rejects this commenter's
suggestion that DHS cannot rely on previously considered authorities.
On the contrary, DHS may rely on the same authorities underlying
the now rescinded 2022 Final Rule so long as DHS provides a reasoned
explanation for coming to a different conclusion, which it has, and as
long as the new approach is consistent with the plain language of
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). \54\ DHS explained
the change and why DHS believes it to be a better reading of the
statute. As explained in other comment responses, DHS has the express
authority to enforce and administer the immigration laws of the United
States, including the public charge ground of inadmissibility, and
finds support for this rule in the express language of section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), the national statements of
immigration policy and welfare in PRWORA, and the sources listed in the
NPRM. See 90 FR 52168, 52181-82 (Nov. 19, 2025).
---------------------------------------------------------------------------
\54\ FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16,
129 S. Ct. 1800, 1811, 173 L. Ed. 2d 738 (2009) (holding that an
agency ``need not demonstrate to a court's satisfaction that the
reasons for the new policy are better than the reasons for the old
one; it suffices that the new policy is permissible under the
statute, that there are good reasons for it, and that the agency
believes it to be better, which the conscious change of course
adequately indicates. This means that the agency need not always
provide a more detailed justification than what would suffice for a
new policy created on a blank slate. Sometimes it must--when, for
example, its new policy rests upon factual findings that contradict
those which underlay its prior policy; or when its prior policy has
engendered serious reliance interests that must be taken into
account. It would be arbitrary or capricious to ignore such matters.
In such cases it is not that further justification is demanded by
the mere fact of policy change; but that a reasoned explanation is
needed for disregarding facts and circumstances that underlay or
were engendered by the prior policy.'').
---------------------------------------------------------------------------
Comment: Commenters stated that DHS's reliance on section 212(s) of
the INA, 8 U.S.C. 1182(s), to support its argument that Congress
intended consideration of past benefit receipt in all contexts outside
of certain battered aliens is flawed. One commenter said the Violence
Against Women Act (VAWA) provisions speak broadly about benefits but do
not support DHS's contention that Congress intended DHS to consider
receipt of benefits beyond those considered in the 1999 Interim Field
Guidance. Another commenter said the language in section 212(s) of the
INA, 8 U.S.C. 1182(s), is not an express command to consider all means-
tested public benefits, calling the proposal ``particularly dubious''
because Congress repeatedly expanded public benefit programs for
certain aliens.
Response: DHS disagrees that section 212(s) of the INA, 8 U.S.C.
1182(s), does not support considering the alien's receipt of any means-
tested public benefit in public charge inadmissibility determinations
made under this final rule. Section 212(s) of the INA, 8 U.S.C.
1182(s),\55\ prohibits considering the receipt of benefits by certain
victims of violence and trafficking in applications for immigrant visas
and adjustment of status and was codified to ensure they could access
the full range of support services necessary for recovery and
cooperation with law enforcement, including healthcare, housing, food
assistance, and other non-cash benefits.\56\ The fact that Congress
expressly precluded the consideration of receipt of benefits by this
population strongly suggests that, absent such an exception, Congress
intended DHS to consider the receipt of benefits when other aliens
applied for immigrant visas and adjustment of status. ```Where Congress
includes particular language in one section of a statute but omits it
in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.' '' \57\ Similarly, when Congress creates a specific
exception to a general rule, it is presumed that Congress intended the
general rule to apply in all other circumstances.\58\ Accordingly,
section 212(s) of the INA, 8 U.S.C. 1182(s), reflects that Congress
understood that unless expressly exempted, an alien's receipt of any
means-tested public benefits would be considered in all other
applications for immigrant visas and adjustment of status.
---------------------------------------------------------------------------
\55\ This provision was enacted by the Victims of Trafficking
and Violence Protection Act of 2000 (VTVPA), Public Law 106-386 sec.
1505(f) (2000).
\56\ See, e.g., Public Law 106-386 sec. 107(b) (2000).
\57\ Russello v. United States, 464 U.S. 16, 23 (1983).
\58\ See TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (`` `Where
Congress explicitly enumerates certain exceptions to a general
prohibition, additional exceptions are not to be implied, in the
absence of evidence of a contrary legislative intent.' '') (internal
citations omitted).
---------------------------------------------------------------------------
As noted in the NPRM, the term benefits in section 212(s) of the
INA, 8 U.S.C. 1182(s), is properly interpreted as
[[Page 45336]]
including both cash means-tested public benefits and non-cash means-
tested public benefits since Congress did not limit benefits to cash
assistance for income maintenance as the commenters suggest; it used
the broad term ``benefits.'' 90 FR 52168, 52187 (Nov. 19, 2025).
Additionally, Congress cross-referenced 8 U.S.C. 1641(c), which defines
Federal public benefits as ``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 . . . 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,''
clearly including both cash and non-cash benefits. 8 U.S.C. 1611 and
1641(c). The absence of limiting language, combined with Congress's
intent to provide comprehensive support to victims, demonstrates that
the exemption applies to all forms of public assistance, not just cash
benefits. As Congress's prohibition on consideration of benefits for
these victims is properly interpreted to include both cash and non-cash
means-tested public benefits, DHS believes that it is proper to
consider the receipt of both cash and non-cash means-tested public
benefits for all other cases as part of the public charge
inadmissibility determination under this final rule.
Comment: A commenter expressed concern that DHS is relying on a
series of decades-old immigration statutes originating from the 1882
Immigration Act to justify stricter policies, stating that this
represents an unjustifiable regression that conflicts with Congress's
tailored framework in section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4).
Response: DHS disagrees that it is impermissibly relying on
decades-old immigration statutes to justify this final rule. DHS notes
that the public charge ground of inadmissibility as it exists today has
deep roots in the earliest immigration laws, as explained in detail in
the NPRM. 90 FR 52168, 52174-52180 (Nov. 19, 2025). DHS's
interpretation and application of the public charge inadmissibility
ground in this rulemaking is properly guided by the more than
centuries-old history of this provision, the current statutory language
at section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), relevant case
law, and Congress's express statements of national policy with respect
to immigration and welfare. Where Congress has not materially altered
the statutory framework, DHS is tasked with implementing the statute as
written. Reliance on the historical and current statutory framework for
the public charge ground of inadmissibility is legally appropriate.
2. Congressional Intent and Historical Application
Comment: Commenters expressed support for the proposed rule,
stating that the rule better reflects congressional intent. In
particular, one commenter stated that the definitions in the 2022 Final
Rule were too rigid, artificially narrowed categories of public
benefits considered, and frustrated Congress's intent that immigration
policy discourage dependence on public resources. Another commenter
stated that the rule returns the decision-making process to a more
balanced, common-sense approach where the totality of the
circumstances, not just one or two factors, may be considered.
Response: DHS notes that the 2022 Final Rule emphasized seven
factors that must be considered, not one or two factors as the
commenter indicated. However, DHS agrees otherwise with these
commenters; this final rule better reflects congressional intent.
First, the commenter is correct that the 2022 Final Rule unduly limited
DHS officers' ability to make public charge inadmissibility
determinations consistent with Congress's express national policy on
welfare and immigration enacted in PRWORA. See 8 U.S.C. 1601. Second,
DHS agrees that the 2022 Final Rule prevented 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 limited to considering seven factors (five 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.\59\ As a result, DHS agrees that it is essential to
remove these limiting regulations in order to follow congressional
intent.\60\
---------------------------------------------------------------------------
\59\ 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 on December 3, 2020,
but the appeal was later 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.
\60\ 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.'').
---------------------------------------------------------------------------
DHS also agrees that while Congress identified five minimum factors
officers must consider, Congress intended, and the courts have
endorsed, that the totality of an individual alien's circumstances, not
a rigid number of regulatory factors, should be taken into
consideration when determining an alien's likelihood at any time of
becoming a public charge. Although the statute does not expressly
include a totality of the circumstances test, this test ``has been
developed in several Service, BIA, and Attorney General decisions and
has been codified in the Service regulations implementing the
legalization provisions of the Immigration Reform and Control Act of
1986.'' \61\ Federal courts have also endorsed this ``totality of the
circumstances'' test.\62\ As a result, officers had made public charge
inadmissibility determinations considering all facts and circumstances
in the totality prior to the 2019 Final Rule and 2022 Final Rule. DHS
will continue to do so, consistent with past precedent decisions, under
this final rule.\63\
---------------------------------------------------------------------------
\61\ 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)).
\62\ See, e.g., Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992),
judgment vacated on other grounds, 509 U.S. 918 (1993).
\63\ 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 the alien is likely to be cast on the public.).
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[[Page 45337]]
Comment: One commenter said that the proposed rule ignores decades
of practice and contradicts congressional intent. Another wrote that
Congress did not intend for the public charge ground of inadmissibility
to punish people for using temporary or supplemental assistance while
others opined that Congress did not intend for officers to consider an
infinite set of factors. One asserts that Congress's silence as to
whether additional factors can or should be considered was not intended
to permit consideration of infinite factors and that Congress did not
intend the statute to include a ``catch-all'' provision. In their view,
the language ``at a minimum'' in the statute does not imply
contemplation of factors not listed because the must-consider factors
are complemented by one additional item that may be considered--the
Form I-864.
Response: DHS disagrees that this rule ignores or contradicts
congressional intent. In fact, Congress made clear in PRWORA that
aliens within the nation's borders should be self-sufficient and not
dependent on public resources to meet their needs. As set forth in
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), aliens who are
likely at any time to become a public charge are inadmissible to the
United States unless a statutory exception applies. While DHS agrees
that the broader discretionary approach to public charge
inadmissibility determinations resulting from this rule is a departure
from the 1999, 2019, and 2022 public charge efforts, it notes Congress
authorized the Secretary to determine how to implement this provision.
The Secretary determined, as he is authorized to do, that DHS needs to
make public charge inadmissibility determinations that reflect
Congress's intent when it enacted section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), and PRWORA. Indeed, with this rulemaking, DHS
returns to a standard permitting officers to consider any and all
factors relevant to an individual alien's likelihood at any time of
becoming a public charge, consistent with precedent.\64\
---------------------------------------------------------------------------
\64\ 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.'').
---------------------------------------------------------------------------
Additionally, DHS agrees Congress made clear that officers must
consider certain factors; however, we disagree that those factors are a
limited, structured framework with defined parameters. The statute
lists the five factors DHS officers must consider ``at a minimum,''
language that clearly does not preclude the consideration of other
factors. INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). Congress
created the broad, non-exhaustive, and discretionary framework DHS will
follow upon rescission of the unduly rigid 2022 Final Rule. As
discussed thoroughly in the NPRM, the Secretary determined the 2022
Final Rule is overly restrictive and prevents DHS officers from making
public charge inadmissibility determinations that align with the
longstanding national policy set by Congress. 90 FR 52168, 52189 (Nov.
19, 2025). DHS also disagrees that rescission of the 2022 Final Rule
will lead to potential consideration of infinite factors, as DHS will
limit consideration to only relevant factors; i.e., factors bearing on
an alien's ability or potential ability to be self-supporting,
consistent with precedent decisions.\65\
---------------------------------------------------------------------------
\65\ See Matter of Vindman, 16 I&N Dec. 131, 132 (BIA 1977).
---------------------------------------------------------------------------
3. Administrative Law Concerns
a. Request To Extend the Comment Period
Comment: Several commenters requested an extended comment period on
the proposed rule, noting the 30-day comment period overlapping with a
significant Federal holiday and arguing that that is not consistent
with Federal law and the APA in particular, and stating the time
provided was insufficient to respond to a rule of significant scope,
lack of clarity, and potential impacts. A commenter remarked that the
apparently rushed approach, combined with the lack of a replacement
framework, suggests the rulemaking is driven by predetermined policy
preferences not careful consideration of statutory requirements and
practical implementation, while another asserted the compressed
timeframe was an effort to curtail negative comments.
Commenters referenced longer public comment periods in DHS's past
rulemaking efforts, including past public charge rules, as support for
an extension and various comments requested between an additional 120
and 150 days (some for a total of 180 days) to enable sufficient time
for all stakeholders, discussion and consideration of the data, and to
provide comment on the potential impacts of the proposed rule. One
commenter cited caselaw to support the insufficiency of a 30-day
comment period, stating the purposes of ``notice and comment
requirements are `(1) to ensure that agency regulations are tested via
exposure to diverse public comment, (2) to ensure fairness to affected
parties, and (3) to give affected parties an opportunity to develop
evidence in the record to support their objections to the rule and
thereby enhance the quality of judicial review.' '' \66\
---------------------------------------------------------------------------
\66\ See Prometheus Radio Project v. FCC, 652 F.3d 431, 449 (3d
Cir. 2011) (quoting Int'l Union, United Mine Workers of Am. v. Mine
Safety & Health Admin., 407 F.3d 1250, 1259 (D.C. Cir. 2005)); see
also Connecticut Light & Power Co. v. Nuclear Regulatory Comm'n, 673
F.2d 525, 530 (D.C. Cir. 1982) (``The purpose of the comment period
is to allow interested members of the public to communicate
information, concerns, and criticisms to the agency during the rule-
making process.'')
---------------------------------------------------------------------------
Response: DHS believes the 30-day comment period provided an
adequate opportunity for public input and declines to extend the
comment period. DHS agrees with commenters regarding the purpose of
notice-and-comment rulemaking in that the APA is silent regarding the
duration of public comment periods, and neither it nor relevant caselaw
establish a minimum duration applicable in all cases. 5 U.S.C. 553.
Often, agencies, including DHS in the past, provide a 60-day comment
period consistent with the recommendation in Executive Order (E.O.)
12866, particularly when the rulemaking is broad, includes new policies
not previously considered by the regulated public or has significant
impacts on the regulated public. DHS emphasizes this final rule is not
broad but narrow in scope since it only covers a single ground of
inadmissibility. Further, it does not include new policies not
previously considered by the regulated public since DHS is returning
the administration of the public charge ground of inadmissibility to
the approach that guided public charge inadmissibility determinations
for decades before the 1999 Interim Field Guidance. While a 30-day
comment period was shorter than the 60 days recommended in E.O. 12866,
DHS believes in this instance 30 days was sufficient for the public to
review, consider, and comment on the proposed rescission of the 2022
Final Rule. DHS
[[Page 45338]]
notes that it received 5,882 public comments during the 30-day comment
period,\67\ including substantive, high-quality comments from
attorneys, Federal, State, and local elected officials, and advocacy
organizations who provided detailed information and, in some instances,
raised significant issues to which DHS is responding in this final
rule. As such, an extension of the comment period would not have been
helpful or necessary.
---------------------------------------------------------------------------
\67\ As discussed elsewhere in this final rule, an additional
2,964 public comments were received during the second part of the
comment period applicable only to the associated information
collections.
---------------------------------------------------------------------------
As stated in the NPRM, DHS believes it is in the best interest of
the United States and its citizens to ensure public benefits do not
create an incentive for immigration contrary to the INA and PRWORA. In
acting expeditiously to remove regulations requiring officers to ignore
the receipt of a large swath of public benefits when making public
charge inadmissibility determinations, DHS is returning the public
charge ground of inadmissibility to the congressional intent underlying
the INA, IIRIRA, and PRWORA.
Finally, DHS strongly disagrees it provided a shorter comment
period to curtail negative public comments or failed to adequately
consider practical impacts of the rulemaking in favor of predetermined
policy preferences. As discussed in this preamble, during the comment
period, DHS received a number of comments opposing the proposed rule.
In addition to carefully explaining and addressing the anticipated
impacts of the rescission of the 2022 Final Rule in the NPRM, DHS has
carefully considered and here responds to public comments in this final
rule.
DHS agrees with commenters, however, that every agency rulemaking
reflects the policy objectives of the administration which initiated
the rulemaking and reflects the will of the American people who elected
the public officials heading a particular administration. So too, in
this case, this rulemaking reflects current policy objectives. DHS
published a proposed rule, carefully considered the public comments
received, and provided substantive responses, in full compliance with
the APA.
b. Future Guidance and Compliance With the APA
Comment: Several commenters requested DHS commit to developing
future public charge inadmissibility standards through transparent
notice-and-comment rulemaking, not solely through subregulatory policy
tools. Several commenters stated, if DHS decides to develop an
alternative rule, it must be open to full public notice and comment
along with any guidance or tools created to direct officers' decisions.
Multiple commenters said asking for open-ended feedback and
recommendations on what to include in such tools is not a substitute
for notice and comment.
Response: As indicated in the NPRM and other comment responses, DHS
is not issuing regulations governing public charge inadmissibility
determinations. DHS is removing regulatory provisions that unduly
hampered officers when making inadmissibility determinations. USCIS
will issue nonbinding subregulatory guidance that will go into effect
on the effective date of this final rule. This guidance will be a
general statement of policy that will not have the force and effect of
law and will thus be exempt from notice and comment rulemaking. USCIS
plans to include the new guidance in the USCIS Policy Manual, which is
available on the USCIS website, is transparent to the public, and will
replace the existing guidance reflecting the 2022 Final Rule. If
regulations are needed or would be helpful to the administration of the
public charge ground of inadmissibility in the future, DHS will comply
with the APA requirements in issuing any such regulations.
Comment: Several commenters objected to eliminating regulatory
standards in favor of undefined policy and interpretive tools without
notice-and-comment rulemaking, arguing it denies the public a
meaningful opportunity to review the adjudication standards and likely
violates the APA. The commenters cited Perez v. Mortgage Bankers
Association \68\ and Mendoza v. Perez \69\ to warn subregulatory
guidance cannot create new substantive standards, alter statutory
requirements, or expand adjudicator discretion in ways that affect
rights. They stated that public charge inadmissibility determinations
require clear, publicly vetted regulations, not internal guidance, and
warned relying on future guidance would invite inconsistent, arbitrary
USCIS decisions across offices, leave families uncertain which programs
are safe to use, and chill participation in health, nutrition, and
housing supports. Commenters urged DHS to withdraw the rulemaking or
clarify its intentions, develop the rule internally, and reissue a more
detailed proposed rule or a new NPRM if substantive changes are
intended, noting that bypassing the APA would allow continual policy
shifts without public input and create ongoing uncertainty.
---------------------------------------------------------------------------
\68\ 575 U.S. 92 (2015).
\69\ 754 F.3d 1002 (D.C. Cir. 2014).
---------------------------------------------------------------------------
Response: DHS disagrees that this rule will lead to arbitrary
outcomes and that any future guidance will alter statutory requirements
or conflict with the APA and related case law. DHS will not withdraw
the NPRM, and is issuing this final rule to conclude the rescission of
the 2022 Final Rule. DHS also disagrees that any clarification of its
intentions is needed. The NPRM was explicit about rescinding the 2022
Final Rule and freeing officers from arbitrary and undue limitations on
the exercise of congressionally-authorized discretion. DHS is committed
to following the law, including the APA, and does not intend to issue
regulations or promulgate substantive rules through subregulatory
guidance without notice and comment rulemaking.
As discussed in other comment responses, the subregulatory guidance
USCIS publishes in the USCIS Policy Manual will guide, but not
prescribe, public charge inadmissibility determinations made under this
final rule in the context of adjustment of status applications. This
guidance will explain how officers will be able to consider the receipt
of any means-tested public benefits by the alien and will ensure
officers fully consider this and 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, as Congress
intended.
Comment: Commenters supported the creation of appropriate
interpretive tools, but said these should supplement, not supplant,
Federal regulations, requesting regulations not be removed until after
such tools are developed and any timeline appropriately reflect a
period for soliciting and incorporating public input on these tools
before they are finalized. Another commenter said instead of including
details of the policies or interpretative tools in the NPRM, DHS
elected to issue a ``vague'' NPRM and issue the tools later, which
likely violates the APA at 5 U.S.C. 533 because the public is entitled
to notice and comment rulemaking on impactful matters, especially those
implicating the potential use of public benefits. Commenters asserted
DHS should withdraw the NPRM because it cannot radically expand the
definition of ``public charge'' without explicitly proposing a new
public charge rule subject to notice and comment. Commenters stated
that interpretive tools must undergo the full notice-and-
[[Page 45339]]
comment process, citing Appalachian Power Co. v. EPA \70\ and General
Electric Co. v. EPA,\71\ noting soliciting feedback is not a substitute
for notice and comment. They claimed that without clearer guidance, it
would be very difficult to advise clients on the potential public
charge implications of certain public benefits.
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\70\ 208 F.3d 1015, 1024 (D.C. Cir. 2000).
\71\ 290 F.3d 377 (D.C. Cir. 2002).
---------------------------------------------------------------------------
Other commenters said the 2025 NPRM explicitly seeks a return to
policies similar to the 2019 Final Rule, while attempting an end-run
around the APA's notice-and-comment requirements, noting to justify a
new substantive public charge rule, DHS must go through the full APA-
mandated process, as the first Trump Administration did in 2018-2019
and the Biden Administration did in 2022. The commenters warned simply
rescinding the 2022 Final Rule and replacing it with ``appropriate
policy and interpretive tools'' (i.e., not a ``legislative rule'' under
the APA) would be a clear violation of statute with no purpose other
than haste and avoidance of public comment. A few commenters requested
DHS use the full notice-and-comment process for any policy or tools in
public charge determinations, clearly reaffirm any changes would apply
only prospectively (in acknowledgement of the reliance interests) and
not penalize individuals who relied in good faith on prior rules.
Response: As indicated in the responses above, DHS disagrees with
these commenters because the NPRM was not vague; rather, it clearly
explained the changes DHS was considering and the reasoning behind
them. DHS will not issue substantive rules without notice and comment
rulemaking. Further, DHS is not making an ``end run'' around the APA's
notice and comment requirements. As explained in the NPRM and elsewhere
in this final rule, there are some substantive differences between the
2019 Final Rule and this final rule. For example, the 2019 Final Rule
limited officer discretion. Specifically, the 2019 final rule included
strict definitions, such as the term ``likely at any time to become a
public charge.'' This definition included a new dependence threshold.
The 2019 Final Rule also included regular and heavily weighted factors
to be considered in the totality of the circumstances, and specific
exclusions from consideration of certain public benefits (when such
benefits were received by certain populations). DHS now finds this
limited discretion is not aligned with Congressional intent. USCIS will
issue guidance for officers to consider when making individualized
public charge inadmissibility determinations, consistent with the INA
and established precedent. The APA's notice and comment requirements
apply to legislative rules but not to interpretative rules or general
statements of policy. See 5 U.S.C. 553(b)(A). The Supreme Court has
long recognized the distinction.\72\ Interpretive rules or general
statements of policy are lawful so long as they do not impose new
rights or obligations or bind agency decisionmakers.\73\ DHS disagrees
that the guidance and interpretive tools it plans to issue would fail
under Appalachian Power or General Electric because in those cases the
guidance used mandatory language, left no room for agency discretion,
imposed concrete regulatory obligations, the regulated parties
reasonably believed that noncompliance would trigger enforcement, and
they had no realistic alternative but compliance.\74\
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\72\ See Perez v. Mortgage Bankers Association, 575 U.S. 92, 96
(2015 (``Interpretive rules do not have the force and effect of law
and are not accorded that weight in the adjudicatory process.'');
Shalala v. Guernsey Memorial Hospital, 514 U.S. 87, 99 (1995)
(interpretive rules may be issued without notice and comment).
\73\ See, e.g., Pacific Gas & Electric Co. v. Federal Power
Commission, 506 F.2d 33, 38 (D.C. Cir. 1974); National Mining
Association v. McCarthy, 758 F.3d 243, 251-52 (D.C. Cir. 2014).
\74\ See, generally, Appalachian Power Co. v. EPA, 208 F.3d 1015
(D.C. Cir. 2000); General Electric Co. v. EPA, 290 F.3d 377 (D.C.
Cir. 2002).
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DHS has determined regulations are unnecessary for the effective
implementation of the public charge ground of inadmissibility and will
not issue replacement regulations at this time. DHS believes the
statute and applicable precedent decisions that guided the public
charge inadmissibility determinations for decades provide sufficient
guideposts for determining whether an alien is likely at any time to
become a public charge. DHS also disagrees that it would be possible or
appropriate to delay the rescission of the 2022 Final Rule pending the
issuance of new agency guidance because absent a rescission of existing
regulations, USCIS would be bound by the prior administration's
policies reflected in that regulatory framework when issuing
subregulatory guidance to officers. By removing the 2022 Final Rule,
DHS is reestablishing officer discretion within the existing statutory
and precedential framework. Any guidance that USCIS issues will not
amount to a binding rule but rather guide USCIS officer discretion in
the context of adjustment of status applications without limiting it or
prescribing adjudicatory outcomes.
Comment: A commenter warned DHS cannot lawfully rescind binding
regulations and substitute undisclosed subregulatory guidance to effect
substantive policy changes while avoiding public participation and
judicial review, noting that a November 6, 2025, Department of State
(DOS) cable to consular posts broadened the public charge factors and
evidence for visa adjudications. The commenter said the cable
reportedly directs officers to deny visas unless applicants
affirmatively show they will never become a public charge; treats non-
cash benefits, charitable aid, and other lawful support as potential
evidence of inadmissibility; and deepens financial scrutiny (previewing
Foreign Affairs Manual (FAM) updates) forcing applicants to produce
extensive financial documentation and imposing disproportionate burdens
on low-income, credit-thin, intermittently employed, or unstably housed
individuals, an outcome the commenter contended plainly violates the
APA.
Response: DHS refers commenters to DOS on the issue of the DOS
cable and the FAM. With respect to the evidentiary burden applicable to
aliens seeking adjustment of status with USCIS after the rescission of
the 2022 Final Rule, DHS has proposed changes to the Form I-485 and
disclosed the relevant paperwork burden estimate on which the public
was invited to comment in conjunction with this rulemaking during the
applicable 60-day comment period consistent with the Paperwork
Reduction Act of 1995 (PRA) and implementing regulations. 44 U.S.C.
3501 et seq., 5 CFR part 1320. As with all other adjudications, should
USCIS officers require more evidence or clarification of information or
evidence included with the Form I-485, USCIS may issue Requests for
Evidence (RFEs) or Notices of Intent to Deny (NOIDs).
c. Good Cause To Forgo Notice and Comment Rulemaking
Comment: One commenter stated if DHS invoked the APA's good-cause
exception to bypass notice-and-comment or the 30-day delayed effective
date, it is improper for a rule of this scope absent a genuine,
immediate emergency, since courts construe good cause narrowly;
administrative convenience or policy urgency does not suffice.
Response: When issuing this final rule, DHS did not invoke the good
cause exception to the APA's notice and comment requirements but rather
published a proposed rule with a 30-day
[[Page 45340]]
comment period, and is publishing this final rule with a 60-day
effective date, as required by the Congressional Review Act and in
compliance with the APA which requires a minimum of 30 days. See 5
U.S.C. 553 and 5 U.S.C. 801-808.
d. Rule Is Arbitrary and Capricious
i. Lack of Reasoned Justification
Comment: Multiple commenters asserted the NPRM should be struck
down under 5 U.S.C. 706(2)(A) because the APA requires a reasoned
explanation for rescinding or changing an existing rule beyond just a
new administration. Some commenters asserted the rule is arbitrary and
capricious due to the lack of a sufficient justification for DHS's
changed position, the likelihood of inconsistent agency
interpretations, and the failure to consider reliance interests
stemming from prior rules and guidance. Citing to the litigation on the
2019 Final Rule, the commenters added the rule would also be
inconsistent with the INA and it departs from the well-settled meaning
of public charge. Another commenter stated, under basic principles of
administrative law, ``reasoned decision making'' requires agencies to
rely on expertise and coherent standards, not unguided intuition.
Response: DHS disagrees with commenters that the NPRM or this final
rule is arbitrary and capricious. Importantly, DHS is not providing a
definition for public charge in this final rule. Moreover, there is no
single well-settled meaning of the term public charge that definitively
includes the consideration of some public benefits but not others,
notwithstanding the caselaw commenters cite.\75\ As discussed in the
NPRM, the INA does not define ``public charge'' or ``likely at any time
to become a public charge.'' Instead, Congress provided a framework of
non-exhaustive minimum factors for consideration (age, health, family
status, assets, resources, and financial status, and education and
skills and left it to the agency's discretion to determine whether an
alien is inadmissible under the ground. See INA sec. 212(a)(4)(A) and
(B), 8 U.S.C. 1182(a)(4)(A) and (B); 90 FR 52168, 52186, 52187-88,
52175 (Nov. 19, 2025).
---------------------------------------------------------------------------
\75\ DHS acknowledges that there is a general understanding as
reflected in certain dictionary definitions that public charge is
generally a person in economic distress who is dependent on the
government for his or her support. However, neither Congress nor the
Supreme Court have defined the term in statute or through case law.
While there had been early 20th century Supreme Court precedent
which found an alien inadmissible under the totality of the
circumstances approach focusing on the labor market where the alien
was headed and which seemed to consider the term narrowly to mean
something akin to a pauper (i.e., someone destitute and unable to
work), the case was overridden by Congress. See CASA de Maryland v.
Trump, 971 F.3d 220 (4th Cir. 2020) (``In all events, there is
considerable doubt as to Gegiow's [v. Uhl's, 239 U.S. 3 (1915)]
continued relevance, as Congress amended the Immigration Act two
years later to nullify Gegiow's restrictive interpretation of the
statute.'') (internal citations omitted).
---------------------------------------------------------------------------
Administrative and judicial precedent decisions have consistently
recognized the public charge inadmissibility determination is
inherently subjective and discretionary and must be made on a case-by-
case basis, considering the totality of the alien's circumstances. DHS
notes these precedent decisions predate both the 1999 Interim Field
Guidance and the regulatory definitions promulgated in 2019 and 2022.
As indicated in Matter of Harutunian, 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. 14 I&N Dec. 583, 588 (BIA
1974). Similarly, as stated in Matter of Martinez-Lopez, the statute
``requires more than a showing of a possibility that the alien will
require public support. Some specific circumstance . . . must be
present.'' 10 I&N Dec. 409, 421-22 (BIA 1962; Att'y Gen. 1964).
Finally, as stated in Matter of A-, the ``traditional test . . . is `a
prediction based on the totality of the alien's circumstances' as
presented in the individual case.'' 19 I&N Dec. 867, 869 (BIA 1988)
(citation omitted).
As DHS noted in the NPRM, there has never been a single, uniform,
or ``well settled'' definition of public charge. 90 FR 52168, 52174
(Nov. 19, 2025). Instead, the meaning evolved over time and has been
subject to varying administrative interpretations. For example, the
Senate Judiciary Committee in 1950 noted: ``[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 . . . rests
within the discretion of the consular officers or [INS].'' 90 FR 52168,
52181 (Nov. 19, 2025). Certain circuit courts recognized the statute
grants the executive ``extensive and ultimate discretion'' and the term
``public charge'' does not have a fixed historical meaning.\76\
Finally, as stated in the NPRM, past agency guidance and practice in
place before the 2019 Final Rule, including the 1999 Interim Field
Guidance and prior administrative decisions, have always emphasized a
flexible, fact-specific approach, not a rigid or narrow definition.
Congress, in enacting PRWORA and IIRIRA, did not codify a specific
definition but instead reinforced the officer's discretion to consider
all relevant evidence. 90 FR 52168, 52182-83, 52188-89 (Nov. 19, 2025).
For these reasons, rescinding the 2022 Final Rule and restoring broader
officer discretion is not arbitrary and capricious; it is not contrary
to a well-settled meaning of public charge, because no such settled
meaning exists.
---------------------------------------------------------------------------
\76\ See, e.g., CASA de Maryland, Inc. v. Trump, 971 F.3d 220,
242-44 (4th Cir. 2020).
---------------------------------------------------------------------------
In addition, DHS disagrees this rule is arbitrary and capricious
because it lacks justification or a reasoned explanation. DHS agrees
that, under FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009),
a change in agency regulations requires a reasoned explanation: the
agency must acknowledge the change, provide good reasons for it, and
indicate why it believes the new position is better. DHS satisfied
these requirements in the NPRM and in this final rule.
DHS explicitly acknowledged it was proposing to rescind the 2022
public charge ground of inadmissibility regulations established by the
2022 Final Rule and consistently provided good reasons for the proposed
rescission.\77\ DHS provided detailed, reasoned explanations for the
change, including explaining the 2022 Final Rule is not the best
implementation of the statute, is inconsistent with congressional
intent, is unduly restrictive, and hampers DHS's ability to make
accurate, precise, and reliable determinations. 90 FR 52168 (Nov. 19,
2025). While rescinding the 2022 Final Rule is a departure--in varying
degrees--from the three prior efforts over the last 27 years related to
the public charge ground of inadmissibility, DHS is not required to
retain any of the prior regulations and policy guidance the Secretary
determined, upon a review of guidance and public-facing information
dating back to 1946, are not the best way to implement the expansive,
fact-specific, totality of the circumstances, and discretionary public
charge inadmissibility determination Congress put into place. See 90 FR
52168, 52181-82 (Nov. 19, 2025).
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\77\ See 90 FR 52168, 52169-52170 (Nov. 19, 2025) (``DHS
proposes to rescind the 2022 public charge ground of inadmissibility
regulations . . . Rescission would restore broader discretion to
evaluate all pertinent facts and align with long-standing policy . .
.'').
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The NPRM further stated the 2022 Final Rule straitjackets DHS
officers' ability to make public charge inadmissibility determinations
that are
[[Page 45341]]
consistent with Congress's express national policy on welfare and
immigration enacted in the PRWORA 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. 90 FR 52168, 52169-52170 (Nov. 19, 2025). DHS also
explained that both the 2019 and 2022 rules provided a finite list of
factors officers are required to consider without providing officers
the authority to consider other factors relevant in any individual
case, which is inconsistent with the discretionary and case-specific
framework Congress intended. 90 FR 52168, 52180-52181 (Nov. 19, 2025).
DHS also explained why it believes that public charge
inadmissibility determinations after the rescission of the 2022 Final
Rule will be more consistent with congressional intent. Specifically,
DHS noted that officers will be able to use good judgment and
discretion to make highly individualized, fact-specific, case-by-case
public charge inadmissibility decisions based on the totality of each
alien's individual circumstances, rather than being limited by rigid
regulatory definitions and standards. 90 FR 52168, 52194 (Nov. 19,
2025). Crucially, DHS explained that the 2022 Final Rule's approach
including the primary dependence standard 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 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. 90 FR 52168, 52180 (Nov.
19, 2025). In fact, DHS provided multiple reasons to support the
rescission of the 2022 Final Rule. 90 FR 52168, 52180-81, 52186 (Nov.
19, 2025).
DHS also discussed the underlying reasons for past policies,
including their limitations in the NPRM. Specifically, DHS noted that
both the 2019 Final Rule and 2022 Final Rule attempted to provide
clarity and predictability by specifying a finite list of factors and
benefits to be considered in public charge determinations, however in
so doing these rules ``severely and unduly limited the factors that DHS
could consider in making a public charge inadmissibility
determination,'' which is inconsistent with the broad, discretionary
standard Congress intended. 90 FR 52168, 52180-81 (Nov. 19, 2025).
DHS also discussed the 2019 Final Rule in various parts of the NPRM
and determined that it was not a truly viable alternative, because,
while closer to congressional intent behind section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), and PRWORA, that rule also prescribed a rigid
and complex regulatory scheme that unnecessarily constrained officer
discretion.
Furthermore, in proposing the rescission of the 2022 Final Rule,
DHS also provided a thorough review of statutory history, prior
administrative practice, and case law, and explained the new approach
is grounded in the agency's expertise and longstanding precedent.\78\
Finally, DHS acknowledged the existence of reliance interests and
specifically requested comments on what aspects of the 2022 Final Rule
might have engendered such reliance interests, and how DHS should best
address such reliance interests given its stated policy objectives. 90
FR 52168, 52193 (Nov. 19, 2025). In this final rule, DHS is responding
to public comments raising specific reliance interests and has made
clarifications in this final rule to further address those interests.
---------------------------------------------------------------------------
\78\ See, e.g., 90 FR 52168, 52182-52187 (Nov. 19, 2025)
(discussing the totality of the circumstances test and relevant BIA/
Attorney General decisions).
---------------------------------------------------------------------------
For all of these reasons, DHS has established why the rescission of
the 2022 Final Rule is reasonable given the broad congressional
delegation, and the fact that there is no settled meaning of public
charge. DHS has provided a detailed, reasoned explanation for the
change, identified the deficiencies in the prior rules, explained why
the new approach is preferable, and addressed reliance interests and
the need for coherent, expertise-driven discretionary determinations.
Comment: Some commenters stated expanding the public charge
inadmissibility framework so broadly--to potentially encompass working
U.S. citizens with income--lacks historical or rational support and
would be arbitrary and capricious. Citing the Supreme Court's
requirement in FCC v. Fox Television that agencies justify disregarding
prior facts and reliance interests, commenters noted the proposal
offers no evidence the 2022 Rule is unworkable or inconsistent with the
INA, identifies no enforcement problems or data, and fails to account
for the chilling effects on immigrants, domestic violence- survivors,
and nonprofit service providers. One commenter stated the Supreme Court
addressed the very issue of rescinding automobile safety standards
without promulgating new regulations in the Motor Vehicle Manufacturers
Ass'n of the United States, Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29 (1983) (``State Farm''), finding it to be arbitrary and
capricious. Several commenters warned DHS has not provided the
necessary justification for abandoning longstanding interpretations or
for why the codified provisions of the 2022 Final Rule could not
instead be modified in response to H.R.1.
Response: DHS disagrees that the rescission of the 2022 Final Rule
is arbitrary and capricious or lacks a reasonable basis or sufficient
explanation. As detailed above, DHS provided an ample reasonable basis
for removing the 2022 Final Rule, explained removing the rule restores
officer discretion, and aligns the administration of the public charge
ground of inadmissibility closer to the congressional intent. Neither
State Farm \79\ nor FCC v. Fox Television \80\ requires DHS to
establish the 2022 Final Rule is unworkable or that it is inconsistent
with the INA. The Supreme Court in FCC v. Fox Television held an agency
does not need to show its prior policy or interpretation is unworkable
to justify a change, explaining an agency may change its policy as long
as it provides a reasoned explanation for the change, acknowledges the
shift, and addresses any reliance interests.\81\ The Court specifically
rejected the requirement for heightened justification, stating an
agency ``need not demonstrate. . .that the reasons for the new policy
are better than the reasons for the old one.'' \82\ Instead, the agency
must simply explain the new policy and why it believes it is
preferable.\83\ This principle allows agencies flexibility to adapt and
revise policies without being constrained by the workability or
enforceability of previous approaches.\84\ All of this being said, DHS
believes it established in the NPRM the 2022 Final Rule was not the
best interpretation of the statute and not fully consistent with
congressional intent.
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\79\ Motor Vehicle Manufacturers Ass'n of the United States,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983).
\80\ FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009).
\81\ Fox Television, 556 U.S. at 515-516.
\82\ Id. at 515.
\83\ Id. at 514-515.
\84\ See also Nat'l Cable & Telecomms. Ass'n v. Brand X internet
Servs., 545 U.S. 967, 981-982 (2005) (``An agency is not required to
adopt a new interpretation of a statute on the ground that its
previous interpretation is unwise or outdated. Rather, the agency
must merely provide a reasoned explanation for its change of
position.'').
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Similarly, DHS is not required to establish the 2022 Final Rule was
[[Page 45342]]
unenforceable, although DHS clearly stated in the NPRM the approach
taken in the 2022 Final Rule (as also reflected in the 1999 Interim
Field Guidance) inappropriately required officers to ignore a large
swath of means-tested public benefits in public charge inadmissibility
determinations and exclude the possibility of future dependence on such
benefits as part of the overall framework. DHS strongly disagrees that
it ignored reliance interests or facts underlying the promulgation of
the 2022 Final Rule.
As articulated in the NPRM, DHS grappled with prior factual
findings underlying the 2022 Final Rule particularly as it pertains to
self-sufficiency and whether considering receipt of means-tested public
benefits can be indicative of a lack of self-sufficiency, as well as
collateral impacts of the rulemaking, such as chilling effects. 90 FR
at 52183, 52208-10. To that end, DHS provided an adequate legal and
policy justification for changing course given its interests to further
the statutory purpose behind the public charge ground of
inadmissibility and PRWORA by reducing the incentive for aliens who are
not self-sufficient and are likely to become dependent on the
government to enter or remain in the United States. Congress has
established multiple statutory tools to reduce such dependence. PRWORA
and other statutes significantly restricted the eligibility of aliens
for public benefits. The public charge grounds of inadmissibility and
deportability are other tools Congress created to advance these
national policy objectives regarding aliens' self-sufficiency. Though
an alien may be eligible to receive public benefits, Congress
established consequences for such receipt by those aliens. If they
become a public charge within 5 years after entry, they may be removed
from the United States. INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5).
Congress clearly intended these immigration consequences to
disincentivize the receipt of public benefits by aliens.
This rule advances the clear national policy concerning welfare and
immigration by making it possible for officers to more accurately
assess whether, in their opinion, an alien is likely at any time to
become a public charge.
While this policy objective differs from the prior administration's
objectives, DHS has permissibly reevaluated the relevant facts and
provided a reasoned explanation for its new policy. DHS therefore
disagrees that the rule is arbitrary and capricious.\85\
---------------------------------------------------------------------------
\85\ Chamber of Com. of United States v. Sec. & Exch. Comm'n,
115 F.4th 740 (6th Cir. 2024) (examination of the same 2021 SEC
rescission found that the SEC had not acted arbitrarily and
capriciously because its reevaluation of old facts in ``precisely
the same record'' reached new policy conclusions that were
reasonably explained).
---------------------------------------------------------------------------
In addition, DHS finds the specific circumstances in State Farm to
be distinguishable. Congress granted the Secretary broad discretion to
administer the public charge ground of inadmissibility, provided only
certain mandatory factors for consideration in individual cases, and at
no point directed the Secretary to engage in rulemaking or establish
binding standards to govern the public charge ground of
inadmissibility. In contrast, Congress when wishing to improve motor
vehicle and traffic safety by enacting the National Traffic and Motor
Vehicle Safety Act of 1966, (NTMVS Act), 15 U.S.C. 1381 et seq. (1976
and Supp. IV 1980) directed the Secretary of Transportation or his
delegate to issue motor vehicle safety standards and also mandated
those standards be practicable, meet the need for motor vehicle safety,
and be stated in objective terms. 15 U.S.C. 1392(a).\86\ Congress also
directed that in issuing these standards, the Secretary must consider
relevant available motor vehicle safety data, whether the proposed
standard is reasonable, practicable and appropriate for the particular
type of motor vehicle, and the ``extent to which such standards will
contribute to carrying out the purposes'' of the NTMVS Act. 15 U.S.C.
1392(f)(1), (3), (4).\87\ See State Farm, 463 U.S. 29 (1983).
Therefore, when the Secretary of Transportation rescinded the seatbelt
regulation without requiring either the use of airbags or seat belts,
or considering alternatives, the court determined this approach was
arbitrary and capricious because National Highway Traffic Safety
Administration (NHTSA) ignored the statutory requirement to enhance
safety and failed to consider reasonable alternatives. Id. at 46-57.
---------------------------------------------------------------------------
\86\ This is a historical reference cited in State Farm. The
relevant provision has since been re-codified at 49 U.S.C. 30111(a).
\87\ This is a historical reference cited in State Farm. The
relevant provisions have since been revised and re-codified at 49
U.S.C. 30111(b)(1), (3), and (4).
---------------------------------------------------------------------------
In the case of this rescission of the 2022 Final Rule, while DHS
has the statutory authority to issue regulations or guidance (or both)
to administer the public charge ground of inadmissibility in its
discretion, it is not required by statute to issue regulations or
guidance. INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). Furthermore, in the
NPRM and this final rule, DHS has made it clear that USCIS will
administer the ground of inadmissibility consistent with the statute
and applicable precedent, and any USCIS guidance will guide but not
prescribe officer discretion. This approach is consistent with INS'
approach for most of the time this ground of inadmissibility existed.
DHS only opted to issue binding regulations for the first time in 2019.
As discussed in the NPRM and this final rule, DHS explained why
retaining the 2022 Final Rule or returning to the 2019 Final Rule would
not accomplish its objectives, and explained why DHS believes this rule
is better, is more aligned with congressional intent and purpose, and
fulfills its policy objective. 90 FR at 52180. Therefore, the
rescission of the 2022 Final Rule is distinguishable from the
rescission of the vehicle and traffic safety standards by the NHTSA in
State Farm.
With respect to comments stating DHS did not explain why the
regulations could not be modified in response to H.R. 1, DHS is unclear
what the commenters meant. While H.R. 1 narrowed eligibility for SNAP
and imposed limits on federal matching payments for full Medicaid
benefits, subject to certain exceptions,\88\ it is unclear how or why
DHS should have considered amending public charge regulations in line
with H.R. 1.
---------------------------------------------------------------------------
\88\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility), 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
---------------------------------------------------------------------------
ii. Failing To Define Undefined Terms
Comment: A commenter said DHS acted arbitrarily and capriciously by
refusing to define vague statutory terms that it would be applying in
individual cases, by transgressing the ``fundamental norm of
administrative procedure [that] requires an agency to treat like cases
alike,'' and by postponing guidance indefinitely and leaving individual
DHS officers with no objective standard to follow. Another commenter
agreed and said the NPRM's complete lack of guidance is arbitrary and
capricious because it is vague, precludes individuals from knowing how
to comply, while asserting the following terms are used multiple times
throughout the NPRM without providing definitions: means-tested public
benefit, public benefits, public benefit program, benefits, and public
resources.
Response: DHS disagrees that this final rule is arbitrary and
capricious because it does not codify definitions of certain terms
implicated in making
[[Page 45343]]
public charge inadmissibility determinations. DHS does not believe it
is necessary to define the terms referenced, noting prior to the 2019
Final Rule officers successfully applied the 1999 Interim Field
Guidance; and prior to 1999, officers similarly applied the statute,
precedent decisions, and applicable agency guidance to make reasonable
case-by-case public charge inadmissibility decisions without binding
regulatory definitions. In fact, there were no codified definitions
governing the public charge inadmissibility determination from 1882
until the 2019 Final Rule. As noted in other responses, USCIS will
issue subregulatory guidance that will go into effect on the effective
date of this final rule to assist officers with applying the public
charge ground of inadmissibility.
DHS agrees it used certain terms interchangeably in the NPRM and
agrees consistent use of terms is preferable. When referring to public
benefits and/or resources, DHS in all cases meant means-tested public
benefits and when referring to public benefit programs, DHS intended to
refer to Federal, State, territorial, Tribal, and local programs that
provide means-tested public benefits. DHS does not believe that
codifying a definition of means-tested public benefits is necessary as
that term is generally understood to refer to a government program or
benefit where eligibility is based on an individual's or family's
income and/or assets falling below a specific threshold.\89\
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\89\ See, e.g., Institute for Research On Poverty, University of
Wisconsin-Madison, Means -Tested Programs, https://www.irp.wisc.edu/research/economic-support/means-tested-programs/ (last visited Feb.
11, 2026) (``Means-tested programs limit eligibility to individuals
and families whose incomes and or assets fall below a pre-determined
threshold (means test). They are generally financed by tax revenues
and may take the form of entitlements (e.g., Medicaid, SNAP/Food
Stamps) or have spending caps (e.g., State Child Health Insurance
Program, housing subsidies, TANF)'').
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iii. Consideration of All Means-Tested Public Benefits
Comment: Commenters said the NPRM is arbitrary and capricious
because it fails to cogently explain why participation in public
benefit programs that improve health, educational, and financial
stability, or are otherwise supplemental not necessary for subsistence
or not indicative of a lack of self-sufficiency, is relevant to the
public charge inadmissibility determination. One commenter said DHS
ignores the data and evidence relied on in promulgating the 2022 Rule
showing receipt of supplemental benefits is associated with increased
employment and self-sufficiency. The other commenter indicated that the
Seventh Circuit reached a similar conclusion, observing many covered
benefits are supplemental rather than primary resources. The commenter
wrote that both courts recognized a crucial distinction between using
benefits to supplement one's life and using them due to lack of self-
sufficiency, and asserted the NPRM made no such distinction as PRWORA
requires, leaving DHS unable to ``show that there are good reasons''
for the policy and risking another arbitrary and capricious ruling.
Response: DHS disagrees it failed to explain how participation in
certain public benefit programs is relevant to public charge
inadmissibility determinations or failed to consider the evidence or
policy considerations underlying the 2022 Final Rule. While DHS did not
directly address the data and evidence from the 2022 Final Rule about
the relationship between receipt of certain benefits and employment and
self-sufficiency referenced by commenters in the NPRM, DHS's underlying
rationale for this rulemaking makes such discussion superfluous because
DHS is not promulgating a dependence threshold or making an alien
inadmissible exclusively based on the receipt of one or more public
benefits. Similarly, DHS is not drawing distinctions between public
benefits based on whether they merely subsidize an alien's life or
provide for the alien's basic needs, nor is DHS disputing the fact that
some means-tested public benefits assist aliens on the path to self-
sufficiency. Rather, DHS is engaging in this rulemaking to bring the
public charge ground of inadmissibility in line with congressional
intent and purpose and to ensure that all inadmissibility
determinations are made by officers in the totality of the alien's
circumstances and that officers are empowered to consider all relevant
information and evidence, including the full universe of benefits
aliens may have received and the circumstances surrounding such
receipt. In administering the public charge ground of inadmissibility
DHS must ensure that it does not permit aliens who are likely at any
time to become a public charge to be admitted or adjust their status to
that of an LPR. In the NPRM, DHS referenced precedent and recent court
opinions providing support for the premise that receiving means-tested
public benefits is relevant to public charge inadmissibility
determinations. See 90 FR 52168, 52186-87 (Nov. 19, 2025). Furthermore,
DHS believes that officers will consider the relative importance of the
alien's receipt of any particular means-tested public benefit in the
totality of the circumstances and will provide training and guidance to
support accurate adjudications. With the 2022 Final Rule removed,
officers will be able to consider whether the alien: received means-
tested public benefits for only a short period of time, received small
dollar amounts of assistance, received any particular public benefit
rendering the alien dependent on the benefit, received means-tested
public benefits permanently or temporarily, and has good overall
prospects for being and remaining self-sufficient.
DHS disagrees that PRWORA created a distinction in the context of
public charge inadmissibility determinations between means-tested
public benefits denoting a lack of self-sufficiency and benefits merely
supplementing an alien's lifestyle. PRWORA outlined the national policy
objectives for the role of public benefits and eligibility for the
same, specifying eligibility rules based on public benefit types and an
alien's immigration status, including establishing exceptions from such
eligibility rules. 8 U.S.C. 1601, et seq. DHS agrees the Seventh
Circuit in Cook County v. Wolf found it failed to explain why it
changed its longstanding policy of excluding non-cash benefits from the
public charge inadmissibility determination, but the Seventh Circuit
did not hold the consideration of such benefits was de facto arbitrary
and capricious.\90\ Similarly, the Second Circuit in Make the Road New
York v. Cuccinelli also focused on DHS's explanation for considering
non-cash public benefits rather than finding such consideration was de
facto unreasonable.\91\ DHS believes these cases are distinguishable
from this rule. The 2019 Final Rule approach treated the receipt of any
included public benefits as having the same consequences as long as the
durational threshold (12 months or more) was met. The 2019 Final Rule
not only provided for the consideration of non-cash benefits but also
prescribed heavy weight in the totality of the circumstances to certain
circumstances surrounding the receipt of any one
[[Page 45344]]
public benefit (regardless of type); this Final Rule does not do that.
---------------------------------------------------------------------------
\90\ Cook County v. Wolf, 962 F.3d 208, 226 (7th Cir. 2020)
(``DHS did not adequately explain why it changed its longstanding
policy of excluding non-cash benefits from the public charge
determination.'').
\91\ 62 F.3d 612, 638-39 (2d Cir. 2020) (The court held that DHS
failed to adequately consider the evidence before it and to explain
why it was changing course from the agency's longstanding
interpretation, as well as to adequately explain why non-cash
benefits which are designed to promote self-sufficiency should be
considered evidence that an alien is likely to become a public
charge.).
---------------------------------------------------------------------------
Comment: A commenter said the proposed rule offers no evidence to
support DHS's ``belie[f] 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'' and the fundamental flaw
of DHS's justification is it does not provide any factual basis for
this belief. The commenter reasoned the goals and eligibility criteria
of these benefits programs belie DHS's assumption and show these
programs are designed to provide supplemental support to a broad swath
of the population, as INS recognized in 1999.
Response: DHS believes the commenter misunderstood DHS's proposal
to remove the 2022 Final Rule and the impact on public charge
inadmissibility determinations in expanding the consideration of a
broader universe of public benefits. The NPRM did not state that
considering a broader universe of public benefits would result in
aliens de facto being found inadmissible under the public charge ground
or the removal of the 2022 Final Rule would elevate the importance of
receipt of means-tested public benefits in public charge
inadmissibility determinations. To the contrary, DHS cited to precedent
decisions holding receipt of public benefits is not in itself outcome
determinative \92\ and highlighted that the past receipt of means-
tested public benefits is one consideration in the totality of the
circumstances.\93\ As discussed in other comment responses, USCIS will
issue subregulatory guidance to help its officers determine how to best
consider the alien's current and past receipt of means-tested public
benefits in the totality of the circumstances.
---------------------------------------------------------------------------
\92\ 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.''); Matter of A-, 19 I&N Dec. 867 (BIA
1974) (BIA considered that the alien was a mother of a small child,
there were few jobs in the area where she lived, and that she was
now employed despite receiving public benefits previously for 4
years to find her not likely to become a public charge).
\93\ 90 FR at 52188 (``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.'')
---------------------------------------------------------------------------
iv. Lack of Replacement Framework or Guidance
Comment: One commenter said by proposing to remove regulatory
guidance related to public charge inadmissibility, DHS undermines a
shared understanding of the law and its meaning. The commenter stated
that the adjudicatory standards DHS proposes to erase are necessary to
fair, transparent, and consistent application of law, and warned that
all stakeholders must understand when and to whom the public charge
rule does and does not apply, yet DHS proposes to remove the
regulations explaining applicability, exemptions, and waivers.
Response: DHS agrees the regulated public should understand how and
to whom the public charge ground of inadmissibility applies. As
explained in the NPRM and other responses to comments, DHS believes the
statute and applicable precedent decisions that guided the public
charge inadmissibility determinations for decades provide sufficient
guideposts for determining whether an alien is likely at any time to
become a public charge. However, to ensure transparency and consistent
adjudications, USCIS will issue subregulatory guidance that will
explain how officers, under this final rule, will be able to consider
the alien's receipt of any means-tested public benefits and will ensure
officers fully consider this and 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, as Congress
intended.
With respect to concerns that the removal from DHS regulations of
the list of exemptions and waivers is arbitrary and capricious, as
stated in the NPRM, these exemptions are statutory and will not be
impacted by the removal of the regulations. 90 FR 52168, 52192 (Nov.
19, 2025). In order to provide a convenient reference point for the
regulated public as to the exemptions and waivers, DHS will retain the
list on the USCIS website, in the USCIS Policy Manual, and on the Form
I-485.
v. Reliance Interests
Comment: Some commenters responded to DHS's request regarding which
aspects of the 2022 Final Rule engendered reliance interests.
Commenters identified key elements that engendered reliance interests:
That no benefits would be considered other than cash
assistance for income maintenance and long-term institutionalization at
government expense;
That applications for or receipt of benefits by family
members would not be considered;
That receipt of public benefits while the alien was in an
immigration status that is not subject to the public charge ground of
inadmissibility would not be considered; and
That information on applications for non-cash benefits
would not be shared or used for immigration purposes.
Response: DHS thanks the commenters for these specific examples.
While DHS is adopting the proposed rescission of the regulations
promulgated by the 2022 Final Rule without change, DHS has provided
clarifications in this final rule in response to public comments to
address some of these potential reliance interests. This approach is
consistent with DHS' understanding of Congress's national policy
objectives. DHS notes that given the regulatory changes since 2019, and
subsequent litigation challenging the 2019 and 2022 Final Rules, the
current reliance interests of the regulated public are not as
significant as the reliance interests of the regulated public at the
time the 1999 Interim Field Guidance was superseded with the 2019 Final
Rule because the regulated public was placed on notice by recurring
rulemakings and litigation of the significant differences in policy
objectives and approaches among administrations when it comes to the
public charge ground of inadmissibility.\94\
---------------------------------------------------------------------------
\94\ The Supreme Court in Regents and Encino Motorcars
emphasized that reliance interests are tied to the duration and
stability of a prior policy--not rather than whether the agency has
changed its position in the past. If a policy was longstanding and
people relied on it, those reliance interests must be considered
when the agency changes course. See, Department of Homeland Security
v. Regents of the University of California, 140 S. Ct. 1891, 1913
(2020); Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016).
---------------------------------------------------------------------------
For reliance interests engendered by the 2022 Final Rule's
limitations on the consideration of benefits outside of public cash
assistance for income maintenance and long-term institutionalization at
government's expense, DHS clarified that once this final rule goes into
effect, there will be no limit on which means-tested public benefits
officers can consider for benefits received on or after the effective
date of the rule. However, with the exception of Medicaid-funded
services for long-term institutionalization, officers will not consider
non-cash public benefits received before the effective date of this
final rule (including any information in the record that the alien
applied for, was certified or approved to receive public benefits
before the effective date of this final rule). However, where the
evidence reflects that the alien has been approved or certified to
receive benefits for a
[[Page 45345]]
period that extends beyond the effective date of this final rule, if
the alien does not provide evidence of disenrollment from such benefits
or that he or she withdrew such application or notified the relevant
agencies he or she no longer wanted to receive the benefits, DHS would
consider the application, certification, and receipt of such benefits
in the totality of the circumstances that occurs on or after the
effective date of the final rule. For a more detailed discussion of the
prospective application of this rule, please see section III.D.5. of
this final rule's preamble.
For the definition of receipt and the statement that applications
for, or receipt of benefits by family members should not be considered
in a public charge inadmissibility determination, DHS did not propose
nor does this final rule direct officers to consider information about
an alien's family member's receipt of public benefits, unless that
family member is applying for admission or adjustment of status and is
subject to the public charge ground of inadmissibility. As such, DHS
will generally not consider the application for, certification or
approval to receive, or receipt of public benefits by the alien's
family members. As discussed in other comment responses, DHS considers
the alien's income as part of the mandatory assets, resources, and
financial status factor, and if there is evidence in the record the
alien's family members whom the alien is legally obligated to support
receive means-tested public benefits based on the alien's income
falling below the designated threshold, DHS would consider that fact as
part of the alien's assets, resources, and financial status in the
totality of the circumstances. Given the alien must exclude any income
received from means-tested public benefits from household income
information provided on the Form I-485, the inclusion of amounts
received from means-tested public benefits by others in the household
as household income may lead to an inadmissibility finding under
section 212(a)(6)(C)(i) of the INA, 8 U.S.C. 1182(a)(6)(C)(i).
For comments expressing concern regarding the consideration of
means-tested public benefits while in a status not subject to the
public charge ground of inadmissibility, DHS believes these reliance
interests are at least partially addressed by clarifying means-tested
public benefits not previously considered under the 2022 Final Rule
will also not be considered if received before the effective date of
this final rule. DHS notes many aliens who received means-tested public
benefits while in categories exempt from the public charge ground of
inadmissibility are also able to adjust their status to that of LPR in
a category similarly exempt from the public charge ground of
inadmissibility (e.g., T and U nonimmigrants and VAWA beneficiaries).
For aliens who adjust under a different category, or aliens who cannot
adjust under an exempt category, DHS notes, without the unduly rigid
framework of the 2022 Final Rule, officers can consider the specific
circumstances in which public benefits were received. Officers may give
limited weight to the receipt of such benefits, examining any public
policy considerations underlying the alien's eligibility for them,
along with other factors officers normally consider in the totality of
the circumstances; such as (but not limited to) duration or amount of
receipt, whether circumstances leading to receipt were temporary or
permanent, alien's age, health, family status, work prospects, etc.
Finally, DHS notes that prior to the 2019 Final Rule, under the
1999 Interim Field Guidance, there was no limitation on the
consideration of means-tested public benefits received while in an
exempt category. If an alien received public cash assistance or long-
term institutionalization at government's expense while in a status
exempt from public charge and subsequently sought to adjust status to
an LPR in a category subject to public charge, such receipt could be
considered in the totality of the circumstances. Therefore, the
approach DHS is taking now is consistent with past agency practice, and
DHS's interest in taking a consistent approach across immigration
categories outweighs any remaining reliance interests from the 2022
Final Rule.
The last element of reliance identified--that information included
on non-cash benefits applications would not be shared or used for
immigration purposes--DHS notes that the 2022 Final Rule excluded from
consideration the applications, approval or certification to receive,
or receipt of non-cash benefits, but it did not address information
sharing between benefit providing agencies and DHS in this context. DHS
did not propose nor does this final rule address any information
sharing between agencies. Therefore, this portion of the comment is out
of scope.
Comment: Commenters said the NPRM disregarded reliance interests,
noting families, advocacy groups, and service providers relied on the
2022 Final Rule's clarity when enrolling in health, nutrition, and
housing programs. Commenters stated that unclear Federal direction
undermines federalism and State reliance interests, disrupts extensive
State and local networks, and risks worsening public health and fiscal
outcomes by deterring use of programs like Medicaid, SNAP, and early
childhood supports. These commenters stated that agencies failing to
account for reliance interests raises serious concerns about
retroactivity, arbitrary decision-making, and unequal treatment of
applicants. Another commenter agreed and said that DHS must not only
identify reliance interests or invite public input on them but it must
meaningfully consider and weigh the reliance interests when reversing
prior policy and explain why they do not want a different policy
outcome. Commenters stated that merely soliciting comments about
reliance after announcing wholesale rescission of the operative
framework is not the ``reasoned explanation'' with ``awareness'' of
reliance interests required by the Supreme Court. Commenters cited
Department of Homeland Security v. Regents of the University of
California, where the Supreme Court emphasized agencies must consider
the ``reliance interests'' fostered in changing policy, and found that
failure to do so can render an action arbitrary and capricious under
the APA.
Response: DHS disagrees that the NPRM disregarded any reliance
interests or that the NPRM or this final rule reflects unclear Federal
direction. In the NPRM, DHS specifically described prior rulemakings
and requested feedback regarding specific reliance interests. DHS
considered comments and supporting information provided, including
narrative explanations from aliens, immigration service providers,
State and local governments, etc., consistent with Supreme Court
precedent.\95\
---------------------------------------------------------------------------
\95\ Department of Homeland Security v. Regents of the
University of California, 140 S. Ct. 1891, 1913-15 (2020) (holding
that the agency ``failed to consider the conspicuous issues of
whether to retain forbearance and what if anything to do about the
hardship to DACA recipients,'' i.e., whether there was legitimate
reliance on the DACA policy, including not just DACA recipients but
also their employers and states and local governments. The Court
explained that agencies must assess reliance interests broadly,
including those of parties not directly regulated, when those
interests are substantial and foreseeable); Encino Motorcars, LLC v.
Navarro, 579 U.S. 211, 222 (2016) (agencies must consider reliance
interests when changing policies, and failure to do so is arbitrary
and capricious).
---------------------------------------------------------------------------
DHS disagrees that rescission of the 2022 Final Rule adversely
impacts federalism or disrupts State reliance interests. While DHS
agrees aliens may have relied on the 2022 Final Rule when enrolling in
certain means-tested public benefit programs, DHS addressed those
[[Page 45346]]
reliance interests by clarifying previously excluded benefits are
excluded from consideration if received before the effective date of
this rule (including any information in the record that the alien
applied for, was certified or approved to receive public benefits
before the effective date of this final rule) where the alien can
provide evidence he or she disenrolled from such benefits, or in the
case of application, certification or approval to receive means-tested
public benefits, the alien withdrew such application or notified the
relevant agencies he or she no longer wanted to receive the benefits.
For a more detailed discussion of the prospective application of this
rule, please see section III.D.5. of this final rule's preamble. DHS
also repeatedly stated the receipt of means-tested public benefits
alone is not outcome determinative in public charge inadmissibility
determinations and explained in the NPRM and throughout this final rule
that the nature of the discretionary determination after this final
rule goes into effect takes into consideration all evidence relevant to
an alien's case including the circumstances surrounding benefit
receipt.
DHS also disagrees rescission of the 2022 Final Rule will disrupt
extensive State and local networks' dependence on Federal policy or
risks worsening public health and fiscal outcomes because few aliens
are both subject to the public charge ground of inadmissibility and
eligible to receive means-tested public benefits like Medicaid, SNAP,
and early childhood supports. However, DHS agrees that the change in
the public charge inadmissibility determinations will require
reevaluation for aliens, organizations providing immigration services
to aliens, as well as Federal, State, and local benefit and service
providers. DHS also agrees removing regulations constraining officer
discretion and expanding the universe of means-tested public benefits
in the totality of the circumstances may cause aliens to exercise
caution when applying for or receiving Medicaid and benefits from the
Children's Health Insurance Program (CHIP), as well as food, housing,
and other means-tested public benefits previously excluded from public
charge inadmissibility determinations.
DHS acknowledges that immigration services providers, and Federal,
State, local, and other public benefits providing agencies may have
relied on information, services, and outreach to inform them of
immigration consequences associated with receipt of means-tested public
benefits; and DHS understands that such entities will need to update
their practices and procedures consistent with this rulemaking. DHS
believes that any new burden this may impose on aliens, immigration
services providers, and public benefits providing agencies is
outweighed by the need to conform to the statutory requirements,
congressional intent, and the policy goals explained throughout this
rule.
DHS is not promulgating a new, stricter standard, but rather is
simply returning to decades of practice where officers will be able to
consider all relevant factors, including the consideration of the
alien's receipt of any means-tested public benefits, including the
receipt of previously excluded means-tested public benefits received on
or after the effective date of this final rule, as only one aspect of
one factor in the totality of the circumstances. Under this approach
and using governing precedent, officers have the discretion to
logically determine how much such receipt should matter in the case of
any specific alien. This approach is more likely to bring stability and
accuracy to the administration of public charge inadmissibility.
Furthermore, DHS believes even expanding the public charge
inadmissibility determination to consider previously excluded means-
tested public benefits if received on or after the effective date of
this final rule, as DHS is doing, would not meaningfully affect
reliance interests. This is because, as DHS has noted, few aliens are
both subject to the public charge ground of inadmissibility and
eligible to receive means-tested public benefits.\96\
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\96\ At the time of the 2019 Final Rule, the Migration Policy
Institute estimated that less than 1 percent of the 22.1 million
aliens in the United States could be deemed inadmissible due to the
current use of a listed benefit because there are very few benefit
programs that are open to aliens who do not already hold a green
card, resulting from PRWORA. See MPI, MPI Estimates No More than
167,000 Non-Citizens Could Be Ineligible for Green Cards Based on
Current Public Benefits Use (Mar. 5, 2020), https://
www.migrationpolicy.org/news/mpi-estimates-non-citizens-ineligible-
green-cards-based-current-benefit-use#:~:text=March%205%2C%202020-
,MPI%20Estimates%20No%20More%20than%20167%2C000%20Non%2DCitizens%20Co
uld%20Be,that%20took%20effect%20February%2024; and Randy Capps,
Julia Gelatt and Mark Greenberg, MPI, The Public-Charge Rule: Broad
Impacts, But Few Will Be Denied Green Cards Based on Actual Benefits
Use (Mar. 2020), https://www.migrationpolicy.org/news/public-charge-denial-green-cards-benefits-use.
---------------------------------------------------------------------------
DHS agrees the direct outreach conducted by the prior
administration regarding excluding non-cash benefits could have
strengthened certain reliance interests. As is the case with all its
regulatory initiatives, DHS will notify the public via the DHS and
USCIS websites and social media of changes that will result from the
removal of the 2022 Final Rule, in addition to USCIS' planned
subregulatory guidance to guide adjudications under this final rule.
DHS intends this outreach, together with excluding consideration of
non-cash public benefits received before the effective date of this
final rule, will address concerns about reliance interests and assist
aliens in understanding how DHS will administer section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4).
DHS has a statutory responsibility to remove incentives for
immigration stemming from availability of public benefits and ensure
aliens seeking to remain in the United States permanently do not become
dependent on the public for their support. See 8 U.S.C. 1601.
Therefore, DHS considered the reliance on the 2022 Final Rule, while
balancing its interests in applying the public charge ground of
inadmissibility to more closely reflect congressional intent and
determined that when making public charge inadmissibility
determinations under this final rule, DHS will not consider previously
excluded means-tested public benefits if received before the effective
date of this final rule.
Comment: Raising reliance interests commenters had advised clients
regarding receipt of public benefits based on the 1999 Interim Field
Guidance and reflected in the 2022 Final Rule that receipt of non-cash
benefits would not be considered; some were concerned about the
accuracy of their legal advice to clients, including ethical and
malpractice implications. Commenters requested DHS either exempt non-
cash benefits received before the effective date of the final rule or
ensure such receipt is given little to no weight in the totality of the
circumstances analysis.
Response: DHS acknowledges concerns regarding advice provided to
clients based on previously effective DHS regulations and guidance and
agrees that receipt of previously excluded means-tested public benefits
should not be considered in the totality of the circumstances if such
benefits were received before the effective date of this final rule.
DHS explicitly stated this final rule will apply prospectively, and in
the context of adjustment applications, DHS made conforming changes to
the Form I-485 instructions to clarify which means-tested benefits
should be reported and for what period.
[[Page 45347]]
4. Constitutional Concerns
Comment: Several commenters said the rule is unconstitutional and
suggested the rule is intended to prevent people of certain races from
coming to the United States without any further explanation.
Response: DHS notes in removing the 2022 Final Rule, DHS returned
to public charge inadmissibility determinations that are a faithful
execution of the public charge inadmissibility statute and are
consistent with national policy on immigration and welfare as set forth
in PRWORA,\97\ and therefore, congressional intent. DHS disagrees with
the suggestion the public charge determinations DHS will make now are
unconstitutional or intended to bar certain races from the United
States. On the contrary, the statute does not direct DHS to consider an
alien's race \98\ and DHS does not, through this or any other action,
target aliens of a particular race. While DHS cannot rule out the
possibility of disproportionate impacts on certain racial groups, DHS
is committed to applying the public charge ground of inadmissibility by
considering the statutory mandatory factors, the alien's receipt of
means-tested public benefits, and any other specific fact or
circumstance the officer determines is relevant to assessing the
individual alien's likelihood at any time of becoming a public charge.
---------------------------------------------------------------------------
\97\ 8 U.S.C. 1601.
\98\ INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(ii).
---------------------------------------------------------------------------
Comment: Multiple commenters stated the proposed rule violates the
Fifth Amendment's due process clause because it fails to provide fair
notice of the standards with which individuals must comply and invites
arbitrary and discriminatory enforcement due to the lack of standards
governing the exercise of discretion thereby depriving applicants of
procedural due process. Commenters also raised concerns that this rule
violates the Fifth Amendment's equal protection guarantees by targeting
individuals for discriminatory treatment based on their race,
ethnicity, and/or national origin, gender or disability, and indicated
that nonwhite immigrants will be disproportionately harmed by it
because it will not be applied equally and is likely to be applied on
the basis of protected characteristics.
Response: DHS strongly disagrees that officers will make public
charge inadmissibility determinations in a manner that violates the due
process clause of the Fifth Amendment. As a preliminary matter in the
NPRM and this final rule, DHS provided the regulated public with
sufficient notice that officers will apply the statute, binding
precedent decisions, and subregulatory guidance which USCIS will
publish in advance of the effective date of this final rule when making
public charge inadmissibility determinations. DHS identified the
factors, including the receipt of any means-tested public benefit, to
be considered in public charge determinations in both the NPRM and this
final rule, and also explained that while it was removing regulatory
text, exceptions from the public charge ground of inadmissibility are
statutory. These factors will also remain on the USCIS website and in
the Form I-485 instructions for ease of reference. As a result, the
public will be on notice regarding what officers will consider when
making public charge inadmissibility determinations, and thus the
public will have fair notice of the standards officers will use when
making admissibility determinations. Section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), is clear that it applies to aliens seeking
admission, visa, or adjustment of status, and establishes the minimum
factors DHS is required to consider, and precedent decisions discussed
in the NPRM and this final rule provide examples and establish certain
parameters regarding the application of this ground of inadmissibility.
Future USCIS guidance will provide further insight regarding relevant
considerations.
In particular, and as discussed elsewhere in this final rule, USCIS
revised the Form I-485, Application to Register Permanent Residence or
Adjust Status, and its instructions to clarify aliens must provide
information relevant to the factors considered in public charge
inadmissibility determination. For instance, instructions include
questions about family status,\99\ receipt of any means-tested public
benefits, including the dates and amount of receipt, and an explanation
as to why those benefits were received,\100\ and any education and
skills they have. Additionally, aliens required to undergo an
immigration medical examination must submit a Form I-693, Report of
Immigration Medical Examination, which USCIS considers as part of the
mandatory health factor, in the totality of the circumstances. Insofar
as this rule makes clear officers consider any other factors relevant
to determining whether an alien is likely at any time to become a
public charge, aliens may submit any other evidence they believe
relevant to this determination. While not specific to public charge
inadmissibility determinations, USCIS notifies applicants of
deficiencies in their applications with respect to any ineligibility in
accordance with 8 CFR 103.2 and USCIS policy on RFEs, NOIDs, and
denials.\101\
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\99\ See Form I-485 (edition 01/20/25).
\100\ See Form I-485 (edition 01/20/25).
\101\ DHS notes that the failure to submit a completed Form I-
693 and Form I-864 with the Form I-485, when required, may result in
a rejection or a denial of the Form I-485 without a prior RFE or
NOID. See 8 CFR 103.2(a)(7), (b)(8)(ii).
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Similarly, DHS disagrees its public charge inadmissibility
determinations will discriminate against aliens from certain races,
ethnicities, or countries. DHS must consider, at a minimum, an
applicant's age, health, family status, assets, resources and financial
status, and education and skills. DHS officers will also consider the
alien's receipt of means-tested public benefits and any other factors
they determine are relevant to determining whether any individual alien
is likely at any time to become a public charge, as Congress intended.
INA secs. 212(a)(4)(B) and (s), 8 U.S.C. 1182(a)(4)(B) and (s).
While aliens present in the United States are protected by the due
process clause of the Fifth Amendment,\102\ which requires that
immigration proceedings be conducted fairly and without discrimination
or bias,\103\ DHS' public charge determinations are neither facially
discriminatory nor intended to have a discriminatory effect based on
race, ethnicity, national origin, or any other protected
classifications. The Supreme Court determined that immigration
decisions made by DHS, specifically pertaining to which aliens are
permitted to enter or remain in the United States, are subjected to a
``narrow standard of review. . . .'' \104\
[[Page 45348]]
Any due process or equal protection claim regarding this rulemaking
would be subject to rational basis scrutiny.105 106
Generally, laws, regulations, and policies that neither involve
fundamental rights nor include suspect classifications are reviewed
under rational basis scrutiny, under which the person challenging the
law must show the government has no legitimate interest in the law or
policy or there is no rational link between the interest and the
challenged law or regulation.\107\ DHS believes that this rulemaking
would survive rational basis scrutiny because it is rationally related
to DHS's statutory authority: to determine which aliens seeking
admission and adjustment of status are inadmissible under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), that aliens present in the
United States are self-sufficient and do not rely on public resources,
and to minimize incentives for aliens to immigrate to the United States
due to public benefits, 8 U.S.C. 1601.\108\
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\102\ Although the Equal Protection Clause of the Fourteenth
Amendment does not apply to the Federal government, the Supreme
Court in Bolling v. Sharpe, 347 U.S. 497, 500 (1954), held that
while ```equal protection of the laws' is a more explicit safeguard
of prohibited unfairness than `due process of law,' . . .
discrimination may be so unjustifiable as to be violative of due
process.'' In the case of racial discrimination in DC public
schools, the Court found that no lesser Constitutional protections
apply to the Federal government through the application of the Due
Process Clause in the Fifth Amendment than by application of the
Equal Protection Clause of the Fourteenth Amendment.
\103\ See Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (``[O]nce
an alien enters the country, the legal circumstance changes, for the
Due Process Clause applies to all `persons' within the United
States, including aliens, whether their presence here is lawful,
unlawful, temporary, or permanent.'').
\104\ See Mathews v. Diaz, 426 U.S. 67, 81-2 (1976) (``For
reasons long recognized as valid, the responsibility for regulating
the relationship between the United States and our alien visitors
has been committed to the political branches of the Federal
Government. Since decisions in these matters may implicate our
relations with foreign powers, and since a wide variety of
classifications must be defined in the light of changing political
and economic circumstances, such decisions are frequently of a
character more appropriate to either the Legislature or the
Executive than to the Judiciary . . . The reasons that preclude
judicial review of political questions also dictate a narrow
standard of review of decisions made by the Congress or the
President in the area of immigration and naturalization.'').
\105\ See Mathews v. Diaz, 426 U.S. 67, 81 n.17 (1976) (``For
reasons long recognized as valid, the responsibility for regulating
the relationship between the United States and our alien visitors
has been committed to the political branches of the Federal
Government.'').
\106\ Korab v. Fink, 797 F.3d 572, 577-79 (9th Cir. 2014)
(``[F]ederal statutes regulating alien classifications are subject
to the easier-to-satisfy rational-basis review . . . Although aliens
are protected by the Due Process and Equal Protection Clauses, this
protection does not prevent Congress from creating legitimate
distinctions either between citizens and aliens or among categories
of aliens and allocating benefits on that basis . . . The difference
between state and federal distinctions based on alienage is the
difference between the limits that the Fourteenth Amendment places
on discrimination by states and the power the Constitution grants to
the federal government over immigration.'') (internal citations
omitted); Lewis v. Thompson, 252 F.3d 567, 582 (2d Cir. 2001), (``We
have recently recognized that a `highly deferential' standard is
appropriate in matters of immigration . . . .'') (internal citations
omitted); Brooks v. Ashcroft, 283 F.3d 1268, 1274 (11th Cir. 2002)
(``Classifications that distinguish among groups of aliens are
subject to rational basis review, and will be found valid if not
arbitrary or unreasonable'').
\107\ Heller v. Doe by Doe, 509 U.S. 312, 319 (1993).
\108\ The Secretary's authority for issuing this rule is found
in various sections of the INA. See INA secs. 101 et seq., 8 U.S.C.
1101 et seq., section 102 of the HSA, 6 U.S.C. 112, and section 103
of the INA, 8 U.S.C. 1103. 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.
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Further, the public charge inadmissibility determinations DHS will
make under this final rule, clearly reflect a rational link to the
government's interest in ensuring that aliens in the United States are
self-sufficient and do not rely on the public assistance to meet their
needs. While this rule does not limit officer discretion, it
contemplates that officers will exercise that discretion rationally and
fairly, and in addition to the mandatory statutory factors, will
consider only facts and circumstances that are relevant to any public
charge inadmissibility determination. So, while it is possible that
these determinations may in some instances result in more aliens from a
protected classification (e.g., a racial or ethnic group, specific sex,
etc.) being found inadmissible under the public charge ground, that
does not mean that this rule or individual public charge
inadmissibility determinations made after the rescission of the 2022
Final Rule will violate the equal protection guarantee of the Fifth
Amendment. Furthermore, neither this rule nor the individual
inadmissibility determinations officers will make under the public
charge ground of inadmissibility are facially discriminatory or have a
discriminatory purpose.\109\
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\109\ See generally Pers. Adm'r of Mass. v. Feeney, 442 U.S.
256, 279 (1979) (``Discriminatory purpose, however, implies more
than intent as volition or intent as awareness of consequences. It
implies that the decisionmaker, in this case a state legislature,
selected or reaffirmed a particular course of action at least in
part ``because of,'' not merely ``in spite of,'' its adverse effects
upon an identifiable group'') (internal citations omitted).
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Comment: A commenter stated the proposed rule conflicts with the
Tenth and Eleventh Amendments and undermines federalism by potentially
penalizing State public benefit programs because: the Supreme Court
recognized federalism prohibits Congress and the Executive from
intruding on State sovereignty and powers reserved to the States, even
if otherwise authorized under an enumerated power which stems from
federal constitutional structure in the Tenth and Eleventh Amendments
prohibiting the Federal government from commandeering a State to
implement Federal commands.
Response: DHS public charge inadmissibility determinations under
this rulemaking neither implicate the Tenth or Eleventh Amendments nor
have federalism implications. First, it is not clear from the comment
how this rule could even theoretically implicate the Eleventh Amendment
\110\ which pertains to judicial powers and not the power of the
Executive Branch. Second, pertaining to the Tenth Amendment reservation
clause,\111\ nothing in this rule purports to take away power that was
Constitutionally reserved for the States. While the NPRM and this final
rule acknowledge some indirect impacts on States, the rule does not
regulate State, local, or Tribal functions. This rule simply exercises
the Secretary's lawfully delegated authority over immigration \112\ and
the public charge inadmissibility. INA secs. 103(a) and 212(a)(4), 8
U.S.C. 1103(a) and 1182(a)(4). The commenter did not cite caselaw or
explain how this final rule can be viewed to commandeer States and DHS
strongly disagrees with that sentiment. Furthermore, this rule does not
violate Federalism principles because it does not substantially impact
States, the relationship between the Federal Government and the States,
or the distribution of power and responsibilities among the various
levels of government. Although this rulemaking will expand the universe
of means-tested public benefits that DHS will consider in public charge
inadmissibility determinations, to include benefits that may be fully
or partially funded or administered by State, local, or Tribal
governments, DHS is neither regulating which aliens may receive such
benefits nor how States, local, and Tribal governments administer such
programs. Consequently, DHS does not expect that this final rule will
impose substantial direct compliance costs on State, local, or Tribal
governments, or preempt State law.
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\110\ U.S. Const. amend. XI ``The Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign
State.''
\111\ U.S. Const. amend. X ``The powers not delegated to the
United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.''
\112\ See Arizona v. United States, 567 U.S. 387, 394-5 (2012)
(holding that the federal government has ``broad, undoubted power
over the subject of immigration and the status of aliens'' which is
derived from the Constitution's grant of authority over
naturalization and the federal government's sovereign authority in
foreign affairs.)
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Comment: A commenter wrote rescission is unconstitutional under the
``void for vagueness doctrine'' and unlawful pursuant to section
706(2)(c) of the APA, reasoning the rescission fails to provide, and
deliberately obscures, any fair notice to those potentially affected,
of the conduct encompassed by the public charge ground of
inadmissibility resulting in a
[[Page 45349]]
total lack of standards for assessing inadmissibility under public
charge and virtually guarantees arbitrary and discriminatory
enforcement by immigration officers, citing Sessions v. Dimaya.\113\
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\113\ Sessions v. Dimaya, 584 U.S. 148, 156 (2018).
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Response: DHS disagrees that either the proposed rule or this final
rule is vague. As discussed earlier in this preamble, DHS believes its
approach in this rule falls within the explicit discretionary authority
Congress delegated to the Secretary regarding public charge
inadmissibility determinations. Thus, DHS's rescission of the 2022
Final Rule, and subsequent administration of the public charge ground
of inadmissibility as outlined in this final rule are consistent with
the statute and applicable precedent is well within the Secretary's
authority. It is also consistent with Congress's express national
policy on welfare and immigration enacted in PRWORA. See 8 U.S.C. 1601.
DHS notes it is Congress that established the public charge ground of
inadmissibility and, in delegating discretion to DHS, identified a
nonexclusive list of factors to be considered when making public charge
determinations. Congress did not prescribe how this discretion should
be exercised, i.e., how these factors should be applied, precluded
consideration of other factors, nor provided a prescriptive roadmap for
agencies to follow when making public charge inadmissibility
determinations. Congress left to INS and DHS, how to interpret and
apply those factors, including how to incorporate a consideration of
public benefit receipt the public charge inadmissibility
determinations. Prior to the issuance of the 1999 Interim Field
Guidance and promulgation of agency regulations in 2019 and 2022, the
public charge ground of inadmissibility was successfully applied in
adjudications and certain precedential decisions developed from that
discretionary application. By rescinding the 2022 Final Rule, DHS is
returning to the pre-1999 application of officer discretion consistent
with the statute and applicable precedent. Furthermore, the NPRM and
this final rule have been explicit about considering all information
and evidence relevant to assessing whether an alien is likely at any
time to become a public charge will be considered in the totality of
the circumstances.
While DHS generally agrees that the constitutional vagueness
doctrine applies to regulations (in addition to statutes), particularly
those regulating criminal conduct or imposing penalties, DHS disagrees
that the vagueness doctrine applies to the rescission of an agency
regulation because no replacement regulation was proposed in the NPRM
or adopted by this final rule. In addition, to the extent the vagueness
doctrine would apply to future subregulatory guidance, DHS does not
intend that guidance to be vague.
Even if removal of the 2022 Final Rule is subject to challenge
under the vagueness doctrine, DHS believes Sessions v. Dimaya, 584 U.S.
148 (2018), is distinguishable because that case dealt with the Federal
criminal code's incorporation of the definition of ``crime of
violence'' into the INA, and application of the same in the removal
context, rather than a civil statute that specifically authorizes broad
discretion in subjective determinations and prohibits no conduct.\114\
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\114\ 584 U.S. 148, 155-56 (``The prohibition of vagueness in
criminal statutes is an essential due process required by both
ordinary notions of fair play and settled rules of law . . .
[because] it guarantees that ordinary people have fair notice of the
conduct a statute proscribes,'' (internal citations omitted)).
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Comment: Citing the Supreme Court's 1982 decision in Plyler v.
Doe,\115\ some commenters said this rule violates the principles set
forth in Plyler because it discriminates against children by making
predictions and assumptions about receipt of public benefits based on
their parents' decisions and using a child's lawful access to food or
medical care as evidence against a parent applying for admission or
adjustment of status which inverts that principle entirely risking
equal protection guarantees meant to shield children.
---------------------------------------------------------------------------
\115\ 457 U.S. 202 (1982).
---------------------------------------------------------------------------
Response: DHS disagrees that removal of the 2022 Final Rule is
inconsistent with Plyler v. Doe. In Plyler, the Supreme Court held
States cannot discriminate against children on the basis of
undocumented status. As courts have recognized, Plyler relates to
distinctions made by States rather than the Federal government and
therefore does not apply to DHS or this rulemaking.\116\ Even if Plyler
applies to the Federal government on the theory that the equal
protection protections applicable to States through the Fourteenth
Amendment to the U.S. Constitution are extended to the Federal
Government by virtue of the due process clause of the Fifth
Amendment,\117\ DHS believes that Plyler would still be
distinguishable. First, the Supreme Court recognized that Federal
alienage classifications are subject to rational-basis review because
immigration regulation is entrusted to the political branches.\118\
Therefore, the standard of review would be different than in
Plyer.\119\ Secondly, unlike in Plyler, where State action
categorically deprived children of education based on their immigration
status, in this case DHS is not depriving alien children of any right.
The rescission of the 2022 Final Rule does not categorically exclude
anyone from any government benefit program; it merely returns public
charge inadmissibility determinations to the historical practice of
applying the statute and relevant precedent, in which receipt of means-
tested public benefits is but one consideration in the totality of the
circumstances. While this rule may disincentivize some parents from
applying for means-tested public benefits on their children's behalf,
it does so consistent with our national policy that such benefits not
provide an incentive for immigration. See 8 U.S.C. 1601. Furthermore,
the rule in no way prevents alien children from receiving means-tested
public benefits for which they are eligible and under this rule, the
receipt of such benefits alone, including where parents applied on
their behalf, is not outcome determinative in a public charge
inadmissibility determination. Therefore, DHS strongly disagrees that
this final rule violates the principles of Plyler.
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\116\ See, e.g., Aleman v. Glickman, 217 F.3d 1191, 1198 (9th
Cir. 2000) (``Plyler [is] inapposite, however, because [it]
involve[s] state classifications of aliens.'') (emphasis in the
original); Rodriguez ex rel. Rodriguez v. U.S., 169 F.3d 1342, 1350
(11th Cir. 1999) (``Plyler is inapposite because it deals with a
Fourteenth Amendment challenge to a state's classification of
aliens.'') (emphasis in the original).
\117\ See, e.g., Bolling v. Sharpe, 347 U.S. 497, 499 (1954)
(holding that equal protection principles constrain Federal action
through the Fifth Amendment).
\118\ Matthews v. Diaz, 426 U.S. 67, 79-80 (1976). See also
Trump v. Hawaii, 585 U.S. 667, 702 (2018) (recognizing that courts
apply a highly deferential review in the admission context.)
\119\ Plyler v. Doe, 457 U.S. at 216-17 (1982) (``But we would
not be faithful to our obligations under the Fourteenth Amendment if
we applied so deferential a standard to every classification. The
Equal Protection Clause was intended as a restriction on state
legislative action inconsistent with elemental constitutional
premises. Thus, we have treated as presumptively invidious those
classifications that disadvantage a `suspect class,' or that impinge
upon the exercise of a `fundamental right.' With respect to such
classifications, it is appropriate to enforce the mandate of equal
protection by requiring the State to demonstrate that its
classification has been precisely tailored to serve a compelling
governmental interest.'').
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Furthermore, this final rule does not render children per se
inadmissible under the public charge ground due to the receipt of
means-tested public benefits that their parents applied for on their
behalf. As is the case with any alien seeking admission or adjustment
[[Page 45350]]
of status, as required by the statute, DHS considers that child's age,
health, family status, assets and resources, financial status,
education, and skills, along with receipt of means-tested public
benefits in the totality of the circumstances. Under this final rule,
DHS can also consider, for instance, the length, recency, and amount of
receipt of those benefits, the fact that the child's parent sought the
benefits on the child's behalf, and that the child is not likely to
receive such benefits once they reach the age of maturity.
With respect to the suggestion DHS is impermissibly considering the
receipt of means-tested public benefits by an alien's child, DHS notes
as reflected in the changes to the adjustment of status application,
USCIS is only collecting information about the receipt of any means-
tested public benefits by the alien applying for adjustment.\120\ DHS
further notes the receipt of means-tested public benefits by an alien's
children would only be relevant to the alien's public charge
determination to the extent either the means-tested public benefits
received by the alien's child are the alien's source of financial
support or the alien is legally obligated to support the child who is
receiving the means-tested public benefits. In both cases, receipt of
means-tested public benefits by the alien's child would be relevant to
the alien's assets, resources, and financial status and would be
considered in the totality of the circumstances.
---------------------------------------------------------------------------
\120\ See Form I-485.
---------------------------------------------------------------------------
DHS has discussed in other comment responses how this rule does not
violate the equal protection clause and incorporates those responses
here. However, even if the rule did place additional restrictions on
aliens, the Supreme Court, even prior to PRWORA, determined the equal
protection analysis of Federal action that differentiates between
citizens and aliens in the immigration context is different from the
equal protection analysis of State actions that differentiate between
citizens of another State and citizens of another country.\121\
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\121\ In Mathews v. Diaz, the Supreme Court specifically
distinguished between State statutes that deny welfare benefits to
resident aliens, or aliens not meeting duration residence
requirements, from similar actions taken by the political branches
of the Federal Government that are specifically empowered to
regulate the conditions of entry and residence of aliens finding the
enforcement of a 5-year residency requirement against aliens
applying for a supplemental medical insurance program did not
deprive the aliens of life, liberty or property without due process
of law under the Due Process Clause of the Fifth Amendment See 426
U.S. 67, 79-80, 85-86 (1976). (``The fact that all persons, aliens
and citizens alike, are protected by the Due Process Clause does not
lead to the further conclusion that all aliens are entitled to enjoy
all the advantages of citizenship. . . .'').
---------------------------------------------------------------------------
Comment: One commenter stated the proposed rule undermines U.S.
human rights obligations under the International Covenant on Economic,
Social, and Cultural Rights in 1977,\122\ including the right to
adequate housing and obligation to implement it without discrimination.
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\122\ United Nations, International Covenant on Economic, Social
and Cultural Rights, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights (last visited Feb. 5, 2026).
---------------------------------------------------------------------------
Response: DHS rejects the assertion this rule violates the United
States' treaty obligations under the International Covenant on
Economic, Social, and Cultural Rights. DHS notes the United States has
not ratified this covenant and therefore has no associated treaty
obligations. Separately, DHS notes its public charge determinations
under this final rule are not inconsistent with this treaty, which
``recognize[s] the right of everyone to an adequate standard of living
for himself and his family, including adequate food, clothing and
housing, and to the continuous improvement of living conditions.''
\123\ Simply put, in making public charge inadmissibility
determinations under this final rule, DHS officers will consider the
statutory minimum factors, receipt of any means-tested public benefits,
and any other factor an officer, in his or her discretion, determines
is relevant to assessing the alien's likelihood at any time of becoming
a public charge. Consideration of these factors does not prevent any
alien subject to the public charge ground of inadmissibility from
applying for and receiving any means-tested public benefits for which
they are eligible, including benefits related to food, clothing, or
housing. As was the case prior to the 1999 Interim Field Guidance, DHS
will now consider any receipt of means-tested public benefits in the
totality of the circumstances, as such receipt bears on an alien's
self-sufficiency and likelihood at any time of becoming a public charge
but receipt of means-tested public benefits alone is not outcome
determinative.\124\
---------------------------------------------------------------------------
\123\ United Nations, International Covenant on Economic, Social
and Cultural Rights, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights (last visited Feb. 5, 2026).
\124\ 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 [INA] and are
excludable as public charges.''); Matter of M-, 2 I&N Dec. 131, 131
(BIA 1944) (considering alien's receipt of public aid as part of
public charge inadmissibility determination). 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); 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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5. Prospective Application of the Final Rule and Retroactivity Concerns
Comment: Many commenters expressed concerns the new rule would
apply retroactively to aliens who received means-tested public benefits
previously excluded from consideration, as grounds to deny permanent
residence, unfairly penalizing decisions made in good faith under
existing guidance. One commenter, citing caselaw, stated unless
expressly authorized by Congress, a rule may not take away vested
rights under existing laws, or create a new obligation, impose a new
duty, or attach a new disability with respect to concluded transactions
or considerations and DHS impermissibly relied on INA sec. 212(s), 8
U.S.C. 1182(s), to consider past use of previously excluded public
benefits, concluding the NPRM was impermissibly retroactive. Other
commenters wrote in contrast to the 2019 and 2022 rules, the proposed
rule does not clearly state it only applies prospectively and to honor
these reliance interests and uphold basic principles of administrative
law, DHS must explicitly state any policy changes will apply only
prospectively, ensuring families are not retroactively penalized for
accessing the healthcare and nutrition benefits essential to their
health under protections relied upon in the 2022 Final Rule. Another
similarly remarked retroactively implementing more stringent rules
would undermine the Federal Government's credibility and people's
ability to rely on its policies. Another requested a transition policy
preventing retroactive penalization for benefit use during the period
in which the 2022 Final Rule was in effect and explaining how reliance
interests will be weighed for pending/near-term filings. Other
commenters requested a clause in the final rule stating receipt of
benefits that were excluded prior to the rule's publication will not be
considered or would be considered consistently with the 2022 Final
Rule. Several of these commenters noted that such a clear statement was
included in both the 2018
[[Page 45351]]
NPRM and the 2019 Final Rule, and its omission from this proposal was
deeply alarming. In addition to a non-retroactivity clause, one
commenter asked DHS to clarify that aliens do not need to report
benefits received prior to the final rule's effective date and that the
use of State-funded programs based on reliance of prior DHS policies
would be excluded. Another urged DHS not to treat past use of the
Oregon Health Plan (OHP) or similar Medicaid coverage, obtained while
the 2022 Final Rule is in effect, as a negative factor in any public
charge determination stating families should not be retroactively
harmed for relying on clear government messaging.
Response: DHS did not claim an express grant of retroactive
rulemaking authority nor specifically relied on INA sec. 212(s), 8
U.S.C. 1182(s), for that authority. DHS also did not propose to find
aliens inadmissible under the public charge ground and therefore
ineligible for adjustment of status based on the past receipt of public
benefits previously excluded from consideration under the 2022 Final
Rule. In general, DHS applies its regulations prospectively. DHS agrees
the U.S. Supreme Court held ``statutory grants of rulemaking authority
will not be understood to encompass the power to promulgate retroactive
rules unless that power is conveyed by express terms'' \125\ and
retroactive rules alter the past legal consequences of past
actions.\126\ DHS also recognizes a rule operates retroactively if it
takes away or impairs vested rights.\127\ In addition, DHS recognizes
if a new rule is ``substantively inconsistent'' with a prior agency
practice and attaches new legal consequences to events completed before
its enactment, it operates retroactively.\128\ However, an agency rule
altering future effect, not the past legal consequences of an action,
or that upsets expectations based on prior law (which may be
characterized as secondary retroactivity), is not necessarily
impermissibly retroactive. Finally, ``[a] rule that has unreasonable
secondary retroactivity--for example, altering future regulation in a
manner that makes worthless substantial past investment incurred in
reliance upon the prior rule--may for that reason be `arbitrary' or
`capricious.' '' \129\ This final rule makes clear that it is not
altering the past consequences of past actions or imposing new adverse
consequences for past actions taken in reliance on prior agency
regulations, and therefore would not be impermissibly retroactive or
arbitrary and capricious for having an unjustified secondary
retroactive effect.
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\125\ Georgetown Univ. Hosp. v. Bowen, 488 U.S. 204, 208 (1988).
\126\ Bowen, 488 U.S. at 219 (Scalia, J. concurring).
\127\ See Nat'l Mining Ass'n v. U.S. Dep't of the Interior, 177
F.3d 1, 8 (D.C. Cir. 1999) (National Mining I) (quoting Ass'n of
Accredited Cosmetology Sch. v. Alexander, 979 F.2d 859, 864 (D.C.
Cir. 1992)).
\128\ See Arkema Inc. v. EPA, 618 F.3d (D.C. Cir. 2010)
(vacating an EPA rule in part on impermissible retroactivity grounds
because the rule attached new legal consequences to events completed
before its enactment) (quoting Nat'l Mining Ass'n v. Dep't of Labor,
292 F.3d 849, 860 (D.C. Cir. 2002)); see also Mobile Relay Assocs.
v. FCC, 457 F.3d 1, 11 (D.C. Cir. 2006) (explaining ``[r]etroactive
rules `alter[ ] the past legal consequences of past actions' ''
(quoting Bowen, 488 U.S. at 219 (Scalia, J., concurring)).
\129\ Bowen, 488 U.S. at 220 (Scalia, J., concurring)
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While DHS does not agree the NPRM was impermissibly retroactive,
DHS recognizes some aliens may have relied on the 2022 Final Rule,
including the outreach, when making decisions on previously excluded
means-tested public benefits. Therefore, DHS will not consider the
receipt of previously excluded means-tested public benefits if such
benefits were received before the effective date of this final rule.
However, if the alien continues to receive these benefits on or after
the effective date of this final rule, DHS will consider that receipt
in the totality of the circumstances.
DHS also agrees it is helpful to state explicitly in this final
rule how the rule will be implemented. DHS included an Implementation
section in this preamble that clarified that this final rule will apply
to applications for admission made on or after the effective date of
this final rule and applications for adjustment of status postmarked or
electronically submitted on or after that date and accepted by USCIS
pursuant to 8 CFR 103.2(a)(1) and (a)(2).\130\ To determine whether a
case was postmarked before the effective date of the rule, DHS will
consider the postmark date for the application or petition currently
before USCIS, not the postmark date for any previously-filed
application or petition USCIS rejected pursuant to 8 CFR
103.2(a)(7)(ii). Similarly, DHS clarified it will consider the receipt
of means-tested public benefits received before the effective date of
this final rule consistently with the 2022 Final Rule, i.e., DHS will
only consider the alien's receipt of Supplemental Security Income
(SSI), Temporary Assistance for Needy Families (TANF), State, Tribal,
territorial, and local public cash assistance for income maintenance
and long-term institutionalization at government expense received. DHS
also clarified in the Form I-485 instructions that with respect to
means-tested public benefits that were received before the effective
date of this final rule, DHS will only collect information about the
receipt of SSI, TANF, State, Tribal, territorial, and local public cash
assistance for income maintenance, and long-term institutionalization
at government expense. With respect to the OHP or Medicaid received
before the effective date of this final rule, DHS will treat such
receipt consistently with the 2022 Final Rule and only consider receipt
in the context of long-term institutionalization at government expense
limited to institutional services under section 1905(a) of the Social
Security Act, 42 U.S.C. 1396d(a), when received by a beneficiary,
including in a nursing facility or mental health institution.
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\130\ Note, however, that applications filed prior to the
effective date of the 2022 Final Rule would still be adjudicated
under the 1999 Interim Field Guidance.
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As discussed in other comment responses, this rule does not direct
or require aliens to disenroll from means-tested public benefits.
However, when making a public charge inadmissibility determination
under this final rule, where there is evidence in the record of any
past receipt of means-tested public benefits, USCIS may request the
alien clarify whether he or she is continuing to receive means-tested
public benefits, or has disenrolled. USCIS will consider any evidence
the alien provides demonstrating that he or she has disenrolled.
Comment: A commenter stated the resistance to retroactive
penalization is a matter of basic civil liberties, not just
administrative law, and retroactive application of the new public
charge rule runs afoul of 6 U.S.C. 111(b)(1)(G), which the proposed
rule cites as a source of DHS's legal authority.
Response: DHS disagrees it violated 6 U.S.C. 111(b)(1)(G) regarding
the civil rights and civil liberties of persons or economic security of
the United States because, as explained in the immediately preceding
comment response, this final rule does not operate retroactively and
DHS included clarifications to ensure there is no confusion among the
regulated public or officers administering public charge. DHS explained
in other comment responses this final rule does not discriminate on the
basis of race, national origin, or any other protected class, nor
otherwise violate aliens' civil rights or civil liberties, and that DHS
is well within its authority to consider all factors mandated by
Congress. Consistent with 6 U.S.C. 111(b), this rule promotes the
economic security of the United States by ensuring aliens who lack
self-sufficiency are not
[[Page 45352]]
admitted or granted adjustment of status.
E. Negative Impacts on DHS and Immigration Policy Objectives
1. Concerns About Immigration Officer Discretion
Comment: Numerous commenters opposed the proposed rule due to
concerns about officer discretion in the absence of clear guidelines
for making public charge determinations, and lack of any discernible
framework, raising concerns about ``excessive,'' ``broad,''
``unbounded,'' ``unchecked,'' or ``too much'' discretion. Others
expressed concern it would lead to unfair, arbitrary, inconsistent,
erroneous, and possibly discriminatory outcomes. Other commenters
agreed and wrote that the NPRM failed to consider how ``unfettered''
discretion will result in inconsistent decisions reflecting
adjudicator-level variability including different treatment among field
offices, officers, or adjudicatory culture leading to inconsistency and
reduced trust in the immigration system. Several commenters remarked
while the INA assigns the public charge assessment to the ``opinion of
the Attorney General,'' the degree to which the NPRM centers
adjudicative discretion is an inaccurate reading of the statute,
suggesting the lack of guidance would create a system ``in which
applicants face radically different outcomes depending on who reviews
their case.'' A form letter campaign expressed concern that the
expanded criteria would give officers independent discretion, allowing
them to make high-stakes immigration decisions based on broad, loosely
defined factors. Others wrote that the proposed rule fails to identify
why this kind of broad authority for officers is necessary.
Response: DHS disagrees with the premise of these comments. DHS is
restoring the decades-old practice of broad officer discretion, which
ensures that aliens who, in the opinion of a DHS officer, are likely at
any time to become a public charge are refused admission or denied
adjustment of status. Similarly, DHS disagrees with the commenter's
suggestion that all standards for public charge inadmissibility
determinations have been removed with the rescission of the 2022 Final
Rule. 87 FR 55472 (Sept. 9, 2022). Section 212(a)(4)(A) of the INA, 8
U.S.C. 1182(a)(4)(A), states ``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 factors the
consular officer or immigration officer must consider when making a
public charge 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 Form I-864 when making a public charge
inadmissibility determination.
Trusting in the judgment of officers to make reasonable
adjudicative decisions consistent with the statute and binding
precedent will not lead to arbitrary, inconsistent, discriminatory, or
erroneous outcomes. With respect to commenters' related concern about
the potential for variability among discretionary decisions, DHS notes
the statute explicitly accounts for variability by using the language
``in the opinion of'' and ``at a minimum.'' USCIS will issue policy and
interpretive tools applicable to USCIS' adjustment of status
adjudications, which will guide officers in making public charge
inadmissibility determinations consistent with the law and based on a
consideration of all relevant evidence and information. Such
subregulatory guidance will be published in advance of or on the
effective date of this final rule, will not be a legislative rule, will
comply with the APA, and have a reasonable basis generally informed by
the comments on this NPRM.
Adjudicative discretion is built into most aspects of the U.S.
immigration system. Congress, in passing the INA and other immigration
statutes and amending them over the years, explicitly stated in
statutory text that many immigration benefits are discretionary.\131\
Very few types of immigration benefit requests are not discretionary,
though notable examples include applications for naturalization and
most types of immigrant visa petitions. Congress has also frequently
included language stating that determinations made in connection with
immigration benefit requests or enforcement activity are discretionary.
Section 212(a) of the INA, 8 U.S.C. 1182(a), is replete with examples
of such explicit language regarding the discretionary nature of certain
inadmissibility determinations, for example when assessing involvement
in controlled substance trafficking; \132\ aiding, abetting, assisting,
or conspiring, or colluding with someone involved in human trafficking;
\133\ money laundering; \134\ or seeking to enter the United States to
engage solely, principally, or incidentally in espionage, evasion of
export control laws, unlawful activity, or activities intended to
oppose, control, or overthrow our government by force, violence, or
other unlawful means; \135\ officers make the determination if they
know or have reason to believe the alien has engaged in such conduct.
The same ``knows, or has reasonable ground to believe'' discretionary
standard appears in relation to determining whether aliens engaging in
or likely to engage in terrorist activity after entry are
inadmissible.\136\ Other broad discretionary language, ``has reasonable
ground to believe,'' is used to assess whether an alien is inadmissible
because his or her entry or proposed activities in the United States
would have potentially serious adverse foreign policy
consequences.\137\ Additionally, an exception to one of the terrorism-
related inadmissibility grounds is available when ``the consular
officer or Attorney General has reasonable grounds to believe'' an
alien has renounced a family member's terrorist activity. INA sec.
212(a)(3)(B)(ii)(II), 8 U.S.C. 1182(a)(3)(B)(ii)(II).
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\131\ See e.g. INA sec. 245(a), 8 U.S.C. 1255(a) (``the Attorney
General may adjust the status. . .''); sec. 212(a)(4), 8 U.S.C.
1182(a)(4) (``in the opinion of''); INA sec. 240A, 8 U.S.C.
1229b(b)(1) (``The Attorney General may cancel removal of, and
adjust to the status . . .''). Congress also recognized
discretionary immigration decisions in the judicial review statute.
See 8 U.S.C. 1252(a)(2)(B). With respect to adjustment of status, in
particular, the Supreme Court has recognized it as a discretionary
form of relief. See generally, Patel v. Garland, 596 U.S. 328 (2022)
(holding that federal courts lack jurisdiction to review factual
findings made by immigration officials found as part of
discretionary-relief proceedings under the INA provision allowing
for adjustment of status and other provisions enumerated in the INA,
for example discretionary relief from removal).
\132\ INA sec. 212(a)(2)(C), 8 U.S.C. 1182(a)(2)(C).
\133\ INA sec. 212(a)(2)(H), 8 U.S.C. 1182(a)(2)(H).
\134\ INA sec. 212(a)(2)(I), 8 U.S.C. 1182(a)(2)(I).
\135\ INA sec. 212(a)(3)(A), 8 U.S.C. 1182(a)(3)(A).
\136\ INA sec. 212(a)(3)(B)(i)(II), 8 U.S.C.
1182(a)(3)(B)(i)(II).
\137\ INA sec. 212(a)(3)(C)(i), 8 U.S.C. 1182(a)(3)(C)(i).
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The discretionary ``in the opinion of'' language used in section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), is not unusual within
immigration laws granting broad discretion to the Executive Branch.
Congress established that ``[a]ny alien who, in the opinion of the
consular officer at the time of application for a visa, or in the
opinion of the Attorney General at the time of application for
admission or adjustment of status, is likely at any time to become a
public charge is inadmissible'' (emphasis added). Congress went on to
state in making such a determination, ``the
[[Page 45353]]
consular officer or the Attorney General shall at a minimum consider''
(emphasis added) five statutory factors, and ``may also consider any
affidavit of support'' (emphasis added) under section 213A of the INA,
8 U.S.C. 1183a. Congress's use of ``in the opinion of'' in the public
charge statute is arguably the broadest discretionary language used in
connection with an inadmissibility determination under section 212(a)
of the INA, 8 U.S.C. 1182(a). While Congress required officers to
consider five specific factors, it described these as ``minimum''
factors to be considered. This language shows Congress clearly intended
officers to consider case-specific additional factors and information
relevant to the public charge inadmissibility determination.
While broad, the discretion granted by Congress to officers making
public charge inadmissibility determinations is not ``excessive,
unbounded, or unchecked'' as stated by various commenters. Officers
make public charge inadmissibility determinations within the statutory
framework, considering at a minimum the five factors required by
Congress, and, consistent with binding precedent, any other factor
relevant to assessing an alien's likelihood at any time of becoming a
public charge, including the alien's receipt of means-tested public
benefits. As noted previously, DHS and legacy INS officers successfully
and reasonably applied public charge long before DHS codified the
public charge ground of inadmissibility in regulation with no trouble
applying statute, precedent, and agency guidance.\138\ With this final
rule, DHS restores officers' ability to appropriately consider all
pertinent facts and circumstances relevant to an alien's likelihood at
any time of becoming a public charge, rather than forcing them to
ignore relevant evidence and information falling outside the narrow
parameters of the current regulation. This is consistent with the
implicit trust Congress placed in officers' judgment and discretion in
this area of law.
---------------------------------------------------------------------------
\138\ 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 . . . .''
(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.'').
---------------------------------------------------------------------------
Comment: Another commenter wrote the proposed rule would turn the
public charge inadmissibility determination from one governed by ``ex-
ante'' determinations, i.e. predictive and forward-looking, to one
driven by ``ex-post'' determinations, which focus on events that have
already occurred.
Response: DHS disagrees that the public charge inadmissibility
determinations under the final rule would be driven by ``ex-post''
determinations. Under the statute, this final rule, and any subsequent
subregulatory guidance, public charge inadmissibility determinations
will remain forward-looking, prospective determinations based on the
totality of the circumstances, just as Congress intended. In making a
forward-looking determination, officers must rely on the information
available to them at the time of the adjudication. Such information
will necessarily reflect both current and past events and
circumstances. However, such information is only relevant to the extent
it provides a basis for the officer's forward-looking determination
that, in the officer's opinion, the alien is likely at any time to
become a public charge. Having received means-tested public benefits in
the past is not outcome-determinative but merely informs the
prospective determination in the totality of the circumstances.\139\
---------------------------------------------------------------------------
\139\ See e.g. 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).
---------------------------------------------------------------------------
Comment: Commenters suggested that the proposed rule would
disadvantage officers as they would apply their discretion with a lack
of any discernible framework, falling short of the stated goal of
creating a precise and accurate process. A commenter wrote that DHS
officers are accustomed to adjudicating applications under the 1999
Interim Field Guidance and similar 2022 Final Rule, and that
eliminating key elements of that guidance and rule without establishing
a detailed framework in their place would result in inconsistency and
confusion in the application of the public charge ground of
inadmissibility. Another commenter noted that removal of the clear list
of factors would, in practice, result in officers, who are not licensed
physicians, actuaries, or financial professionals, evaluating complex
medical records and prognoses; interpreting insurance and public
benefits eligibility rules under Federal and state law; analyzing tax
transcripts, assets, liabilities, and income projections to make a
predictive determination. The commenter stated the NPRM neither
describes a corresponding requirement that such officers hold any
professional licensure or specialized training in medicine, accounting,
finance, or actuarial science, nor established an external review
mechanism to correct technical errors.
Response: Our immigration laws are replete with examples of
Congress placing explicit trust in officers' opinion and judgment
without requiring DHS or DOJ to implement regulations on those topics.
DHS has generally not published regulations guiding officers'
implementation of the grounds of inadmissibility.\140\ The
establishment of detailed regulations regarding public charge
inadmissibility determinations in 2019 and 2022 makes this
inadmissibility ground an outlier. DHS notes that there are no
regulations at all relating to the deportation grounds of section
237(a) of the INA, 8 U.S.C. 1227. A lack of regulations in this or any
other area of immigration law will not disadvantage officers or result
in less accurate decisions.
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\140\ 8 CFR part 212. Arguably the only regulations concerning
the application of section 212(a) of the INA, 8 U.S.C. 1182(a),
relate to INA sec. 212(a)(7), 8 U.S.C. 1182(a)(7) (documentation
requirements).
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DHS disagrees with commenters that officers need expertise in
various fields beyond normal adjudication training DHS provides any
time it changes or modifies agency policy. DHS and legacy INS officers
successfully and reasonably applied the public charge ground of
inadmissibility long before DHS codified the public charge ground of
inadmissibility in regulation based on the statute, precedent, and
agency guidance. DHS is confident that officers will be able to
continue performing these functions with competence and integrity and
exercise their best judgment when considering the statutory mandatory
factors, the alien's receipt of means-tested public benefits, and all
other evidence relevant to assessing the individual alien's likelihood
at any time of becoming a public charge.
As for officers being familiar with the framework established by
the 1999 Interim Field Guidance and generally included in the 2022
Final Rule, and unfamiliar with applying the public charge ground of
inadmissibility after the removal of most of the 2022 Final Rule from 8
CFR part 212, this is not unusual. Whenever the agency amends its
regulations or policies, or Congress amends a statute, officers must
familiarize themselves with adjudicating consistent with the new
context. USCIS will provide guidance and training to officers to aid
them in
[[Page 45354]]
the transition, as it generally does in such situations.
Comment: Multiple commenters warned a lack of guidance would create
a void resulting in confusion and uncertainty. Conversely, another
wrote the prior public charge framework is proven, easier to apply, and
avoids unpredictable outcomes, maintaining fairness, transparency, and
predictability in immigration decisions. A commenter remarked that
existing guidance allowed their organization to provide clients with
clear information on what types of programs are safe to access. Another
stated the effects of the proposed rule cannot be ascertained, creating
difficulty for governments and organizations to advise people who seek
assistance.
Response: DHS disagrees with commenters' suggestions that this
final rule creates a void or results in confusion or uncertainty, or
that the 2022 Final Rule is ``proven'' (in the sense that it results in
outcomes consistent with congressional intent). DHS believes the
statute and the relevant precedent decisions that guided public charge
determinations for decades, as well as recent circuit case law, provide
these organizations with sufficient guidance to advise aliens
concerning this ground of inadmissibility. DHS has explained how this
final rule is more consistent with congressional intent and noted that
the rule ensures officers are able to use good judgment and discretion
to make highly individualized, fact-specific, case-by-case public
charge inadmissibility decisions based on the totality of each alien's
circumstances, rather than being limited by rigid regulatory
definitions and standards. 90 FR 52168, 52194 (Nov. 19, 2025). DHS also
explained that prior regulatory approaches may have resulted in DHS
finding aliens eligible for adjustment of status or admission even when
their past receipt of means-tested public benefits would have
demonstrated that they were likely at any time to become a public
charge, due to officers' inability to consider all benefits relevant to
the case-specific factors and information bearing on the
inadmissibility determination. 90 FR 52168, 52180 (Nov. 19, 2025).
DHS again notes, with one limited exception relating to elements of
section 212(a)(7) of the INA, 8 U.S.C. 1182(a)(7), there are no
regulations relating to the application of other grounds of
inadmissibility that governments, service providers, attorneys, or
community organizations can reference when providing advice to aliens.
It is the current rigid and restrictive public charge regulations which
are the outlier in this area of law. As described in other comment
responses, USCIS will formulate and publish appropriate policy and
interpretive tools that will go into effect on the effective date of
this Final Rule to guide officers, and inform the public, about public
charge inadmissibility determinations.
Comment: A commenter stated immigration officers do not make sound
public charge inadmissibility determinations, citing research that
demonstrated between 2015 and 2024, approximately 70.5 percent of
public charge inadmissibility determinations were later dismissed.
Response: The commenter referenced an analysis conducted by
researchers at George Washington University, based on a table in the
Annual Reports of the Visa Office (of DOS, Bureau of Consular Affairs)
for Fiscal Year (FY) 2015-2024.\141\ However, the researchers
fundamentally misunderstood DOS processes and how to interpret the
data. Even if they understood how to properly interpret the data, DOS
consular officers make visa refusal decisions under different
regulations and policies than USCIS officers, with significantly
different levels of administrative review.
---------------------------------------------------------------------------
\141\ Ku L, Krips M, Silverman H., The George Washington
University, Economic and Mortality Analyses of the DHS Proposed
Rule: Public Charge Ground of Inadmissibility, Appendix 1 at 3 (Dec.
2025).
---------------------------------------------------------------------------
DHS notes an alien can apply for adjustment of status with USCIS,
submit all the required initial evidence, and appear for an interview,
without establishing eligibility for the benefit. After reviewing the
information provided on the application or in the interview, the
officer may determine whether he or she needs additional information or
evidence. In such situations, USCIS may issue a NOID or RFE. This
provides the alien with the opportunity to address USCIS' determination
they failed to meet their burden of proof in demonstrating eligibility.
The adjustment of status application remains pending and USCIS
completes the adjudication based on the response received, if any.
DOS lacks a similar procedural mechanism. If a consular officer
finds an alien failed to demonstrate he or she is admissible to the
United States as an immigrant under section 212(a)(4) of the INA, 8
U.S.C. 1182(a)(4), because of a missing piece of evidence or some
conflicting information that needs to be resolved, the consular officer
cannot leave the immigrant visa application pending and issue the alien
a NOID or RFE. Instead, the consular officer refuses the visa which is
equivalent to a denial by USCIS. The alien may attempt to overcome the
reason for the refusal by providing DOS with additional information or
arguments. DOS may choose to find the alien overcame the reason for the
refusal and issue the visa.
It is a critical misunderstanding of DOS procedures to interpret a
visa refusal listed in that table of the Annual Report of the Visa
Office as a definitive finding that the alien was inadmissible under
the specified ground of inadmissibility, and an even greater error to
interpret an ``ineligibility overcome'' as evidence of some definitive
finding of inadmissibility that was later dismissed. The equivalent at
USCIS would be, as noted, the issuance of an RFE or NOID followed by a
satisfactory response and an approval of the adjustment of status
application. There is a significant difference between what these data
show (generally, an alien failed to fully meet his or her burden--
something was missing or needed to be further explained) and what the
researchers claim (consular officers, with all applicable information
and evidence in front of them and no paperwork errors on the part of
the alien, made a finding of inadmissibility).
These were not inadmissibility findings that were ``dismissed.''
These were, generally, situations in which the initial evidence and
information provided by the alien was insufficient. After being
notified of the deficiency, the alien provided what was previously
lacking and DOS issued the visa. DHS directs the commenters' attention
to visa refusals under the health-related grounds of inadmissibility in
section 212(a)(1) of the INA, 8 U.S.C. 1182(a)(1). In FY 2024, there
were 191 refusals for a communicable disease of public health
significance, and 228 initial refusals were overcome. It would be
equally inaccurate for the commenters to suggest there was a 119
percent ``dismissal'' rate because of erroneous initial determinations
by consular officers under this provision.\142\ The figures should
instead be interpreted as indicating that aliens who were refused visas
because they were sick at the time of the initial medical screening
either were re-screened and cleared or received treatment. Just because
an alien eventually overcomes the basis for the refusal of the visa due
to changed circumstances, the provision of
[[Page 45355]]
additional evidence, or a persuasive legal argument does not mean that
the initial decision of the consular officer was in error or was
``dismissed.''
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\142\ DHS shares two notes from the DOS Annual Report of the
Visa Office. Aliens may be refused a visa in one fiscal year and
overcome it in a subsequent fiscal year, resulting in a higher
figure of ``ineligibilities overcome'' than ineligibility findings.
In addition, a visa application can be refused on more than one of
the listed bases.
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Finally, during the time period covered by the DOS data included in
the commenter's analysis, USCIS issued tens of thousands of RFEs and
NOIDs relating to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
Almost all of them related to deficiencies with Form I-864. If the
alien provided a response to the RFE or NOID demonstrating he or she
had a Form I-864 meeting the requirements of section 213A of the INA, 8
U.S.C. 1183a, and the application was otherwise approvable (including
that a favorable exercise of discretion was warranted, if applicable),
USCIS then approved the application. Otherwise, USCIS denied the
adjustment application. It did so, and continues to do so, without
engaging in any of the analysis under discussion related to this rule,
as failure to provide a sufficient Form I-864, if one is required, is
grounds for automatic denial without determining whether an alien ``is
likely at any time to become a public charge'' based on the minimum
factors and the totality of the circumstances. See INA sec.
212(a)(4)(C), (D) and 213A(a)(1), 8 U.S.C. 1182(a)(4)(C), (D) and
1183a(a)(1).
Comment: A commenter wrote past experiences with immigration
enforcement by local law enforcement officers in Arizona demonstrated
allowing too much discretion to officials can be harmful. Some
commenters noted expanding officer discretion will disproportionately
hurt vulnerable groups, especially Cuban and Haitian parolees who used
public benefits legally and exactly as the government instructed.
Response: Regarding concerns relating to past abuses of discretion
by local police in Arizona who engaged in racial profiling in traffic
stops for immigration enforcement, the relevance to this rulemaking or
public charge inadmissibility determinations is unclear. DHS officers
make public charge inadmissibility determinations when an alien
affirmatively applies for admission or adjustment of status. This
inadmissibility ground applies to all aliens applying for admission as
immigrants and applying for adjustment of status, regardless of their
race or country of origin, and DHS does not have authority to ignore
the ground when applicable. Moreover, DHS does not target certain
populations on the basis of race when applying any ground of
inadmissibility.
DHS notes many Cubans and Haitians present in the United States who
have received means-tested public benefits would be exempt from the
public charge ground of inadmissibility when applying for certain
immigration benefits, minimizing any impact from the consideration of
any receipt of means-tested public benefits. For example, eligible
aliens applying for adjustment of status under the Cuban Adjustment
Act, under section 902 of the Haitian Refugee Immigration Fairness Act
of 1998, and under section 202 of the Immigration Reform and Control
Act of 1986 (IRCA) are exempt from the public charge ground of
inadmissibility.\143\
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\143\ Public Law 89-732 (Nov. 2, 1966), as amended, 8 U.S.C.
1255 note; Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), as
amended, 8 U.S.C. 1255 note; Public Law 99-603, 100 Stat. 3359 (Nov.
6, 1986), as amended, 8 U.S.C. 1255a note.
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Comment: A commenter stated the proposal would turn decisions into
subjective judgments based on an undefined ``totality of the
circumstances'' while another wrote that the proposed reliance on past
precedent and the ``totality of the circumstances'' approach could
introduce a degree of subjectivity leading to inconsistent
determinations, further stating that clarity and consistent application
of these principles is crucial to ensure fairness and predictability.
Another wrote the proposed rule relies on a ``totality of the
circumstances'' test without identifying how immigration officers will
weigh household benefit use and guardrails to prevent treating
household benefit use as presumptively indicative of future dependence.
Response: Public charge inadmissibility determinations are
necessarily subjective because they are prospective and based on the
opinion of the officer. As discussed elsewhere in this preamble, DHS is
committed to ensuring officers have the necessary resources to timely
and efficiently adjudicate applications for immigration benefits. USCIS
will provide guidance and training to officers in the transition, as it
generally does in such situations, ameliorating commenters' concerns.
Furthermore, to ensure consistency and quality control, USCIS will
monitor adjudications and apply its general quality control processes.
USCIS will continually assess and improve the adjudication processes,
procedures, and training as needed to ensure consistency.
While commenters may object to the totality of the circumstances,
this approach to public charge inadmissibility has been recognized as
the proper framework for many decades. DHS suggests that commenters
review those portions of the NPRM relating to the history of this
framework in public charge determinations. 90 FR 52168, 52174-52175
(Nov. 19, 2025). Regarding receipt of benefits by members of the
alien's household, the public charge inadmissibility determination
focuses on the facts and circumstances bearing on the likelihood at any
time that the alien applying for a visa, admission, or adjustment of
status will become a public charge, not the likelihood of his or her
family members becoming a public charge. As explained in other comment
responses, the receipt of means-tested public benefits by members of
the alien's household would only be relevant to the public charge
inadmissibility determination to the extent either those benefits are
the alien's source of financial support or the household member who is
receiving the means-tested public benefits is someone the alien is
legally obligated to support. DHS would consider that fact as part of
the alien's assets, resources, and financial status in the totality of
the circumstances.\144\
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\144\ Given the alien is supposed to exclude any income received
from means-tested public benefits from income information provided
on the Form I-485, the inclusion of amounts received from means-
tested public benefits by others in the household as income may lead
to an inadmissibility finding under section 212(a)(6)(C)(i) of the
INA, 8 U.S.C. 1182(a)(6)(C)(i).
---------------------------------------------------------------------------
Comment: A commenter expressed concern with the discretion provided
to immigration officers under the proposed rule, writing that under the
2022 Final Rule officers only considered whether an alien is likely to
become primarily dependent on cash-assistance or long-term
institutionalization, an approach previously enshrined by INS in the
1999 Interim Field Guidance to simplify the public charge
inadmissibility determination. Another commenter stated INS initially
developed the 1999 Interim Field Guidance due to widespread concern
over confusion surrounding how use of benefits impacted public charge
determinations as well as the associated public health consequences.
Response: DHS disagrees with the premise of these comments.
Requiring officers be willfully blind to the past, current, or likely
future receipt of all other types of means-tested public benefits may
be ``simple'' but inconsistent with both section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4), and Congress's statement of national policy
concerning public benefits and immigration in 8 U.S.C. 1601(2). While
certain categories of aliens may be
[[Page 45356]]
eligible for some public benefits, Congress established immigration
consequences for aliens choosing to receive those benefits in sections
212(a)(4) and 237(a)(5) of the INA, 8 U.S.C. 1182(a)(4) and 1227(a)(5).
Congress explicitly enumerated the instances where certain aliens
receiving public benefits do not have that receipt considered as part
of the public charge inadmissibility determination. See INA sec.
212(s), 8 U.S.C. 1182(s).
Comment: Another commenter said while they appreciated allowing
officers greater discretion in evaluating inadmissibility, they were
concerned that removing the existing framework could lead to a less
consistent and potentially more restrictive application of the law,
inadvertently creating new barriers for deserving individuals. The
commenter urged DHS to consider the long-term implications of the
proposed change and prioritize clarity, fairness, and a nuanced
understanding of individual circumstances in future policies and
interpretive tools.
Response: DHS agrees it is critical public charge inadmissibility
determinations reflect a nuanced understanding of an alien's individual
circumstances i.e., a consideration of all relevant information and
evidence in the totality of the circumstances. Faithful implementation
of the public charge ground of inadmissibility requires allowing
officers to consider all such relevant information and evidence. This
may increase the information collection burden for adjustment
applicants and may result in more aliens properly being found
inadmissible in accordance with the statute. However, it is Congress
who established the statutes governing who is, and is not, eligible to
receive the important benefit of status as an LPR, and DHS's
responsibility, with other agencies that administer this ground, to
identify those aliens who fail to meet the criteria. Additionally, DHS
notes that USCIS will issue policy and interpretive tools applicable to
USCIS' adjustment of status adjudications under this final rule, which
will guide officers in making public charge inadmissibility
determinations consistent with the law and based on a consideration of
all relevant evidence and information.
Comment: A commenter stated while they supported preventing aliens
from accessing means-tested public benefits, the proposed rule was
excessive in allowing a public charge inadmissibility determination
based on ``mere conjectures'' about future receipt of means-tested
public benefits. A commenter wrote it is unlikely immigration officers
are able to make reasonable assessments of the future economic and
social trajectory of immigrants, reasoning that research suggests
immigrants at first typically have lower than average income, but climb
the income ladder and eventually need less public assistance than
native-born U.S. citizens.
Response: The public charge ground of inadmissibility is a
prospective determination made in the opinion of the officer. In
contrast and with limited exceptions,\145\ aliens are inadmissible
under other grounds because of something that occurred in the past or
is true at the time of adjudication. These fundamental differences
between inadmissibility grounds, that some are prospective while others
are not, and that some are based on belief or opinion while others are
not, were established by Congress. For public charge, this has been the
case since 1891, when Congress codified the provision that persons
likely to become a public charge were excludable from the United
States. While commenters may object to an inadmissibility ground based
on a prospective determination made in the opinion of DHS officers,
this is an objection to the statute, not this final rule. DHS is
committed to ensuring that officers are well prepared to consistently
implement the public charge ground of inadmissibility under this final
rule by, among other things, USCIS issuing subregulatory guidance and
providing training to its officers.
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\145\ Exceptions include INA sec. 212(a)(2)(C), 8 U.S.C.
1182(a)(2)(C), INA sec. 212(a)(2)(D), 8 U.S.C. 1182(a)(2)(D), INA
sec. 212(a)(3)(A), 8 U.S.C. 1182(a)(3)(A), and INA sec 212(a)(3)(C),
8 U.S.C. 1182(a)(3)(C).
---------------------------------------------------------------------------
Comment: A commenter wrote the content in DHS social media posts
advertising job openings for immigration officers, as well as other
posts by the Secretary, suggest that DHS is encouraging employees to go
beyond the bounds of the INA in looking for pretexts under the guise of
discretion to deny applicants for immigration services.
Response: DHS disagrees with any suggestion that it is encouraging
or instructing employees to go beyond statutory language. DHS is
committed to the faithful implementation of our immigration laws, even
those long ignored by previous administrations and systematically
violated by categories of aliens. This final rule seeks to restore the
use of the full bounds of the statute.
2. Lack of Replacement Language or Framework
Comment: Multiple commenters expressed concerns that rescinding the
2022 Final Rule without offering any replacement language or guidance
creates uncertainty, fear, and avoidance of applying for or receiving
benefits. Several commenters expressed concern that rolling back the
2022 Final Rule without a full and clear replacement would plunge
immigrant communities, legal service providers, State and local
agencies, and community organizations into a state of prolonged
uncertainty, preventing them from reliably advising aliens on public
charge inadmissibility. A commenter wrote that the lack of clear
standards will create uncertainty for many of the same groups, and
specifically Members of Congress would be unable to provide constituent
services and provide actionable information. Another commenter said
future guidance affecting immigrant communities must be publicly
released so families and advocates understand the rules and in the
absence of clear regulations, USCIS should be limited to applying the
statute, relevant case law, and long-established practices, not making
discretionary judgments. One commenter stated allowing DHS to make
substantive policy decisions without public input would undermine
transparency, public accountability, and regulatory consistency. The
commenter noted policies with such significant implications for
immigrant communities and public health should be subject to full
public scrutiny and not internal administrative discretion.
Another commenter wrote that rescinding the 2022 Final Rule without
replacing it with a clear framework is not a neutral act; rather, it
invites arbitrary, inconsistent, and discriminatory decision-making and
undermines the fairness of the immigration system.
Response: DHS disagrees that rescinding the 2022 Final Rule without
regulatory replacement creates uncertainty, inconsistency, or
discrimination. In fact, we believe the opposite is true. The
regulations implemented by the 2022 Final Rule were inconsistent with
the national policy contained in E.O. 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), by severely and unduly limiting the factors and relevant
evidence DHS officers could consider in making public charge
inadmissibility determinations, undermining the accuracy of such
determinations. DHS agrees that officers should apply the statute,
relevant case law, and any subregulatory guidance, however, public
charge inadmissibility determinations necessarily rely on an officer's
discretion according to the
[[Page 45357]]
statute. Thus, DHS completely removed the public charge inadmissibility
framework established by the 2022 Final Rule (with exception of the
bond provisions) to better align with PRWORA's directive that aliens
are self-sufficient and to comply 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 likely at any time to become a public
charge. Indeed, DHS believes the 2022 Final Rule did 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.
DHS notes that while it has removed the public charge
inadmissibility regulations in the short-term, in advance of or on the
effective date of this final rule USCIS will publish appropriate policy
and interpretive tools to guide public charge inadmissibility
determinations while empowering officers to consider the mandatory
statutory factors in section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B) and all individualized case-specific factors and
circumstances relevant to an alien's application, as Congress
intended.\146\
---------------------------------------------------------------------------
\146\ 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).
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3. Immigration System Impacts, Operational Burdens, and Processing
Delays
Comment: Commenters expressed concerns the proposed rule is an
attack on the lawful immigration system, and that such an attack would
undermine, destabilize, and destroy it. Another wrote that the proposed
rule would negatively impact first-generation immigrant families who
rely heavily on family-based immigration to reunite families because
most humanitarian pathways are exempt and because of the diminished
weight given to a Form I-864 under this rule. The commenter expressed
their concern that public charge inadmissibility determinations under
the new approach would focus on an alien's past and current financial
status, discounting studies showing that even family-based immigrants
thrive economically in the United States after adjustment of status or
admission. Other commenters stated that removal of the 2022 Final Rule
undermines humanitarian programs.
Response: DHS disagrees. Simply put, removal of the 2022 Final Rule
empowers DHS officers to make public charge inadmissibility
determinations consistent with the statute, congressional intent
expressed in PRWORA, and precedent decisions, and does not prevent
aliens who are subject to the public charge ground of inadmissibility
from applying for or obtaining any immigration benefit for which they
demonstrate eligibility. INA sec. 291, 8 U.S.C. 1361. This rule does
not alter eligibility for means-tested benefits or family-based
immigration. Aliens who are beneficiaries of approved family-based
immigrant petitions will still be able to apply for admission and for
adjustment of status, which DHS may grant if they have demonstrated
eligibility. DHS does not believe Congress intended for DHS to
administer section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in a
manner that fails to account for aliens' receipt of food, medical, and
housing benefits to help aliens become self-sufficient. DHS believes
that rescission of the 2022 Final Rule will ultimately strengthen the
legal immigration system by ensuring that aliens who are likely at any
time to become a public charge are refused admission or denied
adjustment of status.
As for humanitarian programs,\147\ Congress exempted aliens
applying for many of these humanitarian benefits from the public charge
ground of inadmissibility.\148\ Therefore, DHS rejects the idea that
modifying how DHS officers make public charge inadmissibility
determinations will impact, much less undermine, humanitarian programs
to which the public charge ground does not even apply.
---------------------------------------------------------------------------
\147\ See, e.g., INA sec. 245(h), 8 U.S.C. 1255(h) (adjustment
of status for special immigrant juveniles). INA sec. 207, 8 U.S.C.
1157 (refugee admission); INA sec. 208, 8 U.S.C. 1158 (asylum
provisions); INA sec. 244, 8 U.S.C. 1254a (TPS provisions).
\148\ See, e.g., INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A)
(applying the ground only to aliens who are applicants for visas,
admission, or adjustment of status); INA sec. 245(h)(2), 8 U.S.C.
1255(h)(2) (exempting special immigrant juveniles applying for
adjustment of status from the public charge inadmissibility ground).
INA sec. 209(c), 8 U.S.C. 1159(c) (exempting refugees and asylees
adjusting status from the public charge inadmissibility ground). INA
sec. 244(c)(2)(A)(ii), 8 U.S.C. 1254a(c)(2)(A)(ii) (exempting aliens
applying for or reregistering for TPS, who must demonstrate they are
admissible as immigrants, from the public charge ground of
inadmissibility).
---------------------------------------------------------------------------
Comment: One commenter stated removing the 2022 public charge
inadmissibility regulations would force USCIS into deeper backlogs
hurting immigrants and U.S. citizens alike, while other commenters
voiced concern with increased operational burdens, processing delays
and longer processing times, and backlogs resulting from the proposed
rule. A commenter said this rule is a waste of time, resources, and
public money, while others stated the lack of clear guidance and case-
by-base public charge inadmissibility decisions would increase
administrative burdens on USCIS, adjudications, and legal challenges,
reducing efficiency.
Other commenters stated that the increased discretion afforded to
immigration officers under the proposed rule would result in longer and
less reliable adjudications. Another commenter warned that the expanded
evidentiary requirements under the proposed rule could lead to longer
processing times, increased case backlogs, and higher operational
costs. The commenter said, in turn, these burdens could negatively
impact families, employers, and community institutions that depend on
predictable and efficient immigration processing.
A commenter requested that DHS implement a new framework that
avoids creating new burdens. Some commenters stated that the rule would
impose a substantial new workload on USCIS, which is already backlogged
in adjudicating applications, the cost analysis in the rule addresses
only the costs to the public, not the administrative costs to USCIS of
implementing the rule, and that officers would be required to parse
through details of public benefits programs,
[[Page 45358]]
which is outside of their job description, and analyze more voluminous
records, which increases time and resource burdens.
Response: DHS disagrees that removing the regulatory framework and
relying on the statute and binding precedent, is more burdensome than
the 2022 Final Rule's framework. Now that the 2022 Final Rule has been
rescinded and removed, DHS has restored a broad public charge
inadmissibility determination in which officers consider the
statutorily mandated factors, the alien's receipt of any means-tested
public benefits, and any other factor(s) an officer determines, in his
or her discretion, is relevant to assessing an alien's likelihood at
any time of becoming a public charge. As was the case prior to the
rescission, DHS will make public charge inadmissibility determinations
based on information collected on the alien's Form I-485, Form I-693,
information from DHS's systems, and any other supporting information
submitted or obtained during adjudication. DHS acknowledges that it has
revised Form I-485 to require additional information that officers will
consider in the totality of the circumstances but believes that public
charge inadmissibility determinations under this final rule will not
result in a significant increase in the information collection burden.
To the extent this rule could initially cause backlogs, DHS
believes any resource burdens associated with removal of the 2022 Final
Rule are justified. In removing the rigid regulations that
straitjacketed USCIS officers' ability to apply the public charge
statute as Congress intended, DHS officers will ensure aliens in the
United States are truly self-sufficient,\149\ not dependent on public
resources,\150\ and that aliens who are likely at any time to become a
public charge are neither admitted nor permitted to adjust their
status, as Congress intended. While implementation of the rule may
initially increase USCIS processing times, such is the burden of robust
enforcement of the laws that Congress set in PRWORA and IIRIRA. DHS is
committed to ensuring officers have the necessary resources to timely
and efficiently adjudicate applications for immigration benefits. USCIS
will provide guidance and training to officers in the transition, as it
generally does in such situations, ameliorating commenters' concerns.
Furthermore, to ensure consistency and quality control, USCIS will
monitor adjudications and apply its general quality control processes.
USCIS will continually assess and improve the adjudication processes,
procedures, and training.
---------------------------------------------------------------------------
\149\ 8 U.S.C. 1601.
\150\ 8 U.S.C. 1601(2)(A).
---------------------------------------------------------------------------
Comment: One commenter noted that this rule would be less
predictable and therefore lead to more requests for evidence, appeals,
and legal challenges. This commenter stated that this rule would lead
to more discretionary denials, which results in more follow-up filings
and delays, which adds months or years to processing times and to
delays. A commenter stated that the rule would significantly increase
the paperwork burden on officers and would lead to inconsistent
adjudication that could increase litigation, and cause delays in
processing, creating larger backlogs in immigration processing. One
commenter said the operational burden associated with the removal of
the 2022 Final Rule could negatively impact families, employers, and
community institutions that depend on predictable and efficient
immigration processing.
Response: DHS disagrees that removal of the 2022 Final Rule results
in an unpredictable approach to public charge inadmissibility
determinations that will lead to the issuance of more requests for
evidence or increased ``paperwork burden'' on officers. As noted in the
NPRM, in adjudicating adjustment of status applications, USCIS will
consider the statutory minimum factors, the alien's receipt of means-
tested public benefits, and all other information relevant to assessing
the alien's likelihood at any time of becoming a public charge in the
totality of the circumstances, consistent with governing precedent. 90
FR 52168, 52188 (Nov. 19, 2025). INA secs. 212(a)(4)(B) and 212(s), 8
U.S.C. 1182(a)(4)(B) and 1182(s). For example, USCIS will continue to
use information from the alien's Form I-693, Report of Immigration
Medical Examination and Vaccination Record, and Form I-485, Application
to Register Permanent Residence or Adjust Status, as well as any
information obtained during an interview to assess the alien's age,
health, family status, assets, resources, and financial status,
education and skills, receipt of any means-tested public benefits. And
as is true in with any immigration benefit USCIS adjudicates, officers
may request additional evidence relating to the statutorily mandated
factors or any other factor the officer determines is relevant to
assessing whether the alien is likely at any time to become a public
charge. 90 FR 52168, 52188 (Nov. 19, 2025). See also 8 CFR 103.2(b)(8).
Furthermore, DHS believes that the statute and the governing
precedent decisions pertaining to public charge inadmissibility
determinations provide officers with sufficient guidance. These
authorities as well as the relevant information collections similarly
provide adequate notice to the aliens applying for adjustment of status
about what information USCIS will consider when conducting public
charge inadmissibility determinations. Aliens applying for adjustment
of status may need to become familiar with these authorities and the
information collections and instructions to understand what evidence
they need to submit to demonstrate that they are not likely at any time
to become a public charge. USCIS will also issue subregulatory
guidance, which will go into effect on the effective date of this final
rule.
Aliens applying for adjustment of status should expect to fully
complete their Form I-485 and provide any required supporting evidence,
as well as provide any evidence in their possession that pertains to
their self-sufficiency and likelihood of becoming a public charge. So
long as aliens provide this information, DHS disagrees with the
commenter's characterization that the return to a faithful public
charge inadmissibility determination will result in more RFEs or
subsequent filings.
With respect to the commenter's claim the rulemaking will result in
more appeals or legal challenges, DHS notes a denial of an application
for admission or adjustment of status generally cannot be
appealed.\151\ Upon denial of an alien's application for adjustment of
status, if removable, USCIS can issue a Notice to Appear (NTA) and
place the alien in removal proceedings.\152\ In removal proceedings,
the alien can challenge the basis for removal and, if found removable,
file the application for adjustment with the Immigration Judge. See INA
secs. 240(c)(3) and (4), 8 U.S.C. 1229a(c)(3) and (4). With respect to
litigation, this final rule was carefully developed to reflect a
faithful interpretation of section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), PRWORA, and congressional intent. DHS also considered
statutes, precedent
[[Page 45359]]
decisions, decades-long agency practices, and legislative materials to
ensure the final rule is consistent with congressional objectives. DHS
recognizes certain individuals and groups may object to any faithful
implementation of our country's immigration laws and may raise their
objections in court. However, we expect the rule's reasonable standards
will support effective implementation and enforcement, consistent with
the statutory framework established by Congress.
---------------------------------------------------------------------------
\151\ See 8 CFR 245.2(a)(5)(ii) (``No appeal lies from the
denial of an application by the director, but the applicant, if not
an arriving alien, retains the right to renew his or her application
in proceedings under 8 CFR part 240. Also, an applicant who is a
parolee and meets the two conditions described in section
245.2(a)(1) may renew a denied application in proceedings under 8
CFR part 240 to determine admissibility.'').
\152\ See 8 CFR 245.2(a)(5)(ii). INA sec. 239, 8 U.S.C. 1229.
INA sec. 240, 8 U.S.C. 1229a.
---------------------------------------------------------------------------
As to the commenter's suggestion that this final rule could
negatively impact families, employers, and community institutions
because it would result in inefficiency in immigration processing,
while implementation of the rule may initially increase USCIS
processing times, such is the burden of robust enforcement of the laws
that Congress established in PRWORA and IIRIRA. DHS is committed to
ensuring officers have the necessary resources to timely and
efficiently adjudicate applications for immigration benefits. USCIS
will provide guidance and training to officers in the transition, as it
generally does in such situations, ameliorating commenters' concerns.
Comment: A commenter stated numerous Federal documents frequently
cite the regulations in question and updating those documents would
waste resources.
Response: DHS recognizes Federal agencies have numerous documents
and resources citing to or referencing regulations promulgated in the
now-rescinded 2022 Final Rule. DHS further recognizes Federal agencies
will need to expend resources to update agency guidance and
informational resources for any regulatory change. DHS does not
anticipate a substantial expenditure of resources unique to this final
rule and will ensure it employs efficient strategies to update its
documents and resources to reflect rescission of the 2022 Final Rule.
Should DHS, particularly USCIS, be unable to recover the full costs
associated with implementing this final rule, the agency will propose
to adjust the associated form fees in a subsequent fee rule. USCIS
establishes its fees by assigning costs to an adjudication based on its
relative adjudication burden and the use of resources. Additionally,
DHS will work with other Federal agencies to ensure awareness of the
rescission and assist them as needed with updating their materials.
Comment: A commenter wrote that the rule removes language excluding
nonimmigrants from the public charge ground of inadmissibility,
impacting international students and scholars. The commenter reasoned
that subjecting these individuals to a public charge determination
would be a waste of DHS's resources as international students must
provide evidence of sufficient funds to support themselves throughout
their course of study. Another commenter requested that F and J
categories of visas be excluded from the proposed rule since
international students and scholars already have to provide proof of
financial self-sufficiency. Another commenter said broad officer
discretion could lead to negative consequences for international
students, including scrutiny of legitimate funding sources like
scholarships, stipends, or assistantships, negative impacts on
dependents, and uncertainty affecting future benefits for the student
such as Optional Practical Training (OPT), H-1B, or adjustment of
status.
Response: DHS believes the first commenter misunderstood the scope
of the 2022 Final Rule which did not exclude nonimmigrants, including
international students and scholars, from the public charge ground of
inadmissibility. Under the plain language of the statute, the public
charge ground of inadmissibility applies to applicants for visas
(immigrant and nonimmigrant), admission, or adjustment of status unless
expressly exempt in statute. Categorically excluding individuals
seeking admission under the F and J categories would be contrary to the
statute.\153\ Therefore, public charge inadmissibility determinations
established by this rulemaking necessarily apply to nonimmigrants
seeking admission at a port of entry, unless the alien is exempt from
this ground of inadmissibility. However, this final rule does not
regulate universities nor the eligibility for, or amount of, financial
aid awards or the availability of internships or other work experience.
The requirement for students to support themselves during studies is
evaluated by consular officers at Department of State prior to issuing
the nonimmigrant visa and, while possible, it is unlikely a CBP officer
would later find the alien inadmissible at a port of entry under
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), barring additional
information or changed circumstances.
---------------------------------------------------------------------------
\153\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
4. Misalignment With Longstanding Immigration Policies or U.S. Values
Comment: Commenters expressed concerns: the rulemaking is against
our values (including fairness and opportunity), founding principles,
and is intended to punish poor immigrants and deter them from entering
the United States. Another warned that proposed changes would shift the
immigration system toward a model that prioritizes evaluating
immigrants on wealth, over other traditional markers of successful
assimilation, such as potential, character, and contributions. A
commenter said the rule disproportionately burdens low-income
individuals, people with disabilities, caregivers, and marginalized
communities without a legitimate governmental justification, and
wealth-based exclusion mechanisms have consistently been viewed with
constitutional skepticism. A commenter stated that the uncertainty and
individual discretion in immigration decisions resulting from the
proposed rule would run contrary to democratic values.
Response: DHS strongly disagrees this rule is intended to punish
anyone, including marginalized communities, or is inconsistent with
American values. DHS, in fact, notes this rule is consistent with
statutory language and longstanding national policy since the earliest
immigration laws that aliens within the United States are self-
sufficient and not dependent on public resources to meet their needs.
See 8 U.S.C. 1601(2)(A) and (5). Congress first created immigration
restrictions based on an alien's likelihood of becoming a public charge
in the Immigration Act of 1882, which authorized exclusion of ``any
person unable to take care of himself or herself without becoming a
public charge.'' \154\ Congress expanded on this point in 1996 when
enacting PRWORA by stating aliens generally should not depend on public
resources and the availability of public benefits should not constitute
an incentive for immigration to the United States. See Public Law 104-
193, sec. 400, 110 Stat. 2105, 2260 (codified at 8 U.S.C. 1601).
Further, DHS does not believe this final rule is contrary to democratic
values. DHS's interpretation and application of the public charge
inadmissibility ground in this rulemaking is properly guided by the
more than a century-old history of this provision, the current
statutory language at section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), relevant case law, and Congress's express statements of
national policy with respect to immigration and welfare.
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\154\ Immigration Act of 1882, 22 Stat. 214 (Aug. 3, 1882).
---------------------------------------------------------------------------
As noted previously, to the extent that public charge
inadmissibility determinations disproportionately affect
[[Page 45360]]
aliens with lower incomes, DHS notes it is Congress, not DHS, that
mandated consideration of an alien's assets, resources, and financial
status in public charge inadmissibility determinations. See INA sec.
212(a)(4)(B)(i)(IV), 8 U.S.C. 1182(a)(4)(B)(i)(IV). Therefore, in
following the express language of the statute, DHS will continue to
consider an alien's assets, resources, and financial status, the other
statutorily-mandated factors, the alien's receipt of means-tested
public benefits, as well as any other case-specific factor that is
relevant, in the officer's discretion, to assessing whether an alien is
likely at any time to become a public charge in the totality of the
circumstances.
An officer would not conclude that an alien is inadmissible as
likely at any time to become a public charge solely because that alien
is low income.\155\ Indeed, to deny an alien admission or adjustment of
status solely because the alien has lower income would be inconsistent
with statutory language and longstanding binding precedent that DHS
will continue to follow.\156\ Instead, as reflected in the NPRM,\157\
officers would make public charge inadmissibility determinations
considering all relevant factors, including the statutorily mandated
factors, the alien's receipt of means-tested public benefits, and any
other relevant factor, in the totality of the circumstances.\158\
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\155\ 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.'').
\156\ 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.'').
\157\ 90 FR 52168, 52180 (Nov. 19, 2025).
\158\ See, e.g., Matter of A-, 19 I&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).
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Comment: Another commenter said this rule is contrary to family
unity goals of section 201(b) of the INA, 8 U.S.C. 1151. Another
commenter stated that DHS should retain the 2022 Final Rule because
unlike the framework DHS proposed in the NPRM, the 2022 Final Rule
protects family unity.
Response: DHS strongly disagrees that this rule seeks to undermine
opportunity, fairness, or family unity. DHS acknowledges that the INA
provides certain aliens with the opportunity to come to and remain in
the United States temporarily and permanently in furtherance of such
ideals as family unity.\159\ However, DHS must emphasize that this rule
does not and cannot alter the process and requirements for obtaining
immediate relative, family-sponsored, employment-based, diversity, or
nonimmigrant visas, or humanitarian relief as provided for in the
statute; aliens will still be able to apply for any benefit for which
they are eligible and DHS will continue to grant immigration benefits
to aliens who have demonstrated eligibility for such benefits.\160\
Importantly, the INA precludes certain aliens from obtaining those
family unity and humanitarian benefits. For example, unless an
exception applies or a waiver is available, aliens seeking admission
and adjustment of status as family-based immigrants are inadmissible
and ineligible if they have committed certain criminal offenses, have
been diagnosed with a communicable disease of public health
significance, and, as important here, are likely at any time to become
a public charge.\161\ These grounds of inadmissibility are valid
exercises of congressional authority, notwithstanding that such grounds
of inadmissibility may prevent aliens from obtaining these family-based
benefits that Congress has made available.
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\159\ See, e.g. INA sec. 203(a), 8 U.S.C. 1153(a).
\160\ INA sec. 291, 8 U.S.C. 1361.
\161\ See, e.g., INA secs. 212(a)(1), (2), and (4), 8 U.S.C.
1182(a)(1), (2), and (4).
---------------------------------------------------------------------------
Because Congress has for over a century determined that aliens who
are likely to become a public charge should be precluded from obtaining
certain immigration benefits, including those intending to promote
family unity, DHS is required to enforce this basis for inadmissibility
when determining which aliens to admit or adjust their status to that
of a lawful permanent resident. Through this rule, DHS is exercising
its statutory authority to administer the public charge ground of
inadmissibility in the manner that Congress intended. To the extent
that commenters are concerned about this rule's impact on aliens'
ability to obtain immigration benefits provided under the INA, DHS also
notes that the public charge inadmissibility ground does not apply to
all aliens who are seeking a visa, admission, or adjustment of status.
Congress specifically exempted certain groups, e.g., refugees and
asylees at the time of admission and adjustment of status. INA secs.
207(c)(3) and 209(c), 8 U.S.C. 1157(c)(3) and 1159(c).
Comment: Commenters stated it is contrary to the spirit of U.S.
immigration law to treat short-term, lawful benefit use as a negative
factor in a public charge inadmissibility determination. Others
expressed concern that the proposed rule is an abandonment of
longstanding immigration policy and severely harms aliens who rely on
social safety services to contribute to the country over the course of
their lives. Two others wrote that this rule would unravel decades of
sound and settled public policy clearly outlining which public benefits
may be used without causing negative immigration consequences.
Response: DHS disagrees that considering an alien's receipt of
means-tested public benefits in a public charge inadmissibility
determination is contrary to the spirit of longstanding immigration
policy. An alien's receipt of public benefits has been a consideration
in public charge inadmissibility determinations dating back to the
earliest immigration laws.\162\ Further, DHS considers the factors in
the totality of the circumstances, where receipt of any means-tested
public benefits by an alien is considered but not outcome
determinative.\163\
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\162\ 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 [INA] and are
excludable as public charges.''); Matter of M-, 2 I&N Dec. 131, 131
(BIA 1944) (considering alien's receipt of public aid as part of
public charge inadmissibility determination).
\163\ 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 [INA] and are
excludable as public charges.''); Matter of M-, 2 I&N Dec. 131, 131
(BIA 1944) (considering alien's receipt of public aid as part of
public charge inadmissibility determination).
---------------------------------------------------------------------------
DHS would not conclude an alien is inadmissible under the public
charge ground simply because that alien received a means-tested public
benefit. 90 FR 52168, 52188 (Nov. 19, 2025). Instead, as noted in the
NPRM and following past precedent, DHS officers would look at the
circumstances surrounding the alien's receipt, e.g., nature of the
benefit, 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, and
whether the
[[Page 45361]]
reason has or is likely to persist, etc. 90 FR 52168, 52188 (Nov. 19,
2025).
Comment: Commenters expressed concern that the proposed rule is a
departure from the United States' historic commitment to welcoming
immigrants and recognition of immigrant contributions, in that a narrow
and punitive interpretation of ``public charge'' fails to reflect the
nation's historical understanding of immigrants as long-term
contributors to the economy and society. A commenter expressed concern
that the proposed changes would radically reshape the legal immigration
system and redefine who is ``worthy'' of being a U.S. citizen, along
with what the country looks like.
Response: DHS disagrees. DHS acknowledges immigrants have made and
continue to make critical contributions to the U.S. economy and
workforce. Immigrants, taken as a whole, are a net positive for the
U.S. economy as well as government budgets, filling critical gaps in
the U.S. labor market. However, Congress determined which aliens should
be admitted into the United States or granted adjustment of status and
which aliens are inadmissible and, therefore, ineligible for admission
and adjustment of status. The faithful application of the statutory
provisions rendering aliens inadmissible to the United States is
critical to ensuring that immigration continues to serve as a positive
force for our economy and country as a whole.
Aliens likely at any time to become a public charge are among those
categories of aliens whom Congress determined should not be admitted or
permitted to adjust their status. Furthermore, it is our longstanding
national policy on immigration and welfare that aliens within the
United States should 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. The public charge
ground of inadmissibility is an important tool established by Congress
to minimize the presence in the United States of aliens who lack self-
sufficiency and are likely to rely on the government to meet their
needs. It is Congress, not DHS, who has established the eligibility
criteria determining who is ``worthy'' to be admitted to the United
States or to adjust their status. By faithfully implementing the public
charge ground of inadmissibility, DHS helps ensure aliens admitted to
the United States or granted adjustment of status are the aliens who
would contribute to the economy and workforce.
F. Negative Impacts on Applicants, Petitioners, Beneficiaries, and
Support Systems
1. Chilling Effects on Benefit Usage
a. General Concerns About Chilling Effects
Comment: Numerous commenters expressed concern that the proposed
rule's perceived ambiguity around which forms of assistance may be
considered and whether receiving public benefits on behalf of family
members could negatively affect an applicant would lead to a ``chilling
effect'' that would discourage immigrants from accessing essential
health, nutrition, and housing services, despite being legally eligible
to receive them. Citing studies and research, many commenters asserted
that the chilling effect will increase hunger, food insecurity,
homelessness and poverty, create uncertainty or fear among immigrants,
leading them to forego benefits or programs they help fund through
taxes, and discourage families from accessing essential services to
avoid risking their immigration status or the status of family members.
Another commenter quoted the NPRM, that 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.''
Response: With respect to the rule's potential ``chilling
effects'', DHS points to our national policy on welfare and immigration
as set forth in PRWORA as a sufficient basis to move forward with this
final rule. See Public Law 104-193, sec. 400, 110 Stat. 2105, 2260
(codified at 8 U.S.C. 1601).
DHS acknowledges the final rule may indeed produce indirect effects
on the receipt of means-tested public benefits. Moreover, individuals
who might choose to disenroll from or forgo future enrollment in a
public benefits program may include aliens as well as U.S. citizen
members of mixed-status households. However, as stated in the NPRM, DHS
believes the regulations implemented by the 2022 Final Rule are
inconsistent with the national policy contained in E.O. 14218, PRWORA,
and both the language and spirit of the broad statutory text in section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), because it severely and
unduly limited the factors DHS could consider in making a public charge
inadmissibility determination. The 2022 Final Rule, at best,
discouraged and, at worst, prevented DHS officers from considering
relevant evidence essential to making an accurate and valid public
charge inadmissibility determination consistent with the statute, the
spirit of PRWORA, and past precedent decisions.
Although individuals may reconsider their receipt of public
benefits in light of future immigration consequences, this rule does
not prohibit an alien from obtaining any public benefit for which he or
she is eligible. To the extent that aliens subject to the public charge
ground of inadmissibility decide to forego means-tested public benefits
on behalf of their U.S. citizen children or to the extent that aliens'
family members disenroll from means-tested public family members for
which they are eligible, such choices would be unreasonable where DHS
has communicated in this rule, and will communicate in future guidance,
that such receipt will not be considered except in limited
circumstances. Regardless, DHS declines to limit the effect of the
rulemaking to avoid the possibility that aliens subject to this rule
may disenroll or choose not to enroll in public benefit programs as
confirming self-sufficiency is the rule's ultimate aim. DHS also
declines to limit the effect of the rule to avoid the possibility that
individuals who are not subject to the public charge ground of
inadmissibility will choose not to receive means-tested public
benefits, as DHS believes that this risk is outweighed by the benefits
of the rule.
However, DHS notes that the subregulatory guidance that USCIS will
issue in the USCIS Policy Manual, which will apply to USCIS
adjudications of adjustment of status applications, will provide the
regulated public with sufficient information to understand whose
benefits will and will not be considered in an alien's public charge
inadmissibility determination. Sharing this information is intended to
help individuals who are not subject to the public charge ground of
inadmissibility understand that it does not apply to them, allowing
them to make informed decisions. Additionally, DHS encourages nonprofit
organizations that assist aliens to also provide information and
disseminate the guidance that USCIS will issue to help aliens and their
families understand how public charge inadmissibility determinations
will be made under this final rule.
Comment: Another commenter reasoned that recent policy shifts
eliminated automatic extensions for numerous Employment Authorization
Document (EAD) categories, shortened validity periods, led to longer
[[Page 45362]]
processing times, and resulted in periods of unemployment, forcing many
aliens to depend on public benefits to meet their families' basic
needs, despite being ready, willing, and able to legally work. Yet, the
commenter said, immigrants may be discouraged from applying for these
benefits under the proposed rule, risking food insecurity, housing
instability, and other serious harms to protect their immigration
status.
Response: DHS acknowledges that aliens with gaps in employment due
to difficulties obtaining EADs may experience periods of financial need
during which aliens need to rely on resources other than their own to
meet their needs. However, consistent with PRWORA, aliens should not
depend on public resources to meet their needs, but rather rely on
their families, their sponsors, and private organizations during those
times. See 8 U.S.C. 1601. DHS will consider the alien's receipt of
means-tested public benefits in the totality of the circumstances. DHS
emphasizes under applicable precedent and as discussed in the NPRM, the
fact that an alien received means-tested public benefits is not by
itself outcome determinative.\164\ DHS will also consider the type of
benefit received, the circumstances under which the alien received
those benefits, the duration and amount of receipt, as well as the
statutory factors and any other factor the officer determines, in his
or her discretion, is relevant to assessing the alien's likelihood of
at any time becoming a public charge, including prior employment
history.
---------------------------------------------------------------------------
\164\ 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.''). Matter of A-, 19 I&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. The BIA 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).
---------------------------------------------------------------------------
b. Impact on Public Health and Healthcare Access
Comment: Many commenters expressed concern that the rule is
counterproductive, cruel, not aligned with public health stewardship,
and adversely impacts public health, requested the rule explicitly
exclude health and nutrition programs from the public charge
inadmissibility determination to protect public health and food
security as healthcare is a basic and fundamental need, and pointed out
the need for clarity that existed in the previous regulations to
prevent widespread fear, harm, and confusion. Several commenters were
concerned about the rule undermining the trust in public healthcare
systems. A commenter noted that programs like Medicaid are not signs of
dependency but are rather essential supports promoting public health,
child development, workforce participation, and community well-being.
Commenters listed negative consequences for removing the regulations
that they claimed provided clarity and excluded consideration of the
receipt of Medicaid from a public charge inadmissibility determination,
including a higher prevalence of communicable diseases due to lower
vaccination rates and increased spread of preventable illness, lower
rates of seeking regular health checks or necessary care, poorer long-
term health outcomes, declination of lifesaving services or necessary
prescriptions, an increase in the prevalence of obesity and
malnutrition, decreased use of or increased barriers to mental health
treatment, and increased deaths due to avoidance of emergency
treatment. Many commenters stated the rule would also exacerbate food
insecurity, housing instability, and poverty, linking those to long-
term health conditions like diabetes, obesity, hypertension, chronic
kidney disease, and depression that would impact overall U.S. public
health. Others noted some aliens pay taxes and should be allowed to
access tax-funded healthcare.
Commenters stated that lawfully present families are already losing
or avoiding health coverage because of policy uncertainty and cited the
Kaiser Family Foundation (KFF)/New York Times 2025 Survey of Immigrants
\165\ to point to the number of lawfully present immigrants who are now
uninsured, or who have said they are delaying needed care because of
immigration concerns. Some commenters stated the rule would harm people
living with HIV and undermines the Ending the HIV Epidemic in the U.S.
federal initiative by deterring people living with and vulnerable to
HIV from accessing health insurance and vital public programs designed
to allow individuals to stay in care, sustain viral suppression, and be
self-sufficient. They stated that these programs are important to end
the HIV epidemic, improve quality of life for people living with HIV,
and that the rule would ultimately lead to treatment interruptions,
increased transmission rates, preventable deaths, and increased
healthcare costs.
---------------------------------------------------------------------------
\165\ Drishti Pillai, Samantha Artiga, et al., KFF, KFF/New York
Times 2025 Survey of Immigrants: Health and Health Care Experiences
During the Second Trump Administration (Nov. 18, 2025), https://www.kff.org/immigrant-health/kff-new-york-times-2025-survey-of-immigrants-health-and-health-care-experiences-during-the-second-trump-administration/.
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Response: DHS disagrees the rule is not aligned with American
values or is counterproductive or cruel. As reflected in E.O. 14218,
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 rule, DHS ensures aliens are self-sufficient and not
admitted or granted adjustment if they are likely at any time to become
a public charge. 8 U.S.C. 1601.
DHS also disagrees that the rule will undermine the trust in public
healthcare systems. This rule in no way restricts access to medical
treatment or vaccines for children or adults, and this rule is not
intended to discourage individuals from obtaining necessary healthcare
to prevent communicable diseases.
Additionally, this rulemaking does not prevent aliens from
obtaining any means-tested public benefits for which they are eligible
under PRWORA. Although DHS acknowledges that the final rule, once
effective, may lead individuals to disenroll or choose to forgo
enrollment from public benefits for which they are eligible, the rule
does not change eligibility requirements for any public benefits. The
rule only clarifies how officers will determine whether an alien
seeking admission or adjustment of status is inadmissible, which is a
separate determination Congress has authorized DHS to make.
Comment: Some commenters stated the rule undermines the goals of
the Make America Healthy Again initiative, and one commenter added it
contradicts the U.S. Department of Health and Human Services' (HHS)
work to increase access to affordable coverage and attain better health
outcomes. One commenter stated the rule reverses progress made on
health equity among different populations. Similarly, one commenter was
concerned about the rule resulting in increased risk of communicable
disease spread in dense urban areas and another raised the risk of
detrimental effects on healthcare in rural areas.
Response: DHS disagrees the rule undermines the goals of Make
America Healthy Again initiative. E.O. 14212 establishes the Make
America Healthy Again Commission to aggressively
[[Page 45363]]
combat the critical health challenges facing our citizens in the United
States. This rule does not regulate eligibility for, or access to,
public benefits. DHS reiterates that this rule does not prevent
individuals who are eligible for public benefits from receiving these
benefits and therefore does not undermine the public health goals set
forth in the Make America Healthy Again initiative, nor does this rule
contradict the work of HHS to enact such policy.
This rule is consistent with the Government's interest and
congressional intent, as set forth in PRWORA, to: (1) minimize the
incentive of aliens to immigrate to the United States due to the
availability of public benefits; and (2) promote the self-sufficiency
of aliens within the United States. See 8 U.S.C. 1601. DHS acknowledges
that aliens subject to this rule may decline to enroll in, or may
choose to disenroll from, means-tested public benefits for which they
may be eligible under PRWORA, in order to avoid negative consequences
as a result of this final rule. However, DHS has authority to take
past, current, and likely future receipt of means-tested public
benefits into account, even where it may ultimately result in
discouraging aliens from receiving those benefits.\166\ Additionally,
DHS disagrees that this rule will cause an increased risk of
communicable disease among aliens to whom this rule applies. Aliens
applying for adjustment of status are required to obtain an immigration
medical examination and establish that they are not inadmissible under
section 212(a)(1) of the INA, 8 U.S.C. 1182(a)(1). Therefore, DHS
believes that these aliens would still take preventive measures against
and/or seek proper treatment of communicable diseases, regardless of
means-tested public benefit disenrollment, in order to remain
admissible to the United States. For these reasons, DHS declines to
limit the effect of the rulemaking to avoid the possibility that
individuals subject to this rule may disenroll or choose not to enroll
because self-sufficiency is the rule's goal.
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\166\ Note, however, as explained throughout this final rule,
with respect to benefits previously excluded from consideration
under the 2022 Final Rule, DHS will not consider them if received
before the effective date of this final rule.
---------------------------------------------------------------------------
c. Impacts on Children and Mixed-Status Families
i. Disenrollment and Fear of Enrolling Impacts on Children
Comment: Many commenters expressed concerns about disenrollment
effects on immigrant children, saying that disenrollment from Medicaid
would increase children's rates of hunger, housing insecurity, poor
health outcomes, and reduce access to routine check-ups, vision and
oral care, and treatment for chronic conditions, while others said
disenrollment would harm children's educational attainment, long-term
success, overall well-being and development, and vaccination rates. One
commenter said that Medicaid coverage is associated with lower rates of
asthma among children. Others remarked that Medicaid is critical for
providing behavioral health services to children. Some said the
chilling effects would increase childhood stressors and trauma, while
introducing new behavioral challenges and social deficits, with one
commenter stating that fear of seeking assistance and consequent
material hardship would raise stress for parents, harming parent-child
relationships and, in turn, child development. Many commenters cited
studies and expressed concern that health coverage and care avoidance
would harm immigrant children, with some stating that disenrollment and
care avoidance would decrease the frequency of children's primary and
preventive care visits. Commenters remarked that public health
insurance coverage has a positive relationship with children's
educational attainment and children with health coverage have higher
survival rates during emergencies. Commenters expressed concerns that
the rule would lead to avoidance of energy assistance programs among
immigrant populations and described the importance of those programs
for family health outcomes and child development. Commenters cited
studies discussing how childhood programs improved early cognitive
development, social skills, behavior programs, health, language skills,
math and English-language achievements, lifetime educational
attainment, and employment outcomes and income in adulthood. Commenters
stated that childhood Medicaid enrollment reduces hospitalizations and
development of chronic adult health issues, delinquency and crime, and
diagnoses of attention disorders and developmental delays. They also
cited studies that found an association between Medicaid enrollment and
lowered chances of developing high blood pressure, having difficulty
walking, and experiencing early mortality as adults.
Response: DHS recognizes that many of the public benefit programs
aim to better future economic and health outcomes for children and
parents may decide to disenroll their children from these programs to
avoid negative immigration consequences. However, this rule is aimed at
ensuring that public charge inadmissibility determinations are
consistent with Congress's intent in the INA, IIRIRA, and PRWORA. This
rule restores broader discretion to evaluate all relevant facts and
circumstances in assessing an alien's likelihood at any time of
becoming a public charge and aligns with long-standing policy that
aliens should be self-reliant and government benefits should not
incentivize immigration. See 8 U.S.C. 1601. This rule does not prevent
any individual, including a child, who is eligible for health or
nutrition programs from applying for or receiving benefits, but rather
faithfully implements the statute after rescission of the overly-
restrictive 2022 Final Rule. DHS is implementing the above-referenced
congressional directive in PRWORA. DHS believes that the 2022 Final
Rule did not faithfully implement PRWORA and section 212(a)(4)(A) of
the INA, 8 U.S.C. 1182(a)(4)(A), insofar as it straitjacketed officers
by limiting which public benefits considered in the totality of the
circumstances and by precluding officers from considering factors
beyond the seven factors outlined in the regulations.
DHS also notes that the public charge inadmissibility ground does
not apply to all applicants who are seeking a visa, admission, or
adjustment of status. Congress specifically exempted certain groups
from this ground of inadmissibility, e.g., refugees and asylees at the
time of admission and adjustment of status, pursuant to sections
207(c)(3) and 209(c) of the INA, 8 U.S.C. 1157(c)(3) and 1159(c). To
the extent that these commenters are concerned with the application of
the public charge inadmissibility ground to children, DHS notes that
Congress did not exclude children from the public charge ground of
inadmissibility unless the child is applying for admission or
adjustment of status under a category Congress expressly exempted from
public charge inadmissibility. Moreover, Congress specifically required
that DHS consider an applicant's age in the public charge
inadmissibility determination. Additionally, as discussed in other
comment responses, DHS notes it will only consider receipt of means-
tested public benefits by family members to the extent there is
evidence in the record an alien's family member whom the alien is
legally obligated to support applied for, was approved or certified to
receive, or has received or is currently receiving means-tested public
benefits due to the alien's income falling below
[[Page 45364]]
a certain threshold.\167\ In such cases, DHS would consider the alien's
financial status that led to his or her family member needing to apply
for or receive those benefits as part of DHS' consideration of the
alien's assets, resources, and financial status in the totality of the
circumstances.\168\
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\167\ See generally, https://www.regulations.gov/document/USCIS-2025-0304-0003 (Form I-485 Instructions--proposed revision) (last
visited Feb. 13, 2026). (``For Part 9., Item Number 58., please
select the appropriate box for your household's annual income. You
may include income provided to your household from sources who are
not members of your household, including but not limited to alimony
or child support. You must exclude any income from means-tested
public benefits. You must also exclude any income from illegal
activities or sources such as proceeds from illegal gambling or drug
sales.'')
\168\ See, e.g., Matter of A-, 19 I&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).
---------------------------------------------------------------------------
Comment: A few commenters expressed concerns regarding how
homelessness and housing instability impacts children and remarked
housing stability is a significant predictor of academic achievement,
with one commenter reasoning that housing instability interferes with
children's ability to attend school, complete homework, and build
connections with educators and peers. A few commenters added that
children whose families receive housing assistance are more likely to
have a healthy weight, improved mental health outcomes, educational
gains in math and language arts, and higher earning and educational
attainment, along with a lower chance of incarceration in adulthood.
Some referenced a study that found that in households where caregivers
reported receipt of heat or energy assistance, children had healthier
weights and lower rates of acute hospitalization.
Response: To the extent the commenters believe this rule would be
responsible for housing instability and homelessness, DHS notes the
rule does not instruct aliens to forgo applying for or receiving means-
tested public benefits that address housing instability and
homelessness for which they are eligible. If an alien received such
means-tested public benefits, it is because the alien applied for and
was determined eligible for those benefits by the benefit providing
agency.
Additionally, as discussed in the NPRM, DHS assessed the rule's
effect on children and determined that the rule may negatively impact
the health and education opportunities for children, including U.S.
citizen children. DHS believes that some of these potential impacts
could be mitigated by clear communication regarding the application of
the final rule and how the public charge inadmissibility determinations
work in the totality of the circumstances. Ultimately, however, DHS
continues to believe that any impact on children is outweighed by the
compelling legal and policy reasons associated with this rulemaking,
including but not limited to, better ensuring self-sufficiency. DHS's
intent is to implement Congress's mandate to assess whether an alien
has met his or her burden to demonstrate that he or she is not likely
at any time to become a public charge under section 212(a)(4)(A) of the
INA, 8 U.S.C. 1182(a)(4)(A), given the congressional policy to ensure
those coming to the United States should be self-sufficient and not
rely on the government for assistance to meet their needs.
DHS also notes Congress, not DHS, both permitted certain limited
categories of aliens to receive means-tested public benefits and
subjected the same aliens to the public charge ground of
inadmissibility. Although aliens may reconsider receiving means-tested
public benefits for which they are eligible due to how it impacts their
eligibility for immigration benefits, this rule does not prohibit
aliens from receiving any public benefit for which Congress made them
eligible.
As noted in the NPRM, in determining whether an alien applying for
admission or adjustment of status is likely at any time to become a
public charge, DHS considers the statutory minimum factors and all
other information relevant to assessing an applicant's likelihood at
any time of becoming a public charge in the totality of the
circumstances, including the alien's receipt of means-tested public
benefits, consistent with governing precedent. 90 FR 52168, 52188 (Nov.
19, 2025). INA secs. 212(a)(4)(B) and 212(s), 8 U.S.C. 1182(a)(4)(B)
and 1182(s).
Comment: A few commenters expressed concern that parents would
withdraw children from early childhood education programs such as Head
Start for fear of jeopardizing immigration status. Others remarked that
early education and child care programs support child development and
improve school readiness and academic performance while supporting
parents who work and pursue education. Further describing the benefits
of Head Start, a few commenters remarked Head Start participants have
improved educational attainment, are less likely to be incarcerated,
and less likely to depend on public assistance as adults. One commenter
described the importance of programs such as the Child Care and
Development Block Grant (CCDBG), saying that CCDBG helps parents afford
quality child care, and without access to these services, families face
difficult decisions about participating in the workforce or leaving
children in suboptimal care settings, anticipating that many families
would forgo care through the CCDBG, despite their U.S. citizen children
being eligible. One organization commented the rule would be
detrimental because poverty-related conditions, including untreated
health and mental health needs, may be mischaracterized as neglect by
child welfare agencies.
A few commenters expressed concerns the rule would reduce families'
willingness and ability to use early intervention (EI) programs because
it was unclear if enrollment in EI services would be included in the
scope of a public charge inadmissibility determination. Others
expressed concerns of confusion regarding whether State-based financial
aid could be considered in the scope of a public charge inadmissibility
determination, warning that this would deter immigrants or U.S. citizen
children from pursuing higher education.
A professional healthcare organization expressed concern that the
proposed rule would lead to uncertainty and confusion, deterring
families from accessing critical medical care needed for children with
kidney disease.
Multiple commenters described the long-term economic and health
benefits of programs supporting children. A form letter campaign and a
commenter stated nutrition programs are an investment in the health,
well-being, and development of communities, with every $1 spent on
Special Supplemental Nutrition Program for Women, Infants, and Children
(WIC) generating an estimated $2.48 in medical, educational, and
productivity savings, concluding ``the proposed rule would reverse
decades of progress in reducing hunger and poverty, leading to a
hungrier, sicker, and poorer nation.''
Commenters cited research showing children's access to public
health insurance and Medicaid improved health outcomes and reduced
government costs, including a study showing that access to food stamps
in early childhood produced significant improvements in education,
income, home ownership, neighborhood quality, and life expectancy, with
every dollar invested generating $62 in societal benefits. A different
commenter explained that early education programs such as Head Start
result in reduced
[[Page 45365]]
delinquency and crime. Another wrote that with fewer students enrolled
in Medicaid, the amount of funding schools receive to pay for health
services and staff decreases. One commenter stated that State
expenditures would increase due to the need to provide services to
children without medical care or access to food assistance, and more
spending on special education services and school nurses.
Commenters remarked that early education programs operate on thin
margins and rely on enrollment to stay open, retain staff, and maintain
quality, with one suggesting the rule would discourage families from
accessing these resources, reduce enrollment, destabilize funding, and
accelerate program closures. Others wrote that the rule would
negatively impact children's ability to learn in the classroom.
Different commenters stated that higher participation in school food
programs strengthens program finances by increasing Federal revenues,
generating economies of scale that reduce the cost of preparing and
serving meals. Others stated the use of direct certification for
eligibility in nutrition support programs in schools reduce individual
family paperwork, unpaid meal debt, and the need to count and document
each meal served to determine what tier of reimbursement they qualify
for and in turn saves local and Federal resources.
Response: This rule restores broad discretion to evaluate all
pertinent facts and aligns with long-standing policy that aliens in the
United States should be self-reliant and government benefits should not
incentivize immigration. It does not prevent any alien eligible for
means-tested public benefits from applying for or receiving benefits.
DHS is implementing the congressional directive in PRWORA that aliens
in the United States should not depend on public resources to meet
their needs. DHS believes the 2022 Final Rule did not faithfully
implement PRWORA and section 212(a)(4)(A) of the INA, 8 U.S.C.
1182(a)(4)(A), insofar as they straitjacketed 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 outlined in the rule. Through this final rule, DHS
seeks to better ensure applicants are self-sufficient. DHS also notes
that the public charge inadmissibility ground does not apply to all
applicants who are seeking a visa, admission, or adjustment of status.
Congress specifically exempted certain groups, e.g., refugees and
asylees at the time of admission and adjustment of status, pursuant to
sections 207(c)(3) and 209(c) of the INA, 8 U.S.C. 1157(c)(3), 1159(c).
ii. Impacts on Mixed Status Families
Comment: Commenters described general impacts the proposed rule's
disenrollment effect would have on immigrant communities, including
increased rates of poverty, housing instability, hunger, and poor
health outcomes. Others stated that the rule would foster fear,
confusion, or uncertainty in mixed-status households and deter access
to benefits among eligible U.S. citizens and LPRs. Another noted that
exempt populations may live with non-exempt immigrants and avoid public
services out of fear of jeopardizing others' immigration status.
Numerous commenters, stated the proposed rule would cause families to
worry that services and benefits received by family members, including
U.S. citizen children, would be held against them in a public charge
assessment, leading families to forgo benefits and care. A few
commenters reasoned that the chilling effect of the proposed rule would
fall hardest on U.S. citizen children, since, as citizens, they are
currently eligible for the widest range of public services.
Commenters stated removing the explicit clarification that benefits
on behalf of family members was not considered ``receipt,'' leaves
immigrants unable to determine whether the use of benefits by family
members would harm them when seeking LPR status, and providers are less
able to offer them meaningful advice or reassurance. They referenced
participation in programs like SNAP, Medicaid, CHIP, and WIC, which
declined at much higher rates for citizen children with aliens parents
than for households with only U.S. citizens in 2019. Citing survey
results from the Urban Institute, commenters remarked that during that
time, nearly three quarters of adults in immigrant families with
children did not understand that their children's participation in
public benefits programs would not be considered in parents' public
charge inadmissibility determinations.
While discussing concerns with the removal of the definition of
``receipt,'' many commenters cited research, studies, or anecdotal
evidence describing potential chilling effects associated with the
removal. Commenters shared evidence of chilling effects after the
publication of the 2019 Final Rule on healthcare, SNAP, Medicaid, CHIP,
and WIC receipt among eligible individuals, including U.S. citizen
children with disabilities. Commenters also articulated concerns on
chilling impacts for individuals with chronic diseases, people with
disabilities, older adults, caregivers, and care workers, with outcomes
running counter to public health goals. They stated that immigrant
caregivers may be concerned their eligible family member's use of
Medicaid home and community based services (HCBS) would be considered
receipt of public benefits for the caregiver themselves. Commenters
cautioned removing the definition of ``receipt'' would create a level
of ambiguity that would lead families with mixed immigration status to
self-evict from federally subsidized homes, leading to increased
instability and poor outcomes in health, education, and employment.
Commenters requested DHS provide explicit assurances in the regulations
and guidance use of public benefits by a family member will not be held
against applicants in a public charge inadmissibility determination or
receipt of such benefits carry less weight than if the applicant
received them.
Response: DHS thanks the commenters for expressing concerns about
how the elimination of the definition of ``receipt (of public
benefits)'' may increase disenrollment or foregone enrollment by
individuals eligible to receive public benefits. This rule does not
apply to U.S. citizens and aliens exempt from the public charge ground
of inadmissibility. DHS acknowledges aliens subject to the public
charge ground of inadmissibility who have U.S. citizen children may
decline to enroll their children in means-tested public benefit
programs for which their children are eligible in order to avoid
negative consequences as a result of this final rule. However, DHS
declines to retain this or any other definition from the 2022 Final
Rule. DHS also acknowledges the chilling effects of the 2019 Final Rule
but, while closer to congressional intent behind section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4), and PRWORA, that rule also prescribed a
rigid and complex regulatory scheme that unnecessarily constrained
officer discretion. DHS is publishing a clean rescission of all
elements of the 2022 Final Rule other than the public charge bond
provisions, which it is amending in this rule.
This rule neither alters eligibility to receive means-tested public
benefits, nor states that an individual who is eligible for those
benefits should not receive those benefits. If an alien has received
means-tested public benefits, it is because the alien applied for and
was determined eligible for those benefits by the benefit providing
agency. Congress, not DHS, created a framework where certain aliens are
both eligible for
[[Page 45366]]
means-tested public benefits and subject to the public charge ground of
inadmissibility.
As noted in the NPRM, in determining whether an alien is likely at
any time to become a public charge, DHS will consider the statutory
minimum factors and all other information relevant to assessing an
applicant's likelihood at any time of becoming a public charge in the
totality of the circumstances, including any receipt of means-tested
public benefits, consistent with governing precedent. 90 FR 52168,
52188 (Nov. 19, 2025). INA secs. 212(a)(4)(B) and 212(s), 8 U.S.C.
1182(a)(4)(B) and 1182(s).
As discussed in other comment responses, a public charge
inadmissibility determination is made on an individualized, fact-
specific, and case-by-case basis, focused on the alien applying for a
visa, admission, or adjustment of status, not his or her family
members. DHS notes that it will consider receipt of these benefits by
family members, including children, to the extent there is evidence in
the record that an alien's family member whom the alien is legally
obligated to support applied for, was approved or certified to receive,
or has received or is currently receiving means-tested public benefits
due to the alien's income falling below a certain threshold.\169\ In
such cases, DHS would consider the alien's financial status that led to
his or her family member needing to apply for or receive those benefits
as part of DHS' consideration of the alien's assets, resources, and
financial status in the totality of the circumstances.\170\
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\169\ See generally, https://www.regulations.gov/document/USCIS-2025-0304-0003 (Form I-485 Instructions--proposed revision) (last
visited Feb. 13, 2026). (``For Part 9., Item Number 58., please
select the appropriate box for your household's annual income. You
may include income provided to your household from sources who are
not members of your household, including but not limited to alimony
or child support. You must exclude any income from means-tested
public benefits. You must also exclude any income from illegal
activities or sources such as proceeds from illegal gambling or drug
sales.'')
\170\ See, e.g., Matter of A-, 19 I&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).
---------------------------------------------------------------------------
Comment: Several commenters said SNAP disenrollment would harm
immigrant children, citing research showing SNAP participation reduces
food insecurity in children by one third and access to SNAP for the
first 5 years of a child's life is associated with improvements in
lifelong educational attainment, income, and life expectancy. Several
commenters referenced studies showing immigrant children who
participate in SNAP are more likely to be in good health, food secure,
and reside in stable housing. Commenters expressed concern about the
effects that food and nutrition benefit avoidance would have on
children, including increased rates of hunger/malnutrition, harm to
long-term health outcomes, increased childhood obesity, harm to long-
term development, including educational attainment; and increased
number of children left unattended due to parents having to take on
additional work to financially compensate for the loss of food aid.
Several commenters remarked that reduced childhood nutrition is
associated with lower concentration, ability to retain knowledge,
participation in school, while another mentioned how malnutrition
affects emotional regulation. Commenters cited the effects of past
policy changes, noting that following the passage of the PRWORA, more
than half of U.S. citizen children in mixed-status households dropped
SNAP benefits and, following the 2019 Final Rule, SNAP enrollment for
U.S. citizen children living in mixed status households dropped 37
percent.
Response: This rule restores broad discretion to evaluate all facts
and circumstances relevant to assessing an alien's likelihood at any
time of becoming a public charge and align with long-standing policy
that aliens in the United States should be self-reliant and that the
availability of public benefits should not incentivize immigration. 8
U.S.C. 1601. This rule does not prevent any individual who is eligible
for health or nutrition programs from applying for or receiving these
benefits, but rather faithfully implements the statute regarding the
inadmissibility of aliens who are likely at any time to become a public
charge, as Congress intended in PRWORA, as well as in section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4). DHS is implementing the congressional
directive in PRWORA that aliens not depend on public resources to meet
their needs.
Comment: Commenters expressed concern that infants in immigrant
households would lose access to specialized formulas currently covered
by WIC potentially causing severe malnutrition and even death,
particularly for infants already facing health problems.
Several commenters expressed concerns the proposed rule would lead
to decreased utilization of school meal programs, with one referencing
a study from the Urban Institute wherein 13 percent of immigrant
families reported avoiding free and reduced school meals programs out
of fear of jeopardizing their immigration status. Commenters remarked
that decreased school meal participation would compromise immigrant
children's development and overall health.
Commenters expressed concerns regarding how avoidance of health
care and coverage would specifically impact U.S. citizen children
living in mixed-status households. A few commenters wrote that when the
public charge rule was expanded in 2019, Medicaid and CHIP enrollment
fell over twice as fast for children with an immigrant parent than it
did for other children. Citing a KFF study,\171\ a few commenters said
that Medicaid and CHIP disenrollment for U.S. citizen children could be
much higher than the proposed rule projects, ranging from 600,000 to
1.8 million cases of foregone enrollment.
---------------------------------------------------------------------------
\171\ Drishti Pillai, Samantha Artiga, et al., KFF, KFF/New York
Times 2025 Survey of Immigrants: Health and Health Care Experiences
During the Second Trump Administration (Nov. 18, 2025), https://www.kff.org/immigrant-health/kff-new-york-times-2025-survey-of-immigrants-health-and-health-care-experiences-during-the-second-trump-administration/.
---------------------------------------------------------------------------
Response: The public charge inadmissibility determination is
squarely focused on aliens applying for admission or adjustment of
status and the likelihood such an alien will at any time become a
public charge. Therefore, DHS officers will not consider the receipt of
means-tested public benefits by the alien's household members when
making a public charge inadmissibility determination. However, as
discussed in previous comment responses, because DHS considers the
alien's assets, resources, and financial status, to the extent that
there is evidence in the record that an alien's family member whom the
alien is legally obligated to support applied for, was approved or
certified to receive, or has received or is currently receiving means-
tested public benefits due to the alien's income falling below a
certain threshold, DHS will consider the alien's financial status that
lead to his or her family member needing to apply for or receive those
benefits as part the alien's assets, resources, and financial status in
the totality of the circumstances. USCIS subregulatory guidance will
clarify that officers who adjudicate adjustment of status applications
should only consider the receipt of means-tested public benefits by the
alien as outlined above.
DHS recognizes this final rule may have indirect impacts on public
health. However, the benefits of this policy outweigh the costs of this
rule by ensuring that DHS faithfully applies the
[[Page 45367]]
public charge ground of inadmissibility in a manner that is consistent
with Congress's intent that aliens are self-sufficient and are relying
on their own capabilities and resources of their family, sponsor, and
private organizations, rather than depending on public resources. 8
U.S.C. 1601.
d. Impact on Pregnant Women
Comment: Many commenters expressed concern about the impact of
chilling effects on pregnant women, stating pregnant and post-partum
mothers may be less likely to claim benefits under the proposed
changes, leading to adverse birth outcomes. Commenters said that
expanded Medicaid coverage for pregnant immigrant populations increases
the use of prenatal care and, in turn, improves birth outcomes. They
stated that disenrollment from public benefits programs is associated
with increased prevalence of malnutrition and obesity among pregnant or
breastfeeding women.
Many commenters highlighted public policy concerns and stated that
the rule would result in decreased access to prenatal programs, leading
to worsened infant and maternal health outcomes and higher maternal and
infant mortality rates. One commenter cited reports of women returning
breast pumps out of fear of jeopardizing their immigration status.
Commenters said that WIC offers vital services for low-income
communities, including food assistance, support with breastfeeding, and
improved access to prenatal care, and that WIC participation reduces
infant mortality by one third.
Commenters discussed the negative health outcomes that
disenrollment from health insurance and, in turn, decreased access to
prenatal care results in upticks in gestational diabetes, increased
kidney infections, higher blood pressure, worsened birth outcomes,
increased number of preterm births, lowered birth weights, increased
instances of hypoglycemia at birth, increased rates of infant
neurodevelopmental disorders, and increased cases of anemia in
newborns. One commenter anticipated additional spending in State
budgets to address higher rates of emergency room use, increased
infectious diseases, and costly illness and injury caused by Medicaid
disenrollment and decreased access to prenatal care, as well as
additional spending to provide formula. Referencing multiple studies,
commenters wrote that, following the initial leak of the public charge
rule in 2017, Medicaid saw significant drops in prenatal Medicaid
enrollment from immigrant women, resulting in drops in birth weights
among newborn immigrant babies.
A few commenters expressed concern that under the proposed rule,
immigrant women would avoid contraceptive services. Commenters remarked
that access to contraception is critical for women's health outcomes,
adding that immigrant women in the United States are already less
likely to have coverage for and use sexual and reproductive health
services than U.S.-born women.
Response: DHS agrees prenatal care, including through Medicaid as
well as other means-tested healthcare programs, provides important
benefits to expectant mothers (and gestating children) who receive it
and has positive impacts on both individual and public health. However,
Congress instructed DHS to minimize the incentive for aliens who
attempt to immigrate or adjust status in the United States due to the
availability of public benefits and promote the self-sufficiency of
aliens within the United States, in accordance with PRWORA. See 8
U.S.C. 1601. As discussed in other comment responses, this rule neither
changes the eligibility requirements for means-tested public benefits
nor precludes individuals from applying for or receiving any means-
tested public benefit for which they are eligible. While DHS recognizes
that this final rule may have indirect impacts on pregnant women, DHS
believes that the benefits of this policy outweigh any such indirect
impacts on certain populations because this rule, consistent with
congressional intent, ensures that aliens applying for admission or
adjustment of status who are subject to the public charge ground of
inadmissibility, are denied if they fail to demonstrate that they are
relying on their own capabilities and resources of their family,
sponsor, and private organizations, rather than depending on public
resources to meet their needs. DHS does not agree receipt of means-
tested public benefits by pregnant women should not be considered in a
public charge determination. Similar to children, Congress did not
exclude pregnant women from the public charge ground of inadmissibility
and DHS must apply the ground unless the alien is seeking admission or
adjustment of status in an exempt classification.
Therefore, when determining whether an alien is inadmissible, DHS
will consider the alien's receipt of any means-tested public benefits
that provide prenatal care, including through Medicaid, as well as
other means-tested healthcare programs for expectant mothers and
gestating children as outlined throughout this rule.\172\ However, DHS
will consider the fact that these benefits are related to a temporary
condition--pregnancy--when considering the alien's receipt in the
totality of the circumstances. DHS will also consider amount and
recency of receipt of these benefits, including whether participation
in the program was isolated, along with all other information relevant
to the aliens' specific circumstances in the totality of the
circumstances, including the statutory minimum factors.
---------------------------------------------------------------------------
\172\ As explained throughout this final rule, with respect to
these benefits, which were previously excluded from consideration
under the 2022 Final Rule, DHS will not consider them if received
before the effective date of this final rule.
---------------------------------------------------------------------------
To the extent that these commenters suggest this final rule will
result in women not accessing certain benefits related to their health
due to the impact on their alien family members' applications for
immigration benefits, DHS notes that it will only consider receipt of
these benefits by family members to the extent that there is evidence
in the record that an alien's family member whom the alien is legally
obligated to support applied for, was approved or certified to receive,
or has received or is currently receiving means-tested public benefits
due to the alien's income falling below a certain threshold. As
discussed in previous comment responses, DHS will consider the alien's
financial status that led to his or her family member needing to apply
for or receive those benefits as part of DHS' consideration of the
alien's assets, resources, and financial status in the totality of the
circumstances.\173\
---------------------------------------------------------------------------
\173\ See, e.g., Matter of A-, 19 I&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).
---------------------------------------------------------------------------
e. Impact on People With Disabilities
Comment: Commenters expressed concern about the effects of the rule
on caregivers of family members with a disability or chronic condition,
citing the unnecessary fear the rule would create for immigrants
applying for disability benefits for family members, even when those
family members are U.S. citizens. One commenter pointed out that
parents of children with disabilities, even those with medical
insurance who earn middle class incomes, may rely on public benefits
for medical, educational, and therapeutic supports for health and
wellbeing for children with a disability due to the high cost of
services such as In-Home
[[Page 45368]]
Supportive Services and Independent Living Services. Others said some
caregivers must leave the workforce to care for their family member and
that these families should not have to also decline necessary
disability services. Commenters raised possible caregiver burnout due
to the additional stresses resulting from the rule. One of these
commenters said that when disabled family members lose access to
services they need, or withdraw from programs out of fear, the burden
shifts to unpaid caregivers who are often parents, spouses, or extended
family members. The commenter emphasized the impact on specific
communities, adding caregivers are disproportionately women of color
and would be most affected.
One commenter identified the lack of clarity in the rule or
exceptions for benefits received by individuals with a disability or
chronic condition would force families to choose between staying
together and accessing vital services due to immigration consequences.
Another said the rule would result in reduced access to personal care
and home and community-based services, which is essential for
individuals with a disability and the well-being of entire family
systems.
Response: This rule returns DHS to faithfully applying the statute
and intent of Congress regarding public charge inadmissibility
determinations and does not prevent individuals from applying for or
obtaining benefits for which they are eligible. DHS disagrees this rule
prevents U.S. citizens from obtaining benefits for which they are
eligible. As discussed in other comment responses, DHS acknowledges
aliens subject to this rule may decline to enroll their children in, or
may choose to disenroll their children from, means-tested public
benefits for which their children are eligible under PRWORA, in order
to avoid negative consequences as a result of this final rule. DHS will
only take into consideration the receipt of means-tested public
benefits by U.S. citizens who are part of the alien's household to the
extent that there is evidence in the record that an alien's family
member whom the alien is legally obligated to support applied for, was
approved or certified to receive, or has received or is currently
receiving means-tested public benefits due to the alien's income
falling below a certain threshold. In such cases, DHS would consider
the alien's financial status that led to his or her family member
needing to apply for or receive those benefits as part of DHS'
consideration of the alien's assets, resources, and financial status in
the totality of the circumstances.\174\
---------------------------------------------------------------------------
\174\ See, e.g., Matter of A-, 19 I&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).
---------------------------------------------------------------------------
DHS believes it would be unwarranted for U.S. citizens and aliens
exempt from public charge inadmissibility to disenroll from a public
benefit program or forgo enrollment in response to this rule when such
individuals are not subject to this rule. DHS is responsible for
faithfully applying the and the public charge ground of inadmissibility
in a manner consistent with Congress's intent that aliens are self-
sufficient and rely on their own capabilities and the resources of
their families, their sponsors, and private organizations. 8 U.S.C.
1601(2)(A). DHS is prohibited under section 504 of the Rehabilitation
Act from 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. As noted in the NPRM, in the context of
any disability, officers will comply with existing law and consider
whether or to what extent an alien's disability is likely to impact his
or her 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. See 90 FR 52168, 52188 (Nov. 19, 2025).
DHS appreciates the commenters' concern about access to home and
community-based services. DHS notes that in considering an alien's
application for, approval or certification for receipt, or current and/
or past receipt of any means-tested public benefits, DHS considers the
nature of the benefit along with the surrounding circumstances for
receipt, such as the recency, duration, amount of receipt, reason for
receipt, and whether the reason has likelihood to persist. When
considering the receipt of home and community-based services intended
to meet the needs of beneficiaries at a fraction of the cost of long-
term institutional care,\175\ DHS also considers the fact that such
services are less costly in the totality of the circumstances.
---------------------------------------------------------------------------
\175\ See, e.g., HHS, Report to the President and Congress: The
Money Follows the Person Rebalancing Demonstration (June 2017),
https://www.medicaid.gov/sites/default/files/2019-12/mfp-rtc.pdf
(``On average, per beneficiary per-month expenditures . . . declined
by $1,840 (23 percent) among older adults transitioning from nursing
homes . . . which translates to average cost savings for Medicaid
and Medicare programs of $22,080 during the first year after the
transition to home and community-based LTSS.'').
---------------------------------------------------------------------------
DHS reiterates, however, that this rule is intended to follow
PRWORA's directive that aliens should be self-sufficient and not be
dependent on public resources and therefore, DHS declines to limit the
effect of the rulemaking to avoid the possibility that individuals
subject to this rule may disenroll or choose not to enroll in means-
tested public benefits. DHS will make public charge inadmissibility
determinations on an individualized basis and cannot ensure an alien
will not be found inadmissible under the public charge ground if he or
she applied for, has been approved or certified to receive, or has
received or is currently receiving any means-tested public benefits.
DHS also appreciates the potential effects of confusion regarding
the rule's scope and effect. While DHS cannot completely eliminate the
possibility that public charge inadmissibility determinations under
this final rule will, in practice, negatively impact some groups more
than others, USCIS will provide training to officers and issue guidance
on all aspects of public charge inadmissibility determinations made
under this final rule, to support accuracy, consistency, and
reliability in individual determinations. As to the comment regarding
racial and gender disparities, DHS addresses concerns about bias and
discrimination more fully elsewhere in this rule.
Comment: Many commenters were concerned about the effects of the
rule on children with disabilities who rely on medical, education, and
therapeutic supports for their health and well-being and that parents
are already declining these supports for fear of immigration
consequences. Commenters stated children will miss early identification
and intervention windows for autism and developmental delays. One
commenter pointed out that special education services under the
Individuals with Disabilities Education Act are available to any child
with a disability who qualifies, regardless of income.
Response: DHS believes it must minimize the incentive for aliens to
seek to immigrate to, or adjust status in, the United States due to the
availability of public benefits and promote the self-sufficiency of
aliens within the United States, in accordance with PRWORA. See 8
U.S.C. 1601. DHS acknowledges that aliens subject to this rule may
decline to enroll in, or may choose to
[[Page 45369]]
disenroll from, public benefits for which they may be eligible under
PRWORA, in order to avoid negative consequences as a result of this
final rule. However, DHS has authority to consider applications for,
approval or certification for receipt, and current and/or past receipt
of means-tested public benefits when assessing an alien's likelihood at
any time of becoming a public charge, even where such actions may
ultimately result in discouraging aliens from receiving means-tested
public benefits for which they are eligible, and DHS believes the
benefits of doing so, as described throughout this rule, outweigh any
negative indirect effects to children if parents choose to decline
available supports. Although individuals may reconsider their receipt
of means-tested public benefits in light of future immigration
consequences, this rule does not prohibit an alien from obtaining any
means-tested public benefit for which he or she is eligible.
To address the concerns about receipt of public benefits whose
eligibility is not based on an alien's income or assets and instead are
available to every individual regardless of their income, as stated
elsewhere in this final rule, those benefits would not be considered
because they are not means-tested.
Comment: One commenter stated that the exclusion of people with
disabilities from non-cash assistance programs such as Low Income Home
Energy Assistance Program would directly target people who require
electricity to support medical equipment, such as ventilators and power
wheelchairs, pointing out that many such households include members
with serious medical conditions.
Response: DHS disagrees the rule directly targets individuals who
receive non-cash benefits related to their health or medical
conditions. DHS determined considering applications for, approval or
certification for receipt, or any current or past receipt of means-
tested public benefits is consistent with Congress's intent that aliens
inside the United States are self-sufficient and rely on their own
capabilities and the resources of their families, sponsors, and private
organizations. See 8 U.S.C. 1601. As discussed previously, when
considering an alien's applications for, approval or certification for
receipt, or any current or past receipt of means-tested public
benefits, DHS will consider the nature of the benefit as well as the
circumstances surrounding receipt, such as the recency, duration,
amount of receipt, reason for receipt, and whether the reason has
likelihood to persist. However, nothing in this rule directs aliens to
disenroll from any means-tested public benefit.
Comment: One organization commented that institutionalization
should not be considered as a potential negative factor given
longstanding institutional bias and expressed concern that the rule
would increase the risk of hospitalization or institutional placement
for individuals with a disability or chronic condition.
This organization added that Medicaid and disability service
systems have historically made institutional care easier to access and
more consistently funded than home- and community-based services, so
placement in institutions is often driven by system constraints rather
than individual choice or need. Fear of immigration consequences may
result in individuals avoiding community-based services and increases
in the likelihood that preventable health supports or gaps escalate
into crises that result in institutional placement, and undermines
autonomy, safety, and quality of life. They pointed out that
institutionalization would result in higher costs for States if
individuals avoid or are not able to take advantage of community-based
supports due to fear.
Response: DHS acknowledges that when patients lose medical
coverage, overall costs to State or local governments may increase, and
there may be long-term consequences for patients and their families and
communities. However, DHS has determined that, like other means-tested
public benefits, long-term institutionalization at government expense
is indicative of an alien's lack of self-sufficiency and dependence on
the government to meet his or her needs. DHS does not have data to
assess how many aliens are both subject to the public charge ground of
inadmissibility and are institutionalized on a long-term basis at
government expense, including when such services are covered by
Medicaid, and as a result, is unable to quantify the impact of
retaining this long-standing policy in the final rule. However, DHS
believes the impact is small. DHS notes that in considering an alien's
receipt of means-tested public benefits, DHS considers the nature of
the benefit along with the circumstances surrounding the alien's
receipt, such as the recency, duration, amount of receipt, reason for
receipt, and whether the reason has likelihood to persist.
As to the comments about home and community-based services, DHS
acknowledges that these services meet the needs of beneficiaries at a
fraction of the cost of long-term institutional care.\176\ When
considering the receipt of home and community-based services, DHS
considers the purpose of these benefits as well as the fact that these
benefits are less costly than long-term institutionalization. However,
DHS reiterates that Congress's intent has consistently been that aliens
are self-sufficient, and DHS declines to make changes to the rule based
on this comment in order to faithfully apply the law.
---------------------------------------------------------------------------
\176\ See, e.g., HHS, Report to the President and Congress: The
Money Follows the Person Rebalancing Demonstration (June 2017),
https://www.medicaid.gov/sites/default/files/2019-12/mfp-rtc.pdf
(``On average, per beneficiary per-month expenditures . . . declined
by $1,840 (23 percent) among older adults transitioning from nursing
homes . . . which translates to average cost savings for Medicaid
and Medicare programs of $22,080 during the first year after the
transition to home and community-based LTSS.'').
---------------------------------------------------------------------------
f. Impact on Survivors of Violence and Trafficking
Comment: Commenters stated the rule would risk the safety and
stability of survivors of violence, causing survivors to withdraw from
shelters and crisis programs or seek other help due to fear of
immigration consequences and increasing the risk of survivors of
violence returning to their abusers for financial security. One
commenter emphasized even U.S. citizen survivors may be afraid of
seeking assistance if they have a family member who may seek admission
or another immigration benefit in the future.
Several commenters stated the rule reinforces structural conditions
abusers use to isolate and control survivors of violence, and empowers
those abusers while trapping survivors in dangerous situations, putting
their lives at risk, and deterring them from reporting crimes or
seeking help. Two commenters provided the example that the rule would
permit DHS to deny LPR status to a survivor of domestic violence
because she reported her abuser to the police and received victim
services through the local police department to ensure her safety and
that of her children.
Response: DHS strongly disagrees that the rule risks safety and
stability of survivors of violence, reinforces structural conditions
that benefit abusers, or empowers abusers. As mandated by Congress
under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), any alien
applying for admission to the United States is inadmissible if he or
she is likely at any time to become a public charge. Survivors of
domestic violence adjusting status as self-
[[Page 45370]]
petitioners under VAWA \177\ are exempt from the public charge ground
of inadmissibility. Therefore, any receipt of means-tested public
benefits or other victim services will not be considered when
adjudicating their application for adjustment of status. Survivors of
domestic violence adjusting status under a category that is subject to
the public charge ground of inadmissibility are not prevented from
receiving means-tested public benefits or other services under this
rule. But, DHS will consider receipt of any means-tested public
benefits, as well as any evidence in the record that the alien applied
for or has been approved or certified to receive any means-tested
public benefits, in the totality of alien's circumstances, including
the nature of the benefit, the recency, duration, and amount of
receipt, the reason for the receipt, and whether the reason has or is
likely to persist. 90 FR 52168, 52188 (Nov. 19, 2025).
---------------------------------------------------------------------------
\177\ See the Violence Against Women Reauthorization Act of
2013, Public Law 113-4 (Mar. 7, 2013). See Public Law 104-193 (Aug.
22, 1996).
---------------------------------------------------------------------------
Comment: A commenter said the rule deters survivors seeking U and T
nonimmigrant visas from seeking help and undermines the purpose of the
statutes, risks being declared unlawful under the APA and established
principles of statutory interpretation, and urged DHS to preserve
protections for survivors of violence and trafficking. Another
commenter requested DHS withdraw the rule for similar reasons.
Response: DHS strongly disagrees that the Final Rule deters
survivors of crime or trafficking from seeking help or undermines the
statute. Aliens seeking T and U nonimmigrant status are exempt from the
public charge ground of inadmissibility. Similarly, aliens with prima
facie applications for T or U nonimmigrant status, or who were granted
T or U nonimmigrant status who are applying to adjust status under
sections 245(a), (l), or (m) of the INA, 8 U.S.C. 1255(a), (l), or (m),
are exempt from the public charge ground of inadmissibility.\178\
Finally, certain battered aliens who are ``qualified aliens'' under
PRWORA are similarly exempt from the public charge ground of
inadmissibility.\179\ Because these aliens are not subject to the
public charge ground of inadmissibility, their receipt of means-tested
public benefits will not be considered when adjudicating their
applications for adjustment.
---------------------------------------------------------------------------
\178\ INA sec. 101(a)(15)(U), 8 U.S.C. 1101(a)(15)(U). INA sec.
212(a)(4)(E)(ii), 8 U.S.C. 1182(a)(4)(E)(ii).
\179\ See INA sec. 212(a)(4)(E)(iii), 8 U.S.C.
1182(a)(4)(E)(iii). See Section 804 of the Violence Against Women
Reauthorization Act of 2013, Public Law 113-4 (PDF), 127 Stat. 54,
111 (March 7, 2013). See Section 431(c) of Public Law 104-193 (PDF),
110 Stat. 2105, 2274 (August 22, 1996). See 8 U.S.C. 1641(c).
---------------------------------------------------------------------------
g. Impact on Child Care Workers
Comment: Commenters voiced concern about the proposed rule's
potential impact on child care workers. Given 22 percent of child care
workers are immigrants, one commenter suggested that ambiguity in the
proposed rule would discourage early education immigrant workers, some
of whom rely on public benefits due to low wages, from utilizing public
benefits, exacerbating staffing shortages, noting in part due to recent
U.S Immigration and Customs Enforcement (ICE) arrests, since January
2025, there are 39,000 fewer immigrant women in the child care
workforce and 77,000 fewer American mothers of preschool-age children
in the workforce.
Response: DHS disagrees the final rule is ambiguous or that the
removal of the 2022 Final Rule will cause child care workers to drop
out of the workforce. As noted in other comment responses, DHS was
clear in the NPRM and is clear in this final rule, after rescission of
the 2022 Final Rule officers will be able to consider the receipt of
all means-tested public benefits received by aliens subject to the
public charge ground of inadmissibility. DHS is clarifying that
previously excluded means-tested public benefits will not be considered
if received before the effective date of this final rule and that
means-tested public benefits received by the alien's family members are
only considered in certain circumstances related to the alien's assets,
resources, and financial status. Finally, the receipt of means-tested
public benefits by child care workers is one consideration in the
totality of the circumstances and officers have full discretion to
consider all other information and evidence relevant to public charge
inadmissibility determinations. DHS neither disputes the argument that
low wage child care workers receive means-tested public benefits, nor
that child care workers serve an important role in the labor force.
However, while this rule may cause certain aliens to forgo receiving
means-tested public benefits, DHS disagrees that this rule will cause
alien child care workers to drop out of the workforce; if these aliens
remain in the United States, they will need to continue working in
order to support themselves and their families. In addition, rather
than relying on government programs to meet their needs, these aliens
should rely on their own resources as well as those of their relatives,
friends, or private organizations to help supplement their income. See
8 U.S.C. 1601(2)(A). Finally, DHS notes that the studies cited by the
commenter concerning the child care workforce, while suggestive, do not
directly support the claims made by the commenter. Specifically, the
study on the percentage of immigrants in the early care and education
workforce, based on American Community Survey (ACS) data, cannot
distinguish between aliens who are LPRs (and therefore not subject to
the public charge ground of inadmissibility) and aliens who are not
LPRs and may in the future seek to adjust status or be admitted to the
United States (who are affected by this rule).\180\ The study cited by
the commenter for the claim that ``43 percent of child care workers
used public assistance'' included assistance received by family or
household members (``public safety net household participation''), not
just the child care workers themselves, and did not distinguish between
U.S. citizens and aliens in the workforce.\181\ Since aliens who are
not LPRs are generally ineligible for the means-tested public benefit
programs included in the survey, it is reasonable to assume that even
if the child care workers responding to the survey received those
benefits themselves, they were either U.S. citizens or, less likely,
LPRs. The studies show that there are many aliens in the child care
workforce and that many households containing child care workers
receive at least one means-tested public benefit. The studies do not
show that alien child care workers subject to the public charge ground
of inadmissibility receive those benefits and would choose to disenroll
or forego enrollment. Regarding ICE arrests of unauthorized aliens,
this is outside the scope of this rulemaking.
---------------------------------------------------------------------------
\180\ Anna Powell, ``Nearly Half a Million Early Childhood
Educators Are Immigrants,'' Center for the Study of Child Care
Employment, July 15, 2025. https://cscce.berkeley.edu/publications/blog/nearly-half-a-million-early-childhood-educators-are-immigrants/
(last visited May 1, 2026).
\181\ McLean, C., Austin, L.J.E., Powell, A., Jaggi, S., Kim,
Y., Knight, J., Mu[ntilde]oz, S., & Schlieber, M. (2024). Early
Childhood Workforce Index--2024. Center for the Study of Child Care
Employment, University of California, Berkeley. https://cscce.berkeley.edu/workforce-index-2024/ (last visited May 1, 2026).
---------------------------------------------------------------------------
2. Concerns About Clarity and Discrimination
a. Lack of Clear Definitions and Standards
Comment: A commenter asked whether any interim standard would
govern decisions made by DHS between
[[Page 45371]]
rescission of the 2022 Final Rule and implementation of any new policy.
Response: No, DHS is not implementing an interim standard. The
statute requires DHS to consider an applicant's age, health, family
status, assets, resources and financial status, and education and
skills. DHS also believes Congress intended officers to consider any
receipt of means-tested public benefits by the alien applying for
admission or adjustment of status. Precedent decisions that have guided
public charge inadmissibility determinations for decades and remain
good law today dictate that DHS officers consider as well as any other
factors and information they find relevant to determining whether the
alien is likely at any time to become a public charge in the totality
of the circumstances, as Congress intended.\182\ Therefore, aliens
seeking admission as immigrants and nonimmigrants and aliens applying
for adjustment of status should expect any fact or circumstance present
in their case that is relevant to their likelihood of becoming a public
charge will be considered by DHS.
---------------------------------------------------------------------------
\182\ 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).
---------------------------------------------------------------------------
Comment: One commenter recommended DHS provide more details on
characteristics that would lead one to be considered ``likely at any
time to become a public charge,'' and outline those treated as weaker
or contextual factors.
Response: DHS declines to attach specific weight to any particular
factor because the public charge inadmissibility determination is a
subjective, discretionary, and case-specific determination. In every
case, DHS will make a determination based on assessing the alien's age,
health, family status, assets, resources, and financial status, and
education and skills, the alien's receipt of any means-tested public
benefits, and any other factors the DHS officer determines are relevant
to assessing that individual alien's likelihood at any time of becoming
a public charge. DHS believes it would be inconsistent with precedent
decisions to provide a narrow outline detailing what makes an alien
likely at any time to become a public charge given it varies depending
on the facts of an individual alien's case.\183\ DHS declines to
prescribe value or attribute weight to any factors or circumstances
relevant to public charge inadmissibility determinations given DHS's
interest in preserving officer discretion and the highly fact-specific
nature of such determinations.
---------------------------------------------------------------------------
\183\ See, e.g., 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).
---------------------------------------------------------------------------
If the commenter's concern is about an alien's ability to provide
the information needed for adjudication, DHS notes that aliens may
provide any information they believe relevant in demonstrating they are
not likely at any time to become a public charge. Furthermore, officers
may issue an RFE or NOID when appropriate.
Comment: Commenters stated DHS is replacing transparent regulations
with vague language and standards, with one suggesting DHS expand the
factors officers can consider under 8 CFR 212.22(a) to address the
concerns identified in the NPRM, rather than leaving the application of
the statute vague and undefined for officers while others stated there
would be a lack of clear definitions and standards.
Response: DHS is not replacing the 2022 Final Rule. Rather, DHS
rescinded and removed the problematic 2022 Final Rule, which ensures
DHS officers make public charge inadmissibility determinations
consistent with section 212(a)(4) of the INA, 8 U.S.C. 1182 (a)(4),
PRWORA, and past precedent decisions that have guided public charge
inadmissibility determinations for decades. 90 FR 52168, 52184 (Nov.
19, 2025). Removing regulations enables DHS officers to make accurate
and precise public charge inadmissibility determinations, consistent
with congressional intent. 90 FR 52168, 52168 (Nov. 19, 2025). Under
this rule, DHS officers will be empowered to consider not only
mandatory statutory factors, receipt of means-tested public benefits,
and any evidence in the record the alien applied for or has been
approved or certified to receive any means-tested public benefits, but
also any other case-specific evidence that the officer determines is
relevant to assessing an individual alien's likelihood at any time of
becoming a public charge. This restores a public charge inadmissibility
determination that trusts in and relies on DHS officers' sound judgment
and discretion, as envisioned by Congress when it enacted section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
DHS notes aliens applying for adjustment of status may submit any
evidence they feel is relevant to assessing their self-sufficiency and
likelihood at any time of becoming a public charge. As such, aliens
will have ample opportunity to provide USCIS with the full context
surrounding their likelihood at any time of becoming a public charge.
DHS does not believe that following congressional intent, as set
forth in section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and PRWORA,
leads to a vague public charge inadmissibility policy because the
statute and decades of precedent are clear that officers must apply the
totality of the circumstances approach. To the extent that the statute
includes a requirement to consider a non-exhaustive list of factors in
public charge inadmissibility determinations, DHS believes that this is
evidence that Congress intended to leave room for officer discretion in
each individual determination. INA sec. 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B).
b. Concerns About Bias and Discrimination
Comment: Commenters stated that rescinding the 2022 Final Rule and
restoring broad undefined public charge inadmissibility determinations
increases the risk of bias or discrimination influencing decisions
about immigration benefits. Another commenter stated that discretionary
standards frequently result in unequal treatment and
[[Page 45372]]
discrimination. A commenter expressed concern that public charge
inadmissibility determinations are ``necessarily subjective,'' writing
such an approach is untenable as it opens the door to bias and abuse.
Response: These commenters failed to explain how public charge
inadmissibility determinations under this final rule will result in
discriminatory or unequal application. Regardless, DHS disagrees that
the final rule increases the risk that bias or discrimination will
influence public charge inadmissibility determinations. Additionally,
as noted in previous comment responses, DHS strongly disagrees that the
rule is vague or will result in discrimination or unequal treatment to
any specific group.
The public charge inadmissibility determination has always been
inherently discretionary and necessarily subjective due to its
prospective nature. DHS believes that the precedent decisions that have
guided public charge inadmissibility determinations for decades, as
well as applicable recent circuit case law, provide officers with
sufficient guidance to make individualized, case-specific public charge
inadmissibility determinations that are not biased or discriminatory.
Under this rulemaking, DHS officers will consider the statutorily-
mandated factors as well as any other factors relevant to determining
whether any individual alien is likely at any time to become a public
charge, including the alien's applications, approvals or certifications
to receive, or receipt of means-tested public benefits, in the totality
of the circumstances as Congress intended. While officers will be able
to consider any individualized, case-specific factors, circumstances,
and empirical data rather than being forced to ignore evidence that
falls outside of the narrow regulatory requirements, such factors,
circumstances, and data must be relevant to the prospective public
charge inadmissibility determination. The evidence considered by USCIS
may be different from that which is considered by CBP, due to
operational limitations at and between ports of entry. Factors and
information that are irrelevant to the determination or that relate to
protected classes are not to be considered by officers. Explicit
regulatory language is not required to prevent officers from
considering these factors and such language was never a part of public
charge regulations.
As to the research one commenter points to suggesting that
discretion in public benefits programs frequently results in unequal
treatment and discrimination, this commenter did not cite any
authorities or studies in support of the contention. Separately, DHS
notes the commenter did not include examples of public charge
inadmissibility being applied unequally or in a discriminatory fashion.
Comment: Many commenters stated that the proposed rule is broad and
vague, which will risk or result in a discriminatory and biased
application of the ground of inadmissibility. Another commenter wrote
that the removal of existing regulatory content relating to the
statutory minimum factors found in 8 CFR 212.22(a)(1) would lead to
discriminatory, arbitrary, and capricious results. Other commenters
noted that expanding discretion without clear standards invites
implicit bias by officers making racialized assumptions about self-
sufficiency, resulting in unequal treatment. Another commenter noted
that the NPRM's broad discretionary model effectively resurrects policy
tools historically used to exclude, stigmatize, and marginalize
immigrant communities, which is out of step with USCIS' obligations to
administer immigration law fairly, equitably, and without
discrimination. A commenter stated that research on the implementation
of other public programs demonstrates that discretionary standards
frequently result in unequal treatment and discrimination. One
commenter wrote that in the requirement for officers to conduct a
``totality of the circumstances'' test, weighing factors such as age,
health, and financial status, grants broad discretion could lead to
subjective and potentially discriminatory outcomes, thereby undermining
the principle of fair and uniform application of immigration law.
Response: It is unclear how these commenters believe public charge
inadmissibility determinations under this rule will result in
discriminatory or unequal application, to whom this rule will be biased
against, and what assumptions will be made about self-sufficiency.
However, DHS strongly disagrees that this rule is vague or will result
in discrimination or unequal treatment to any specific group. The
Federal Government is responsible for ``regulating the relationship
between the United States and our alien visitors,'' which includes
regulating the manner and conditions of entry, as well as the residence
of aliens.\184\ DHS is the Federal agency with the authority to
establish regulations regarding the admission, and therefore,
admissibility of aliens.\185\ Section 212(a) of the INA, 8 U.S.C.
1182(a), sets forth the aliens who are inadmissible and therefore
ineligible for visas, admission, or adjustment of status. Section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), sets forth the aliens who
are inadmissible under the public charge ground of inadmissibility and
the minimum factors DHS is required to consider in the public charge
inadmissibility analysis. DHS must consider an applicant's age, health,
family status, assets, resources and financial status, and education
and skills. Under this rulemaking, DHS officers will consider any other
factors they determine are relevant to determining whether any
individual alien is self-sufficient, as Congress intended,\186\ and
whether the alien is likely at any time to become a public charge in
the totality of the circumstances.
---------------------------------------------------------------------------
\184\ Mathews v. Diaz, 426 U.S. 67, 81-82, (1976).
\185\ See Homeland Security Act of 2002 section 102, 6 U.S.C.
112; INA sec. 103, 8 U.S.C. 1103.
\186\ 8 U.S.C. 1601(1).
---------------------------------------------------------------------------
DHS also notes that to the extent these commenters are concerned
that the focus on self-sufficiency will disproportionately impact low-
income aliens, DHS notes that an alien's income is not outcome-
determinative. As dictated by the statute and binding precedent
decisions that have guided these determinations for decades, DHS will
consider all relevant factors in the totality of the circumstances.
Under this determination, aliens seeking admission as immigrants and
nonimmigrants and aliens applying for adjustment of status should
expect that any fact present in their case that is relevant to their
self-sufficiency and likelihood of becoming a public charge will be
considered by DHS.
While DHS cannot completely eliminate the possibility of officer
bias or racialized assumptions about self-sufficiency, USCIS will
provide training to officers and will issue guidance on all aspects of
these determinations, which should help ameliorate any concerns that
the public charge inadmissibility ground would be unequally applied to
different groups of aliens. Additionally, with respect to adjustment of
status applications adjudicated by USCIS, in order to ensure that USCIS
officers are making clear, fair, and consistent public charge
inadmissibility determinations, as required in existing regulations,
USCIS officers will issue written decisions that reflect every factor
considered and articulate the reasons for the officer's determination.
8 CFR 103.3(a)(1)(i).
Comment: Some commenters stated that this rule is being used to
push a
[[Page 45373]]
racist, xenophobic, and anti-immigration agenda with one commenter
stating it is part of a ``racist, xenophobic, [w]hite supremacist''
plan to eliminate all immigration, legal and otherwise, to the United
States. The commenter stated that the United States needs more
immigrants, not fewer, and urged DHS to keep the 1999 Interim Field
Guidance and reject the proposed change in its entirety.
Response: DHS disagrees that public charge inadmissibility
determinations that will be made under this final rule are
discriminatory, anti-immigration, or racially motivated. The purpose of
the public charge ground of inadmissibility is not to ensure that more
aliens are able to be admitted to the United States or adjust status to
that of an LPR, but rather, like all grounds of inadmissibility, to
prevent certain aliens from entering or remaining in the United
States.\187\
---------------------------------------------------------------------------
\187\ See INA sec. 212(a), 8 U.S.C. 1182(a) (listing classes of
aliens who are ``ineligible to receive visas and ineligible to be
admitted to the United States'').
---------------------------------------------------------------------------
To the extent that public charge inadmissibility determinations
under this final rule may result in more aliens being found
inadmissible, this is a natural byproduct of robust enforcement of
immigration laws that are meant to minimize the incentive of aliens to
immigrate to the United States due to the availability of public
benefits and to promote the self-sufficiency of aliens within the
United States. 8 U.S.C. 1601(1) and (2). However, if rescission of the
2022 Final Rule impacts certain groups more than others, that simply is
not DHS's intent. Rather, this rule is intended to ensure that DHS
officers make highly individualized, fact-specific, case-by-case public
charge inadmissibility decisions based on the totality of each alien's
individual circumstances, as intended by Congress. USCIS will ensure
that it provides specialized training to its officers to minimize any
impacts that might result from implementing this rule.
Comment: A commenter wrote that research suggests there are
significant disparities in naturalization approvals based on the
applicant's race, gender, and religion, and this is likely to be
reflected in the proposed rule's public charge inadmissibility
adjudication process. One commenter noted that the proposed rule would
result in bias in visa and green card denials. Another commenter,
citing multiple studies, discussed historic evidence of inconsistent,
discriminatory outcomes in immigration decisions such as differences in
approval rates among applicants from Mexico, El Salvador, Honduras, and
the Dominican Republic, and evidence that naturalization outcomes
closely tracked English fluency and educational attainment.
Response: DHS is familiar with the study that concluded that
disparities in approval of naturalization approvals are rooted in
discrimination. However, DHS strongly disagrees with the conclusions
drawn from the study. The authors only had access to information
requested under the Freedom of Information Act (FOIA), 5 U.S.C. 552,
and failed to frame their request in a way that would generate the most
relevant and useful information. Further, the authors' conclusions
rested on significant assumptions that they made either because of the
flaws in their FOIA requests or because DHS systems simply lacked the
data necessary to complete their analysis in the way that they had
hoped, e.g. the specific reason(s) for the denial of the naturalization
applications was unavailable. At best, the study only has utility as
evidence of a correlation between certain characteristics available in
DHS data and denial rates for naturalization.
As for the fact that naturalization outcomes closely track English
fluency and educational attainment, DHS notes that this is a necessary
by-product of the laws established by Congress, which tend to favor
those with higher levels of educational attainment. Congress requires
applicants for naturalization to demonstrate an understanding of the
English language, and a knowledge and understanding of the fundamentals
of the history, and of the principles and form of government of the
United States. The fact that those with stronger English language
skills and more knowledge of our country's history and form of
government are more likely to be approved for naturalization is to be
expected. This is not evidence of discrimination in the application of
the immigration laws but rather a reflection of the criteria
established by Congress for naturalization.
DHS cannot address the commenter's claim that ``USCIS's 2025 Annual
Immigration Statistics Yearbook documented sharp differences in
approval and denial patterns among applicants from Mexico, El Salvador,
Honduras, and the Dominican Republic'' in the context of family-based
adjustment of status applications. There is no such document as the
``USCIS 2025 Annual Immigration Statistics Yearbook.'' USCIS only
published data through the third quarter of FY 2025,\188\ and publicly
available USCIS data does not contain denial rates for adjustment of
status applications by country of birth or nationality/citizenship.
There is a DHS Yearbook of Immigration Statistics (Yearbook) published
by the Office of Homeland Security Statistics (OHSS), but only certain
data tables relating to refugees were published for FY 2024.\189\ No
portion of the FY 2025 Yearbook has been published. While the data
tables in the Yearbook \190\ for LPRs include some data broken out by
country of birth, e.g., for example, Tables 3 and 10, the tables do not
include any information about USCIS denials of adjustment of status
applications. While the commenter provided a list of works cited,
following the link provided by the commenter shows no document or
report labeled the ``Annual Immigration Statistics Yearbook'' or any
report or study documenting adjustment of status approval and denial
rates by country.
---------------------------------------------------------------------------
\188\ As of February 4, 2026, well after this comment was
submitted.
\189\ See https://ohss.dhs.gov/topics/immigration/yearbook#A-available-yearbooks (last visited Feb. 28, 2026).
\190\ The most recently published Yearbook is for FY 2023, and
is available at https://ohss.dhs.gov/topics/immigration/yearbook/2023 (last visited Feb. 4, 2025).
---------------------------------------------------------------------------
Regarding bias in visa and green card denials, DHS notes this final
rule only applies to aliens seeking admission into the United States as
immigrants and nonimmigrants at or between ports of entry and aliens
who apply for adjustment of status who are subject to the public charge
ground of inadmissibility. Even if inadmissibility determinations made
under this final rule will result in more denials of admission or
adjustment of status, the purpose of all grounds of inadmissibility--
including public charge--is to prevent certain aliens from entering or
remaining in the United States. This rule does not apply to visa
determinations made by the Department of State and therefore DHS will
not address that part of the comment.
G. Negative Impacts on U.S. Economy, Businesses, and Communities
1. Workforce Impacts
Comment: Many commenters, including a form letter campaign,
remarked on the economic contributions of immigrants to the U.S.
economy and workforce and expressed concern about negative impacts on
the U.S. workforce in key industries including: agriculture; caregiving
services; construction; technology; manufacturing; transportation, and
healthcare. One commenter referenced the Congressional Budget Office
(CBO) and other Federal agencies that conclude immigrants provide a net
economic
[[Page 45374]]
benefit and are essential to industries. Another elaborated by
referencing research showing that immigrants' share of total U.S.
economic output was 18 percent in 2023, amounting to $2.1 trillion in
2024 dollars, which is larger than their proportion of the total
population. A few commenters stated that immigrants have high business
ownership and entrepreneurship rates compared to nonimmigrants.
Response: DHS acknowledges immigrants make critical contributions
to the U.S. economy and workforce. They have high rates of business
ownership and entrepreneurship compared to persons born in the United
States, and DHS acknowledges that the CBO found that immigrants, as a
whole, reduce the Federal deficit because they contribute more in
revenue than they consume in Federal public benefits or other Federal
expenditures. DHS also acknowledges the research showing that
immigrants' share of total U.S. economic output is greater than their
proportion of the total population.
Immigrants, taken as a whole, are a net positive for the U.S.
economy as well as government budgets. Many immigrants fill critical
gaps in the U.S. labor market, and our great country is strengthened by
them residing and working here. However, Congress determined which
aliens should be welcomed to the United States and which aliens are
unwelcome. The faithful application of these statutes is critical to
ensuring that immigration continues to serve as a positive force for
our economy and our country as a whole. Aliens likely at any time to
become a public charge are among those categories of aliens whom
Congress has determined should not be admitted or granted adjustment of
status. It is our national policy that aliens within the United States
should 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. See 8 U.S.C. 1601.
Due to the challenges inherent in immigrating to another country
and the other laws Congress has enacted to help narrow the flow of
immigrants to those who will strengthen rather than harm our country,
most immigrants otherwise eligible for adjustment of status or
admission are unlikely to become a public charge. However, the public
charge ground of inadmissibility is a critical tool established by
Congress to help winnow out aliens who are unlikely to be self-
sufficient. By faithfully implementing this statutory provision, DHS
helps ensure that current and future immigrants continue to make the
many contributions noted.
Comment: Commenters stated the proposed rule would cause
uncertainty for American businesses employing temporary workers by
increasing the frequency of RFEs and causing processing delays in time-
sensitive adjudications which destabilizes local labor markets.
Response: This rule has no direct effect on the employment-based
nonimmigrant petition process, as the grounds of inadmissibility do not
apply at that stage. Moreover, this rule does not apply to nonimmigrant
visa application decisions by DOS. Therefore, employers should not
expect delays for processing nonimmigrant visa petitions as a result of
this final rule. DHS also notes public charge inadmissibility does not
apply to applications for change of status or extension of stay for
nonimmigrants within the United States.\191\
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\191\ It is limited to aliens applying for a visa, admission, or
adjustment of status. Aliens applying for change of status or
extension of stay were not included by Congress in sec. 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4).
---------------------------------------------------------------------------
This final rule, however, will affect the processing of most
employment-based adjustment of status applications insofar as these
aliens will be subject to the public charge ground of inadmissibility
unless Congress exempted them. Therefore, under this rule, DHS will
consider the mandatory statutory factors, the alien's applications for,
approval or certification to receive, or receipt of any means-tested
public benefits, as well as any other factor relevant to the public
charge inadmissibility determination. However, DHS notes that under
longstanding precedent decision, a healthy person in the prime of life
who is already employed in the United States or who has prospective
employment generally would not be found likely at any time to become a
public charge.\192\ DHS anticipates that most employment-based
adjustment of status applicants would see little change in the
processing of their applications under this final rule, apart from the
minor revisions to information collection on Form I-485.
---------------------------------------------------------------------------
\192\ See Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974) (``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.'')
(citing Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962;
A.G.1964)).
---------------------------------------------------------------------------
Comment: Commenters noted that evidence from the International
Monetary Fund (IMF) shows that social support provisions led to higher
workforce engagement and societal contributions while restrictions led
to reduced economic productivity. Similarly, another commenter,
referencing economic and public health studies, remarked that the
proposed rule ignores evidence demonstrating the positive impacts of
access to preventive care and nutritional assistance such as improved
labor participation and long-term tax contributions.
Response: The commenter referencing the IMF report failed to cite a
report or study to support the claims. The other commenter references
National Academies of Sciences, Engineering, and Medicine and the year
2017, but also fails to cite a particular report or study. DHS could
not identify either publication from the limited information provided
by commenters and, therefore, is unable to address the comments. Even
accepting that access to means-tested public benefits improves
workforce engagement and long-term tax contributions, this would not
change DHS's obligation to apply the public charge ground of
inadmissibility in a manner that is faithful to the statute and
Congress's intent in PRWORA.
Comment: A commenter referenced an analysis, stating that
restricting access to benefits or legal status could reduce labor
income by more than $90 billion a year. Another commenter estimated the
NPRM would destabilize major industries and provided Michigan-specific
data: 8.2 percent of natural resources and mining workers ([ap]6,526
people), 1.0 percent in manufacturing ([ap]8,494), and 0.5 percent in
construction ([ap]1,508) would be affected and added that Michigan's
$90+ billion agriculture industry already faces severe labor shortages.
Response: The first commenter cited the ``2025 New American Economy
analysis published by the American Immigration Council'' but failed to
provide sufficient information for DHS to identify the analysis, and a
search of the organization's website using that title and various key
words or concepts from the comment failed to produce a relevant result.
DHS further notes that nothing in this final rule restricts the
eligibility of aliens or other persons for means-tested public benefits
or the eligibility of aliens to engage in employment in the United
States.
The commenter focused on the Michigan economy documents the
importance of immigrants within the overall labor force and within
certain major industries, asserting if finalized, the NPRM would
encourage or force ``workers to leave or go underground.'' Nothing in
this final rule encourages or forces workers to ``leave or go
[[Page 45375]]
underground.'' Aliens gainfully employed in Michigan or anywhere in the
United States who are already relying on their own capabilities rather
than public resources to meet their needs are exactly those aliens
Congress favorably identified in its statement of national policy
concerning welfare and immigration, found in 8 U.S.C. 1601(2). If such
an alien were to apply for admission or adjustment of status, their
current employment and income would be a favorable consideration in the
totality. Nothing in this final rule affects the eligibility of aliens
already employed in the United States to continue employment, nor does
DHS believe this rule will encourage such aliens to depart the
workforce.
Comment: A commenter stated that while foreign labor sustains their
industry, migrant workers cannot pay taxes or contribute to the economy
without access to basic resources like food and clothing, and concluded
that without migrant workers, the United States cannot economically
outpace China.
Response: The commenter appears to be confused about the contents
of this final rule. Nothing in this final rule affects an alien's
eligibility to receive means-tested public benefits. Congress sets the
eligibility requirements for Federal means-tested public benefits, just
as States, territories, Tribes, and localities do for their programs.
Comment: Commenters remarked that in some places, immigrant labor
force participation exceeds participation from U.S.-born workers with
one citing research finding that an average recent immigrant without a
high school degree has a lifetime positive net fiscal balance of
$128,000, and when including the expected children and grandchildren,
the lifetime positive net fiscal effect is $326,000. Another commenter
referenced a paper by the Cato Institute, writing that ``the net fiscal
impact of immigrants is more positive than it is for native-born
Americans.''
Response: DHS agrees immigrants, as a whole, are more likely to
participate in the labor force than their native-born
counterparts.\193\ Similarly, as stated previously, DHS notes there are
studies and analyses finding that the average immigrant, or immigrants
as a whole, make a positive net fiscal impact in the United States.
There are also other studies which find that immigrants have a negative
fiscal impact. However, the public charge ground of inadmissibility and
this final rule are not focused on the average immigrant or the net
impact of all immigrants. Congress is focused precisely on immigrants
who bring down the average because they end up reliant on public
benefits and consuming significantly more public resources than they
provide in taxes. Most immigrants who are otherwise eligible for
admission or adjustment of status are not likely to become public
charges. Congress and DHS welcome such self-sufficient immigrants, and
the public charge ground of inadmissibility should not prevent their
admission or adjustment of status. However, our country has had
statutes excluding, or finding inadmissible, aliens likely to become a
public charge and not be self-sufficient for most of its history.
---------------------------------------------------------------------------
\193\ See, e.g., Bureau of Labor Statistics, Foreign-Born
Workers: Labor Force Characteristics--2024, https://www.bls.gov/
news.release/pdf/
forbrn.pdf#:~:text=Foreign%2Dborn%20men%20continued%20to%20participat
e%20in%20the,percent%20for%20native%2Dborn%20women.%20(See%20table%20
1 (last visited Feb. 5, 2026).
---------------------------------------------------------------------------
Comment: Two commenters stated that the proposed rule would impact
the ability of farmworkers to participate in training or development
programs, as many aliens with lawful status rely on public benefits to
support themselves and their families while participating in these
programs. One of these commenters remarked that this would undermine
State and local government policies, stating that more than 40 States
have established goals for postsecondary credential attainment and may
not be able to reach this goal without immigrant participation.
Response: It is unclear how nonimmigrant farm workers accessing
services to improve their skills and transition into more stable
employment are eligible to receive means-tested public benefits while
engaged in such programs, as they would generally be ineligible for
Federal benefits. If such aliens were eligible to receive State, local,
Tribal, or territorial means-tested benefits and chose to do so in
order to support themselves, DHS would consider that past or present
receipt of benefits in making a public charge inadmissibility
determination. However, the DHS officer would also consider the type of
benefits received as well as the circumstances surrounding the receipt,
such as the nature of the benefit, 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, and whether the reason has or is likely to
persist.\194\ For states that have established goals for the percentage
of residents who have earned a college degree or other post-secondary
credential, the best way for the immigration system to contribute to
those goals is to facilitate the immigration of highly skilled and
highly educated aliens.
---------------------------------------------------------------------------
\194\ See, e.g., Matter of A-, 19 I&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 then employed
despite receiving public benefits for the prior 4 years.)
---------------------------------------------------------------------------
Comment: A commenter expressed concern about damage to children and
families, reasoning that the preparation of the next generation into
skilled participants in society relies on childhood conditions
conducive to learning and development. They argue that the ``chilling
effects'' on benefit use by persons not directly affected by the rule
would undermine healthy learning and development.
Response: DHS acknowledges that some individuals who are not
subject to the public charge ground of inadmissibility, including U.S.
citizens and children, may choose to disenroll or forgo enrollment in
public benefits because they believe that their receipt of benefits
might affect a family or household member's immigration status. This
would weaken the intended effects of public benefit programs utilized
by children and potentially undermine healthy learning and development.
DHS has estimated the disenrollment or foregone enrollment effects of
this final rule and determined that the rule's overriding
consideration--the Government's interest as set forth in 8 U.S.C.
1601(2)--is a sufficient basis to move forward. This rule is rationally
related to that PRWORA interest to: (1) minimize the incentive for
aliens to immigrate to United States due to the availability of public
benefits; and (2) promote the self-sufficiency of aliens within the
United States. See 8 U.S.C. 1601.
However, as noted previously, the subregulatory guidance that USCIS
will issue in the USCIS Policy Manual, which will apply to USCIS
adjudications of adjustment of status applications, will provide the
regulated public with sufficient information to understand whose
benefits will and will not be considered in an alien's public charge
inadmissibility determination. This should address any disenrollment
impacts on individuals who are not subject to the public charge ground
of inadmissibility. Additionally, DHS encourages nonprofit
organizations that assist aliens to also provide information and
disseminate the guidance that USCIS will issue to assist individuals to
understand how public charge
[[Page 45376]]
inadmissibility determinations are made under this final rule.
Comment: Children's health organizations stated that the rule would
negatively impact children because it will make it more difficult for
children's hospitals to attract international students to study, train,
and conduct research in pediatrics due to fear of additional scrutiny
on themselves due to the new policy. They also state that the rule
would deter international professionals from coming to or remaining in
the United States to fill critical pediatric workforce gaps. This in
turn would compromise children's health and overall well-being, as well
as delay new therapies and cures for children, slow the pace of
innovation, and weaken the nation's longstanding leadership in
biomedical research.
Response: DHS disagrees with the suggestions by commenters that
this rule will harm the United States' leadership in biomedical
research or compromise children's health due to a shortage of skilled
pediatric medical professionals. With regard to nonimmigrant students
or fellowship participants in medicine or biology, this final rule does
not affect the adjudication of F and J nonimmigrant visa applications
by the Department of State. Consular officers will evaluate the aliens'
ability to support themselves during their studies or exchange program
as a part of that process. While possible, it is unlikely a CBP officer
would later find the alien inadmissible at a port of entry under
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), barring additional
information or changed circumstances. The same is true for adjudication
of H-1B nonimmigrant visa applications and subsequent applications for
admission for medical professionals and researchers. Further, this rule
does not apply to the adjudication of H-1B nonimmigrant visa petitions
by USCIS.
F, J, and H nonimmigrants are generally ineligible for Federal
means-tested public benefits and only visiting the United States for a
specific purpose, or period of time, which is a favorable consideration
in the totality of the circumstances analysis. DHS expects hospitals
and research institutions, or the overseas sending institution, will
adequately support those international medical graduates participating
in fellowships. Similarly, given the statutory and regulatory
requirements of the H-1B program DHS expects that such employers would
compensate medical professionals and researchers at a level sufficient
to allay any concerns that their prospective employees would become a
public charge after admission.
When considering adjustment of status and immigrant visa
applications filed by international medical professionals based on
petitions from hospitals and research institutions, DHS again expects
that such aliens should generally be offered sufficient compensation to
allay concerns about becoming a public charge when considered in the
totality of the circumstances.
2. Impacts of Reduced Consumer Spending
Comment: Multiple commenters said that reduced enrollment and
participation in benefits programs such as SNAP, WIC, SSI, TANF, CHIP,
etc., would lead to decreased spending in the economy. Some remarked
that such reduced spending would diminish local business revenue,
decrease Federal funding to State programs, reduce jobs, and weaken
small businesses. Commenters suggested that spending in the economy has
direct impacts and multiplier effects ripple throughout the economy.
Response: DHS agrees that disenrollment or foregone enrollment
could lead to decreased spending in the economy, with effects on State
and local budgets and businesses. As noted in Office of Management and
Budget (OMB) Circular A-4, ``[b]enefit and cost estimates should
reflect real resource use. Transfer payments are monetary payments from
one group to another that do not affect total resources available to
society.'' \195\ The transfer payments described in the economic
analysis and discussed in more detail in section III.O.1.ii.a. of this
final rule result from individuals who choose to disenroll or forgo
enrollment in public benefit programs and represent reduced payments
from Federal and State governments to certain individuals who would
otherwise receive public benefits, which is not a loss of Federal
funding to State and local governments.
---------------------------------------------------------------------------
\195\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
---------------------------------------------------------------------------
As stated in previous responses, to the extent practicable, DHS
estimated the disenrollment or foregone enrollment effects of this
final rule and determined that the rule's overriding consideration--the
Government's interest as set forth in 8 U.S.C. 1601(2)--is a sufficient
basis to move forward. This rule is rationally related to PRWORA. See 8
U.S.C. 1601.
Comment: A commenter stated that decreased spending in grocery
stores would increase costs for food and could lead to the closure of
grocery stores.
Response: The article cited by this commenter is related to
potential impacts to SNAP benefits caused by a government shutdown and
decisions about how to fund SNAP during shutdown and, therefore, is
unrelated to this rule. The potential effects cited in the article
differed in both scope and duration such that it does not clearly
support the commenter's concerns. DHS acknowledges this rule could have
indirect effects on small businesses and nonprofits in the form of
decreased sales for grocery retailers participating in SNAP. However,
DHS is unable to quantify these effects.
3. Concerns About U.S. Demographics
Comment: Commenters stated the importance of immigrants in
sustaining population growth because Social Security and Medicare
benefits are funded by taxes, the burden of supporting these programs
will be carried by the working population and most immigrants and their
descendants are of working age and will be important in helping to
offset the United States' general shift toward an older non-working
population. A few other commenters raised the issue of the aging U.S.
population, stating that immigrant workers represent a large portion of
the elderly care workforce.
Response: DHS acknowledges that, according to government estimates,
population growth in the United States is predominantly due to
immigration and as soon as 2030, the CBO estimates that all population
growth will come from immigration. Even for FY 2026, CBO estimates that
two thirds of the projected 0.3 percent increase in our population will
come from net immigration.\196\ DHS agrees that a decline in the
working age population and increase in the older, non-working
population is a significant threat to the continued viability of
critical programs. DHS acknowledges the important role immigrants play
in the caregiving population, including home health aides, personal
care aides, and nursing assistants. However, none of this is relevant
to the final rule, as the public charge ground of inadmissibility
implemented in this final rule will not have a significant effect on
the population of aliens in the United States. For the purpose of
comparison, during a year (1920) when the public charge ground of
exclusion was by far the most frequent reason for rejecting a potential
immigrant, only 0.08 percent of aliens applying for admission were
[[Page 45377]]
rejected on that basis.\197\ As DHS noted elsewhere in response to
public comments, under longstanding precedent, a healthy person in the
prime of life who is already employed in the United States or who has
prospective employment cannot ordinarily be considered likely to become
a public charge.\198\ At its core, the public charge ground of
inadmissibility is not intended as a barrier to the immigration of
healthy, working age aliens who are or will be employed and will be
self-sufficient.
---------------------------------------------------------------------------
\196\ See Congressional Budget Office, The Demographic Outlook:
2026 to 2056 (Jan. 7, 2026), https://www.cbo.gov/publication/61879.
\197\ Annual Report, 1920, Bureau of Immigration.
\198\ Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974)) (``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.'')
(citing Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962;
A.G.1964)).
---------------------------------------------------------------------------
Comment: A commenter raised concerns that the proposed rule poses a
serious threat to the accuracy and integrity of the census and other
government surveys, because aliens and their households would be afraid
to respond to the Census and because the Census Bureau utilizes public
benefits data to count nonresponsive households.
Response: Under 13 U.S.C. 9, the Census Bureau is prohibited from
using census data for law enforcement or immigration enforcement
purposes or to determine eligibility for government benefits, among
other things. Census data is only used to produce statistics. While DHS
can understand why aliens, particularly those amenable to removal, and
their household members would be hesitant to provide information to the
government in light of potential immigration consequences, there is no
reason for them to avoid responding to the Census given the express
statutory limitations on use of Census data.
The Census Bureau used this administrative data in the 2020 Census
to enumerate some people and households when the Census Bureau received
neither a self-response nor a response collected by an interview during
the census field operation.\199\ Using the administrative data allowed
the Census Bureau to reduce its ``imputation rate'' for such households
in the 2020 Census.\200\ However, utilizing administrative records in
this way does not necessarily make a significant difference for
enumeration. It is better to think of it as a new and potentially more
accurate tool used by the Census Bureau both to correct overall counts
and to fill in certain characteristics before the Census Bureau uses
its imputation methodology. It is highly likely that even without the
use of administrative data, the household would still be enumerated for
the purpose of apportionment and the distribution of resources.
---------------------------------------------------------------------------
\199\ See Mulry, Mule, Keller, and Konicki, Using Administrative
Records for Enumeration in the 2020 U.S. Census, U.S. Census Bureau
(April 18, 2025), https://www2.census.gov/library/working-papers/2025/adrm/csrm/RRS2025-02.pdf.
\200\ A record is imputed if missing information is inserted
when not available from self-responses, in person interviews, or
administrative records.
---------------------------------------------------------------------------
4. Impacts on Housing
Comment: Multiple commenters suggested the proposed rule would
negatively impact housing market dynamics with one stating that housing
market disruption is particularly relevant in communities recovering
from disasters, because reluctance on the part of aliens to access
assistance will result in fewer homes being repaired, straining the
available housing stock.
Response: As discussed in other responses, DHS acknowledges that
aliens subject to this final rule, particularly those in mixed-status
households, as well as aliens and U.S. citizens not subject to this
final rule, may face increased poverty and housing instability due to
their decisions to disenroll from or forgo receiving Federal housing
benefits for which they are eligible to avoid immigration consequences.
Disenrollment or foregone enrollment in Federal housing programs may
lead to financial challenges for landlords in those programs.
Additionally, it is possible that individuals may avoid accessing
programs to assist them with rebuilding or repairing their homes after
disasters, which might result in a reduction in housing supply and an
increase in cost.
DHS has estimated the disenrollment or foregone enrollment effects
of this final rule and determined the rule's overriding consideration--
the Government's congressionally mandated interest in promoting the
self-sufficiency of aliens within the United States and
disincentivizing immigration due to the availability of public
benefits--is a sufficient basis to move forward. See 8 U.S.C. 1601.
Comment: A commenter stated that mixed status families in public
housing pay much higher rents since the ineligible household member
does not qualify for Federal assistance and that those higher rents
subsidize operations and maintenance, ensuring low-income units remain
occupied. A commenter expressed concern about the impacts on Public
Housing Authorities such as destabilized program participation and
challenges in administrative operations.
Response: DHS acknowledges that under current regulations and
policies ineligible aliens may live in mixed-status households with
eligible people receiving Federal housing assistance or live in public
housing, so long as the ineligible aliens receive no assistance and the
family pays a greater portion of the rent. See generally 24 CFR part
5.\201\ DHS notes that President Trump has directed agencies to ``adopt
policies to ensure that only eligible persons receive benefits and
enforce all relevant laws providing that aliens who are not otherwise
qualified and eligible may not receive benefits.'' \202\ The President
also ordered agencies to enhance eligibility verification systems to
ensure that taxpayer-funded benefits exclude any ineligible alien.\203\
The fact that ineligible aliens living with eligible family members in
public housing pay much higher rents is unrelated to this rule and is
outside of DHS' purview.
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\201\ HUD published a Notice of Proposed Rulemaking on February
20, 2026, Housing and Community Development Act of 1980:
Verification of Eligible Status, that would change this policy. See
91 FR 8151 (Feb. 20, 2026).
\202\ See E.O. 13828, Reducing Poverty in America by Promoting
Opportunity and Economic Mobility, (Apr. 10, 2018, as reinstated on
Jan. 20, 2025, by the revocation of E.O. 14018).
\203\ See E.O. 14218, Ending Taxpayer Subsidization of Open
Borders, (Feb. 19, 2025).
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To the extent these commenters are concerned that DHS will consider
an alien's residence in a household with family members who receive
Federal housing assistance as part of the alien's public charge
inadmissibility determination, as is the case with any means-tested
public benefit received by family members whom the alien is legally
obligated to support, if such family members receive Federal housing
assistance based on the alien's income falling below the designated
threshold, DHS would consider the fact that the alien's income falls
below that threshold as part of the alien's assets, resources, and
financial status in the totality of the circumstances.
Comment: A commenter stated that programs pairing affordable
housing and supportive services may reduce costs by shortening stays in
hospitals, residential substance abuse programs, nursing homes, and
prisons, noting States using Medicaid's housing-related services show
significant savings 1 year after moving people into affordable housing
with supportive services.
Response: DHS agrees that housing is foundational for wellbeing and
families in a stable housing situation are less likely to utilize
public benefits and, generally, experience better outcomes. By
contrast, homelessness or housing instability results in worse health
[[Page 45378]]
outcomes, interferes with employment, and disrupts the education and
development of children. DHS considered the effects of the
disenrollment or foregone enrollment that are likely to result from
this final rule and determined that the rule's overriding
consideration--the Government's congressionally-mandated interest in
promoting the self-sufficiency of aliens within the United States and
disincentivizing immigration due to the availability of public
benefits--is a sufficient basis to move forward. See 8 U.S.C. 1601.
5. Impacts to Innovation
Comment: Commenters stated that the proposed rule would discourage
international students from studying in the United States, leading to
brain drain and preventing international students from contributing to
U.S. innovation.
Response: As a general matter, under PRWORA, F, J, and M
nonimmigrants students are ineligible for Federal means-tested public
benefits.\204\ If these students truly are the ``best and the brightest
from around the world'' and critical to innovation at our colleges and
universities, the institutions inviting them to study and conduct
research should financially support them, rather than allowing the
students to rely on taxpayer-funded public benefits programs to meet
their needs. To the extent States, territories, Tribes, or localities
make means-tested public benefits available to such students and those
students choose to receive those benefits, DHS will consider this
receipt in the totality of the circumstances when those nonimmigrants
apply for admission or adjustment of status, along with the statutorily
mandated factors, and any other factor relevant to assessing their
likelihood at any time of becoming a public charge, such as their
unique talents and abilities.
---------------------------------------------------------------------------
\204\ See 8 U.S.C. 1611, 1612, and 1641.
---------------------------------------------------------------------------
DHS believes the best and brightest from around the world will be
drawn to the United States and its dynamic economy notwithstanding the
manner in which DHS makes public charge inadmissibility determinations
under this rule.
Comment: A different commenter remarked that the chilling effects
of the proposed rule would decrease the number of young people (U.S.
citizens in mixed-status families, LPRs, and illegal immigrants) who
are able to complete college degrees, which undermines U.S. global
competitiveness because a highly educated workforce spurs economic
growth and strengthens State and local economies.
Response: Nothing in this rule prevents U.S. citizens or eligible
aliens from receiving any means-tested public benefits related to
higher education for which they are eligible. Further, the receipt of
means-tested public benefits by an alien's family member is not
considered during the public charge inadmissibility determination.
However, because DHS considers the alien's income as part of the
mandatory assets, resources, and financial status factor in a public
charge inadmissibility determination, to the extent the alien's family
members whom the alien is legally obligated to support receive means-
tested public benefits based on the alien's income falling below the
designated threshold, DHS would consider the fact that the alien's
income falls below that threshold as part of the alien's assets,
resources, and financial status in the totality of the circumstances.
Even in such a situation, consideration of the alien's income falling
below a certain threshold such that a family member must receive means-
tested public benefits to meet their needs is not outcome
determinative.
If the alien applying for admission or adjustment of status
received State, local, or Tribal means-tested public benefits related
to higher education, DHS will consider that receipt, including 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, in the
totality of the circumstances. If the receipt of means-tested public
benefits was tied to the need for support while completing an academic
program, and the alien has since completed that program and is no
longer relying on support, the officer would consider these facts in
the totality of the circumstances.
Comment: Another commenter stated that international artists would
be discouraged from coming to the United States due to inconsistent
adjudications by officers during the O-1, O-2, and P nonimmigrant visa
processes, and that ``the rule will likely result in [DOS] more
frequently denying visas to artists who are unable to prove that they
personally have sufficient wealth.''
Response: DHS disagrees. Addressing the latter concern first, this
rule applies only to aliens applying for admission and adjustment of
status with DHS. It has no effect on adjudications of nonimmigrant or
immigrant visa applications by DOS consular officers. Regarding
concerns about inconsistent adjudications by DHS in the nonimmigrant
visa process for these visas, the public charge ground of
inadmissibility does not apply to nonimmigrant visa petitions (or
immigrant visa petitions, for that matter). DHS officers do not
consider inadmissibility grounds when making decisions on nonimmigrant
visa petitions for performers because Congress has not tied eligibility
for approval of such petitions to admissibility.
6. Other Economic Effects
Comment: A commenter expressed concern that the U.S. economy would
suffer as potential tourists would be unable to visit due to
discrimination on the basis of health or race, requesting the budgetary
and economic implications of this rule be studied.
Response: DHS notes that the very purpose of the public charge
ground of inadmissibility, as enacted by Congress, is to prevent the
admission and adjustment of status of aliens who are determined by an
officer to be likely at any time to become a public charge. With
respect to commenters' concerns that this final rule will impede
temporary visits and tourism, DHS notes that after the effective date
of this final rule, officers will have more and not less discretion to
consider all relevant factors when determining whether an alien is
likely at any time to become a public charge. This would include
considering the purpose and duration of the alien's proposed stay in
the United States. As to these commenters' concerns with the factors
considered by DHS in this final rule, DHS further notes that nothing in
this final rule, when compared to the 2022 Final Rule, invites
discrimination on the basis of health, race, or any other factors. DHS
officers must consider an alien's health in making a public charge
determination due to the express language in section 212(a)(4)(B) of
the INA, 8 U.S.C. 1182(a)(4)(B), but an alien's race is entirely
irrelevant to whether an alien is likely at any time to become a public
charge and will never be considered. The NPRM, and this final rule,
include an assessment of the financial impacts of this rulemaking.
7. Impacts on the Military and Veterans
Comment: Commenters expressed concern that increased burdens on
military families would impact military readiness and economic and
civic strength, including within the military. One commenter wrote that
foreign-born service members and their families should not be
threatened with immigration consequences for applying
[[Page 45379]]
for government aid. They noted that some military spouses cannot work
because the service members must relocate frequently or because the
spouses handle household responsibilities without support, concluding
that public benefits should be plentiful and unencumbered for service
members and their families.
Multiple commenters requested DHS add explicit exemptions in the
regulatory language for military and veteran families, for active duty
members, Guard and Reserve members, and immediate family members, as
well as veterans and their immediate family members. A commenter
requested that DHS exclude military-related and family-support programs
from consideration, and another wrote that the NPRM should be heavily
revised or scrapped given the lack of an exemption for military
families. A commenter reasoned that extending exemptions to veterans
and their immediate family members would be consistent with the PRWORA
exemption at 8 U.S.C. 1613(b)(2). A different commenter suggested that
the availability of parole in place for parents of military members
demonstrate the need for exemptions for military members, veterans, and
their parents. Another commenter recommended exemptions for military
families receiving subsidies.
Response: DHS shares these concerns for military families,
veterans, and military readiness. In regard to military readiness, DHS
notes that aliens must generally be LPRs \205\ in order to join the
United States military and LPRs only are subject to the public charge
ground of inadmissibility in limited circumstances.\206\ Further, under
section 329 of the INA, 8 U.S.C. 1440, all aliens honorably serving in
the U.S. military during a designated period of hostilities may be
eligible to naturalize without first spending a specific period of time
as an LPR or having been lawfully admitted for permanent residence if
they meet the other eligibility requirements.\207\
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\205\ See USA.gov, Requirements to Join the U.S. Military,
https://www.usa.gov/join-military (last updated Aug. 27, 2025).
However, under the Military Accessions Vital to National Interest
(MAVNI) program, certain aliens who were asylees, refugees, TPS
beneficiaries, deferred action beneficiaries, or nonimmigrants in
certain categories could enlist. The recruitment of service members
through the MAVNI program ceased in 2016.
\206\ LPRs are generally not considered to be applicants for
admission when they return from a trip abroad. However, in certain
limited circumstances, an LPR will be considered an applicant for
admission and subject to an inadmissibility determination upon their
return to the United States. See INA sec. 101(a)(13)(C), 8 U.S.C.
1101(a)(13)(C).
\207\ See USCIS Policy Manual, Vol. 12, Citizenship and
Naturalization, Part I, Military Members and Their Families, Ch. 3,
Military Service during Hostilities (INA 329), https://www.uscis.gov/policy-manual/volume-12-part-i-chapter-3 (last updated
Feb. 3, 2026).
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DHS notes that Congress neither exempted current or former
servicemembers from the public charge ground of inadmissibility, nor
exempted families of servicemembers except for the limited exemption
for qualifying surviving family members.\208\ DHS lacks authority to
create exemptions to any ground of inadmissibility. However, DHS will
address concerns about the impact of public benefit use by members of
the military and their families, in subsequent guidance issued in
conjunction with this final rule.
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\208\ See Section 1703 of the National Defense Authorization
Act, Public Law 108-136, 117 Stat. 1392 (November 24, 2003)
(posthumous benefits to surviving spouses, children, and parents).
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H. DHS's Rationale and Justification for the Rule
1. Insufficient Evidence or Reasoned Justification To Change Policy
Comment: Many commenters wrote that DHS failed to provide evidence
or a reasoned justification for the elimination of the current public
charge inadmissibility policy, leading some to urge DHS to withdraw the
NPRM. One expressed concern with dismantling what was a functioning,
clear, and trusted framework without compelling evidence. Commenters
wrote that DHS did not cite research or other evidence in the NPRM
showing the 2022 Final Rule incentivized immigration due to the
availability of benefits, and claimed that DHS did not cite any
evidence to support its claims regarding congressional intent.
Response: DHS did not fail to provide a compelling justification
for this rule. As noted in the NPRM and throughout this preamble, the
purpose of this rule is to remove the overly-restrictive framework
established by the 2022 Final Rule and ensure that DHS's implementation
of the public charge ground of inadmissibility is consistent with
administration policy and congressional intent. This final rule
establishes a policy better implementing the public charge ground of
inadmissibility and the broader policy that aliens should be self-
sufficient, i.e., rely on their own capabilities and resources of their
family, sponsors, and private organizations, rather than depending on
public resources. See 8 U.S.C. 1601. DHS provided both quantitative and
qualitative analysis discussing the rule's impacts, consistent with
E.O. 12866 and Circular A-4, which require quantification where
possible and qualitative analysis where quantification is not feasible.
The Secretary determined that removal of the 2022 Final Rule is
necessary to ensure DHS officers make public charge inadmissibility
determinations that align with the statute, relevant circuit precedent,
and established precedent decisions. 90 FR 52168, 52186-87 (Nov. 19,
2025). Public charge inadmissibility determinations made under this
rule better implement the statute enacted by Congress. See INA sec.
212(a)(4), 8 U.S.C. 1182(a)(4). DHS finds that the express language of
section 212(a)(4)(A) and (B) of the INA, 8 U.S.C. 1182(a)(4)(A) and
(B), the longstanding national policy on immigration and welfare, as
set forth in 8 U.S.C. 1601, and precedent decisions that guided such
determinations for decades provide sufficient guidance for officers to
make public charge inadmissibility determinations.
Furthermore, DHS disagrees that this rule ignores or contradicts
congressional intent. In fact, Congress made clear in PRWORA that
aliens within the nation's borders should be self-sufficient and not
dependent on public resources to meet their needs, and further made
clear in section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), that aliens
who are likely at any time to become a public charge are not admitted
or granted adjustment of status unless a statutory exception applies.
DHS believes that the statute, PRWORA, and the governing precedent
provide sufficient guidance to officers to consider all relevant case-
specific circumstances in their discretion while USCIS formulates
appropriate policy and interpretive tools that will guide 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.\209\ As described in other comment responses,
USCIS will issue subregulatory guidance in advance of or
[[Page 45380]]
on the effective date of this Final Rule that will inform, but not
dictate the outcome of, the totality of the circumstances
determinations.
---------------------------------------------------------------------------
\209\ 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.'').
---------------------------------------------------------------------------
2. Insufficient Connection Between Benefit Receipt and Dependency on
the Government
Comment: Many commenters expressed concerns that the proposed rule
asserts that the receipt of public benefits is relevant to a public
charge assessment without support, including that the proposed rule
neither provides a logical argument nor offers data to support such a
claim and that the proposed rule fails to demonstrate how expanding the
public charge inadmissibility determination advances self-sufficiency.
Another wrote that public benefits are received by a wide range of
families and individuals, further citing research finding that non-
native households used benefits at rates lower than native households.
Finally, a commenter wrote that since the implementation of the 2022
Final Rule, DHS has collected detailed data on public benefit use by
adjustment of status applicants and such data is readily available in
USCIS case management systems. The commenter goes on to state that the
USCIS website says that few aliens are both subject to the public
charge ground of inadmissibility and eligible to receive public
benefits and speculated that DHS withholds the data to conceal low
public benefit use among those subject to this inadmissibility ground.
Further, multiple commenters provided analysis of public benefits
as supports for self-sufficiency rather than indicators of future
dependency, referencing a study finding that more than half of all
U.S.-born citizens could be considered a public charge under the 2019
Final Rule definitions. A commenter stated that access to and use of
critical services often strengthen long-term self-sufficiency. Another
commenter discussed benefits, other than cash assistance for income
maintenance and long-term institutionalization, as supplemental
supports, stating that public benefit programs are used by millions of
families with incomes well above the poverty level. One commenter
referenced studies on housing benefits and remarked that many self-
sufficient immigrants receive housing assistance to provide needed
stability, particularly in urban areas because wages have not kept pace
with housing costs, making housing affordability increasingly
unattainable for many Americans regardless of immigration status.
Commenters stated that DHS acknowledged that public benefits are
significant aids for individuals to work, attend school, and remain
healthy, with a community organization elaborating that disenrollment
from benefits due to fear undermines these outcomes. A commenter stated
that the rule runs directly counter to evidence regarding the
relationship between public benefits and workforce participation.
Specifically, they allege that while DHS claims to be concerned about
workforce participation (i.e. self-sufficiency) of aliens, the public
benefits targeted by this rule (e.g., Medicaid) support workforce
participation, claiming that most recipients of Medicaid are employed.
Response: DHS disagrees that receipt of means-tested public
benefits is not relevant to a public charge inadmissibility
determination. The receipt of public benefits has been a part of public
charge inadmissibility determinations since the earliest immigration
laws. It was addressed in the NPRM and precedent decisions that
preceded the 1999 Interim Field Guidance and subsequent DHS regulations
codified in 2019 and 2022.\210\ DHS does not assume that aliens rely
disproportionately on means-tested public benefits. As outlined in the
NPRM and this final rule, Congress clearly declared in its statement of
national policy in PRWORA that self-sufficiency has been a basic
principle of United States immigration law since this country's
earliest immigration statutes and it should continue to be a governing
principle in the United States. See 8 U.S.C. 1601. Congress maintained
the public charge ground of inadmissibility in law since 1882. DHS
believes that aliens who apply for admission and adjustment of status
who are subject to the public charge ground of inadmissibility should
be self-sufficient and not depend on the government to meet their
needs. DHS firmly believes this was Congress's intent in enacting
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), amending it as
recently as 1996.\211\
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\210\ 90 FR 52168, 52187 (Nov. 19, 2025). See also 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 [INA] and are excludable as public charges.'').;
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); 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.'').
Matter of M-, 2 I&N Dec. 131, 131 (BIA 1944) (considering
alien's receipt of public aid as part of public charge
inadmissibility determination). 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).
\211\ See IIRIRA, Public Law 104-208, div. C, sec. 531, 110
Stat. 3009-546, 3009-674 (Sept. 30, 1996) (amending INA sec.
212(a)(4), 8 U.S.C. 1182(a)(4)); H.R. Rep. No. 104-828 at 240-41
(1996) (Conf. Rep.) (``This section amends INA sec. 212(a)(4) to
expand the public charge ground of inadmissibility. . . . Self-
reliance is one of the most fundamental principles of immigration
law.'').
---------------------------------------------------------------------------
Furthermore, DHS recognizes that means-tested public benefits
programs provide food and nutrition, housing, and healthcare, and other
benefits meeting individual needs, serving the public interest, and
helping people become productive members of society. The relevant
inquiry this final rule aims to address, however, is whether an alien
subject to the public charge ground of inadmissibility is likely at any
time to become a public charge. When considering all relevant factors
and information in the totality of circumstances to determine if an
alien will be likely at any time to become a public charge, it is
reasonable for an officer to consider whether an alien has applied for,
been approved or certified for, received, or will likely receive means-
tested public benefits. Such information is clearly relevant to whether
an alien may lack self-sufficiency by being unable to meet basic living
needs. DHS is also aware that individuals, even those who are not
subject to this rule, may reconsider receipt of means-tested public
benefits in light of future immigration consequences; despite the rule
not preventing eligible individuals from applying for or receiving any
means-tested public benefits.
Moreover, even if DHS were to accept that access to means-tested
public benefits improves a person's workforce engagement and long-term
tax contributions, this does not change the fact that Congress was
clear that aliens should be self-sufficient and that aliens likely at
any time to become a public charge will be denied admission or
adjustment of status.
3. Would Not Accomplish Stated Goal To Reduce Public Expenditures
Comment: A commenter expressed concern regarding DHS cutting access
to
[[Page 45381]]
benefit programs to reduce public expenditures, writing the proposed
rule would discourage families from accessing basic supports essential
for economic stability. Highlighting reducing public expenditures,
another commenter said the proposed rule would not accomplish its goal
and shift costs to emergency systems undermining long-term economic
stability and community integration.
Response: DHS recognizes this final rule may have impacts on public
health, including increased use of emergency rooms for primary care.
DHS disagrees that the rule does not show benefits outweighing costs
and that it would reduce public expenditures. As noted in the NPRM, the
rule removes overly restrictive language established by the 2022 Final
Rule, to ensure that DHS is faithfully implementing the public charge
ground of inadmissibility consistent with statutory language and
congressional intent. DHS assesses that the benefits of this policy
outweigh the costs of this rule by ensuring that applicants for
adjustment of status to lawful permanent resident who are subject to
the public charge ground of inadmissibility, are self-sufficient, i.e.,
relying on their own capabilities and resources of their family,
sponsor, and private organizations, rather than depending on public
resources.
DHS provided both quantitative and qualitative analysis in the NPRM
and this final rule, discussing the impacts of this rule, consistent
with E.O. 12866 and Circular A-4, requiring quantification where
possible and qualitative analysis where quantification is not feasible.
As noted in Office of Management and Budget (OMB) Circular A-4,
``[b]enefit and cost estimates should reflect real resource use.
Transfer payments are monetary payments from one group to another that
do not affect total resources available to society.'' \212\ The
transfer payments described in the economic analysis result from
individuals who choose to disenroll or forgo enrollment in public
benefit programs and represent reduced payments from Federal and State
governments to certain individuals who would otherwise receive public
benefits, which is not a loss of Federal funding to State and local
governments. The reduction in transfer payments is quantified in the
transfer payments section of the economic analysis, not in the cost-
saving section as the commenter asserted.
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\212\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
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4. Agreement With Stated Need for Proposed Rule
Comment: Without providing further discussion, one commenter stated
that the proposed changes are needed and cover the issues addressed,
while another supported DHS's stated justification, referencing
research on recent increases in immigration, welfare enrollment, food
stamp spending, as well as high rates of welfare and other means-tested
usage in immigrant households, particularly those with young children,
and concluding receipt of government benefits is a strong indicator of
potential future reliance on public support.
Response: DHS agrees with the commenters expressing support for the
justification underlying this rule. As stated in both the NPRM and
throughout this final rule, aliens applying for admission and
adjustment of status who are subject to the public charge ground of
inadmissibility should be self-sufficient and not depend on the
government to meet their needs. DHS firmly believes this was Congress's
intent in enacting section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4),
and this rule will faithfully implement that intent.
This final rule restores a public charge inadmissibility
determination that trusts in and relies on officers' good judgment and
sound discretion as envisioned by Congress. DHS also agrees the
availability of public benefits should not constitute an incentive for
immigration to the United States, as Congress stated in PRWORA. See 8
U.S.C. 1601.
I. Amendments to Cancellation and Breach of Public Charge Bond
Provisions
Comment: A commenter appreciated that public charge bonds submitted
and accepted prior to the enactment of the proposed rule would be held
to the 2022 Final Rule regulatory standards and recommended the
effective date of this rule be at least 90 days after publication.
Response: DHS appreciates the comment and reiterates that the
regulatory standards in the 2022 Final Rule will be applied to an alien
who submitted his or her public charge bond before the effective date
of this final rule, and whose bond is accepted by USCIS. In addition,
cancellation of a public charge bond submitted and accepted prior to
the effective date of this final rule would be decided under the
version of 8 CFR 103.6 established by the 2022 Final Rule.
DHS considered the request for the effective date of this final
rule to be at least 90 days after publication of the rule and
determined the final rule will be effective 60 days after publication
in the Federal Register. While the standard effective date for most
final rules is 30 days from publication, DHS determined that a 60-day
effective date is appropriate for this final rule, as is the standard
for major rules.
Comment: Numerous commenters expressed concerns about the proposed
revisions to public charge bond provisions. Several questioned the
rationale or necessity of the proposed public charge bond provisions,
while a few stated that the proposed public charge bond provisions
would exacerbate or reinforce the harms of the rule. Others
specifically opposed the proposed provisions in 8 CFR 103.6(c)(1)(ii)
related to breach of public charge bonds after receipt of any means-
tested public benefits. One commenter stated the significant changes to
the administration of public charge bonds would create uncertainty in
the immigration system, invite arbitrary enforcement, and impose
substantial financial burden on States. That commenter stated DHS now
proposes to dramatically loosen the constraints on bond cancellation
and breach by explicitly stating that receipt of ``any means-tested
benefit'' by an alien, without regard to duration, severity, or
causation, will constitute a breach of the bond, regardless of whether
the benefit bears any actual relation to long-term dependence or
financial self-sufficiency. They also asserted that ``single benefit
use = breach'' proposal means that accessing short-term Medicaid,
enrolling a child in CHIP, or using temporary food assistance during a
period of unemployment would breach a bond, adding that the rule does
not specify for which benefits receipt will constitute breach, the
proposed bond structure is arbitrary, and could vary from State to
State because States differ in how they structure, fund, and classify
public benefit programs. A different commenter described the proposed
bond provisions as a ``radical expansion'' of benefits that could
result in bond breach and urged DHS to withdraw the rule. Additionally,
commenters expressed concerns that the proposed provisions are
retroactive and/or punitive.
Response: DHS disagrees. DHS determined it must revise the bond
provisions codified in the 2022 Final Rule to conform with the manner
in which public charge inadmissibility determinations will be made now
that the 2022 Final Rule has been rescinded.
[[Page 45382]]
Not making these changes would result in material inconsistencies
between public charge inadmissibility determinations under the final
rule and the public charge bond provisions. The changes to the
regulatory text for public charge bonds clearly and transparently
communicates to the regulated public when public charge bonds will be
breached or cancelled. DHS disagrees with commenters stating otherwise.
There is no ambiguity in the bond provisions. DHS is replacing the
language prohibiting cancellation of a public charge bond if the bonded
alien received public cash assistance for income maintenance or long-
term institutionalization at government expense with clear language
prohibiting cancellation if the bonded alien 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 \213\ 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.
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\213\ Under section 213 of the INA, 8 U.S.C. 1183, ``the United
States and all States, territories, counties, towns, municipalities,
and districts thereof.''
---------------------------------------------------------------------------
DHS disagrees that forfeiture of the full bond amount in the event
of breach by receipt of any means tested public benefit is unfair,
unjust, or unlawful. The face value of the bond constitutes liquidated
damages for a breach of the bond conditions. Liquidated damages are an
appropriate remedy in situations such as the public charge bond, where
the total damages to the government are difficult, if not impossible to
calculate. Additionally, these damages go beyond the simple amount of
the benefits received, encompassing not only the monetary value of the
benefits received but also the overhead of the benefit agency in
administering the benefit.
A public charge bond is offered to allow aliens who are otherwise
inadmissible due to being found likely at any time to become a public
charge to nonetheless be admitted. The conditions that constitute
breach of a public charge bond are delineated fully in 8 CFR 103.6(c)
and on the public charge bond itself, and any alien offered a public
charge bond has ample opportunity to review them before agreeing to the
terms. Whether the public charge bond is punitive is a matter for
Congress; however, under the express language of the statute, the
public charge bond's purpose is to hold the United States, and all
States, territories, counties, towns and municipalities and districts
harmless against bonded aliens becoming public charges. See INA sec.
213, 8 U.S.C. 1183.
As discussed in previous comment responses, an alien who submitted
his or her public charge bond before the effective date of this final
rule, and whose bond is accepted by USCIS, would be held to the
regulatory standards from the 2022 Final Rule, a standard that is also
reflected on the bond form, which is a contract with the United States.
In addition, cancellation of that bond submitted and accepted by USCIS
prior to the effective date of this rule would be based on the version
of 8 CFR 103.6 established by the 2022 Final Rule.
Further, the changes to this provision make explicit that final
bond breach determinations are appealable by sureties under 8 CFR
103.6(f), and by aliens under 8 CFR 103.3, which are safeguards built
into the regulations. The public charge bond cannot be compared to
criminal bonds as they are different kinds of bonds. The public charge
bond is an agreement guaranteeing the alien will not become a public
charge. It is a financial contract ensuring the government is
reimbursed if the alien receives means-tested public benefits. A
criminal bond is a bond guaranteeing an individual's personal
appearance in court if released from custody. The bonds differ
significantly in terms of purpose and legal context. This is neither
punitive nor retroactive. This change complies with the congressional
mandate to hold the government harmless against the alien becoming a
public charge as set forth in section 213 of the INA, 8 U.S.C. 1183.
Comment: A commenter stated public charge bonds are a remnant of
immigration laws from the early 20th century, before intending
immigrants were required to be sponsored by a close family member or
employer, has been deemed generally unnecessary, and that even DHS
acknowledges these facts in its assumptions about the proposed rule's
information collection. Other commenters stated because public charge
bond decisions are discretionary, some applicants would not have the
chance to post a bond. Another commenter wrote public charge bonds
would allow families with resources to move forward while
disproportionately harming those without. A commenter wrote that
removal of 8 CFR 103.6(c)(1) permitting public charge bond cancellation
at any time was unnecessary because ``DHS retains full authority to
maintain such bond and is under no obligation to cancel a bond other
than as regards the enumerated reasons.'' Additionally, a commenter
questioned how the proposed amendments to public charge bonds would
impact the integrity of the immigration system and the responsible
allocation of public resources. Another stated public charge bonds
replicate the problems seen in criminal cash bail and cited an article
from the U.S. Commission of Civil Rights that cash bail has resulted in
stark racial and gender disparities.
Response: DHS disagrees with commenters' assertion that the public
bond provisions are a relic of the past, not necessary after the
existence of the Form I-864, and are unfair. Congress gave DHS
authority under section 213 of the INA, 8 U.S.C. 1183, to consider
whether to exercise discretion on a case-by-case basis to admit aliens
who are inadmissible only under section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), upon the submission of a suitable and proper public charge
bond. Congress acknowledged the existence of the Form I-864 in the
plain language of the public charge bond statute, making clear the
availability of public charge bonds continues notwithstanding the
requirement to submit a Form I-864.\214\
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\214\ INA 213, 8 U.S.C. 1183 (``which states that ``[a]n alien
inadmissible under [section 212(a)(4) of the INA] may, if otherwise
admissible, be admitted in the discretion of [the Secretary of DHS]
(subject to the affidavit of support requirement and attribution of
sponsor's income and resources under section [213A of the INA] upon
the giving of a suitable and proper bond undertaking approved by
[the Secretary of DHS] in such amount and containing such conditions
as he may prescribe, to the United States, and to all States,
territories, counties, towns, municipalities, and districts thereof
holding the United States and all States, territories, counties,
towns, municipalities, and districts thereof harmless against such
alien becoming a public charge'').
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DHS disagrees with the assertion that the changes to the public
charge bond provisions are unnecessary or overly burdensome. DHS is
modifying the provisions relating to public charge bonds to align with
the removal of the other provisions and for clarity. Under 8 CFR
103.6(c)(1)(i), 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)(ii). However, under 8
CFR 103.6(c)(1)(ii), a public charge bond submitted on or after the
effective date of this 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.
[[Page 45383]]
As discussed in another response, the changes are necessary to
conform the bond regulations with the removal of the overly-restrictive
2022 Final Rule. This amendment is intended to ensure that the
government \215\ 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.
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\215\ 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 disagrees that the bond provisions disproportionately harm
those without financial resources or result in racial or gender
disparities. Bond provisions allow aliens found to be inadmissible
under the public charge ground of inadmissibility, when invited at the
discretion of DHS, to post a bond and be admitted as an LPR. The public
charge bond affords an opportunity for aliens who are likely at any
time to become a public charge to nonetheless obtain LPR status, when
invited to do so at the discretion of DHS. USCIS will provide officers
with guidance and training to ensure this discretionary authority is
exercised in a fair, efficient, and consistent manner.
DHS also disagrees that the removal of 8 CFR 103.6(c)(1) is
unnecessary. The existing regulatory language is misleading and
unfeasible. In stating that DHS may cancel a public charge bond at any
time it determines ``that the alien is not likely to become a public
charge,'' the regulatory language suggested USCIS periodically reviews
and reconsiders its previous public charge inadmissibility
determinations and may cancel the public charge bond, or that aliens
who submitted a public charge bond may request such a review. However,
neither of these suggestions are accurate.\216\ Once USCIS determines
an alien is inadmissible under the public charge ground but adjusts the
alien's status after a suitable and proper bond is accepted, DHS would
not cancel the bond except as otherwise noted in proposed 8 CFR
103.6(c). The removal of 8 CFR 103.6(c)(1) clearly and transparently
communicates to the regulated public about circumstances under which a
public charge bond may be cancelled.
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\216\ DHS notes that in general, once it makes an
inadmissibility determination and grants admission as an LPR at a
POE or approves an alien's application to adjust status to that of
an LPR, it does not reevaluate inadmissibility. 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 LPR 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 U.S.C. 1427;
INA sec. 245(a)(2), 8 U.S.C. 1255(a)(2).
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Comment: Commenters stated there is no evidence public charge bonds
prevent people from becoming dependent on government assistance and the
bonds may have the opposite effect--depleting families of resources. A
commenter said widening the scope of what is considered a bond
violation heightens the risk families will avoid essential programs to
avoid triggering a breach. Another commenter stated these provisions
and expanded discretion would intensify health disparities, worsen
preventable illness, and destabilize mixed-status families and urged
DHS to instead maintain a clear, narrow, and humane public charge
standard that protects access to essential services for the most
vulnerable patients. Joint commenters wrote: the proposed rule offers
no explanation for the removal of ``depending on the government for
subsistence'' (as included in the 1999 Interim Field Guidance and the
2022 Final Rule) in favor of enforcement triggered by de minimis
welfare use, did not offer procedural protection for individuals
subject to bond breach or a basis for recipients to learn in advance
which public benefits might affect an alien's status, or how DHS will
interpret household benefit use in the context of bonds. While stating
that the proposed provisions are arbitrary, the commenter noted that
because States differ in how they structure, fund, and classify public
benefit programs, households with identical income, family size, and
immigration status may be treated differently for bond purposes
depending solely on State of residence. Finally, the commenters noted
that DHS asserts that it does not anticipate an increase in bonds
cancelled or breached while making breach automatic and removing all
mitigating factors.
Response: Congress created discretionary public charge bonds, and
DHS therefore must consider whether to exercise its discretion on a
case-by-case basis to admit aliens who are inadmissible only under
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), upon the submission
of a suitable and proper public charge bond. This rule leaves intact
the public charge bond regulations with modification of certain
provisions as necessary to conform with removal of the overly-
restrictive 2022 Final Rule. The regulations promulgated concerning
public charge bonds previously, and in this rule, ensure the regulated
public is aware of how DHS will exercise discretion.
Contrary to commenter assertions, public charge bond provisions at
section 213 of the INA, 8 U.S.C. 1183, do not state they are intended
to prevent people from becoming dependent on government for assistance,
but rather to hold the United States and all States, territories,
counties, towns, municipalities, and districts thereof harmless against
the alien becoming a public charge. The statute states ``suit may be
brought thereon in the name and by the proper law officers of the
United States for the use of the United States, or of any State,
territory, district, county, town, or municipality in which such alien
becomes a public charge, irrespective of whether a demand for payment
of public expenses has been made.''
This rule also provides DHS with greater flexibility to adapt to
changing circumstances, such as Federal and State changes to aliens'
eligibility for means-tested public benefits and to the value of those
benefits, as occurred with the enactment of H.R.1, Public Law 119-21,
139 Stat. 72 (``HR-1''). The amendments to the cancellation and breach
of public charge bonds also establish a policy that aligns more closely
with the broader policy of the United States that aliens be self-
sufficient and not reliant on public resources. See 8 U.S.C. 1601.
Comment: One commenter recommended clarifying public charge bond
provisions with precise definitions, disclosure requirements, due
process rights, and opportunities for appeal.
Response: DHS agrees with the commenter that public charge bond
regulations are important to inform the regulated public about the
various stages of the public charge bond process. DHS notes that public
charge bond regulations together with general regulations concerning
immigration in 8 CFR include explanations of the procedural rights of
applicants and obligors. Specifically, appeal rights are included in
the regulations at 8 CFR 103.3 and apply to breach determinations made
by DHS.
Comment: A commenter stated that the proposed rule's reliance on
public charge bonds raises concerns previously identified in litigation
by Oregon and other U.S. States.
Response: DHS is not certain what the commenter refers to in regard
to ``reliance'' on public charge bonds. The commenter referenced
previous concerns raised in litigation by the State of Oregon and other
States, but did not cite litigation or reference what that litigation
concerned. DHS is unable to respond to the commenter's other
[[Page 45384]]
arguments as they lack specificity and context.
Comment: A commenter said DHS should maintain a workable bond
process only to be used in rare situations involving immigrants who are
subject to public charge, are not employment-based immigrants, or for
whom a Form I-864 is not required. The commenter opposed the bond
provision changes related to clarification of receipt of means-tested
benefits resulting in breaches of bonds and cancellation of bonds,
declaring these changes unnecessary and overly burdensome, and not that
processes exist for government agencies to follow to avoid harm if an
LPR receives a public benefit. Another suggested DHS avoid or strictly
target bonds to rare, well-justified cases.
Response: DHS disagrees that it should limit the bond process to
aliens whose application for adjustment of status is not employment-
based and for whom a Form I-864 is not required. Congress created
section 213 of the INA, 8 U.S.C. 1183, to permit DHS to admit aliens
who are inadmissible only under the public charge ground without
limiting the availability of bonds to certain classifications, and DHS
must consider whether to exercise its discretion on a case-by-case
basis to admit any alien found inadmissible only under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), upon the submission of a
suitable and proper public charge bond. While one commenter suggested
avoiding bonds or strictly targeting bonds to rare, well-justified
cases as a proposed ``reasonable alternative'' to ``reduce . . .
administrative burden while achieving policy goals,'' this is not a
regulatory alternative as drafted. If the commenter intended to suggest
that DHS should discourage officers from providing aliens the
opportunity to submit public charge bonds or establish regulatory
criteria significantly restricting the discretion of officers, DHS
declines to do so, as this would not be a reasonable interpretation of
the statute.
DHS also disagrees that the changes to 8 CFR 103.6 are unnecessary
or overly burdensome. As stated above, DHS believes the changes to 8
CFR 103.6 are in fact necessary because the bond regulations must
conform to removal of the overly restrictive 2022 Final Rule. Since DHS
proposes to remove references to public cash assistance for income
maintenance or long-term institutionalization at government expense
from the public charge inadmissibility regulations, DHS relatedly must
amend that same 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. This amendment is intended to ensure that the government \217\
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.
Furthermore, this provision is not superfluous to other provisions
created by Congress concerning processes for the government to avoid
harm if a sponsored alien receives a public benefit, such as section
213A of the INA, 8 U.S.C. 1183a.
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\217\ Under INA sec. 213, 8 U.S.C. 1183, ``the United States and
all States, territories, counties, towns, municipalities, and
districts thereof.''
---------------------------------------------------------------------------
Comment: Regarding bonds posted after rule finalization, the
commenter questioned if ``any means-tested public benefit'' would
include time-limited, crisis-driven, or medically necessary assistance
and if DHS would include exceptions to minimize perverse incentives to
avoid care.
Response: Under this final rule, pursuant to 8 CFR 103.6(c)(1)(ii),
a public charge bond submitted on or after the effective date of the
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.
Similarly, under this final rule, pursuant to 8 CFR 103.6(c)(1) if an
alien files a Form I-356, Request for Cancellation of Public Charge
Bond, USCIS may cancel the bond if USCIS determines the alien did not
breach the bond by receiving any means-tested public benefit or
otherwise being noncompliant with the conditions of the bond. As stated
in the NPRM, DHS believes that it is any receipt of a means-tested
public benefit to meet the alien's needs that Congress intended to
address with the public charge ground of inadmissibility as it has
existed since IIRIRA.
J. Removal of 8 CFR 212.20, ``Applicability of Public Charge
Inadmissibility''
Comment: One commenter disagreed with DHS's statement that
``retaining 8 CFR 212.20 in its current, or even an amended form, would
serve no purpose.''
Response: DHS disagrees and notes the commenter failed to explain
why they disagreed with the proposal. 8 CFR 212.20 is an introductory
regulatory provision. Retaining it when the subsequent three sections
which it introduces are eliminated, would serve no purpose.
K. Removal of the Public Charge Regulatory Definitions
1. General Comments
Comment: Numerous commenters expressed concern about removal of
specific definitions or failure to define key terms, with many
concluding it would lead to uncertainty and confusion for immigrants,
benefit-granting agencies, service providers, and USCIS officers.
Commenters expressed several concerns: that DHS proposes to remove the
framework and definitions operationalizing public charge
inadmissibility determinations, restoring broad discretion to USCIS
officers; the absence of defined terms may complicate decision-making
for families, leading to avoidance of essential benefits and care; and
that removing the definitions creates significant risk that officers
would rely on factors Congress has not authorized, contrary to both
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4) and long-established
precedent underscoring DHS's intent to expand officer discretion beyond
statutory language. Another commenter stated that the clearly defined
factors in the 2022 Final Rule provided the public with a consistent
national standard whereas in the totality of the circumstances test and
the weight of each factor can vary depending on the officer's
determination and the court to which a case is appealed. Another
commenter wrote that the clear adjudicatory standards and definitions
being erased are necessary to fair, transparent, and consistent
application of law that is not arbitrary or capricious and that DHS
should withdraw the rule since common understandings of law and policy
are necessary for clear guidance and government accountability. Another
commenter criticized DHS's justification, reasoning that the 2022 Final
Rule already allows officers to consider the totality of the
circumstances without restricting their discretion and the existing,
clearly defined factors offer sufficient flexibility while ensuring a
consistent national standard, rather than leaving determinations to the
subjective judgment of individual officers.
Multiple commenters provided general recommendations for defining
key terms related to public charge inadmissibility determinations. A
few commenters endorsed clear, objective, publicly available
definitions in line with longstanding statutory interpretation and
established practices. Another commenter said the removal of specific
definitions should be balanced with the potential for confusion about
[[Page 45385]]
which benefits would be considered under the final rule. Similarly, a
commenter wrote that the Department must establish standardized
definitions to ensure transparency, protect vulnerable populations, and
promote consistent implementation across agencies, reasoning that
failure to do so would not only undermine the practical application of
the rule but would also run counter to basic principles of
administrative law, which require that regulations provide clear notice
and avoid arbitrary enforcement. Another suggested that any new
framework should remain less restrictive, uphold self-sufficiency, and
avoid creating new burdens.
Response: DHS disagrees removing the regulatory definitions from
the 2022 Final Rule without replacement will create uncertainty,
inconsistency, or discrimination.\218\ In fact, we believe the opposite
is true. The regulatory definitions implemented by the 2022 Final Rule
are inconsistent with the national policy contained E.O. 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 the definitions severely and
unduly limited the factors that officers consider in making public
charge inadmissibility determinations. This, at minimum, discouraged
officers from considering relevant evidence essential to making an
accurate public charge inadmissibility determination consistent with
the statute, the spirit of PRWORA, and past precedent decisions that
have governed these determinations for decades. Thus, DHS believes it
must completely remove the regulatory definitions established by the
2022 Final Rule in order to be more consistent with PRWORA's directive
that aliens not depend on public resources to meet their needs 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.
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\218\ Note however that DHS acknowledged in the regulatory
impact analysis in the NPRM and this final rule that while the
intent of this proposed rule is to allow DHS to better apply the
public charge ground of inadmissibility consistent with
congressional intent which as indicated above this rule does, the
elimination of certain definitions may nonetheless cause
misunderstanding and confusion for some members of the regulated
public, which could result in decreased participation in public
benefit programs by individuals who are not subject to the public
charge ground of inadmissibility. See 90 FR at 52208, and sections
III.O.1. d.vii. and IV.A.
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As discussed earlier in this preamble, DHS's very purpose in
rescinding 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 relevant to assessing an alien's likelihood at any time of
becoming a public charge. DHS believes relevant precedent decisions and
recent circuit case law provide officers with sufficient guidance to
conduct subjective individualized determinations based on the specific
facts and circumstances of each alien's case. DHS believes this
approach falls within the explicit discretionary authority Congress
delegated to the Secretary regarding public charge inadmissibility
determinations.\219\
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\219\ 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)).
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Additionally, while DHS is removing the regulatory definitions, DHS
will publish appropriate policy and interpretive tools in advance of or
on the effective date of this final rule to guide public charge
inadmissibility determinations, empowering officers to consider the
mandatory statutory factors in section 212(a)(4)(B) of the INA, 8
U.S.C. 1182(a)(4)(B), any applications, approval and certification to
receive, and receipt of means-tested public benefits, and any other
case-specific factors and circumstances the officer determines is
relevant to an alien's likelihood at any time of becoming a public
charge.\220\
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\220\ 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).
---------------------------------------------------------------------------
Comment: Several commenters oppose expanding the types of benefits
considered in public charge inadmissibility determinations through the
removal of definitions. One recommended defining clearer limits to the
benefits considered in public charge inadmissibility determinations.
Another expressed concern that DHS is rescinding the 2022 regulations
without implementing a new definition of ``public charge,'' stating
that by refusing to define public charge DHS is shifting its ``public
charge'' policy beyond the rulemaking process's reach and denying the
public an opportunity to comment on what its policy would actually be.
Another commenter said DHS must retain a clear, easy to understand
definition for public charge, reasoning the long-standing definition
provided by INS and codified by the 2022 Final Rule offers clarity for
officers and civilians alike, and ensures low-income, lawfully present
immigrants can access programs that support their health and economic
well-being.
Response: DHS disagrees that a regulatory definition for ``public
charge'' is necessary for officers to make a public charge
inadmissibility determination. Section 212(a)(4)(B) of the INA, 8
U.S.C. 1182(a)(4)(B), states officers ``shall at a minimum'' consider
these five factors, so Congress clearly intended officers to consider
case-specific additional factors and information relevant to the public
charge inadmissibility determination, including the alien's receipt of
means-tested public benefits as explained more fully elsewhere in this
final rule. See INA sec. 212(s), 8 U.S.C. 1182(s). Thus, there is
simply no need to spell out which means-tested public benefits DHS will
consider when DHS will consider all public benefits funded by the
government for which eligibility is determined by assessing whether the
alien's means are below the specified level, in the totality of the
circumstances.
2. Definition of ``Likely At Any Time To Become a Public Charge''
a. General Opposition to Removal
Comment: Commenters opposed the removal of the definition ``likely
at any time to become a public charge.'' A commenter noted the
definition in the 2022 Final Rule, provided clarity and consistency in
public charge inadmissibility determinations and that
[[Page 45386]]
removing the definition without guidance, accountability, or uniformity
would lead to arbitrary denials and permit officers to issue ex post
facto rationales for decisions that do not comply with the law. Another
commenter opposed replacing the definition with the ``gauziest of
generalities''.
Response: As discussed throughout this final rule, DHS agrees the
2022 Final Rule provided an administrable standard but believes removal
is necessary because it constrained officers and failed to give full
effect to congressional intent given the overall statutory scheme and
purpose, in that it prevented officers from assessing whether an alien
is self-sufficient and likely to depend on his or her own capabilities
and the resources of his or her families, sponsors, and private
organizations to meet their needs. DHS disagrees its officers will be
left without an implementable standard or guidance to make public
charge inadmissibility determinations or that the absence of
definitions will lead to arbitrary or unlawful decisions. In the NPRM
and final rule, DHS repeatedly emphasized USCIS officers will apply the
statute, governing precedent, and any subregulatory guidance USCIS
issues to help guide, but not prescribe, public charge inadmissibility
determinations made in the context of adjustment of status
applications. See 8 U.S.C. 1601(2)(A). 90 FR 52168, 52185 (Nov. 19,
2025). DHS notes prior to the 2019 Final Rule, the public charge ground
of inadmissibility was administered without regulations or binding
definitions, and officers were able to successfully and reasonably
apply guidance and precedent decisions and issue lawful and reasoned
decisions. They will continue to do so now under this final rule.
With respect to reasoning behind individual decisions, the APA and
DHS regulations require officers to issue written denial decisions and
explain the specific reasons for denial. 5 U.S.C. 555(e); 8 CFR
103.3(a)(1)(i).
Comment: A commenter said removing the definition for public charge
without proposing a formal replacement would create widespread
uncertainty, prevent lawfully present aliens from accessing life-saving
Federal benefits, and introduce bias leading to arbitrary variation in
public charge determinations.
Response: DHS disagrees that removal of the definition for likely
at any time to become a public charge will lead to confusion or
uncertainty. As noted previously in this final rule, DHS believes the
statute and the relevant precedent decisions that have guided public
charge inadmissibility determinations for decades, as well as recent
circuit case law, provide officers with sufficient guidance to make
public charge inadmissibility determinations. DHS has specifically
articulated how this final rule is more consistent with congressional
intent and noted that the rule ensures officers are able to use their
good judgment and discretion to make highly individualized, fact-
specific, case-by-case public charge inadmissibility decisions based on
the totality of each alien's circumstances.
b. Primarily Dependent Standard
Comment: Commenters encouraged DHS to retain the definition of
public charge, and expressed concern at departing from the primarily
dependent standard in the 2022 Final Rule which defines likely at any
time to become a public charge to mean ``significantly more likely than
not'' to become a public charge, noting existing restrictions on
benefits' use by certain aliens is a better way to limit aliens' impact
on government finances, rather than imposing an ``arbitrary and
capricious'' regulatory scheme on the public. One commenter reasoned
the primarily dependent standard distinguishes supplemental benefit use
from true dependence on the government and the proposed rule allows for
even broader benefit use considerations than the 2019 Final Rule,
despite such use not actually indicating dependence. Another commenter
expressed concern that in overturning the definition of public charge,
the rule would apply to any use of public benefits and cited studies
and suggested examples that found focusing on primary dependence is the
only reasonable standard, particularly for working families relying on
public benefits to supplement earned incomes. Another commenter
elaborated, stating that benefits--including means-tested--were
historically recognized as supplemental, as they are designed to
support working families with low and moderate incomes to meet crucial
needs such as health care, stable housing, or child care; however,
under the proposed rule, supplemental benefits are no longer clearly
acceptable.
Response: DHS disagrees that the primary dependent standard is the
only reasonable standard applicable to public charge inadmissibility
determinations. As discussed in previous comment responses, DHS
acknowledges the primarily dependent standard articulated in the 1999
Interim Field Guidance and subsequently in the 2022 Final Rule is
administrable because it provides a bright line, eliminating the
standard in favor of a more comprehensive examination of dependence on
the government is more reasonable and more consistent with
congressional intent and the overall statutory scheme. DHS disagrees
that administering the public charge ground of inadmissibility under
the 2022 Final Rule (where officers were prohibited from considering an
entire universe of public benefits and the fiscal impact of aliens
receiving such benefits) is better than removing these unnecessary
restrictions and permitting officers to make reasonable determinations
taking into account all relevant information and evidence and the
congressional intent and purpose. DHS especially believes that
assessing self-sufficiency without looking at likelihood the alien may
receive benefits outside of public cash assistance for income
maintenance and long-term institutionalization at government's expense
ignores the fact Congress did not intend the availability of public
benefits to become an incentive for immigration. Given that the number
of immigrant visas is limited, the United States can reasonably exclude
aliens who need government assistance for full or partial support and
prioritize admitting and granting adjustment to aliens who do not need
such support. As explained in the NPRM, 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, 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 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.\221\ By
[[Page 45387]]
removing unnecessarily restrictive definitions from the regulations,
DHS officers will be able to make public charge inadmissibility
determinations consistent with 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).
---------------------------------------------------------------------------
\221\ 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.'').
---------------------------------------------------------------------------
3. Definition of ``Public Benefits''
Comment: Multiple commenters expressed concern that the public and
officers would be disadvantaged with the removal of definitions for
what public benefits are considered in public charge inadmissibility
determinations. Commenters opined that DHS has created confusion by
using a variety of terms to describe programs that will be considered.
These commenters also expressed concern that officers lack expertise in
public benefit programs, cannot be expected to understand thousands of
programs, and do not have adequate time, training, or resources to
parse through details of public benefits programs for each
adjudication. Other commenters opposed expanding the types of benefits
that are considered in public charge inadmissibility determinations,
and urged DHS not to consider all means-tested public benefits. These
commenters further urged DHS to reject any definition that includes
non-cash or short-term benefits, including Medicaid, SNAP, CHIP, Head
Start, child care subsidies, including Military Child Care Subsidy
Programs, State-facilitated universal pre-K programs, housing
assistance, future means-tested benefits and disaster and non-disaster
emergency shelter, housing, and food or temporary benefits offered to
ameliorate the Coronavirus Disease 2019 (COVID-19) pandemic.
One commenter expressed concern that DHS is removing limitations on
the types of public benefits considered in public charge
inadmissibility determinations and recommended defining clearer limits.
Another commenter acknowledged that while DHS's proposed rule is
intended to align with congressional intent and previous procedures,
removal of key definitions should be balanced with the potential for
confusion. A commenter questioned whether DHS actually intended to
include all benefits. Another commenter claimed not specifying which
non-cash public benefits will be considered gave DHS the authority to
create internal policies later without public comment or transparency,
creating inconsistency and bias.
Response: DHS disagrees that it needed to provide a comprehensive
list of the means-tested public benefits that will be considered in
public charge inadmissibility determinations or a definition for means-
tested public because under this final rule, DHS considers any and all
public benefits funded by the government for which eligibility is
determined by assessing whether the alien's means are below a specified
level. Public benefits that do not have such a means test, or earned
benefits such as Title II Social Security benefits, government pension
benefits, unemployment insurance payments, and veterans' benefits, are
not considered. In the context of adjustment of status, USCIS revised
the Form I-485 to make it clear aliens must include receipt of any and
all means-tested public benefits if received after the effective date
of this final rule. If an alien applying for adjustment of status has
ever received any means-tested public benefit, they must include that
information on Form I-485 and USCIS will consider that receipt. DHS
clarified that it will consider the application for, approval or
certification to receive, and receipt of any means-tested public
benefit by the alien applying for admission or adjustment of status,
and aliens should expect any such receipt on their part will be
considered as part of the public charge inadmissibility determination.
DHS's officers do not need to become experts on every specific
means-tested public benefit programs to determine whether an alien's
application for, approval or certification to receive, or receipt of a
means-tested public benefit would be considered in the totality of the
circumstances. DHS officers undergo an extensive training program that
provides them with the skills and knowledge to perform their jobs.
While they may not have specific knowledge regarding every means-tested
public benefit, they have resources to obtain information about
unfamiliar public benefit programs and experience to consider all
evidence relevant to assessing the alien's likelihood at any time of
becoming a public charge, including the circumstances surrounding
benefit receipt.
When an alien is seeking admission or adjustment, it is always the
alien's burden to demonstrate he or she is admissible and, when subject
to the public charge ground of inadmissibility, that he or she is not
likely at any time to become a public charge. See INA sec. 291 and
212(a)(4)(A), 8 U.S.C. 1361 and 1182(a)(4)(A). If an alien has applied
for, been approved or certified to receive, or has received any means-
tested public benefits, the alien is required, under this final rule,
to provide that information to DHS. Given that any application for,
approval or certification to receive, or receipt of means-tested public
benefits by the alien applying for admission or adjustment will be
identified by the alien, an officer need only consider those specific
means-tested public benefits in making the public charge
inadmissibility determination. As discussed previously, in the context
of adjustment of status applications, USCIS will provide officers with
training, internal guidance, and reference materials ensuring officers
consider all relevant factors including the benefit the alien received,
the circumstances surrounding the receipt, 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, and the recency,
duration, and amount of receipt, and whether the reason has or is
likely to persist, in the totality of the circumstances.\222\
---------------------------------------------------------------------------
\222\ See, e.g., Matter of A-, 19 I&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 then employed
despite receiving public benefits for the prior 4 years.)
---------------------------------------------------------------------------
To the extent that commenters are concerned that DHS would conclude
an alien is inadmissible as likely at any time to become a public
charge simply because that alien applied for, was approved or certified
to receive, or received any means-tested public benefits, that is
neither the case under the plain language of the statute nor under
binding precedent DHS will continue to follow.\223\ As reflected in the
NPRM, DHS officers would make public charge inadmissibility
determinations considering all relevant factors, including the
statutorily mandated factors and the alien's application for, approval
or certification to receive, or receipt of means-tested public
benefits, in the totality of the circumstances. And as the ground of
inadmissibility operates prospectively, the alien's application for,
approval or certification to receive, or receipt of previously-excluded
means-tested public benefits will only be considered
[[Page 45388]]
or given weight in the totality of the circumstances if received on or
after the effective date of this final rule.
---------------------------------------------------------------------------
\223\ 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.'').
---------------------------------------------------------------------------
Regarding requests to completely exclude from consideration the
receipt of means-tested public benefits or exclude non-cash or short-
term benefits from consideration, DHS strongly disagrees as outlined
throughout this rule and will not implement this suggestion. Had
Congress intended for DHS to exclude consideration of the receipt of
public benefits or to only consider a certain subset of public
benefits, Congress would have expressly done so in section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4). Congress did not do so, and instead,
implicitly recognized that an alien's past receipt of any means-tested
public benefits can be considered in determining his or her likelihood
at any time of becoming a public charge when Congress prohibited
consideration of benefits that were authorized under 8 U.S.C. 1641(c)
for ``certain battered aliens.'' \224\ Not considering an alien's
receipt of publicly-funded benefits available to aliens with income
under a certain threshold would be contrary to PRWORA's requirement
that aliens be self-sufficient and not depend on public resources and
that availability of public benefits not constitute an incentive for
immigration to the United States. Ignoring an alien's receipt of means-
tested public benefits would be inconsistent with the public charge
inadmissibility ground and PRWORA, as well as with provisions in the
INA that suggest receipt of means-tested public benefits is a proper
consideration except where Congress expressly precludes it.\225\
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\224\ INA sec. 212(s), 8 U.S.C. 1182(s).
\225\ INA sec. 212(s), 8 U.S.C. 1182(s) (``In determining
whether an alien described in subsection (a)(4)(C)(i) is
inadmissible under subsection (a)(4) or ineligible to receive an
immigrant visa or otherwise to adjust to the status of permanent
resident by reason of subsection (a)(4), the consular officer or the
Attorney General shall not consider any benefits the alien may have
received that were authorized under section 1641(c) of this
title.'').
---------------------------------------------------------------------------
Comment: A commenter stated that DHS should exclude consideration
of public benefits related to public health functions such as emergency
response and immunization and State-funded programs and food banks as
was done in the 2019 Final Rule, as inclusion could result considering
treatment for infectious diseases, screening for chronic conditions,
prenatal care, oral health care, behavioral health care, using an
ambulance in an emergency, and receiving a free vaccine as part of a
public health initiative to stop the spread of infection during the
COVID pandemic. Commenters noted that under this rule, officers would
consider benefits that are widely available, including means-tested
cash emergency assistance from fire departments, public playgrounds, or
community centers. A commenter wrote that under the proposed rule, DHS
officers could conceivably consider educational and financial aid
programs in public charge inadmissibility determinations. Another
commenter expressed concern that expanding benefits considered might
lead DHS to consider an alien's participation in the National
Farmworker Jobs Program even though the program is designed to reduce
long-term reliance on public benefits by helping with skill
development, workforce advancement, and economic stability.
Response: DHS will not exclude from consideration any means-tested
public benefits related to public health, prenatal care, other health-
related issues, or workforce development. While DHS recognizes that
these programs are intended to improve public health and economic
outcomes, Congress mandated aliens be self-sufficient and not depend on
public resources to meet their needs, and further mandated DHS deny
admission and adjustment of status to aliens who are likely at any time
to become a public charge. DHS does not believe it can ignore the
longstanding self-sufficiency goals set forth by Congress or admit or
grant adjustment of status to aliens who are likely at any time to
become a public charge. DHS further cannot administer section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4), in a manner that fails to consider for
aliens' receipt of means-tested public benefits when assessing their
likelihood at any time of becoming public charges.
Importantly, as explained in more detail in other parts of this
preamble and in the NPRM, the fact Congress expressly precluded the
consideration of receipt of public benefits by certain victims of
violence and trafficking in section 212(s) of the INA, 8 U.S.C.
1182(s), strongly suggests, absent such an exception, Congress intended
DHS to consider the receipt of all means-tested public benefits when
other aliens applied for immigrants visas and adjustment of
status.\226\ Congress's use of the term benefits in section 212(s) of
the INA, 8 U.S.C. 1182(s), is properly interpreted as including both
cash means-tested public benefits and non-cash means-tested public
benefits, because Congress does not limit ``public benefits'' to cash
assistance; it uses the broad term ``public benefits.'' Additionally,
and as described in other comment responses, in this provision,
Congress cross-referenced 8 U.S.C. 1641(c) which refers to Federal
public benefits and provides a specific definition \227\ clearly
including both cash and non-cash benefits. DHS believes the absence of
limiting language, combined with Congress's intent to provide
comprehensive support to victims, demonstrates that exemption applies
to all forms of public assistance, not just cash benefits. As
Congress's prohibition on consideration of public benefits for certain
victims of violence and trafficking is properly interpreted to include
both cash and non-cash means-tested public benefits, DHS believes it is
proper to consider the receipt of both cash and non-cash means-tested
public benefits for all other cases. DHS notes that relevant precedent
decisions do not prescribe dependence based on a narrow and specific
list of public benefits either.\228\
---------------------------------------------------------------------------
\226\ Russello v. United States, 464 U.S. 16, 23 (1983). See TRW
Inc. v. Andrews, 534 U.S. 19, 28 (2001) (`` `Where Congress
explicitly enumerates certain exceptions to a general prohibition,
additional exceptions are not to be implied, in the absence of
evidence of a contrary legislative intent.' '') (internal citations
omitted).
\227\ 8 U.S.C. 1611 and 1641(c).
\228\ 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 [INA] 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).
---------------------------------------------------------------------------
DHS will therefore consider the alien's receipt of public benefits
related to public health, prenatal care, other health-related issues,
and workforce development if these benefits are means-tested. However,
DHS officers will consider the circumstances surrounding the receipt,
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 and whether that reason has or is likely to persist, in the
totality of the circumstances.\229\
---------------------------------------------------------------------------
\229\ See, e.g., Matter of A-, 19 I&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 then employed
despite receiving public benefits for the prior 4 years.)
---------------------------------------------------------------------------
[[Page 45389]]
As to the commenters' concerns that DHS will consider an alien's
receipt of a free vaccine or fire department services, or the alien's
use of public playgrounds and community centers under this rule, DHS
notes that it will not consider such benefits unless they are means-
tested. If the alien receives or uses benefits funded by the government
that are available to any individual regardless of income, such receipt
would not be considered in the public charge inadmissibility
determination under this final rule.
4. Definition of ``Receipt (of Public Benefits)''
a. Removal of the Definition and Consideration of Receipt of Public
Benefits by Family Members
Comment: While some commenters suggested that DHS should consider
the receipt of means-tested public benefits by the alien's family
members, reasoning this is relevant to the public charge
inadmissibility determination, other commenters suggested that if DHS
is considering the receipt of benefits by an alien's family member,
then DHS should afford less weight to that receipt.\230\ Numerous other
commenters, including form letter campaigns, expressed concern that
removing the definition receipt of public benefits, will result in
officers considering receipt of means-tested public benefits by family
members who are not subject to this rule. Many of these commenters
expressed particular concern that the removal appears to expand public
charge inadmissibility determinations to include consideration of the
receipt of means-tested benefits by family members who are not seeking
to adjust their status, even years after such benefits were received.
Commenters wrote the change departs from historic public charge policy.
Specifically, commenters noted that in removing this definition, DHS
fails to address that DHS will not consider receipt of means-tested
public benefits by family members in public charge inadmissibility
determinations, unlike the 2019 Final Rule and 2022 Final Rule, which
will cause undue fear and confusion among mixed status families and
service providers, and disenrollment by family members not subject to
the rule. Commenters expressed concern that in removing the explicit
clarification that applying for or receiving benefits on behalf of
family members is not considered ``receipt,'' immigrants would not be
able to determine whether the receipt of benefits by family members
would harm them when they seek to obtain LPR status, or for service
providers to offer them meaningful advice or reassurance.
Many commenters, including a form letter campaign, wrote that DHS's
removal of clarifying language from the regulations ``sends a message
that is far stronger than if such exclusion had never been part of the
regulations.'' Commenters added that DHS provided no justification for
the removal. Another commenter remarked the NPRM ``sub silentio''
appears to permit officers to consider benefits used by family members
who are not seeking to adjust their status, without explanation,
justification, addressing the ramifications, or providing assurance
that benefits received by family members would not be considered.
Response: DHS disagrees that rescission of the 2022 Final Rule's
definition for receipt (of public benefits) creates a public charge
inadmissibility determination that moves away from individualized
determinations. As stated in the NPRM and this final rule, the
rescission of the 2022 Final Rule does the opposite--restoring broader
officer discretion in case-by-case public charge inadmissibility
determinations. As discussed throughout this final rule, DHS will
determine whether an alien is inadmissible under the public charge
ground in the totality of the circumstances based on consideration of
the statutorily mandated factors, any application for, approval or
certification to receive, or receipt of means-tested public benefits by
the alien applying for admission or adjustment of status, and any other
factors that an officer, in his or her discretion, determines are
relevant to assessing the individual alien's likelihood at any time of
becoming a public charge. See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
DHS also disagrees that it failed to explain how the receipt of
means-tested public benefits by an alien's family or household members
will be considered under the final rule. On the contrary, DHS has
explained throughout this final rule that it does not apply to U.S.
citizens or aliens exempt from the public charge ground of
inadmissibility. While the removal of the definition for receipt (of
public benefits) could result in the alien's family members
disenrolling from or declining to enroll in means-tested public benefit
programs for which they are eligible in order to avoid negative
immigration consequences to the alien as a result of this final rule,
such disenrollment or forgone enrollment would be unreasonable given
that DHS generally will not consider the receipt of means-tested public
benefits by the alien's family or household members when making a
public charge inadmissibility determination. Specifically in the
context of adjustment of status applications adjudicated by USCIS,
USCIS does not collect information about the receipt of public benefits
by anyone other than the alien applying for adjustment. Instead, under
this final rule, DHS officers only consider evidence in the record that
the alien himself or herself has applied for, been approved or
certified to receive, or has received or is currently receiving, any
means-tested public benefits. DHS has been clear that the public charge
inadmissibility determination is a prospective and individualized
determination in which the officer is squarely focused on assessing the
likelihood at any time that the alien who is applying for admission or
adjustment of status will become a public charge. However, as discussed
in other comment responses, because DHS considers the alien's income as
part of the mandatory assets, resources, and financial status factor--
to the extent the alien's family members whom the alien is legally
obligated to support receive means-tested public benefits based on the
alien's income falling below the designated threshold--DHS would
consider the fact that the alien's income falls below that threshold as
part of the alien's assets, resources, and financial status in the
totality of the circumstances. Moreover, where there is evidence in the
record that the means-tested public benefits that the alien's family
member received are the source of the alien's financial support, DHS
will consider that fact in the totality of the circumstances.
Comment: Some commenters noted that consideration of the receipt of
means-tested public benefits by an alien's family member in the alien's
public charge inadmissibility determination, where benefits received by
U.S. citizen children are ``impermissibly attached'' to aliens applying
for admission and adjustment of status, is contrary to the statute. One
commenter concluded that considering the receipt of benefits by family
members would trigger large scale disenrollment in mixed status
households, and warned--citing New York v. United States Dep't of
Homeland Sec., 969 F.3d 42, 82 (2d Cir. 2020)--that it would be
contrary to congressional intent to view receipt of public benefits as
incompatible with self-sufficiency. The commenter warned that failure
to exclude the receipt of public benefits by an alien's dependents or
U.S. citizen family members is contrary to the text of the statute, as
[[Page 45390]]
both 8 U.S.C. 1182 and 8 U.S.C. 1227 are concerned with the alien
seeking admission or adjustment of status or the alien in and admitted
to the United States respectively, not their U.S. citizen family
members.
Response: Notwithstanding the removal of the definition of receipt
(of public benefits), as noted above, DHS neither proposed nor will
consider public benefits received by the alien's family members except
in the limited circumstances outlined above.
b. Concerns That Removal of the Definition Will Result in Adverse
Impacts to Specific Groups
i. U.S. Citizen and LPR Children in Mixed-Status Families
Comment: Many commenters expressed particular concern that removal
of the definition of receipt would lead to adverse impacts for U.S.
citizen and LPR children in mixed-status families, including the
avoidance or disenrollment from essential programs such as Medicaid/
CHIP, WIC, and SNAP, and exacerbating disparities in access to health
and nutrition programs and supports. Multiple commenters described the
prevalence of and advantages associated with benefit programs and
stabilizing supports for children, families, and their communities,
with several citing research and studies. One commenter wrote that 90
percent of children in Illinois with one immigrant parent are U.S.
citizens, and chilling effects on essential programs cause long-term
impacts on children's health and development by reducing access to
nutritious food, essential healthcare, and developmental support during
critical early years, while also leading to food insecurity, untreated
medical conditions, and delayed growth and learning.
Citing numerous studies and anecdotal accounts surrounding the
benefits of TANF, SNAP, Section 8 housing, emergency shelter services,
and public health insurance for children in mixed-status families,
another commenter described the impacts on children were those children
or their families to forgo these benefits. A submission from joint
commenters emphasized the scale of the potential harms on U.S. citizen
children in mixed-status families, citing a 2023 study finding: more
than 1 in 4 U.S. children--more than 18 million--lived with at least
one immigrant parent, about 75 percent of whom were in the United
States for more than a decade, about 6.3 million of these children
lived in families where neither parent is a U.S. citizen, but the vast
majority--almost 90 percent--are citizens. The commenters concluded
that caring for these children is a matter of morality, justice, and
securing the future of the United States. A different commenter
expressed opposition to the rule's interpretation of ``receipt,''
reasoning that public benefits received by U.S. citizen minors reflect
the child's individual eligibility, State policies, and temporary
household conditions, and thus cannot be a reliable indicator of the
alien's self-sufficiency. A commenter also wrote children's health and
stability is intertwined with their parents', and forcing families to
choose between lawful status and a child's care harms children and
increases the risk of family separation.
Commenters voiced concerns regarding inclusion of housing
assistance in public charge inadmissibility determinations for mixed-
status families noting that families with U.S. citizen minor children
reside in U.S. Department of Housing and Urban Development (HUD)
subsidized housing on a prorated basis, with only the eligible members
receiving housing assistance. A commenter warned that families may
forgo assistance despite qualifying and risk living in uninhabitable
settings or facing homelessness out of concern for a family member's
immigration status.
Response: DHS considered the concerns for U.S. citizen and LPR
children of alien parents in mixed status families. DHS clarifies that
this rule does not contain an interpretation of ``receipt (of public
benefits)'' in the context of public charge inadmissibility
determinations or public charge bond determinations. DHS is publishing
a clean rescission of all elements of the 2022 Final Rule other than
the bond provisions, which it is amending in this rule. As a result, it
cannot retain a definition of ``receipt'' in the regulatory text, as
there will be no regulatory text. DHS therefore declines to retain the
regulatory definition of ``receipt (of public benefits)'' or any
similar clarifying provisions.
As discussed in previous responses, DHS does not plan to consider
prior receipt of means-tested public benefits by U.S. citizen or LPR
children, as they are not the applicant for adjustment of status.
Taking into consideration the statutory language, historical approach
to public charge inadmissibility determinations, and case law, USCIS
will clarify in subregulatory guidance that officers should only
consider evidence in the record that the adjustment of status applicant
received or is currently receiving, has applied for, or was approved or
certified to receive any means-tested public benefits. DHS would only
consider the alien's child's receipt of means-tested public benefits
under this final rule if the alien is legally obligated to support the
child and the child's receipt of the means-tested public benefits is
based on the alien's income falling below the designated threshold. In
such cases, DHS would consider the fact that the alien's income falls
below that threshold as part of the alien's assets, resources, and
financial status in the totality of the circumstances. DHS would also
consider the child's receipt of means-tested public benefits if there
is information in the record that these benefits are the alien's source
of financial support. DHS will continue to consider the totality of an
alien's circumstances when making a public charge inadmissibility
determination consistent with past precedent decisions. The public
charge inadmissibility determination is squarely focused on the mandate
from Congress that the alien not be likely at any time to become a
public charge.
DHS similarly considered the comments about availability for HUD-
subsidized housing for U.S. citizen minor children from mixed-status
families. Regarding the scope of housing assistance considered, DHS
considers all government provided, paid, or subsidized housing
assistance for which the alien is a beneficiary so long as it is means-
tested. As stated throughout this final rule, DHS is taking into
consideration statutory language, the historical approach to public
charge inadmissibility determinations, and case law, and does not plan
to consider receipt of means-tested public benefits, such as prorated
housing assistance, by U.S. citizen or LPR children.
DHS acknowledges the rescission of the 2022 Final Rule, without
replacement regulatory text, may increase disenrollment for means-
tested public benefits by individuals who are not subject to the public
charge ground of inadmissibility. However, DHS notes that the
subregulatory guidance that USCIS will issue in the USCIS Policy
Manual, which will apply to USCIS adjudications of adjustment of status
applications, will provide the regulated public with sufficient
information to understand whose benefits will and will not be
considered in an alien's public charge inadmissibility determination.
Sharing this information is intended to help individuals who are not
subject to the public charge ground of inadmissibility understand that
it does not apply to them, allowing them to make informed decisions.
Additionally,
[[Page 45391]]
DHS encourages nonprofit organizations that assist aliens to also
provide information and disseminate the guidance that USCIS will issue
to help aliens and their families understand how public charge
inadmissibility determinations will be made under this final rule.
ii. U.S. Citizen Spouses
Comment: A commenter stated they did not believe it was fair or
accurate to assume an immigrant would become dependent on the
government based solely on benefits the U.S. citizen spouse may have
needed in the past, reasoning that a marriage creates a new combined
household, often stronger financially than either person alone, and
that many couples have two incomes, shared responsibilities, and mutual
support. They warned that the proposed rule harms working-class
families, single parents, survivors of hardship, and anyone who relied
on temporary support, while jeopardizing family unity. Finally, they
concluded that DHS failed to demonstrate that past benefit receipt by a
U.S. citizen spouse reliably predicts future dependence by the alien.
Response: DHS did not propose and does not plan to consider receipt
of means-tested public benefits by an alien's U.S. citizen spouse.
Taking into consideration the statutory language, historical approach
to public charge inadmissibility determinations, and case law, USCIS
will clarify in its subregulatory guidance that officers only consider
evidence in the record that the alien him or herself received or is
currently receiving, applied for, or was approved or certified to
receive any means-tested public benefits. The public charge
inadmissibility determination is squarely focused on the alien and the
likelihood that he or she will at any time become a public charge. The
receipt of means-tested public benefits by persons other than the alien
is generally not relevant. However, while DHS is not proactively
collecting information about U.S. citizen spouse's receipt of public
benefits as part of the alien's Form I-485, if there is evidence in the
record that the alien's source of support is means-tested public
benefits received by the alien's spouse, this information may be taken
into consideration in the totality of the circumstances as part of the
consideration of the alien's assets, resources, and financial status.
If the alien claims income or assets obtained through means-tested
public benefits on Form I-485, contrary to the form instructions, the
alien may be inadmissible under section 212(a)(6)(C)(i) of the INA, 8
U.S.C. 1182(a)(6)(C)(i).\231\
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\231\ See, https://www.regulations.gov/document/USCIS-2025-0304-0003 (Form I-485 Instructions--proposed revision) (last visited Feb.
13, 2026). (``For Part 9., Item Number 58., please select the
appropriate box for your household's annual income. You may include
income provided to your household from sources who are not members
of your household, including but not limited to alimony or child
support. You must exclude any income from means-tested public
benefits. You must also exclude any income from illegal activities
or sources such as proceeds from illegal gambling or drug sales.'')
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iii. Other Populations
Comment: One commenter warned that the removal of the ``receipt (of
public benefits)'' definition would reduce benefit receipt by
individuals not subject to the public charge ground of inadmissibility,
including LPRs, refugees and asylees, and other humanitarian categories
such as victims of crime and human trafficking, for whom access to
benefits is critical to overcome and escape abuse and would create
additional barriers to programs intended to improve health, safety, and
stability.
Response: DHS disagrees insofar as this rule does not prohibit,
reduce, or otherwise discourage individuals who are not subject to the
public charge ground of inadmissibility from receiving any public
benefits for which they are eligible. DHS believes it would be
unwarranted for aliens who are exempt from the public charge ground of
inadmissibility to forgo or disenroll from benefits programs for which
they are eligible in response to this rule when they are not subject to
this rule.
5. Definitions of ``Government'' and ``Household''
Comment: Commenters remarked on the removal of definitions for
``government'' and ``household.'' One noted ``government'' could mean
Federal, State, or local governments, and ``household'' does not have a
common meaning for USCIS officers to apply absent additional guidance.
Another stated that the rule removes the definition of ``household''
with the justification that this term is self-explanatory and that the
``ordinary meaning'' would be sufficient guidance for USCIS officers
and challenged this justification, saying the rule does not provide a
logical explanation as to why the removal is necessary for the public
interest. Another commenter said that using an ordinary meaning of
household would not be sufficient to conduct determinations and would
negatively impact gay families. Another suggested a narrow definition
of household including only traditional, physically residing dependents
(e.g., spouses and children), removing the provision that includes any
individual listed on an alien's Federal income tax return, because it
creates opportunities for manipulation in financial assessments or
shielding financial dependency of non-traditional household members
from meaningful scrutiny.
Response: DHS disagrees that regulatory definitions for the terms
``government'' and ``household'' are needed. In light of the rescission
of all other regulatory definitions from 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 the
ordinary meaning of various terms (e.g., government, household)
relevant to public charge determinations are sufficient for officers to
conduct determinations. USCIS will provide officers with training,
internal guidance, and reference materials that address the ordinary
meaning of these terms.
L. Removal of the Public Charge Inadmissibility Determination Framework
1. Minimum Factors
Comment: Some commenters disagreed with the removal of the
regulations at 8 CFR 212.22(a)(1) that reference the statutory minimum
factors, with one stating the final rule assumes applicants and
reviewers will understand the statute's requirements without regulatory
text. A commenter recommended DHS revert to something similar to the
2019 Final Rule, describing factors to consider as the ``minimum'' and
implying that other factors should be considered. A different commenter
stated that the assertion that adding additional factors would improve
public charge inadmissibility determinations is statistically
unsupported, citing an article and the 2018 NPRM.
Response: DHS disagrees that it needs to retain an enumerated list
of factors in a regulation. DHS further disagrees that it failed to
support considering factors beyond the statutory minimum factors. While
enumerating the minimum factors to be considered in a public charge
inadmissibility determination, as was done in the 2022 Final Rule, was
a permissible use of DHS's rulemaking authority, listing specific
factors without including a ``catch-all provision,'' restricted public
charge inadmissibility determinations in a way that contravened clear
congressional
[[Page 45392]]
intent.\232\ To ensure officers retain their statutorily-mandated
authority to determine, in their opinion, whether an alien is likely at
any time to become a public charge by considering the statutorily-
mandated factors as well as any other factor the officer determines is
relevant to assessing the alien's likelihood at any time of becoming a
public charge, DHS removed regulations failing to explicitly permit
officers to consider any case-specific factors or information that bear
on that determination.
---------------------------------------------------------------------------
\232\ 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.
---------------------------------------------------------------------------
Comment: A commenter disagreed with the continued collection of
information by DHS pertinent to the statutory minimum factors and
relevant considerations, and with allowing officers to request
additional evidence, which could be used as an indefinite delaying
tactic or form of intimidation. The commenter further suggested that
once someone is admitted, their benefit use should not be surveilled.
Response: It is unclear what language in the NPRM the commenter
believes indicates that DHS will engage in indefinite intimidation or
surveillance of aliens pertaining to the public charge ground of
inadmissibility. Congress created section 212(a)(4)(B) of the INA, 8
U.S.C. 1182(a)(4)(B), which lists the minimum, non-exhaustive factors
an 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 immigration officer may also consider any
Form I-864 when making a public charge inadmissibility determination.
Requesting information from the alien concerning those factors as well
as other factors relevant to the public charge inadmissibility
determination is not surveillance, a delay tactic, or intimidation, but
rather a necessary part of the adjudication of the alien's application
for adjustment of status. Public charge inadmissibility determinations
are inherently subjective in nature given the express wording of
section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4), stating that such
determination is ``in the opinion of'' DHS. The burden of proof to
establish admissibility when seeking adjustment of status is always on
the applicant. Section 291 of the INA, 8 U.S.C. 1361. The burden never
shifts to the government during the adjudication process.\233\
---------------------------------------------------------------------------
\233\ See Matter of Arthur, 16 I&N Dec. 558 (BIA 1978).
---------------------------------------------------------------------------
Comment: A commenter urged DHS to replace 8 CFR 212.22(a)(1)(v),
concerning the education and skills factor, with provisions
prioritizing vocational utility over degree attainment, noting that a
more rigorous analysis of economic utility is needed. The commenter
also recommended that DHS eliminate the ``totality of the
circumstances'' framework in order to emphasize labor market utility
over other considerations.
Response: DHS agrees our immigration system should effectively
bolster national productivity. DHS also agrees officers should be
empowered to conduct a more rigorous analysis of the alien's economic
utility and this is why DHS rescinded and removed the problematic 2022
Final Rule. The removal of 8 CFR 212.22(a)(1)(v), which limited the
congressionally mandated economic education and skills factor, allows
DHS to consider a wider range of credentials and certificates. DHS
disagrees, however, that it should discard the ``totality of the
circumstances'' analysis. DHS will make public charge determinations
consistent with section 212(a)(4) of the INA, 8 U.S.C. 1182 (a)(4),
PRWORA, and past precedent decisions that have guided public charge
inadmissibility determinations for decades and which call for a
``totality of circumstances'' analysis. 90 FR 52168, 52184 (Nov. 19,
2025). Officers will be empowered to consider not only the mandatory
statutory factors, but also any case-specific evidence that the officer
determines is relevant to assessing an individual alien's likelihood at
any time of becoming a public charge. Aliens seeking admission as
immigrants and nonimmigrants and aliens applying for adjustment of
status should expect any fact or circumstance present in their case
relevant to their self-sufficiency and likelihood of becoming a public
charge will be considered by DHS, restoring a public charge
inadmissibility determination that trusts in and relies on officers'
judgment and sound discretion, as envisioned by Congress when it
enacted section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
Comment: A commenter expressed concern that without the 2022 Final
Rule, officers would circumvent requirements for medical examinations,
allowing DHS officers to act as unqualified medical experts, while
another suggested that officers will make arbitrary assessments
involving complex medical information without formal medical training.
Response: DHS disagrees that in making public charge
inadmissibility determinations under this rule, officers will make
medical diagnoses. On the contrary, as noted in the NPRM, in the
context of adjustment of status, DHS will continue to obtain
information pertaining to an alien's health from the Report of
Immigration Medical Examination and Vaccination Record, Form I-693, or
any Department of State health form completed by a panel physician in
the alien's record. Civil surgeons and panel physicians complete
immigration medical examinations, assess whether aliens have any Class
A and Class B conditions, and report their findings on the Form I-693
or Department of State health forms, respectively, as directed by the
CDC Technical Instructions. Officers rely on and consider the civil
surgeons' or panel physicians' diagnoses in the totality of the
circumstances. However, DHS also takes into consideration any
additional medical records or related information provided by the alien
to clarify medical conditions included on the medical form or other
information that may outweigh any negative factors. Such documentation
may include, for instance, a licensed doctor's attestation of prognosis
and treatment of a medical condition.
2. Consideration of the Affidavit of Support
a. Opposition To Removal of Required Favorable Consideration of
Affidavit of Support
Comment: Commenters opposed the proposed removal of 8 CFR
212.22(a)(2) stating: it would discourage the submission of Form I-864,
which is enforceable in any State or Federal court, thereby increasing
the risk of immigrants becoming public charges, rather than decreasing
it; weaken the value of legally binding affidavits of support which
undermines family unity, discourages legal pathways, and create
barriers for those already contributing to the economy and their
communities, and indicated that considering affidavits without any
standards would result in bias, stereotypes, ableism, and
discrimination.
A commenter remarked the change disregards congressional intent
under section 213A of the INA, 8 U.S.C. 1183a, citing H.R. Rep. No.
104-469(I), 143-44 (1996), Congress wanted to recognize and enshrine
the longstanding use of affidavits of support for immigrants who may
otherwise be considered a public
[[Page 45393]]
charge, and urged DHS to retain the 2022 Final Rule, stating the
proposed changes would result in increased denials. Another stated use
of the word ``may'' to discuss officer consideration of Form I-864
implies officers could not consider an affidavit of support and noted,
affidavits of support were used to demonstrate an applicant will not
become a public charge since public charge inadmissibility was enacted.
Response: DHS believes these comments reflect misconceptions about
the NPRM and this final rule. DHS did not, and could not, propose to
eliminate the Form I-864 requirement, which is statutory and applies to
most family-based and some employment-based immigrants. See INA sec.
212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D). As was the case
under the 2022 Final Rule and now that the 2022 Final Rule is
rescinded, if an alien fails to submit a sufficient Form I-864 where
required, the alien will be found inadmissible under section
212(a)(4)(C) or (D) of the INA, 8 U.S.C. 1182(a)(4)(C) and (D),
depending on the alien's classification. DHS proposed to eliminate the
presumptive positive consideration of a sufficient Form I-864, where
one is required, in the totality of the circumstances. As indicated in
the NPRM, DHS believes this approach reflects the plain language of the
statute as articulated in section 212(a)(4)(B)(ii) of the INA, 8 U.S.C.
1182(a)(4)(B)(ii) and the congressional intent and purpose to grant
officers discretion to decide consideration is warranted. Eliminating
the presumptive positive consideration has no bearing on the
enforceability of the Form I-864, including the responsibility of
benefit providing agencies to seek reimbursement if a sponsored alien
receives public benefits. DHS does not anticipate this change will
impact the willingness to serve as joint sponsors as certain aliens
continue to be statutorily required to submit them. With respect to
comments regarding congressional intent and the binding nature of the
Form I-864, DHS agrees. Nothing in the NPRM or this final rule changes
the binding nature of Form I-864.
DHS also disagrees that officer decisions regarding whether, when,
and how they consider Form I-864 will reflect implicit or explicit
biases and lead to discriminatory outcomes. Before the 2022 Final Rule,
DHS did not have regulations making Form I-864 presumptively positive,
although DHS is aware officers often gave positive weight to a
sufficient Form I-864. DHS believes there may be circumstances where it
might be appropriate to consider the Form I-864 as a positive
consideration in the totality of the circumstances, but DHS does not
believe it appropriate to require officers to consider Form I-864 or
pre-determine how to consider it, in the totality of the circumstances,
especially given Congress gave officers discretion to consider it or
not. In rescinding the 2022 Final Rule, DHS is aligning consideration
of the Form I-864 with the plain language of the statute. DHS agrees
with the commenters that plain language of the statute gives officers
discretion to consider a Form I-864 and, therefore, officers may opt
not to consider it based on specific facts of a case. As indicated in
other parts of this final rule, subregulatory guidance will assist
USCIS officers in making public charge inadmissibility determinations,
including identifying considerations relevant to such determinations--
for example, how consideration of the Form I-864 might be helpful to
the overall inadmissibility determination depending on the presence or
absence of other positive or negative factors in an individual case
such as the relationship between the alien and the sponsor, whether the
sponsor is sponsoring other aliens, etc.
b. Support for Removal of Required Favorable Consideration of Affidavit
of Support Under Section 213A of the INA
Comment: A commenter agreed with removal of 8 CFR 212.22(a)(2),
noting a Form I-864 provides little probative evidence on whether an
alien is likely at any time to become a public charge, recommending
language guiding officer discretion in assigning appropriate weight to
Form I-864, which should be adjusted according to the strength of the
agreement considering the sponsor's annual income, assets, resources,
financial status, relationship to the applicant, and the likelihood the
sponsor would actually provide financial support and limiting
affidavits from sponsors who have already submitted one for another
alien. In addition, the commenter recommended that DHS include language
that clarifies that the presence of a Form I-864 is not sufficient and
should be considered with all other relevant factors.
Response: DHS appreciates these suggestions. With respect to
limiting who can serve as a sponsor and how many aliens a sponsor might
be permitted to sponsor, those suggestions go beyond the scope of the
proposed rule and would require a separate notice and comment
rulemaking to modify. Regarding recommendations USCIS identify
considerations like relevance and weight of a sufficient Form I-864,
DHS agrees that such guidance would be helpful to officers and that
Form I-864 will be considered with all other factors. USCIS will
consider suggestions raised when developing the subregulatory guidance
discussed above.
3. Consideration of Current and/or Past Receipt of Public Benefits
a. General Concerns
Comment: Numerous commenters expressed opposition about potential
elimination of bright line rules for receipt of public cash assistance
for income maintenance and long-term institutionalization at government
expense in public charge assessments. Some commenters: elaborated that
the 2022 Final Rule allowed them to provide guidance on which benefits
are safe, expressed concern with the rule's lack of specifications on
which programs may be considered in public charge determinations
undermining statutory purposes around public benefits and imposing
barriers for those seeking LPR status who receive non-cash benefits
even if working, concluding that many programs and services could fall
under ``public benefit'' but this may not be DHS's intent, stated the
rejection of clear thresholds for public benefit use from the 2022
Final Rule could lead to punishing immigrants for experiencing ordinary
setbacks rather than promoting self-sufficiency. A few commenters
explained that the proposed rule suggests that the administration would
consider any receipt of any type of means-tested benefits received or
applied for by aliens, at any time and for any duration.
Response: As discussed in the NPRM and throughout this final rule,
DHS is eliminating the primary dependence standard and the distinction
between cash and non-cash benefits as all benefits received have
bearing on whether an alien is likely at any time to become a public
charge. Going forward officers will consider the alien's receipt of any
means-tested public benefits so long as they are received after the
effective date of this final rule. With respect to benefits previously
excluded from consideration, DHS will not consider them if received
before the effective date of this final rule and made changes to the
Form I-485 instructions to clarify aliens need not report such receipt.
This approach creates sufficient clarity for aliens and officers
making public charge inadmissibility determinations as well as brings
the administration of the public charge ground of inadmissibility more
in line
[[Page 45394]]
with the congressional intent and purpose because it ensures officers
are not artificially prohibited from looking at the entirety of the
facts and circumstances bearing on whether an alien is likely at any
time to become a public charge. When electing whether to admit or
adjust an alien, it is reasonable for DHS to prioritize aliens who are
self-sufficient over aliens who require public support given Congress's
clear directive aliens be self-sufficient and not dependent on public
benefits. See 8 U.S.C. 1601. DHS acknowledges the 2019 Final Rule
created an alternative regulatory framework where certain benefits
would not be considered. DHS believes the elimination of public charge
regulations in their entirety is the best approach to the
administration of the statute and restores broad discretionary
authority to officers. While officers will not have a list of
``excluded'' benefits to consider, officers will have the authority and
discretion to consider all circumstances surrounding receipt of any one
or more public benefits and determine whether the alien is inadmissible
as likely at any time to become a public charge taking into account the
statutory factors and applicable precedent. The receipt of public
benefits is but one consideration in the totality of the circumstances.
Comment: A commenter stated the NPRM would significantly expand who
is likely at any time to become a public charge, allowing for U.S.
workers relying on public programs to be deemed public charges,
describing the ``radical'' expansion, they cited data showing while
only 1 percent of U.S. workers would meet the public charge standard
currently and 14 percent would under the 2019 Final Rule, as many as 32
percent could be counted under the 2025 NPRM, and determined expansion
would contradict the intent of public charge policy and create
unreasonable harms. Similarly, a few commenters stated the ``sense of
overreach'' can be demonstrated through an analysis of the 2018
proposed rule finding more than half of all U.S.-born citizens would
have been at risk of being labeled a public charge if applied to them.
Response: The public charge ground of inadmissibility applies to
aliens and not U.S. citizens and, further, only to aliens subject to
that ground of inadmissibility. While DHS appreciates the comments
citing statistics regarding the receipt of public benefits by U.S.
citizens, the very purpose of the public charge ground of
inadmissibility is to ensure aliens applying for admission or
adjustment of status are not likely at any time to become a public
charge. Similarly, the national policy of the United States as stated
in PRWORA focuses on public benefits not creating an incentive for
immigration. 8 U.S.C. 1601. While DHS agrees with commenters that the
practical impact of this rule would be an expansion of the universe of
public benefits considered in the totality of the circumstances, DHS
disagrees with the size of the impact this change will produce. As
indicated in the NPRM, over a period of 5 years, which included the
period during which the 2019 Final Rule was in effect, public charge
inadmissibility denials constituted 0.0087 percent of the Form I-485
applicant population and the only public charge denials that were
sustained focused on a missing or insufficient Form I-864. 90 FR 52168,
52206 (Nov. 19, 2025).
Comment: Some commenters said considering a broader array of public
benefits would include State and local benefits, one warned State and
local benefits could be counted against applicants, by referring to
``means-tested public benefits'' rather than ``Federal means-tested
public benefits'' and another reasoned State and local governments
create programs to meet the needs of their residents and considering
these programs would undercut the democratic process through which
State and local governments make such decisions. Additionally,
commenters voiced concern about potential to allow the consideration of
application for public benefits, regardless of receipt, in public
charge determination.
Response: DHS confirms, as proposed in the NPRM, the practical
consequence of the removal of the 2022 Final Rule is an alien's
receipt, as well as application, approval, or certification to receive,
any means-tested public benefits will be considered in the totality of
the circumstances, including, State, Tribal, territorial, and local
means-tested public benefits. To the extent any benefit was previously
excluded from consideration, it will only be considered if received,
applied for, or approved or certified to receive on or after the
effective date of this final rule. Similarly, only means-tested public
benefits received by the alien applying for admission or adjustment are
considered in a public charge inadmissibility determination except in
the limited circumstances discussed previously in this final rule.
Even under the 2022 Final Rule, DHS would have considered receipt
by the alien applying for admission or adjustment of public cash
assistance for income maintenance, whether Federal, State, territorial,
or Tribal. DHS, however, disagrees the removal of the 2022 Final Rule
in any way cuts against the democratic process or impedes the ability
of non-Federal-government actors to create or provide benefits to their
residents. The public charge ground of inadmissibility does not
regulate the availability or eligibility criteria for means tested
public benefits, including those created by State and local
governments. It solely directs officers to consider whether an alien
applying for admission or adjustment of status is likely at any time to
become a public charge based on the evidence of each individual case.
Comment: Another commenter claimed the rule could rewrite the terms
of citizenship, denying taxpayers access to taxpayer-funded benefits,
including programs they helped fund through their taxes. A different
commenter said granting officers discretion to consider receipt of any
means-tested public benefit goes against the current administration
lobbying for stricter regulations and recommended clear rules without
discretion or possibility of bias or abuse of power.
Response: DHS disagrees this rule denies taxpayers access to
taxpayer-funded benefits or changes requirements for citizenship.
Nothing in the NPRM or this final rule pertains to citizenship or
naturalization. Similarly, this rule in no way alters access to or
eligibility for means-tested public benefits. DHS disagrees this final
rule contradicts the Trump administration's objective to more strictly
regulate, or that restoring discretion to officers renders public
charge inadmissibility more lax or subject to abuse of power. By
removing the 2022 Final Rule's provisions, DHS ensures officers will
consider any means-tested benefit and all information relevant to the
public charge ground of inadmissibility, consistent with the statute
and binding precedent. DHS is confident officers will continue to make
public charge inadmissibility determinations in a fair and consistent
manner as they have since the ground of inadmissibility was first
enacted by Congress in 1882, Immigration Act of 1882, 22 Stat. 214
(Aug. 3, 1882), and before the first public charge regulations were
codified by DHS in 2019. 84 FR 41292 (Aug. 14, 2019). Subregulatory
guidance will assist USCIS officers in exercising discretion in line
with statute and governing precedent.
Comment: Commenters opposed ``removal of consideration of current
and/or past public benefits,'' reasoning it allows immigration officers
to make speculative decisions regarding which applicants may need
benefits in the future, rather than basing their determinations on
concrete evidence of
[[Page 45395]]
current or past receipt; voiced concern that any past or current
receipt of benefits could be weighed in a public charge determination;
remarked the proposed rule creates fear that ``even brief or long-ago''
received benefits could be counted against applicants,
disproportionately impacting pregnant women, parents, and children,
with greater need for benefits or for a longer period of time (e.g.,
most TANF recipients are children and, of the adults, most of those are
mothers), and remarked on the importance of housing, nutrition, and
healthcare programs for victims of violence and exploitation,
expressing concern that treating the past receipt of benefits as
evidence of future dependence misunderstands use of public benefits
following abuse which is crisis-driven rather than reliance-driven.
In the context of family-based immigration, a commenter stated the
NPRM is misguided in its treatment of past benefit use, as, by statute,
public charge is a forward-looking assessment to determine the
likelihood of a person becoming primarily dependent on the government
in the future; it ignores newly arrived family-based immigrants begin
with lower earnings before experiencing rapid mobility citing a study
finding earnings increased by 76 percent over 12 years for immigrants
from countries where family sponsorship is the primary pathway,
compared to 23 percent for similarly aged U.S.-born workers.
Response: Consideration of public benefit use has been part and
parcel of public charge as discussed in precedent decisions, the NPRM,
and throughout this final rule. Even under the 2022 Final Rule,
officers considered an alien's current and past receipt of certain
public benefits for public charge inadmissibility. 8 CFR 212.22(a)(3).
This includes TANF, the program highlighted by the commenter for past
and current receipt of means-tested public benefits by children and
women. Since there is no change in officer consideration of TANF as
raised in the comment compared to the 2022 Final Rule, DHS disagrees
there will be a disproportionate impact with regards to TANF resulting
from this rulemaking. While DHS will consider both past and current
receipt of means-tested public benefits, the weight accorded such
receipt will entirely depend on the circumstances of a specific case.
As was the case with the 2022 Final Rule, relevant considerations
include recency and duration of receipt, the amount of receipt (if
applicable with respect to benefits to provide cash), whether the alien
is receiving only one benefit or a combination of benefits, the
circumstances surrounding the receipt, and a variety of other factors
that officers will have discretion to take into consideration in the
totality of the alien's circumstances. With respect to victims of
violence, abuse, trafficking referenced by commenters, those
individuals are generally exempt from the public charge ground of
inadmissibility when adjusting status. However, if those individuals
opt not to adjust under an exempt category, officers have discretion to
consider all the circumstances leading to the receipt of means-tested
public benefits. Officers will also consider all statutory factors,
precedent decisions, and any subregulatory guidance issued to guide,
but not prescribe, their decisions. DHS also notes that most aliens are
not eligible for public benefits before becoming LPRs or may be subject
to waiting periods.
b. General Recommendations
i. Support for Expansion of Benefits Considered
Comment: A commenter recommended DHS add language requiring
officers consider receipt of public benefits when making a public
charge inadmissibility determination, reasoning current or past receipt
reflects challenges with self-sufficiency; is a predictor of future
reliance; aligns with case law and the totality of the-circumstances
test; and is consistent with Congress's intent that immigrants be self-
supportive. Another commenter recommended non-cash benefits such as
SNAP, Medicaid, and benefits received by dependents should count in
public charge determinations, asking DHS to expand the scope of
``receipt'' to include all means-tested benefits regardless of whether
they are cash-based or received by a household member.
Response: Through this final rule, DHS is rescinding the 2022 Final
Rule with the exception of certain bond provisions being amended. DHS
disagrees with adding requested regulatory provisions. DHS agrees with
the commenter that past and current receipt of means-tested public
benefits is indicative of challenges with self-sufficiency and can be a
predictor of future dependence, and that considering the application
for or receipt of means-tested public benefits in the totality of the
circumstances is consistent with congressional purpose and intent. DHS
particularly agrees the 2022 Final Rule was too narrow and previously
excluded benefits, like SNAP and Medicaid, should be considered when
making public charge inadmissibility determinations.
However, DHS disagrees that receipt of means-tested public benefits
by family members should be considered as benefits received by the
alien and notes it neither proposed such consideration nor is it
collecting information regarding family members' receipt of such
benefits. As discussed in other responses, to the extent there is
evidence in the record the alien's family members whom the alien is
legally obligated to support receive means-tested public benefits based
on the alien's income falling below the designated threshold, DHS would
consider the fact the alien's income falls below that threshold as part
of the alien's assets, resources, and financial status in the totality
of the circumstances. Moreover, where DHS learns that the means-tested
public benefits that the alien's family member received are the source
of the alien's financial support, DHS will consider that fact.
Additionally, given that the alien is supposed to exclude any income
received from means-tested public benefits from the income information
provided on the Form I-485, inclusion of amounts received from means-
tested public benefits as income may lead to an inadmissibility finding
under section 212(a)(6)(C)(i) of the INA, 8 U.S.C. 1182(a)(6)(C)(i).
ii. Opposition to Expansion of Benefits Considered and Requests for
Clarity
Comment: A commenter urged DHS to withdraw the rule stating DHS
must preserve objective regulatory definitions, narrow ``public
charge'' to exclude non-cash benefits from consideration, and/or limit
consideration to cash assistance for income maintenance and long-term
institutionalization at government expense to ensure public charge
inadmissibility determinations cannot rely on vague, subjective
interpretations. One such commenter reasoned preserving access to basic
supports is not only humane, but strengthens immigrant integration and
stability, which benefits all.
Response: DHS declines to withdraw the NPRM and is finalizing
rescission of the 2022 Final Rule as proposed. DHS is not codifying
replacement regulatory provisions or creating exclusions from
consideration of any means-tested public benefits and similarly
declines to limit considerations to only public cash assistance for
income maintenance and long-term institutionalization at government
expense. DHS disagrees this final rule impacts access to basic
supports. Rather, this rule simply permits officers in their discretion
to consider applications for, approval or
[[Page 45396]]
certification to receive, or receipt of means-tested public benefits in
the totality of the circumstances when making prospective
determinations regarding the aliens' likelihood at any time of becoming
a public charge.
c. Program-Specific Concerns and Requests for Inclusion or Exclusion
i. Healthcare Programs
Medicaid
Comment: Many commenters, including form letter campaigns,
expressed opposition to including Medicaid or other healthcare benefits
in public charge determinations, indicating that consideration of
Medicaid and other health programs directly harms public health and
contradicts the purpose of these benefits. Another indicated the 2022
Final Rule appropriately excluded Medicaid from public charge
inadmissibility determinations, the benefits and adverse impacts of
having access to Medicaid or health coverage in general, and chilling
effects on Medicare enrollment and Medi-Cal. A commenter suggested the
rule would negatively impact healthcare workers, many of whom are
immigrant women receiving Medicaid themselves, thus destabilizing the
care system during workforce shortages and demographic shifts.
Response: DHS believes Medicaid and other healthcare programs
provide important benefits to individuals receiving them and positively
impact individual and public health. However, as indicated throughout
this final rule, DHS is not codifying replacement regulations for the
2022 Final Rule or excluding any means-tested public benefits from
consideration, including Medicaid. Officers will have discretion to
consider the relevance of any means-tested public benefits in the
totality of the circumstances and appropriately determine its impact on
the likelihood that an alien will become a public charge in the
totality of the aliens' circumstances, taking into consideration the
aliens' age, health, family status, assets, resources and financial
status, education and skills, and any other relevant factor. Receiving
Medicaid or other means-tested benefits is not outcome determinative,
but rather, one consideration in the totality of the circumstances. As
stated throughout this final rule, DHS believes Medicaid and other
healthcare programs should not serve as an incentive to immigration.
DHS notes Medicaid and other previously excluded means-tested public
benefits will only be considered if received (or applied for) on or
after the effective date of this final rule. Chilling effects are
addressed in a previous section of this final rule.
Comment: A commenter stated Medicaid usage as an indicator of lack
of self-sufficiency was rejected by the Second Circuit in New York v.
U.S. Department of Homeland Security 969 F.3d 42 (2d. Cir. 2020),
noting that excluding children, older adults, and people with
disabilities, 60 percent of Medicaid beneficiaries are employed;
referencing several more studies, Medicaid improves ability to work and
concluded it would be unnecessary to include Medicaid in public charge
determinations because (1) full-scope Medicaid for non-pregnant adults
is restricted to U.S. citizens and a subset of LPRs who meet certain
income and waiting period requirements; (2) the One Big Beautiful Bill
Act (OBBBA) ``will further tighten Medicaid eligibility '' beginning
October 2026; and (3) considering Medicaid would not meaningfully
affect public charge determinations.
Response: DHS acknowledges the U.S. Court of Appeals for the Second
Circuit affirmed, in part, and geographically limited a preliminary
injunction against the 2019 Public Charge Final Rule (to New York,
Connecticut, and Vermont) finding the rule was likely unlawful under
the INA and the APA.\234\ In reaching this conclusion, the court found
that DHS impermissibly expanded the definition of public charge beyond
settled meaning moving beyond dependency and creating a possibility
aliens could be found inadmissible for mere receipt of public benefits,
even those previously considered to be supplemental or received for a
short period of time.\235\ The court similarly found the rule likely to
be arbitrary and capricious because DHS did not provide a sufficient
reasonable basis for including in the definitions supplemental
benefits, including Medicaid.\236\ The Supreme Court granted a stay of
this decision \237\ and subsequently, this litigation was dismissed and
no final decision on the merits issued.\238\ Further, the Supreme Court
never issued a decision on the merits on the 2019 Final Rule, nor is
there a single judicially established definition of the term public
charge. The circumstances underlying that case are quite
distinguishable from those in this final rule. First, DHS has not
proposed nor is it finalizing any definition of the term public charge
or substituting the concept of dependence with the concept of receipt.
DHS is not creating a regulatory scheme for the consideration of public
benefits or departing from statute or controlling precedent. DHS is
removing the 2022 Final Rule in favor of individual discretionary
determinations officers will make in line with congressionally granted
discretion, statutory language, and binding precedent decisions. This
necessarily includes consideration of the receipt of any means-tested
public benefits, including Medicaid, if received on or after the
effective date of the rule, but officers will have the opportunity to
consider the probative value of an alien receiving Medicaid in the
totality of the alien's circumstances, including whether the alien is
employed, the alien's age, health, the timing and duration of receipt,
whether the alien is receiving or received other benefits, and all
other relevant considerations bearing on the alien at any time becoming
a public charge. This consideration may include whether the receipt of
Medicaid can be viewed as supplemental in nature or contributing to
overall dependence on the government. This approach is also informed by
the fact that very few aliens are eligible for Medicaid when applying
for admission or adjustment of status.
---------------------------------------------------------------------------
\234\ See, generally, New York v. DHS, 969 F.3d 42 (2d. Cir.
2020).
\235\ Id. at 86-88.
\236\ Id. at 83-4, 86 (``Of course, DHS is free to change its
interpretation . . . [b]ut what DHS may not do is rest its changed
interpretation on unsupported speculation, particularly when its
categorical assumptions run counter to the realities of the non-cash
benefits at issue. The goals and eligibility criteria of these
benefits programs belie DHS's assumption and show that these
programs are designed to provide supplemental support, rather than
subsistence, to a broad swath of the population--as INS recognized
in 1999. . . . Agencies are free to change their existing policies
as long as they provide a reasoned explanation for the change. When
an agency changes its existing position, it need not always provide
a more detailed justification than what would suffice for a new
policy created on a blank slate. But the agency must at least . . .
show that there are good reasons for the new policy. DHS has failed
to do so.'').
\237\ Dept. of Homeland Security v. New York, 589 U.S. 1173
(2020) (granting stay).
\238\ Dept. of Homeland Security v. New York, 141 S.Ct. 1292
(2021) (dismissing cert.)
---------------------------------------------------------------------------
Comment: Commenters said few immigrants are eligible for public
programs and even fewer would be under the OBBBA, the proposed changes
have outsized negative impacts, such as discriminating against people
with chronic conditions or preventing healthcare access, for only a
small subset of people to be subject to public charge determination and
it was unreasonable to expect new immigrants not to receive Medicaid
through U.S. States, noting healthcare with a good job was still
expensive and receiving Medicaid and contributing to the economy are
not contradictory.
[[Page 45397]]
Response: DHS agrees Medicaid eligibility among aliens is limited,
and the availability of federal matching payments for full Medicaid
benefits for aliens, subject to exceptions, will be limited to the
groups enumerated in section 1903(v)(5) of the Social Security Act,
beginning October 1, 2026, pursuant to the statutory changes made by
section 71109 of Public Law 119-21 . Both the NPRM and this final rule
are clear the public charge ground of inadmissibility applies to aliens
seeking admission or adjustment. While DHS acknowledged chilling
effects may indirectly result from the rescission of the rule, DHS is
not regulating eligibility for Medicaid or access to Medicaid for U.S.
citizens or aliens; removal of the 2022 Final Rule exclusively impacts
whether DHS can consider receipt of Medicaid as a part of one
consideration in the totality of the circumstances in the context of
individual public charge inadmissibility determinations. Rescission of
the 2022 Final Rule does not apply to U.S. citizens or aliens exempt
from public charge. Finally, consideration of means-tested public
benefits applied for, approved or certified to receive by aliens who
are both eligible for Medicaid and subject to the ground of
inadmissibility will apply to the aliens and not family members except
as outlined elsewhere in this final rule.
Comment: Commenters recommended protecting access to healthcare for
vulnerable groups, such as children and pregnant people, and ensure
using Medicaid/Oregon Health Plan (OHP) for basic and preventive care
is not treated like long-term institutionalization at government
expense; requested usage of State-funded public health programs not be
counted; detailed the negative impacts of restricting Emergency
Medicaid access and stated that Emergency Medicaid cannot be considered
in public charge inadmissibility determinations; urged protections
against considering short-term or emergency assistance; urged DHS to
exclude from consideration non-emergency Medicaid and Medicaid
Expansion in public charge inadmissibility determinations, and
generally opposed inclusion of Medicaid and Medicare part D subsidies
in the rule.
Several commenters stated Community Health Centers (CHCs),
Qualified Healthcare Centers (FQHCs), vaccination programs, and Premium
Tax Credits (PTCs), which many Medicaid and Marketplace enrollees
receive are good examples of programs that should be excluded from
public charge assessments, as they are not a reflection of lack of
self-sufficiency but are intended to fill healthcare gaps in
underserved areas. Another commenter similarly requested PTCs and Cost-
Sharing Reductions (CSRs) be exempt from public charge determinations.
Response: DHS declines to exempt any means-tested public benefits
from consideration as it rescinding the 2022 Final Rule as proposed,
and is not codifying any replacement regulations, including any new
exemptions or exclusions. Healthcare services aliens pay for without
government subsidization would not be considered. With the 2022 Final
Rule rescinded, officers have discretion to consider all facts and
circumstances in an individual case, which could also include
circumstances surrounding receipt of government provided or subsidized
healthcare--whether CHCs, FQHCs, or PTCs relied on by the alien. DHS
will consider all means-tested public benefits, including Medicaid and
State-funded healthcare in the totality of the circumstances, also
taking into consideration all other factors and considerations relevant
to such determination described in previous responses. This may include
the consideration of the fact that some healthcare services are
community-based benefits for all residents and bridge care gaps in a
particular community. As indicated throughout this final rule, the
receipt of public benefits is not alone outcome determinative in public
charge inadmissibility determinations.
Comment: A commenter requested information be provided regarding
immigration policies, so people do not mistakenly forgo Medicaid
participation.
Response: This final rule will be published in the Federal Register
and DHS will employ normal public communication and engagement
strategies when issuing a final rule which typically includes a news
release and social media postings. In addition, and as discussed
previously, DHS will be issuing subregulatory guidance that will inform
both those subject to the public charge rule and those not subject to
the rule about how this ground of inadmissibility applies and how
means-tested public benefits, including Medicaid, will be considered.
DHS agrees that clear communication regarding impacts of this rule is
helpful and may be crucial in minimizing unnecessary chilling effects
such as disenrollment from means-tested public benefits by U.S.
citizens or aliens not subject to the public charge ground of
inadmissibility.
Comment: Another commenter requested DHS ensure Medicaid use by a
U.S. citizen spouse or sponsor does not count against an applicant,
including potential retroactive consideration of Medicaid use; another
suggested DHS require an immigrant to wait a certain period of time or
have a grace period before receiving government assistance--or
implement some similar policy--to ensure the beneficiary would not be a
public charge or allow the U.S. citizen to cancel their Medicaid
coverage.
Response: DHS will not consider means-tested public benefits,
including Medicaid, received by the alien's family members unless there
is evidence in the record the alien's family members whom the alien is
legally obligated to support receive means-tested public benefits based
on the alien's income falling below the designated threshold or where
DHS learns the means-tested public benefits the alien's family member
received are the source of the alien's financial support. In both
cases, DHS would only consider this receipt as part of the
consideration of the alien's assets, resources, and financial status in
the totality of the circumstances. DHS intends this final rule to apply
prospectively and clarified it will not consider receipt of previously
excluded means-tested public benefits if applied for, approved or
certified, or received before the effective date of this final rule.
For Medicaid or any other means-tested healthcare benefits, that means
DHS will not consider means-tested healthcare benefits except long-term
institutionalization at government expense if applied for, approved or
certified to receive, or received before the effective date of this
final rule. Further, receipt of Medicaid or other means-tested benefits
is but one consideration in the totality of the circumstances. With
respect to mandating waiting periods to enroll in Medicaid, DHS notes
that portion of the comment is out of scope of this rulemaking and
beyond DHS's authority. Eligibility rules and waiting periods
applicable to aliens receiving Federal public benefits are governed by
PRWORA and public benefit agencies. That said, aliens decide whether or
when to enroll in Medicaid.
CHIP and Children's Healthcare Coverage
Comment: Several commenters expressed concern about including CHIP
or children's healthcare coverage in public charge determinations and
recommended exempting CHIP and other State funded children healthcare
programs, or withdraw the rule entirely.
[[Page 45398]]
One commenter requested that accessible information is provided
regarding immigration policies so people do not mistakenly forgo CHIP.
Commenters discussed the benefits of children having health coverage,
and stated that the inclusion of CHIP in a public charge
inadmissibility determination contradicts Congress's intent in enacting
the Children's Health Insurance Program Reauthorization Act, as well as
congressional intent to protect access to these programs.
Response: DHS agrees that CHIP and other healthcare programs
received by children provide important benefits and have positive
impacts on individual and public health. However, as indicated
throughout this final rule, DHS is not codifying replacement
regulations for the 2022 Final Rule and is not excluding the
consideration of any means-tested public benefits from consideration,
including CHIP when received by the alien. As stated throughout this
final rule, DHS believes CHIP or other healthcare programs should not
serve as an incentive to immigration. Officers will have discretion to
consider the relevance of means-tested healthcare coverage, including
CHIP, and appropriately determine its relevance in the totality of an
alien's circumstances. This includes taking into consideration the
alien's age which, for children, may include consideration of the
benefits of CHIP such as better health outcomes as the child grows and
that, as an adult, he or she may have better earning capacity as a
result of having had health coverage as a child. The consideration of
CHIP and other means-tested healthcare programs is but one
consideration in the totality of the circumstances and is not alone
determinative.
Prenatal Healthcare Coverage
Comment: A few commenters requested that contraception and prenatal
care be protected or exempted from consideration in public charge
inadmissibility determinations while others remarked on the benefits of
Medicaid access during pregnancy. Commenters also detailed the negative
impacts of forgoing prenatal healthcare. A commenter stated that
selected States provide pregnancy care benefits to women in the
adjustment of status process because pregnancy is short term and not an
indication of ongoing dependence on public benefits, noting that
considering such benefits counters the goal of limiting long-term
dependency by creating greater long-term economic costs in reduced
health for women and children. Another commenter wrote that because
Congress has recognized the importance of providing prenatal care,
deterring access to it would be at odds with other policies enacted by
Congress. The commenter also wrote that the proposed rule would
contradict the intent of Congress to protect access to pregnancy and
postpartum Medicaid.
Response: DHS does not disagree that prenatal care including
through Medicaid, as well as other means-tested healthcare programs,
provides benefits to expectant mothers who receive them and that it has
positive impacts on individual and public health. DHS disagrees that
this final rule deters access to these programs, as this final rule is
not regulating eligibility for them. However, as indicated throughout
this final rule, DHS is not codifying replacement regulations for the
2022 Final Rule and is not excluding the consideration of any means-
tested public benefits from consideration in a public charge
inadmissibility determination. DHS notes, however, that officers will
have discretion to consider the relevance of means-tested healthcare
coverage, including when used short term for pre and postnatal care to
appropriately determine its relevance in the totality of the aliens'
circumstances, also taking into consideration the temporary nature of
receipt, as well as that Congress made these benefits available to
pregnant women without the 5-year waiting period.\239\ The
considerations may also take into account better health and employment
prospects (for mothers and children who receive such care), age,
health, family status, assets resources, and financial status, and
education and skills. The consideration of means-tested public
healthcare received during and post pregnancy is just one consideration
in the totality of the circumstances, and USCIS officers will follow
the statute, binding precedent, and USCIS subregulatory guidance in the
context of adjustment of status applications to make reasoned and fair
decisions.
---------------------------------------------------------------------------
\239\ Children's Health Insurance Program Reauthorization Act of
2009, Public Law 111-3, section 214, 123 Stat. 8, 56 (Feb. 4, 2009)
(Permitting States to Ensure Coverage Without a 5-Year Delay of
Certain Children and Pregnant Women Under the Medicaid Program and
CHIP) (codified as amended at 42 U.S.C. 1396B(v)(4)).
---------------------------------------------------------------------------
ii. Nutrition Programs
SNAP
Comment: Numerous commenters, including a form letter campaign,
expressed concern about considering SNAP in public charge
determinations. Commenters made broad statements regarding food
benefits such as: requesting DHS support food assistance for all; not
change rules to consider people's food benefits or do anything to
impact people receiving SNAP benefits; not include SNAP or other food
benefits in the definition of public charge; and exclude core nutrition
programs, such as SNAP, summer and school meals, and Summer Electronic
Benefits Transfer, from public charge determinations. Commenters
discussed negative impacts of including SNAP in public charge, as well
as the negative impacts of forgoing SNAP benefits. Rationale also
addressed concerns about the economic and community impacts of reduced
SNAP participation, including lost economic activity in the form of
SNAP dollars spent at local stores, direct and downstream benefits of
SNAP participation, that receiving SNAP benefits would make someone a
public charge is contrary to the program, and as the median length of
SNAP participation is 12 months, receipt of SNAP is not evidence of a
likelihood to become a public charge. Echoing these sentiments, an
Illinois-based commenter remarked the rule misunderstands low-wage work
by treating workers and benefit users as distinct groups when many
full-time workers in Illinois rely on public benefits because low wages
do not provide enough to survive. Another commenter wrote most people
participate in SNAP for a short amount of time and often in response to
financial hardship, natural disasters, or macroeconomic events that
impact entire communities and recognized protecting American people but
remarked anti-hunger and poverty programs make the United States safer
and more prosperous. The commenter also stated that the parameters to
participate in SNAP are clearly defined in PRWORA and OBBBA and are
already upheld during eligibility screening and affirmed by Congress.
Response: DHS does not dispute that SNAP has some positive impacts
nor does DHS misunderstand the nature of low-wage work. As indicated
throughout this final rule, DHS is not codifying replacement
regulations for the 2022 Final Rule and declines to exclude any means-
tested public benefits from consideration in a public charge
inadmissibility determination, including SNAP, as all are potentially
relevant to a determining whether an alien is likely at any time to
become a public charge. As stated throughout this final rule, DHS
believes that means-tested public benefits including SNAP or other
nutrition programs should not serve as an incentive to immigration. DHS
disagrees the final rule regulates eligibility for SNAP or makes
receipt of
[[Page 45399]]
SNAP outcome determinative in the totality of the circumstances in a
public charge inadmissibility determination. Officers will have
discretion to consider the relevance of SNAP if received (or applied
for) on or after the effective date of this final rule, including
whether used short term or long term and appropriately determine its
relevance in the totality of the aliens' circumstances, also taking
into consideration the recency of receipt, whether SNAP was received
alone or in combination with other benefits, alien's employment, age,
health, family status, assets, resources, and financial status,
education and skills, along with any other information in the totality
of the aliens' specific circumstances, which could also include
consideration of long-term outcomes for program participants if
relevant to the alien's specific circumstances. The consideration of
SNAP is but one consideration in the totality of the circumstances. DHS
agrees that eligibility for SNAP among aliens subject to the public
charge ground of inadmissibility is narrow and was further narrowed by
OBBBA.
WIC
Comment: Numerous commenters, discussing WIC's positive impacts,
expressed concern about the potential inclusion in public charge
determinations, emphasized benefits make recipients more, not less,
likely to work, remarked on potential negative impacts of including WIC
in public charge inadmissibility determination, and noted that
consideration contradicted WIC's mission and urged exclusion of WIC
from public charge determinations.
Response: DHS does not dispute the positive impacts of WIC.
However, as indicated throughout this final rule, DHS is not codifying
replacement regulations for the 2022 Final Rule and declines to exclude
any means-tested public benefits from consideration in a public charge
inadmissibility determination, including WIC, as all are potentially
relevant to determining whether an alien is likely at any time to
become a public charge. DHS disagrees considering WIC in public charge
determinations is contrary to WIC's purpose since DHS is not changing
eligibility rules or prohibiting eligible individuals from applying or
receiving WIC. Officers will have discretion to consider the nature of
WIC as a means-tested public benefit, if received (or applied for) on
or after the effective date of this final rule, and appropriately
determine its relevance in the totality of the aliens' circumstances,
taking into consideration age, whether it was received alone or in
combination with other means-tested public benefits, alien's health,
family status, assets, resources, and financial status, education and
skills, employment and employment prospects, along with any other
information relevant to the aliens' specific circumstances such as
recency, duration and/or frequency of receipt. Officers will also have
the discretion to consider relevant statistics such as those a
commenter cited regarding long-term outcomes for program participants
and impacts on health, employment and employability. The receipt of WIC
is just one consideration in the totality of the circumstances.
School Lunch Programs
Comment: Commenters expressed concern about impacts on school lunch
program administration, stating the rule would result in children going
hungry at school and explained lower direct certification rates affect
entire communities as schools may lose qualifications for Community
Eligibility Provision, allowing free meals for all students, ultimately
requesting exclusion of all school nutrition programs from public
charge determinations. Another commenter requested Federal nutrition
programs, such as the Summer Food Service Program, be excluded from the
rule.
Response: DHS does not dispute the positive impacts of school lunch
and summer food service programs and disagrees that this rule impairs
access to these programs or causes children to go hungry. This rule
does not, and cannot, change the eligibility requirements for these
programs. DHS similarly disagrees that this rule impacts direct
certification rates. As explained repeatedly, this rule removes
regulations governing public charge inadmissibility which does not even
apply to all aliens. There is a narrow population of aliens who are
subject to the public charge ground and eligible to receive means-
tested public benefits, including for school lunch and summer food
service programs by virtue of their SNAP or Medicaid participation.
However, as indicated throughout this final rule, DHS is not codifying
replacement regulations for the 2022 Final Rule and declines to exclude
any means-tested public benefits from consideration in a public charge
inadmissibility determination, as all are potentially relevant to
determining whether an alien is likely at any time to become a public
charge. Officers will have discretion to consider participation in
these programs, if received (or applied for) on or after the effective
date of this final rule, and appropriately determine relevance in the
totality of the aliens' circumstances, also taking into consideration
age, whether participation in the program was isolated or whether the
alien also received other means-tested public benefits, the alien's
health, family status, assets, resources, and financial status,
education and skills, employment and employment prospects, along with
any other information relevant to the aliens' specific circumstances
such as recency, duration and/or frequency of receipt. For example,
officers could take into consideration whether an alien participated in
a school lunch or summer food program by virtue of a school's
certification and availability of meals to all students or because the
alien is also enrolled in Medicaid and/or SNAP. Officers will also have
the discretion to consider relevant statistics regarding long-term
outcomes for program participants and impacts on health, employment and
employability. The receipt of school lunch and summer food service
programs is just one aspect of one consideration in the totality of the
circumstances.
iii. Housing Assistance
Comment: A number of commenters expressed concern about considering
housing assistance programs in public charge determinations due to the
effects on child development, the detrimental impacts of housing
instability, the positive effects of housing assistance and importance
of rental or housing assistance, the benefits of home energy
assistance, how the proposed rule undermines existing policies, and
because receipt of benefits decreases future reliance on benefits and
receipt by children. Another said because Latinos comprise 85 percent
of people in mixed-status families, restricting housing assistance
access would primarily impact Latino, U.S. citizen children.
One comment asserted HUD housing programs should be excluded from
public charge inadmissibility determinations because, as DHS
acknowledged in the 2018 proposed rule, alien participation in the
Public Housing, Housing Choice Voucher (HCV), and Section 8 Project-
Based Rental Assistance programs is relatively low. DHS previously
referenced the 2008 Panel of the Survey of Income and Program
Participation, finding only 0.2 percent and 0.4 percent of aliens lived
in Section 8 housing and housing subsidized through other government
programs, respectively.\240\ Additionally,
[[Page 45400]]
given Congress and HUD already protect Federal dollars from use by non-
eligible aliens, the commenter concluded there is ``no fiscally
responsible reason'' for DHS to continue. Commenters suggested use of
housing benefits is not an accurate indicator of dependence on the
government as HUD housing assistance does not meet the ``primarily
dependent'' standard, while another noted median length of
participation in Federal rental programs is 4 to 5 years with 80
percent utilizing it for a single episode. A commenter expressed
concerns about difficulty in defining scope of housing assistance as it
takes many forms including: community development grants, tax credits,
COVID-19 Emergency Rental Assistance Program, disaster housing
assistance, emergency housing vouchers for domestic violence survivors,
housing assistance for active military, and U.S. Department of
Agriculture (USDA) Farm Labor Housing. Given the historical exclusion
of housing assistance from public charge determinations and that
eligibility for housing programs already require lawful immigration
status under PRWORA, a commenter requested DHS clarify that current
participant or otherwise eligible persons not be subject to the rule.
---------------------------------------------------------------------------
\240\ 83 FR 51114, 51167 (Oct. 10, 2018).
---------------------------------------------------------------------------
Response: DHS does not dispute the positive impacts of housing
programs and subsidies on individuals, including children, and
disagrees this final rule impairs access to these programs as it is not
regulating eligibility or prohibiting participation. As discussed
previously, DHS will not consider the receipt of previously excluded
means-tested benefits, including housing benefits, if received before
the effective date of this final rule as this rule operates
prospectively. However, if such benefits were certified or approved for
receipt for a period that extends to or beyond the effective date of
this final rule, DHS would consider this receipt unless the alien
withdrew such application or notified the relevant agencies he or she
no longer wanted to receive the benefits.
DHS is also clarifying it is only considering means-tested public
benefits received by the alien, and not the alien's family members,
such as U.S. citizen children, unless, as discussed more fully
elsewhere in this final rule, the alien is legally obligated to support
those family members and the receipt by those family members is based
on the alien's income falling below a certain threshold, or the alien's
means of support stems from the receipt of means-tested public benefits
by the family member. In such cases, DHS would consider this as part of
the alien's assets, resources, and financial status. While mixed-status
families, including those with U.S. citizen children, may choose to
disenroll from or forgo enrollment in housing programs, such actions
are voluntary and not directed by this final rule.
With respect to scope, DHS is considering all government provided,
paid, or subsidized housing assistance so long as it is means-tested.
While there is a narrow population of aliens who are subject to the
public charge ground of inadmissibility and eligible to receive means-
tested public benefits, including public housing or housing subsidies,
DHS still finds considering receipt of such benefits is relevant in
individual public charge inadmissibility determinations, and is
therefore declining to exclude means-tested public housing programs and
subsidies.
As discussed elsewhere in comment responses, officers will have
discretion to consider participation in means-tested housing programs
and appropriately determine its relevance in the totality of the
aliens' circumstances, also taking into consideration the specific
nature of the housing program. Officers could also consider whether the
need for means-tested government funded/subsidized housing is related
to specific temporary circumstances like job loss or domestic violence,
(assuming the alien is not exempt from the public charge ground of
inadmissibility based on being a VAWA self-petitioner). See INA sec.
212(a)(4)(E)(i), 8 U.S.C. 1182(a)(4)(E)(i). While the removal of the
2022 Final Rule is also eliminating the primary dependence standard,
officers would continue to evaluate dependence insofar as DHS will
consider the amount and duration of receipt as well as the recency of
receipt, including whether participation in the program was isolated
along with all other information relevant to the aliens' specific
circumstances in the totality of the circumstances, including the
statutory minimum factors. For example, officers could take into
consideration any relevant statistics regarding long-term impacts on
participants in means-tested housing programs such as health,
education, employment and employability outcomes, so long as they are
relevant in the aliens' specific case. Participation in housing
programs/subsidies is just one aspect of one consideration in the
totality of the circumstances.
iv. Tax Credits
Comment: Commenters expressed concern about inclusion of tax
credits, including the Earned Income Tax Credit (EITC), Child Tax
Credit (CTC), and the American Opportunity Tax Credit and discussed
immediate and long-term impacts of families forgoing the same. A
commenter urged DHS to: maintain the historical exclusion of tax
credits from public charge and clearly state filing accurate tax
returns and lawfully claiming tax credits will never be negatively
considered in immigration adjudications; provided in-depth examples and
reasoning that allowing ``weaponization of tax credits'' would
significantly depart from precedent, contradict congressional intent
and Federal tax law; create administrative and enforcement burdens, and
in conjunction with the OBBBA, significantly harm millions of tax-
paying mixed-status families and U.S. citizen children, and reported
the Treasury Department is considering reclassifying refundable tax
credits as Federal public benefits. Another commenter noted tax credits
should not be considered because they are fundamentally different from
means-tested public benefits.
Another commenter opposed DHS's considering government support
programs in public charge determinations and stated inclusion of
refundable tax credits as a Federal benefit would challenge bipartisan
precedent requiring action from Congress to change tax credit
eligibility based on immigration status.
Response: As background, DHS notes EITC is designed to provide a
tax break to low- and moderate-income workers.\241\ The purpose of CTC
is to help families with children reduce tax liability, but the credit
amount depends on income.\242\ The American Opportunity Tax Credit
\243\ provides a tax credit for certain students to encourage the
pursuit of education, but the credit amount depends on income and
filers with income over a certain amount may not claim the credit.
---------------------------------------------------------------------------
\241\ IRS, Earned Income Tax Credit (EITC), https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit-eitc (last
updated Feb. 9, 2026).
\242\ IRS, Child Tax Credit, https://www.irs.gov/credits-deductions/individuals/child-tax-credit (last updated Feb. 23,
2026).
\243\ See IRS, American Opportunity Tax Credit, https://www.irs.gov/credits-deductions/individuals/american-opportunity-tax-credit (last updated Sept. 4, 2025).
---------------------------------------------------------------------------
DHS disagrees this final rule weaponizes tax credits, significantly
departs from precedent; contradicts congressional intent and Federal
tax law; creates administrative and enforcement burdens, or harms tax-
paying mixed-status families and U.S. citizen children. This final rule
removes regulations governing public charge inadmissibility, which does
not even apply to all aliens. There is a narrow
[[Page 45401]]
population of aliens who are subject to the public charge ground and
eligible to receive means-tested public benefits, including any means-
tested tax credits. DHS believes that considering receipt of means-
tested tax credits is relevant in public charge inadmissibility
determinations and is not codifying replacement regulations to exclude
them from consideration, or adopting binding definitions, including
classifications of tax credits by other agencies, such as the Treasury
Department. Officers will have discretion to consider any evidence in
the record the alien received means-tested tax credits, if received (or
applied for) on or after the effective date of this final rule, and
appropriately determine relevance in the totality of the aliens'
circumstances, also taking into consideration the specific nature of
the tax credit program, as well as other factors related to the receipt
of the tax credit.
In considering such tax credits, DHS is mindful that many means-
tested tax credits are available to both low- and middle-income
individuals and families and may not always be indicative of a lack of
self-sufficiency. Specifically, the probative value of tax credits will
depend on the alien's specific circumstances and whether the alien
would be self-sufficient without relying on such tax credits. When
assessing whether an alien is likely at any time to become a public
charge, officers would also consider whether in addition to tax credits
the alien also received means-tested public benefits, and will consider
the alien's age, health, family status, assets, resources, and
financial status, education and skills, employment and/or employment
prospects, along with any other information relevant to the alien's
specific circumstances. For example, if relevant in an individual case,
officers could take into consideration any relevant statistics
regarding long-term impacts on claimants of tax credits such as
employment and employability outcomes. Consideration of tax credits is
just one aspect of one consideration in the totality of the
circumstances.
v. Early Education, Development, and Child Care Programs
Comment: Commenters expressed concerns about consideration of child
development programs in public charge inadmissibility determinations,
including the lack of clarity on whether early development and learning
will be considered in public charge, based on the explicit connection
the NPRM makes to PRWORA and recent proposals to expand the
interpretation of Federal public benefits under PRWORA, (e.g., Listing
Maternal, Infant, and Early Childhood Home Visiting, Early Head Start,
Head Start, and Family First Preventive Services) the commenter stated
consideration would be misaligned with the intent of public charge
inadmissibility determinations as such programs are meant to support
self-sufficiency. Another commenter similarly expressed concern about
programs such as Head Start, child care subsidies, home visiting, and
other early education programs being included in the proposed rule even
if they are not explicitly mentioned. Commenters were concerned about
including child care program usage in the rule, detailed various
benefits of child care programs and discussed potential negative
impacts of forgoing them.
Commenters addressed impacts of potentially including Head Start in
public charge, detailing the benefits of Head Start chilling effects on
Head Start enrollment and Early Intervention (EI) programs/services,
noting EI funding comes from a combination of local, State, and Federal
resources, including Medicaid, it is not possible to identify funding
sources which could lead DHS to make inconsistent decisions on counting
EI services in public charge discouraging families from accessing
services they are entitled to under the Individuals with Disabilities
Education Act (IDEA). Another commenter similarly expressed concern
about what counts as a ``public charge'' and allowing the consideration
of programs beyond those that are means-tested, the proposed rule would
consider any publicly funded service or accommodation, including
educational supports for children with disabilities under IDEA and
disability accommodations provided under Section 504 of the
Rehabilitation Act and the Americans with Disabilities Act (ADA) in
public schools.
Commenters voiced opposition to the HHS recent classification of
Head Start as a public benefit program. If confusion over whether DHS
will consider Head Start in public charge inadmissibility
determinations leads parents and caregivers to miss work or quit their
jobs due to disenrollment by their children in these programs, the
proposed rule would undermine self-sufficiency and negatively impacts
the economy, as immigrant women workers make up large shares of the
workforce in agriculture, home health assistance, and early education.
Response: DHS is clarifying after the rescission of the 2022 Final
Rule there is no binding limitation of means-tested public benefit
programs, meaning DHS will consider the participation in means-tested
child care, child development, and child education programs, including
Head Start, and EI services, funded by the government when received by
alien children subject to the public charge ground of inadmissibility.
Additionally, when the alien children's parents apply for admission or
adjustment of status, DHS will also consider the children's receipt of
such benefits as part of the parents' assets, resources, and financial
status, if the children's eligibility for the benefits is based on the
parents' income falling below a certain threshold. DHS is further
clarifying that in either case, DHS would only consider the receipt of
such benefits on or after the effective date of this final rule. If
such benefits were certified or approved for receipt for a period that
extends to or beyond the effective date of this final rule, DHS would
consider this receipt unless the alien withdrew such application or
notified the relevant agencies he or she no longer wanted to receive
the benefits. DHS does not dispute the positive impacts of means-tested
child care, child development, and child education programs and early
intervention services, but disagrees rescission of the 2022 Final Rule
affects eligibility for these programs, impacts access, or requires
aliens to disenroll.
Officers will have discretion to consider the relevance of
participation in these programs and appropriately determine relevance
in the totality of the aliens' circumstances, also taking into
consideration age, whether participation in the program was isolated or
whether the alien also received other means-tested public benefits, the
alien's health, family status, assets, resources, and financial status,
education and skills, employment and employment prospects, along with
any other information relevant to the aliens' specific circumstances
such as recency, duration and/or frequency of receipt. For example,
officers could take into consideration relevant statistics regarding
long-term outcomes for program participants and impacts on health,
educational attainment, employment and employability, including among
children with disabilities, to the extent relevant in a particular
case. The participation in means-tested child care, child development,
and child education programs is just one aspect of one consideration in
the totality of the circumstances. Comments pertaining to chilling
effects related to the consideration of all means-tested public
[[Page 45402]]
benefits are addressed in section III.F.1. of this final rule. Comments
pertaining to HHS' classifications of Head Start under PRWORA are
outside the scope of this rulemaking.
DHS agrees that the disenrollment of children from Head Start could
lead parents to struggle to find care for their children, resulting in
those parents withdrawing from the labor force or missing work. From
the context of the comment, and the data provided to support their
statements, the commenter was particularly concerned that alien women
worried about being found inadmissible under the public charge ground
may withdraw from the labor force due to the disenrollment of their
children from Head Start. However, the data they provided in support of
their assertion that such withdrawal would ``have broader economic
consequences'' is not directly connected to this population. They cite
three analyses based on ACS 1-year estimates to support their claims of
consequences in the home health aide, early education, and agricultural
sectors.\244\ However, those analyses included foreign-born women who
were already U.S. citizens in their population estimates. In addition,
DHS notes that the ACS data does not distinguish between those born
outside the United States who are already LPRs and those aliens who may
in the future seek to become LPRs and reasonably be concerned about the
public charge ground of inadmissibility. Many of the female foreign-
born but not U.S. citizen workers included in the ACS data are already
LPRs.\245\ The analyses supporting the commenter's claims do not
provide estimates of the population of female parents who may choose to
disenroll their children from Head Start and consequently withdraw from
the labor force in these industries. As a result, the analyses do not
demonstrate that there would be an impact on the labor force in those
industries or broader impacts on the economy.
---------------------------------------------------------------------------
\244\ Ashir Coillberg, `Immigrant Women's Contributions to Our
Economy' (May 2025), https://nwlc.org/wp-content/uploads/2025/05/Immigrant-Workers-FS-5.9.25v1.pdf. Karla Coleman-Castillo et al.,
`Immigrants Care: How Immigrant Early Educators Hold Up the Care
Economy,' (June 2025), https://nwlc.org/wp-content/uploads/2025/06/Immigrant-CareHow-Immigrant-Early-Educators-Hold-Up-the-Care-Economy.pdf.
\245\ DHS notes that the Pew Research Center estimates that
42.5% of aliens in the United States are LPRs, as of 2023. See
Kramer, Stephanie and Passell, Jeffrey, `What the data says about
immigrants in the U.S.' (Aug. 21, 2025), https://www.pewresearch.org/short-reads/2025/08/21/key-findings-about-us-immigrants/.
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vi. Universal Basic Income (UBI)
Comment: A commenter requested DHS clarify if UBI programs,
proliferating as pilot programs across the country, received from a
public or private entity are considered in the totality-of-
circumstances analysis noting they serve as a primary means of support
and may bear on whether an individual is likely to become a public
charge.
Response: If a UBI program, also known as guaranteed basic income,
is provided or funded by the government, and is means-tested, officers
will be able to consider the receipt of UBI in the totality of the
circumstances, if received (or applied for) on or after the effective
date of this final rule, because with the removal of the 2022 Final
Rule there are no exclusions. Even under the 1999 Interim Field
Guidance and the 2022 Final Rule, UBI could have been considered if it
qualified as cash assistance for income maintenance. Note that officers
will also take into consideration all statutory factors, and all other
information relevant to the alien's specific case, including whether
this is the only means-tested public benefit received, recency,
duration, and amount of receipt.
4. Disability Alone Is Not Sufficient
Comment: Many commenters opposed the removal of the regulation that
disability alone is not sufficient to determine whether the alien is
likely at any time to become a public charge. Several commenters stated
that the NPRM did not provide a sufficient explanation for removing the
explicit safeguard for individuals with disabilities, which DHS had
deemed necessary in the 2022 Final Rule. Commenters said that removal
of the 2022 Final Rule represents ``a massive step backward'' from the
passing of the ADA \246\ and its commitment to human rights, noting the
ADA requires protection and equal treatment of people with disabilities
and ensures that people with disabilities are able to have full
participation in American public life (including medical care and
employment opportunities), equal opportunity in economic and political
spheres, economic self-sufficiency, and equal opportunity to live
independently. Commenters stated clear regulatory protections are
needed or disability and disability-related needs will be misread as
indicators of risk and will become a penalty subject to officer
interpretation and implicit biases rather than neutral factors in a
public charge inadmissibility determination, and that removal of such
protections risks unlawful discrimination. One commenter pointed out
that section 504 of the Rehabilitation Act prohibits both intentional
and unintentional discrimination, and requires affirmative measures,
such as reasonable accommodations and modifications that would allow
the person to overcome limitations and challenges arising from their
disability. Several commenters stated the importance of reminding
officers of the provisions and restrictions in nondiscrimination laws
and their applicability to the actions officers may take.
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\246\ Public Law 101-336, 104 Stat. 327 (codified as amended at
42 U.S.C. 12101-12213).
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Commenters were concerned the rule's rescission of standards,
guidance, or limitations governing public charge inadmissibility
determinations would encourage immigration officers to exclude
individuals with significant or visible disabilities from the United
States, with one commenter stating immigrants with disabilities come to
the United States to access medical care or specific technologies, and
restricting entry or adjustment of status prevents them from pursuing
treatment and living safer, healthier lives. Commenters stated that
immigration officers lack expertise in discrimination laws and that
disabled applicants would face heighted risk of discriminatory
treatment based on ambiguity over how officers consider ``health'' and
assumptions that necessary medical interventions mean an individual is
unhealthy or that a disability would result in future
institutionalization or benefit need.
Commenters stated the rule did not provide any guidance or policy
for review and comment, so it was unclear how officers will consider a
disability in an assessment, particularly given that the same diagnosis
can result in a range of abilities and cannot accurately predict a
person's ability to live or work in the United States, and that this
will result in arbitrary and capricious decisions. They commented that
having a disability does not predict a person's ability to contribute
to a community, work, or live independently and should not be a
deciding factor as to whether an alien would be inadmissible to the
United States. One of these commenters suggested DHS engage trained
medical professionals to provide input on the impact of an individual's
health-related or medical condition on matters that may be of specific
relevance to the likelihood that an individual will become a public
charge for conditions not indicated pursuant to a medical exam by a
civil surgeon or panel physician.
[[Page 45403]]
Response: DHS appreciates the commenter's concern but disagrees
that DHS did not sufficiently explain its rescission. The ADA and
section 504 of the Rehabilitation Act prohibit discrimination against
individuals based on their disabilities.\247\ See 29 U.S.C. 794(a). The
ADA requires, among other things, that employers provide reasonable
accommodations for individuals with disabilities who need them to apply
for a job, perform a job's essential functions, or enjoy equal benefits
and privileges of employment, absent undue hardship (i.e., significant
difficulty or expense).\248\ Additionally, DHS is specifically
prohibited from discriminating against individuals with disabilities
and otherwise preventing them from participating in benefits
programs.\249\ Congress has noted that ``[d]isability is a natural part
of the human experience and in no way diminishes the right of
individuals to. . . contribute to society; pursue meaningful careers;
and enjoy full inclusion and integration in the economic, political,
social, cultural, and educational mainstream of American society.'' See
29 U.S.C. 701(3). DHS determined it is duplicative to restate the
already binding prohibition on relying solely on an alien's disability
to determine an alien is likely at any time to become a public charge.
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\247\ Public Law 101-336 (Jul. 26, 1990), 104 Stat. 327
(codified as amended at 42 U.S.C. 12101-12213).
\248\ Public Law 101-336 (Jul. 26, 1990), 104 Stat. 327
(codified as amended at 42 U.S.C. 12101-12213).
\249\ See 6 CFR 15.30(b)(1)(i) (``The Department, in providing
any aid, benefit, or service, may not directly or through
contractual, licensing, or other arrangements, on the basis of
disability . . . [d]eny a qualified individual with a disability the
opportunity to participate in or benefit from the aid, benefit, or
service . . . .''); 6 CFR 15.30(b)(4) (``The Department may not,
directly or through contractual or other arrangements, utilize
criteria or methods of administration the purpose or effect of which
would [s]ubject qualified individuals with a disability to
discrimination on the basis of disability; or [d]efeat or
substantially impair accomplishment of the objectives of a program
or activity with respect to individuals with a disability.'').
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That said, Congress expressly requires DHS to consider an alien's
health when making a public charge inadmissibility determination. See
INA sec. 212(a)(4)(B)(i)(II), 8 U.S.C. 1182(a)(4)(B)(i)(II). Moreover,
longstanding precedent decisions are clear that an alien's disability
may be relevant to assessing his or her likelihood at any time of
becoming a public charge.\250\ Therefore, consistent with these
decisions and clear congressional intent, DHS considers the effects of
an alien's disability as part of the health factor to the extent that
such disability, in the context of the alien's individual
circumstances, impacts the alien's self-sufficiency and therefore his
or her likelihood of becoming a public charge in the totality of the
circumstances. Simply put, it would be inconsistent with the statutory
language to ignore anything related to an alien's health that impacts
his or her self-sufficiency and likelihood at any time of becoming a
public charge.
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\250\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (BIA 1974)
(``the alien's physical and mental condition, as it affects ability
to earn a living, is of major significance.''); Matter of Martinez-
Lopez, 10 I&N Dec. 409, 421 (AG 1964) (finding ``mental or physical
disability'' as relevant considerations in public charge
inadmissibility determinations); Matter of Mesa, 12 I&N Dec. 432,
434 (BIA 1967) (``It is well settled that aliens who are likely to
be, or who are, supported at the expense of the public because of
poverty or some physical handicap come within the [public charge
provision].''); Matter of Gaglioti, 14 I&N Dec. 677, 677-78 (BIA
1974) (considering disability in the context of a public charge
inadmissibility determination); Matter of T-, 3 I&N Dec. 641, 644
(BIA 1949) (``In order to sustain the ground of exclusion urged
against them, there must be substantial evidence that these aliens
are likely to be supported at the expense of the public because of
poverty or some physical handicap.'').
---------------------------------------------------------------------------
DHS notes that in considering an alien's disability as part of the
statutorily-mandated health factor, DHS is neither singling out the
alien's disability nor treating the alien differently as a result of
the disability. Within the broad totality of the circumstances
framework that DHS will operate under, the effects of an alien's
disability potentially contributes to one factor among many required
and any other relevant factors DHS will consider, where no one factor
is outcome determinative. 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. DHS
will not, under this final rule, deny admission or adjustment of status
to an alien solely because of a disability. As with any fact considered
in a public charge inadmissibility determination, DHS will consider the
effects of the alien's disability in the totality of the circumstances.
DHS officers will not make their own medical diagnoses; information
pertaining to the health factor will continue to be obtained from the
Report of Immigration Medical Examination and Vaccination Record, Form
I-693, and USCIS will continue to use the Application to Register
Permanent Residence or Adjust Status, Form I-485, and information
obtained during the 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.
USCIS will provide training to officers and issue guidance on all
aspects of the public charge inadmissibility determination to ensure
consistency in adjudication of applications for adjustment of status.
Furthermore, to ensure consistency and quality control, USCIS will
monitor adjudications and apply its general quality control processes.
USCIS will continually assess and improve the adjudication processes,
procedures, and training as needed.
Comment: Many commenters recommended withdrawing the rule and
retaining the regulations established in 2022. Some of these commenters
stated that the 2022 Final Rule provides the clarity and guidance
families need to make informed decisions and access to needed benefits,
and provides true equity, fairness, and flexibility, while this rule
would resurrect discriminatory policies the current rule corrected,
reinstate the previous treatment of disability as a per se negative
factor in public charge inadmissibility determinations, or recreate the
violations of section 504 of the Rehabilitation Act of the 2019 Final
Rule by denying Federal benefits on the basis of disability and denying
reasonable accommodation. Several commenters stated the rule
facilitates use of disability as a proxy for a public charge finding,
with two of those commenters stating that the NPRM expressly favored
applicants without a disability by stating that a healthy individual of
working age with no significant health conditions or disabilities
impacting his or her ability to be self-sufficient is unlikely to be
inadmissible as likely at any time to become a public charge.
Many commenters stated that programs like Medicaid, SNAP, and
housing supports are not indicators of dependency but rather fill gaps
created by disability-related needs, limited access to employer-
sponsored insurance, and persistent barriers to employment. Commenters
stated that people who are disabled use these services, including the
use of Home and Community-Based Services or Long-Term Care Services and
Supports that are not generally covered by most private insurance, to
participate in community life and avoid institutionalization, and that
the purpose of the programs is to enable individuals to earn a
livelihood. One of the commenters pointed out that individuals with
disabilities often rely on services that have historically never been
considered in public charge determinations, such as case
[[Page 45404]]
management services, reasonable accommodations, and day programs, but
could now be treated as negative factors. Commenters pointed out that
emphasizing factors closely tied to disability allows disability-
related characteristics to be counted repeatedly as adverse factors and
effectively penalize disability itself. One commenter stated that
individuals with weakened immune systems, such as people with leukemia,
HIV/AIDS, and those living with organ transplants would be similarly
negatively affected.
Response: DHS has determined that it is duplicative to restate the
already binding prohibition on relying solely on an alien's disability
to determine that the alien is likely at any time to become a public
charge, and disagrees that not providing a replacement regulation would
reinstate treatment of disability as a per se negative factor or
recreate violations of the Rehabilitation Act that resulted from the
2019 Final Rule. During the time that the 2019 Final Rule was in
effect, of the 47,555 applications for adjustment of status to which
the rule was applied, DHS issued only three denials (which were
subsequently reopened and approved) and two Notices of Intent to Deny
(which were ultimately rescinded, after which the applications were
approved) based on the totality of the circumstances of a public charge
inadmissibility determination under section 212(a)(4)(A) and (B) of the
INA, 8 U.S.C. 1182(a)(4)(A) and (B). The lack of final denials based on
the 2019 Final Rule does not reflect biases against aliens with a
disability or violations of the Rehabilitation Act that form the basis
for the commenters' concern. DHS again maintains that it is already
precluded from treating an alien's disability alone as outcome
determinative \251\ and to include this in a regulation would be
duplicative.
---------------------------------------------------------------------------
\251\ See 29 U.S.C. 794(a).
---------------------------------------------------------------------------
DHS in no way stated or suggested that aliens diagnosed with a
disability or chronic illness do not contribute to American society in
the NPRM. Further, DHS did not propose to find aliens diagnosed with a
disability or chronic illness inadmissible under the public charge
ground solely due to their diagnosis. DHS is required by statute to
consider the alien's health, and, like all of the mandatory factors and
any other factor DHS considers, it is considered in the totality of the
alien's circumstances. For example, an alien may have been diagnosed
with a health condition that does not impact the alien's ability to
work or secure employment or constitute a drain on the alien's
financial resources, and therefore such health condition would not make
the alien likely to become a public charge. Similarly, an alien may
have been diagnosed with a health condition that if unmanaged would
affect the alien's ability to work, but if successfully managed would
not impact the alien's ability to work or find employment or constitute
a drain on the alien's financial resources. In those cases, DHS would
consider whether the alien has or is likely to obtain private health
insurance or any other means to pay for medical treatment. Finally,
even if an alien has a health condition that precludes employment, if
the alien has the financial means to pay for medical treatment and is
able to be self-sufficient without working, then the alien may not be
likely at any time to become a public charge.
In neither the NPRM nor this final rule is DHS designating any
factors to be more heavily weighted than others in a public charge
inadmissibility determination. Rather, DHS officers will consider the
mandatory statutory factors in section 212(a)(4)(B) of the INA, 8
U.S.C. 1182(a)(4)(B), all individualized case-specific factors and
circumstances relevant to an alien's case, and any empirical data
relevant to an alien's self-sufficiency in the totality of the
circumstances. This individualized approach will allow officers to make
public charge inadmissibility determinations that are consistent with
the statute and congressional intent and comply with past precedent.
DHS will not retain the public charge inadmissibility regulations
promulgated in the 2022 Final Rule. DHS believes that removing those
regulations provides 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.\252\ DHS's
assertion that a healthy individual of working age with no significant
health conditions or disabilities impacting his or her ability to be
self-sufficient is unlikely to be inadmissible as likely at any time to
become a public charge is a statement derived from past precedent as an
example of an individual who, in the totality of the circumstances, is
likely to not be inadmissible under the public charge ground.\253\
However, it does not automatically disfavor those applicants whose case
displays some factors that would weigh negatively in an inadmissibility
determination. Past precedent has consistently maintained a totality of
the circumstances approach when making a public charge inadmissibility
determination.\254\ This rule will restore an inadmissibility
determination process that trusts in and relies on DHS officers' good
judgment and sound discretion as envisioned by Congress.
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\252\ Public Law 119-21, 139 Stat. 72.
\253\ 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.'') (emphasis added).
\254\ 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.''); 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.'').
---------------------------------------------------------------------------
Comment: One commenter was similarly concerned about a health
condition affecting an alien's admissibility in more than one way and
stated that Class A or B tuberculosis is already addressed under a
separate ground of inadmissibility, so allowing disability to influence
public charge inadmissibility determinations without guidance risks
duplicating existing health-based factors and confusing the purpose of
the public charge determination.
Response: DHS notes that Congress explicitly listed health-related
grounds of inadmissibility and health as a factor to consider in a
public charge inadmissibility determination within section 212(a) of
the INA, 8 U.S.C. 1182(a), as separate inadmissibility grounds. If DHS
excluded a health condition listed in the health-related grounds of
inadmissibility from a public charge inadmissibility determination, DHS
would not be faithfully executing the statute at section 212(a)(4) of
the INA, 8 U.S.C. 1182(a)(4). The statute does not narrow the
definition of health,
[[Page 45405]]
so exclusion of any Class A or B condition would ignore the potential
impact of such a condition on the totality of the alien's
circumstances, such as his or her ability to work and/or his or her
past, present, or potential future use of means-tested public benefits.
5. Totality of the Circumstances
Comment: Several commenters disagreed with removing the totality of
circumstances provision in 8 CFR 212.22(b) and opined that DHS should
retain a provision requiring a totality of the circumstances analysis.
One commenter disagreed with DHS's argument that 8 CFR 212.22(b) is
unnecessary because past precedent decisions require the totality of
circumstances analysis. Another commenter suggested that any totality
framework is flawed because some circumstances (e.g., giving birth to a
child with a disability or an adult becoming disabled) cannot be
predicted.
Response: DHS clarifies the public charge inadmissibility
determination established by this rulemaking is specifically designed
to consider all relevant information bearing on an alien's likelihood
at any time of becoming a public charge in the totality of the
circumstances. This includes not only the statutory minimum factors and
the alien's receipt of means-tested public benefits, but also any other
individual factor or circumstances the officer determines relevant to
assessing the alien's likelihood at any time of becoming a public
charge. If the alien presents evidence of changed circumstances that
bear on their likelihood at any time of becoming a public charge, DHS
will consider those changed circumstances in the totality of the
circumstances.
Comment: Although one commenter agreed with DHS's emphasis on
retaining a totality of the circumstances framework, the commenter
strongly recommended DHS expressly authorize officers to consider all
relevant information when determining whether an alien is likely at any
time to become a public charge in regulatory text to strengthen legal
defensibility, improve program integrity, ensure uniformity, and
satisfy core administrative law principles. The same commenter said DHS
should explicitly state in a regulation that an alien would be found
inadmissible if the negative factors outweighed the positive but would
not be found inadmissible if the positive factors outweighed the
negative factors. This commenter also recommended retaining 8 CFR
212.22(b) with clarifications to guard against arbitrary or
inconsistent adjudications. A different commenter recommended retaining
8 CFR 212.22 while adding additional factors DHS wants officers to
consider, such as ``the alien's household size, alien's income, assets,
and liabilities, alien's education level and any skills, and whether
the alien has or is receiving means-tested public benefits.'' Another
commenter, citing their own research for support, said the alien's
education and income level should be the most heavily-weighted factors
in the totality of circumstances because they are the most predictive
of an alien's likelihood at any time to become a public charge.
One commenter remarked that totality of the circumstances
determinations that are not guided by regulatory language will be
unpredictable and may lead to bias or misconceptions. A different
commenter expressed concern with eliminating the enumerated factors in
the 2022 Final Rule, noting that, historically, the factors considered
and the weight given would vary depending on the officer who
adjudicated the application or the court to which the alien's
application is appealed.
Response: DHS disagrees that it needs to retain and supplement
regulatory language expressly authorizing DHS officers to consider all
relevant information in the alien's record when making public charge
inadmissibility determinations, as DHS officers are already required to
do this by the statute and binding precedent that have guided these
decisions for decades.\255\ To ensure officers make subjective and
discretionary determinations as mandated by statute and binding
precedent decisions, DHS removed the unduly narrow 2022 Final Rule and
will make public charge inadmissibility determinations as Congress
intended, where an officer may, in his or her discretion, determine
what factors other than the statutory minimum factors and receipt of
means-tested public benefits are relevant to any individual case.
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\255\ 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).
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DHS determined that listing specific, exhaustive factors--including
education and income level--would create another rigid framework, which
DHS has already determined is problematic and restricts the broad
public charge inadmissibility determination Congress intended when it
enacted section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Instead,
under this final rule, DHS officers will consider the five statutory
factors and any other fact or circumstance the officer determines is
relevant to assessing an individual alien's likelihood at any time of
becoming a public charge, including the alien's applications for,
approval or certifications to receive, and receipt of means-tested
public benefits in the totality of the circumstances, though the
relevant factors in any alien's individual case may vary.\256\ As
discussed throughout this preamble, USCIS will issue policy and
interpretive tools applicable to USCIS' adjustment of status
adjudications, which will guide officers in making public charge
inadmissibility determinations consistent with the law and based on a
consideration of all relevant evidence and information.
---------------------------------------------------------------------------
\256\ See, e.g., 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).
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Comment: A commenter expressed disagreement with DHS' assertions in
the NPRM that DHS officers could not consider all relevant factors
under the 2022 Final Rule.
Response: As noted in the NPRM and in this final rule, unlike the
2019 Final
[[Page 45406]]
Rule, which included an express provision permitting officers to
consider any relevant factor beyond the enumerated factors, the 2022
Final Rule did not include such a provision. 90 FR 52168, 52180-81
(Nov. 19, 2025). This resulted in a framework where officers were
restricted from considering all relevant factors in the totality of the
circumstances as Congress intended. Therefore, to ensure officers
retain statutorily-mandated discretion to determine, in their opinion,
whether an alien is likely at any time to become a public charge, DHS
rescinded the 2022 Final Rule and will make public charge
inadmissibility determinations aligned with statute, precedent
decisions, and any subregulatory guidance. But in any event, even if
this commenter were correct, it would not provide any basis for taking
different action.
6. Written Denial Requirement
Comment: Multiple commenters opposed the removal of 8 CFR
212.22(c), with some expressing the view that without the provision
officers may consider improper factors in public charge assessments or
the factors considered would not be transparent to the applicant. A
commenter stated that it is never redundant to remind officers to
ensure that applicants receive due process under the law and a basic
principle of due process is to provide notice; another agreed, writing
that the rule would eviscerate an alien's procedural due process rights
in applications involving public charge determinations and that aliens
would be expected to understand not only the provisions of the INA but
how Federal laws interact with the INA. A commenter recommended that
DHS require a written, factor-by-factor template to explain which
evidence was considered to support procedural fairness and consistency.
Response: DHS disagrees that the removal of 8 CFR 212.22(c) would
eviscerate due process rights, lead officers to consider improper
factors, or decrease transparency. Regulations require USCIS officers
to ``explain in writing the specific reasons for denial.'' See 8 CFR
103.3(a)(1)(i). This requirement applies to all applications,
petitions, and requests adjudicated by USCIS, including adjustment of
status denials based on inadmissibility under the public charge ground.
Id. Because existing regulations and policy already require USCIS
officers to specify, in writing, the basis for the denial,\257\ DHS
does not believe a separate provision requiring denials to include a
discussion of the factors considered in a public charge inadmissibility
determination is necessary. DHS will continue to issue written denials
consistent with 8 CFR 103.3(a)(1)(i), which complies with notice and
due process requirements for aliens. As to the suggestion that DHS
require a written, factor-by-factor template, DHS notes that the 8 CFR
103.3(a)(1)(i) requirements, as well as guidance USCIS will issue in
the USCIS Policy Manual, will provide officers with appropriate policy
and interpretive tools to guide them in making individualized, fact-
specific public charge inadmissibility determinations, based on a
totality of the alien's circumstances, consistent with statute,
congressional intent, and binding precedent.\258\
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\257\ See 8 CFR 103.3(a)(1)(i). See also USCIS Policy Manual,
Volume 7, Adjustment of Status, Part A, Adjustment of Status
Policies and Procedures, Chapter 11, Decision Procedures, https://www.uscis.gov/policy-manual/volume-7-part-a-chapter-11 (last updated
Feb. 3, 2026).
\258\ 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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7. Receipt of Public Benefits While an Alien is in an Immigration
Category Exempt From the Public Charge Ground of Inadmissibility, or of
Benefits Available to Refugees
Comment: Commenters opposed rescission of 8 CFR 212.22(d), stating
that it would discourage individuals from seeking benefits for which
they are legally eligible and punish individuals for using such
benefits. Others stated that benefits for humanitarian programs are
generally time-limited and not designed for long-term use, noting that
benefits for a T-visa applicant frequently do not cover the T-visa
determination waiting period, which was on average 25.5 months in
December 2025. One commenter stated that protections for individuals
receiving benefits in an exempt category should remain in regulation to
ensure affected individuals have an opportunity to review and comment
on proposed changes to a regulatory provision they substantially relied
on is taken away.
Response: DHS appreciates the concerns for individuals using
benefits based on classification in a humanitarian program. DHS
disagrees, however, that the removal of the 2022 regulations will
undermine humanitarian programs. DHS notes that individuals in a status
under such programs, such as asylees, crime victims, victims of
domestic violence, and T nonimmigrants, are generally exempted by
statute from the public charge ground of inadmissibility.\259\
Congress, not DHS, has the authority to specify which aliens are exempt
from the public charge ground of inadmissibility and DHS does not
believe it is necessary to include a regulation to repeat any
exemptions set in the statute by Congress. In fact, while Congress
created many humanitarian-based immigration benefits that permit aliens
to come to and remain in the United States throughout the INA,\260\
Congress also exempted aliens who are applying for many of these
humanitarian benefits from the public charge ground of
inadmissibility.\261\ Therefore, DHS rejects the idea that modifying
how officers make public charge inadmissibility determinations will
impact, much less undermine, these humanitarian programs.
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\259\ However, DHS notes that T nonimmigrants are not excluded
from public charge inadmissibility when applying for employment-
based adjustment of status. See INA sec. 212(a)(4)(E), 8 U.S.C.
1182(a)(4)(E).
\260\ See, e.g., INA sec. 245(h), 8 U.S.C. 1255(h) (adjustment
of status for special immigrant juveniles). INA sec. 207, 8 U.S.C.
1157 (refugee admission); INA sec. 208, 8 U.S.C. 1158 (asylum
provisions); INA sec. 244, 8 U.S.C. 1254a (TPS provisions).
\261\ See, e.g., INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A)
(applying the ground only to aliens who are applicants for visas,
admission, or adjustment of status; INA sec. 245(h)(2), 8 U.S.C.
1255(h)(2) (exempting special immigrant juveniles applying for
adjustment of status from the public charge inadmissibility ground).
INA sec. 209(c), 8 U.S.C. 1159(c) (exempting refugees and asylees
adjusting status from the public charge inadmissibility ground). INA
sec. 244(c)(2)(A)(ii), 8 U.S.C. 1254a(c)(2)(A)(ii) (exempting aliens
applying for or reregistering for TPS, who must demonstrate they are
admissible as immigrants, from the public charge ground of
inadmissibility).
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Moreover, DHS notes that Congress did not exempt aliens who had
previously been in a category that is exempt from the public charge
ground of inadmissibility from the ground if they subsequently applied
for a benefit that is subject to the public charge ground of
inadmissibility. Furthermore, Congress did not prohibit DHS from
considering benefits received while in an exempt category when making a
public charge inadmissibility determination. Therefore, as noted
previously throughout this final rule, if an alien who received means-
tested public benefits while in a category that is exempt from the
public charge ground
[[Page 45407]]
of inadmissibility applies for admission or adjustment of status in a
category that is not exempt from the ground, DHS will consider the
receipt of those benefits as outlined in this rule. That receipt,
however, is not outcome determinative. Moreover, in considering the
alien's receipt of means-tested public benefits, DHS will also consider
the type of benefit received, the circumstances under which the alien
received those benefits, the duration and amount of receipt, as well as
the statutory factors and any other factor the officer determines, in
his or her discretion, is relevant to assessing the alien's likelihood
of at any time becoming a public charge.
Comment: One commenter stated that rescinding 8 CFR 212.22(d)
increases the likelihood of confusion and misapplication of the law
among similarly situated applicants and survivors whose immigration
histories include multiple status changes.
Response: DHS disagrees that rescinding the previous regulations
will result in confusion and misapplication of the law. This rule is
changing which benefits may be considered in a public charge
inadmissibility determination, but it is not changing officers'
responsibility to adjudicate benefit applications for aliens with
complex immigration histories. On or before the effective date of this
final rule, USCIS will provide training and issue subregulatory
guidance to inform, but not prescribe, the outcome of USCIS officers'
public charge inadmissibility determinations made under this final rule
to ensure consistency in adjudications.
Comment: Commenters stated that the removal directly contradicts
congressional intent because Congress has authorized the use of public
benefits for individuals who are in specific humanitarian categories.
Commenters also stated that considering receipt of public benefits
while an alien is in an exempt category undermines the statutory
exemption that was established by Congress in the Trafficking Victims
Protection Act of 2000 (TVPA). Several commenters specifically pointed
out that trafficking is rooted in financial exploitation and access to
public benefits creates a stopgap for survivors to seek economic
stability and be able to assist law enforcement; removing the
regulatory protection for these survivors would devastate anti-
trafficking efforts. One commenter stated that instituting a penalty
for individuals who qualify for humanitarian statuses and corresponding
benefits without congressional authority would be arbitrary and
capricious and impose an agency directive that exceeds its authority
under Federal law.
Response: DHS disagrees that this rule contradicts congressional
intent or is arbitrary and capricious. 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, is the best implementation of the public charge
inadmissibility statute given Congress's clear statement in PRWORA that
aliens should be self-sufficient and not depend on public
resources.\262\ The rule does not change the PRWORA exceptions for
``qualified aliens'' to meet the needs of vulnerable populations, and
therefore does not prevent such aliens from accessing public benefits
for which they are legally eligible.\263\ 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, if an alien is granted T-nonimmigrant status and subsequently
adjusts his or her status under section 254(l) of the INA, 8 U.S.C.
1255(l), he or she would not be subject to a public charge
inadmissibility determination and, thus, any public benefit use
congressionally authorized on the basis of such status would not affect
his or her ability to adjust status. DHS is not introducing any penalty
for aliens who qualify for humanitarian statuses and who then pursue
adjustment of status using the humanitarian path set out by Congress.
---------------------------------------------------------------------------
\262\ 8 U.S.C. 1601.
\263\ See 8 U.S.C. 1612(b).
---------------------------------------------------------------------------
As noted above, while DHS will not exclude from consideration an
alien's receipt of means-tested public benefits received while the
alien was in an exempt category when making a public charge
inadmissibility determination, DHS will consider the type of benefit
received, the circumstances under which the alien received those
benefits, and the duration and amount of receipt in the totality of the
circumstances.
Comment: Several commenters stated that rescinding 8 CFR 212.22(d)
would lock people into longer or more challenging adjustment pathways
because they would need to remain in a status exempt from public charge
inadmissibility to be approved.
Response: DHS acknowledges that aliens who are in categories exempt
from the public charge ground of inadmissibility and then choose to
pursue adjustment of status in a non-exempt category become subject to
a public charge inadmissibility determination. Congress did not
specifically exempt aliens who previously held an exempt classification
from section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), at the time of
adjustment. Therefore, if these aliens seek adjustment of status in a
category that is not exempt from public charge ground 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 in the totality of the circumstances. As noted throughout this
rule, in considering any receipt of means-tested benefits, DHS will
consider the type of benefit received and the circumstances under which
the alien received those benefits, as well as the recency, the
duration, and amount of receipt in the totality of the circumstances.
However, as noted throughout this preamble, DHS will not consider the
receipt of previously excluded means-tested public benefits if such
benefits were received before the effective date of this final rule.
Comment: One commenter supported rescinding 8 CFR 212.22(d),
stating that nothing in the INA suggests that Congress intended prior
receipt of public benefits--a highly probative factor--to become
irrelevant because it occurred when the alien was in a category exempt
from public charge inadmissibility, finding the regulation undermines
the weight of past, present, and forward looking, predictive purpose of
the public charge inadmissibility ground and removes probative evidence
Congress intended officers to weigh when assessing an alien's ability
maintain self-sufficiency.
Response: DHS appreciates this comment and agrees that the
consideration of all relevant factors, including the receipt of means-
tested public benefits, is important when determining if an alien is
likely at any time to become a public charge. Congress clearly signaled
that public charge inadmissibility determinations must be subjective,
individualized, and case-specific based on consideration of all
relevant factors rather than an enumerated, finite set of factors.
M. Elimination of List of Exemptions and Waivers (8 CFR 212.23)
1. General Opposition To Removal
Comment: Commenters opposed both the removal of 8 CFR 212.23 and
DHS's stated reasons for removing the
[[Page 45408]]
provision, stating it reduces clarity. Another commenter encouraged DHS
to maintain 8 CFR 212.23 to avoid suggesting that groups are no longer
exempt or that statutory protections no longer apply. One commenter
recommended that DHS issue detailed, public-facing guidance addressing
applicable exemptions for survivors of domestic violence, sexual
assault, human trafficking, and stalking, including clear explanations
of applicable statutory exemptions and exclusions. The commenter stated
that providers assisting these populations rely on the Code of Federal
Regulations as a stable, authoritative reference when advising
survivors under time-sensitive and high-risk conditions and further
added that policy manuals do not carry the same legal weight as
regulations and make it difficult for advocates to provide clear
guidance.
Response: DHS disagrees that rescinding 8 CFR 212.23 reduces
clarity. This rule changes which public benefits are considered in a
public charge inadmissibility determination, not which aliens are
exempt from the public charge ground of inadmissibility. While DHS
acknowledges publishing a list of exemptions and waivers may be useful
for the public and officers, DHS is removing the list from regulation
because it is redundant. First, DHS already publishes the same
exemptions and waivers in the USCIS Policy Manual \264\ which is easily
updated to reflect any statutory changes Congress may make while
regulatory text is more burdensome to update. Second, DHS publishes the
list within USCIS' Form I-485 (Part 9, Item Number 56, in the current
version). The USCIS Policy Manual and Form I-485 are accessible to
officers and the general public through the USCIS website and provide
the information regarding the statutory exemptions in the same clear
and comprehensive manner as the regulation USCIS is removing. For
example, the Form I-485, sets out the list in a manner 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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\264\ USCIS publishes the list of exemptions in Volume 8, Part
G, Chapter 3, Section C of the Policy Manual, https://www.uscis.gov/
policy-manual/volume-8-part-g-chapter-3#:~:text=informant)%5B38%5D-
,C.%20Exemptions,-The%20public%20charge (last updated Feb. 3, 2026).
Information about waivers is published in Volume 8, Part G, Chapter
8, Waivers of Inadmissibility Based on Public Charge Ground, https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-8 (last updated
Feb. 3, 2026).
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2. General Support for Removal
Comment: One commenter stated that 8 CFR 212.23 is at odds with the
statute and it relies on regulation that is contrary or at odds with
statutory authority. The commenter states that a regulation cannot
overcome a statute, which illustrates the illegality of the 2022 Final
Rule and is a strong reason to adopt the NPRM.
Response: Although DHS appreciates the commenter's support for
removal of 8 CFR 212.23, DHS disagrees with the commenter's other
assertions. The first two paragraphs of 8 CFR 212.23 enumerate the
categories of aliens to whom the public charge ground of
inadmissibility does not apply under the INA or 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.\265\ The third
paragraph of the section outlines the existing waivers of the public
charge ground of inadmissibility.
---------------------------------------------------------------------------
\265\ Public Law 89-732 (Nov. 2, 1966), as amended.
---------------------------------------------------------------------------
DHS, and former INS, included a similar list of exemptions and
waivers in the 1999 Interim Field Guidance, 1999 NPRM, and 2019 Final
Rule. As discussed in other comment responses, DHS is removing this
language not because it the inclusion is unlawful, as asserted by the
commenter, but because the regulatory text is redundant to several
other publicly available sources, such as the United States Code, the
USCIS Policy Manual,\266\ and Form I-485 (Part 9, Item Number 56, in
the current edition). As a result, DHS believes there is no need to
continue to include the same list in its regulations.
---------------------------------------------------------------------------
\266\ USCIS publishes the list of exemptions in Volume 8, Part
G, Chapter 3, Section C of the Policy Manual, https://www.uscis.gov/
policy-manual/volume-8-part-g-chapter-3#:~:text=informant)%5B38%5D-
,C.%20Exemptions,-The%20public%20charge (last updated Feb. 3, 2026).
Information about waivers is published in Volume 8, Part G, Chapter
8, Waivers of Inadmissibility Based on Public Charge Ground, https://www.uscis.gov/policy-manual/volume-8-part-g-chapter-8 (last updated
Feb. 3, 2026).
---------------------------------------------------------------------------
3. Certain Cubans and Haitians
Comment: A commenter suggested that exemptions for both Cubans and
Haitians should be maintained. Others stated that applicants adjusting
status pursuant to the Cuban Adjustment Act of 1966, are not subject to
the public charge ground of inadmissibility and because the exemption
is statutory, not discretionary, it must be preserved in any regulation
or guidance concerning the public charge ground. A few commenters
stated the rule would unfairly punish Cubans who arrived in vulnerable
situations.
Response: Although DHS is removing the regulation listing
exemptions, the statutory exemptions created by Congress for certain
Cuban \267\ and Haitian \268\ applicants for adjustment of status
continue to exist.\269\ DHS is not required to list these statutory
exemptions in its regulations. USCIS will provide training and guidance
to its officers, including information about which aliens are
statutorily exempt from the public charge ground of inadmissibility, in
the context of adjustment applications.
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\267\ See Cuban Adjustment Act, Public Law 89-732 (PDF)
(November 2, 1966), as amended.
\268\ See section 902 of the Haitian Refugee Immigration
Fairness Act of 1998, Public Law 105-277 (PDF), 112 Stat. 2681,
2681-538 (October 21, 1998), as amended.
\269\ See section 202 of the Immigration Reform and Control Act
of 1986 (IRCA), Public Law 99-603 (PDF), 100 Stat. 3359, 3404
(November 6, 1986), as amended.
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4. Commonwealth of the Northern Mariana Islands (CNMI)
Comment: Commenters suggested DHS terminate all CNMI-specific
exemptions related to public charge inadmissibility, immigration, and
benefits-eligibility rules stating that the CNMI is a hub of
immigration fraud undermining public charge enforcement.
Response: While no such exemptions exist, DHS appreciates the
commenters' suggestion to terminate all CNMI-specific exemptions.
Congress did not create an exemption to the public charge ground of
inadmissibility for citizens of the CNMI, and DHS cannot create an
exemption by regulation.
N. Comments Unrelated to Specific Regulatory Sections
1. General Comments
Comment: One commenter stated that the rule places too much
reliance on arbitrary decision-making processes, data, and tools, and
only serves to harm immigrants. Similarly, many commenters pointed out
that data DHS plans to collect from other agencies as part of the
public charge inadmissibility determination may be inaccurate or out of
date and may result in erroneous public charge decisions.
Response: DHS disagrees that the rule relies on arbitrary decision-
making,
[[Page 45409]]
data, or tools, or that it serves to harm immigrants. The rule removes
the public charge inadmissibility provisions promulgated in the 2022
Final Rule, 87 FR 55472 (Sept. 9, 2022), and allows officers to make
public charge inadmissibility determinations consistent with Congress's
express national policy on welfare and immigration enacted in PRWORA,
decades of precedent decisions, and past agency practice, while
considering all factors relevant to an alien's likelihood at any time
of becoming a public charge, as Congress intended.
DHS disagrees that data sharing will result in additional errors in
public charge inadmissibility determinations. In addition to the
information collected on the revised Form I-485, the integration of
immigration records with records from Federal benefit-granting agencies
will inform a more flexible and adaptive policy, allowing public charge
inadmissibility determinations that fully consider an alien's past
\270\ or current use of means-tested public benefits, as well as
allowing a more informed prediction of the likelihood of an alien
becoming a public charge in the future.
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\270\ DHS will not consider the receipt of previously excluded
means-tested public benefits if such benefits were received before
the effective date of this final rule. However, if the alien
continues to receive these benefits on or after the effective date
of this final rule, DHS will consider that receipt in the totality
of the circumstances.
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Comment: One commenter stated that public charge was never designed
to prevent immigration of low- and moderate-income families eligible
for broader public programs that support their ability to continue
working and contribute to economic growth and requested DHS consider
overall circumstances, not just receipt of public benefits.
Response: DHS strongly disagrees that the public charge ground of
inadmissibility was never designed to prevent immigration of aliens who
would be eligible for public benefits. As discussed in depth in the
NPRM, the United States has denied admission to aliens based on public
charge grounds since at least 1882.\271\
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\271\ 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 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.
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DHS agrees it should consider the alien's overall circumstances.
Congress has specified that officers must, at a minimum, consider
certain factors when making a public charge inadmissibility
determination, including the alien's age; health; family status;
assets, resources, and financial status; and education and skills.
Additionally, DHS may consider any Form I-864 submitted on behalf of
the alien. DHS will consider all relevant, case-specific information to
make public charge inadmissibility determinations in the totality of
the circumstances.
Comment: A commenter opposed the rule, stating that frequent
regulatory changes contribute to confusion, undermine trust, and
promote avoidance behavior. Another commenter stated that
implementation of the rule creates new challenges and imposes burdens
on State and local agencies that administer public benefit programs, so
DHS should delay implementation, or not implement the rule.
Response: DHS acknowledges potential for confusion regarding the
rule's scope and effect, possible chilling effects, and increased
burdens on State and local agencies. DHS also acknowledges the
confusion that may result from another rule relating to the public
charge ground of inadmissibility, following two rules published in 2019
and 2022.
DHS will provide interpretive and policy tools to guide public
charge inadmissibility determinations, balancing the need to conform
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, fortify officer discretion, and support accuracy,
consistency, and reliability in individual determinations.
As discussed in other responses, DHS declines to delay
implementation of this rule. Per the ``Dates'' section of this final
rule, this rule becomes effective 60 days after publication and applies
to aliens applying for admission or adjustment of status on or after
that date. For further discussion of impacts on States and localities,
please see III.O Statutory and Regulatory Requirements, where DHS
responds to comments on this topic.
Comment: One commenter stated that credit history, including credit
reports and credit scores, should not be considered in public charge
inadmissibility determinations because of their limited utility and
questionable accuracy.
Response: Consistent with the statute and past precedent decisions,
DHS considers the mandatory statutory factors, as well as all relevant
evidence and information specific to the alien and relevant to
determining an alien's likelihood of becoming a public charge. USCIS
will provide training to officers and issue guidance for adjudication
of adjustment of status applications. Due to the case-by-case and
individualized determinations required to apply the public charge
ground of inadmissibility, DHS will not indicate specific pieces of
required evidence but instead rely on officers' discretion to determine
which evidence is required to reach a final inadmissibility
determination.
2. Comments on the Development of Future Public Charge Inadmissibility
Policy Interpretive Tool
Comment: Many commenters opposed the potential use of an
interpretive tool for public charge inadmissibility determinations,
with one stating it is against statutory intent to outsource
adjudications to computerized data systems and that information
provided by a computerized tool cannot supersede information provided
by applicants or supplant the role of an adjudicator to conduct a
determination based on the totality of the circumstances. Another said
that a new interpretive tool could result in standards with no basis in
law and would change immigration policy in a manner requiring
congressional action.
Similarly, commenters stated that if DHS used an automated
decision-support tool, the public would be unable to access the logic
behind findings, identify data and biases in computer generative tools,
or hold DHS accountable without knowing what data is being input and
how the tool works.
Response: DHS did not indicate in the NPRM it had, and in fact it
has not, developed any computerized or automated decision-support tool
for public charge inadmissibility determinations. DHS generally
disagrees that the integration of technology with data analysis to
assist officers in considering mandatory statutory factors and other
relevant information in the totality of the circumstances would be
against statutory intent or change immigration policy in a way that is
contrary to law. Rather, DHS indicated it will formulate appropriate
policy and interpretive tools, which at present include reference
materials or operational guidance, to help officers use their sound
judgment as they
[[Page 45410]]
faithfully apply the public charge ground of inadmissibility as
envisioned by Congress. DHS has no intention of ``outsourcing the
adjudication process'' and will continue to depend on officers to make
adjudicative decisions.
3. Privacy and Personal Data Concerns
Comment: Many commenters stated that DHS's efforts to collect data
from other agencies to assist in making public charge inadmissibility
determinations violate privacy laws, specifically that DHS has not
explained how it will comply with the Privacy Act of 1974, and break
promises of the government that a participant's information will only
be used to determine eligibility for the program and not have
immigration consequences. One commenter also stated that data sharing
risks revealing information regarding the receipt of programs that are
not relevant or regarding family members who are not seeking an
immigration benefit and for parties who have not consented to
disclosure.
Many commenters were also concerned about data security and
identity theft related to DHS's uses of personal information collected
from other agencies like the Social Security Administration (SSA) and
Centers for Medicare & Medicaid Services (CMS), citing a lack of
clarity on how data would be used, shared, or stored, particularly
given reports of use of health care data to target immigrants. One
commenter remarked that DHS should commit to data minimization, error
correction, notice to applicants, and published privacy documentation
before using external benefit records in adverse determinations.
Response: DHS disagrees that the final rule raises data and privacy
concerns or violates privacy laws. In order to determine if an alien is
likely at any time to become a public charge, DHS considers the
totality of the alien's circumstances and relies on inter-agency
cooperation and data-sharing to verify, as Congress intended, that an
alien is self-sufficient. USCIS complies with the Privacy Act of 1974
(Privacy Act) \272\ in safeguarding information in the applicable
systems of records. Data collected is kept in an alien's administrative
record consistent with the Privacy Act \273\ and the System of Records
Notice (SORN), which identifies the purpose for which Personally
Identifiable Information (PII) is collected, from whom and what type of
PII is collected, how the PII is shared externally (routine uses), and
how to access and correct any PII information maintained by DHS.\274\
DHS recognizes, among other things, the concept of data minimization
and notes that is already one of DHS's Fair Information Practice
Principles (FIPPs).\275\
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\272\ See 5 U.S.C. 552.
\273\ See 5 U.S.C. 552.
\274\ See, generally, Notice of Modified Privacy Act System of
Records, 82 FR 43556, 43564 (Sept. 18, 2017) (``DHS/USCIS safeguards
records in this system according to applicable rules and policies,
including all applicable DHS automated systems security and access
policies. USCIS has imposed strict controls to minimize the risk of
compromising the information that is being stored.'').
\275\ The FIPPs form the basis of the Department's privacy
compliance policies and procedures governing the use of personally
identifiable information (PII). These principles are Transparency,
Individual Participation, Purpose Specification, Data Minimization,
Use Limitation, Data Quality and Integrity, Security, and
Accountability and Auditing. See DHS Privacy Policy Guidance
Memorandum No. 2008-01/Privacy Policy Directive 140-06, The Fair
Information Practice Principles: Framework for Privacy Policy at the
Department of Homeland Security, available at www.dhs.gov/privacy.
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4. Recommendations for Public Charge Inadmissibility Regulations or
Subregulatory Guidance
Comment: Numerous commenters urged DHS to withdraw the rule
entirely or not proceed with finalizing it. One reasoned that
withdrawing the proposed rule would protect immigrants, their families,
health, and community stability. Another commenter wrote that DHS
should withdraw the rule in recognition that restrictive public charge
policies act as exclusionary barriers to immigration, with harmful
economic effects. Many encouraged DHS to maintain the 2022 Final Rule,
reasoning that it codified clear, narrow, or workable standards
consistent with statute and longstanding policy. One commenter said
that the existing regulations ensure transparency and that families are
not penalized for accessing health care, nutrition, housing, or other
essential supports.
Instead of implementing the proposed rule, numerous commenters
urged DHS to dedicate efforts to advancing policies that strengthen,
rather than undermine, the ability of immigrants to support themselves,
their families, and their communities; promote work, health, and family
stability, while avoiding shifting costs to State and local taxpayers,
health care providers, and businesses; support family stability,
community health, and fair administration of immigration law; and allow
immigrants to access public benefits to support their families
consistent with congressional intent and statute.
Other commenters urged DHS to pursue policy changes through
narrowly tailored regulations that adhere to statutory limits,
administrative precedent, and constitutional principles. Another
commenter advocated clear standards to reduce uncertainty-related
behavioral responses, limit downstream system costs, and support the
efficient operation of public benefit and healthcare delivery systems,
consistent with statutory intent of the public charge provision.
Commenters recommended DHS protect children's access to early education
and prevent avoidance of essential services, and adopt a human-
development centered approach that distinguishes between temporary
vulnerability and sustained dependence, evaluates social contribution
holistically, ensures proportionality, due process, and transparency,
mitigates chilling effects, and recognizes integration as a social
investment for the United States. Another commenter wrote that public
charge evaluations should be reserved for more advanced stages of the
immigration process, such as naturalization, to ensure fairer treatment
and promote a more equitable process. One commenter expressed concern
about the impact of changes to public charge rules on immigrants
suggested that DHS establish a rule where immigrants can only access
assistance after 15 years. Another stated that the issuance of Green
Cards should be based on ``the quality of humanity and morality of the
applicant,'' rather than the usage of public benefits. A commenter
reasoned that a more sensible solution to prevent immigrants from
becoming public charges would be to increase EAD access.
Response: DHS disagrees with commenters who do not want this rule
to be finalized or argue for keeping the 2022 Final Rule. The 2022
Final Rule is inconsistent with the national policy contained E.O.
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 the 2022 Final Rule
unduly limited the factors that DHS could consider in making a public
charge inadmissibility determination. Further, DHS does not believe
statutory language or intent provide for ``narrow standards'' or a
``human-development centered approach'' to the public charge
inadmissibility determination.
As discussed in other comment responses, section 212(a)(4)(A) of
the INA, 8 U.S.C. 1182(a)(4)(A), states ``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
[[Page 45411]]
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 officers must consider when making a public charge
determination: the alien's age; health; family status; assets,
resources, and financial status; and education and skills. In addition
to those five factors, the officer may also consider any affidavit of
support when making a public charge inadmissibility determination.
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 2022 Final Rule did not provide officers
with a way to consider any other factors than the express factors
listed in the regulation. 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 has removed
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.
Regarding suggestions that evaluations of dependency on government
programs should be reserved for more advanced stages of the immigration
process such as at the time of naturalization, DHS will not issue any
policies or make changes to this rule to defer a public charge
inadmissibility determination to a later stage in the immigration
process. In order to be admitted to the United States or granted
adjustment of status, aliens must establish that they are admissible to
the United States, which includes establishing that they are not likely
at any time to become a public charge.
This rule does not in any way regulate the eligibility of aliens
seeking public benefits, nor does it regulate the eligibility of an
alien seeking employment authorization. Certain aliens automatically
obtain employment authorization by virtue of their immigration status,
while others are authorized based on their immigration status or
circumstances. Congress did not include any provisions in section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), that impact an alien's
eligibility for employment authorization, and the statute does not
provide any basis under which any category of alien should be
authorized employment in the United States in order to prevent him or
her from becoming a public charge.
Additionally, Congress intended that aliens be self-sufficient, and
that the receipt of public benefits should not be an incentive to come
to the United States, and this rule aligns DHS's administration of the
INA to those principles.
Comment: Some commenters expressed general support for strict
public charge standards, advocating that only completely self-
sufficient aliens should be able to come to the United States.
Response: DHS agrees that aliens subject to the public charge
ground of inadmissibility should be self-sufficient and not depend on
the government to meet their needs. This rule seeks to better ensure
self-sufficiency. DHS firmly believes this was Congress's intent in
enacting section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and that
this rule will empower officers to consider the mandatory statutory
factors and all evidence and information specific to the alien and
relevant to the public charge ground of inadmissibility in determining
whether the alien is likely at any time to become a public charge.
Comment: Commenters recommended DHS list which benefits are
considered in public charge determinations under the rule to bring
clarity that would promote compliance, reduce litigation, and support
efficient adjudication.
Response: As stated in previous responses, DHS disagrees it must
list means-tested public benefits that will be considered in public
charge inadmissibility determination for clarity. There is no need to
spell out which benefits DHS will consider when DHS considers any
means-tested public benefit for which eligibility is determined by
assessing whether the alien's means are below the specified level. In
the context of adjustment of status, USCIS revised the Application to
Register Permanent Residence or Adjust Status to clarify that aliens
must include their receipt of any and all means-tested public benefits.
DHS believes that Congress intended that DHS could consider in its
discretion any receipt of means-tested public benefits by the alien who
is applying for admission or adjustment of status be included in the
public charge inadmissibility determination or Congress would have
expressly excluded such consideration in section 212(a)(4) of the INA,
8 U.S.C. 1182(a)(4).
Comment: A commenter requested that DHS withdraw the proposed rule
and adopt a public charge framework that includes identifying all
statutory exemptions and exceptions. The commenter believes this would
enhance survivor safety and healing rather than penalize survivors for
the violence that was inflicted on them, which would allow these
victims to heal and not be re-traumatized without fear of immigration-
related consequences.
Response: With respect to survivors of violence and trafficking
being exempt from this rule, DHS notes that such individuals are
generally exempted by statute \276\ from public charge inadmissibility
determinations whether they are expressly identified in the rule or
not. DHS will not, and cannot, exempt other classes of aliens unless
these exemptions are created by Congress. While DHS is sympathetic to
the healing of these survivors, it does not believe that this rule will
act to penalize or retraumatize this vulnerable population since it
does not change or remove any exemptions or exceptions that exist in
the law.
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\276\ INA sec. 212(a)(4)(E)(ii)-(iii), 8 U.S.C.
1182(a)(4)(E)(ii)-(iii). INA sec. 101(a)(15)(T), (U), 8 U.S.C.
1101(a)(15)(T), (U).
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5. Recommendations for Implementation
a. Public Education and Engagement
Comment: Several commenters requested public education and
engagement to address potential confusion, uncertainty, or fear under
the proposed rule, mitigate chilling effects, and protect child health,
if finalized. Some proposed multilingual communications and support for
community-based organizations to counteract misinformation and chilling
effects. Other commenters recommended that DHS withdraw the rule to
assess the real-world impacts on local governments, families, and
communities before proposing any future regulatory or policy changes
relating to the public charge ground of inadmissibility in a more
comprehensive and collaborative evaluation with public health experts
and community organizations. Others requested amplifying public
education and outreach, including multilingual, plain-language
materials that: (1) explicitly state that benefits used by U.S. citizen
children or other family members do not count against an alien
relative; (2) clearly explain that many common benefits are not
considered for public charge; and (3) are shared through trusted
community partners, clinics, schools, and legal services organizations.
One commenter said DHS should clarify that the lawful use of
[[Page 45412]]
benefits by U.S. citizens and immigrants with satisfactory immigration
status would not negatively impact family members' immigration status.
Response: DHS appreciates the suggestions but declines to provide
funding for community-based organizations to assist with outreach
efforts relating to eligibility for public benefits. DHS also does not
intend to partner with community organizations, clinics, schools, or
legal services organizations for public communication or engagement,
including State and local public health agencies. At this time, DHS
does not intend to use its resources for public engagements or
educational efforts and declines to withdraw the rule. However, DHS
will publish communication materials typical for publication of a Final
Rule of this significance, and the communication materials posted on
uscis.govare generally posted in Spanish as well as English. The
subregulatory guidance will be published in the USCIS Policy Manual in
English only, consistent with E.O. 14224, Designating English as the
Official Language of The United States, 90 FR 11363 (Mar. 6, 2025).
As previously noted, USCIS intends to clarify, in its subregulatory
guidance, that its officers consider evidence in the record the alien
him or herself has received or is currently receiving, has applied for,
or has been approved or certified to receive any means-tested public
benefits. The public charge inadmissibility determination is squarely
focused on the alien and the likelihood that he or she will at any time
become a public charge. The receipt of means-tested public benefits by
persons other than the alien is generally not relevant except in the
circumstances noted in other comment responses throughout this final
rule. USCIS will not establish, in subregulatory guidance, an
exhaustive list of which public benefits are considered ``means-tested
public benefits'' for the purpose of its implementation of the public
charge ground of inadmissibility and bonds, nor establish an exhaustive
list of benefits that are not considered ``means-tested public
benefits'' for such purposes. However, it may choose to publish
examples or non-exhaustive lists for either or both of these
categories.
b. Officer Training and Guidance
Comment: Commenters noted the importance of clear guidance for
officers concerning the factors and information they should consider
when making public charge inadmissibility determinations, to address
the potential risk of bias and uncertainty. One commenter recommended
training USCIS officers and other staff to ensure public charge
determinations are made consistently and narrowly and so that staff can
accurately answer questions from the public without overstating
potential risks. Another commenter said DHS should allow for a
transition period to educate DHS officers on new requirements.
Response: DHS is committed to taking necessary steps to ensure
consistent implementation of the public charge ground of
inadmissibility and fair adjudications by, among other things, the
issuance of subregulatory guidance and providing training to officers.
DHS declines to share its plans for training or pre- and post-
adjudicative review. As for a transition period, this rule will be
effective 60 days after it is published in the Federal Register, as is
the standard for major rules.
Comment: Another commenter urged DHS to establish clear,
transparent policies ensuring that public charge determinations are
fair, consistent, nondiscriminatory, and not arbitrary. They stated
that guidance should define evidentiary standards, permissible factors,
and officer discretion, include standardized notices and written
rationales, and provide mechanisms for review or reconsideration.
Another commenter recommended DHS require transparent decision
rationales and maintain adjudication standards limiting subjective,
discretionary determinations.
Response: DHS thanks the commenters for sharing their concerns.
USCIS will formulate and publish appropriate policy and interpretive
tools in advance of or on the effective date of this final rule to
guide officers in making public charge inadmissibility determinations
consistent with the law and based on a consideration of all relevant
evidence and information. This subregulatory guidance will not be a
legislative rule, will comply with the APA, and will have a reasonable
basis generally informed by the comments on this NPRM. It will not
limit the factors or information officers will consider to a rigid
list. While USCIS may explain evidentiary standards in subregulatory
guidance, it does not establish them using that tool (generally, form
instructions or regulations are the tools used to establish evidentiary
requirements or standards). This guidance will also not provide
mechanisms for review or reconsideration. Independent of this
rulemaking, there are already well-established procedures and appellate
rights associated with adjustment of status decisions. DHS regulations
already require officers ``explain in writing the specific reasons for
denial.'' See 8 CFR 103.3(a)(1)(i).
Comment: A commenter proposed that DHS require mandatory, trauma-
informed training for personnel on statutory exemptions, exceptions,
and waivers applicable to survivors and other humanitarian populations,
with an emphasis on consistent application. The commenter also proposed
that DHS incorporate survivor-specific examples and hypotheticals into
implementation guidance and training materials addressing cases
involving abuse, economic coercion, or trauma-related physical or
mental health conditions. They also encouraged supervisory review of
public charge determinations involving survivors or other humanitarian
categories to promote consistency and reduce error. Finally, the
commenter suggested that DHS establish mechanisms to monitor and
correct the misapplication of the public charge framework in cases
involving survivors and humanitarian populations, including the
issuance of corrective guidance where patterns of error emerge.
Response: DHS is committed to taking necessary steps to ensure
consistent implementation of the public charge ground of
inadmissibility and fair adjudication, including through USCIS'
issuance of subregulatory guidance and by training its officers. Both
the subregulatory guidance and training will emphasize the statutory
exemptions, exceptions, and waivers. Given the unique nature in which
the public charge inadmissibility ground interacts with statutes
relating to survivors and humanitarian populations (for example,
certain aliens may be exempt from the public charge ground of
inadmissibility but still required to submit a Form I-864), the
training USCIS provides will address these populations. USCIS will
institute supervisory review of denials based on public charge
inadmissibility determinations, as appropriate, to ensure consistency
and legal sufficiency, but such review policies are not tied to a
particular narrow fact pattern as the commenter proposes. As with every
statute USCIS implements, it will engage in post-decisional quality
review relating to the public charge inadmissibility, as appropriate.
Based on that review, USCIS will update and modify its training,
guidance, and procedures to correct any misapplication of the statute.
[[Page 45413]]
c. Implementation Timeframe
Comment: One commenter requested that DHS publish new guidelines
and tools before rescinding the 2022 Final Rule and provide for a
transition period to educate officers on the new requirements. Another
recommended creating appropriate interpretive tools that ``supplement,
not supplant Federal regulations'' asserting the regulations should be
removed only after such tools are developed according to a timeline
that allows for the receipt and consideration of public input. Another
commenter urged DHS to develop and propose new guidelines and
regulations before proceeding with rescinding the current public charge
framework and regulations. While acknowledging the merits of DHS's
desire to develop adaptive policies using new data, the commenter said
that repealing the current regulations before such policies and
regulations are developed and finalized would lead to uncertainty and
confusion, with downstream effects on access to health care. Another
commenter requested that the proposed rule be put on hold until there
is a research-based replacement rule, and that the understanding of
public charge not be left to individual adjudicators. An association of
State directors of adult education similarly urged USCIS to promulgate
regulations and guidance in advance of removing existing policy, to
allow programs to communicate and implement any new guidance in an
orderly and consistent manner. The commenter reasoned that federally
funded, State-administered programs like adult education rely on clear
guidance to meet negotiated performance targets, fulfill statutory
missions, and comply with Federal and State regulations. For this
reason, rescinding the 2022 regulations through the current process and
promulgating new guidance through a future process would force these
programs to operate with potentially confusing and inaccurate
interpretations of regulations, placing individuals at risk of
noncompliance.
Response: USCIS intends to formulate and publish appropriate policy
and interpretive tools in advance of or on the effective date of this
final rule to guide USCIS officers in making public charge
inadmissibility determinations consistent with the law and based on a
consideration of all relevant evidence and information. Such
subregulatory guidance will not be a legislative rule and will have a
reasonable basis that may be generally informed by comments on the
NPRM. These policies and interpretive tools are not subject to the
notice and comment requirements of the APA and DHS declines to accede
to the suggestions of these commenters. DHS does not intend to engage
in further rulemaking on this topic and will not pause rescission of
the 2022 regulations. Rescission restores broader discretion to
evaluate all pertinent facts and aligns with long-standing policy that
aliens in the United States should be self-reliant and government
benefits should not incentivize immigration.
DHS fails to see any legitimate concerns about compliance for
professionals involved in federally-funded adult education efforts
under this rule or, quite frankly, any preceding rules or policies
relating to the public charge ground of inadmissibility. Nothing about
the public charge ground of inadmissibility has any impact on program
requirements, eligibility for participation in adult education
programs, or anything else about such programs. The only potential
interaction between such programs and this ground of inadmissibility
would arise in the unlikely event that an alien subject to this ground
of inadmissibility participates in such a means-tested program. In such
a case, the officer will consider the means test associated with the
benefit as well as the circumstances surrounding the receipt, such as
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. They will also consider the recency, duration, and amount of
receipt, the reason for the receipt, and whether the reason has
persisted or is likely to persist.\277\ However, this unlikely
interaction does not in any way present a compliance risk for
federally-funded, State-administered adult education programs.
---------------------------------------------------------------------------
\277\ See, e.g., Matter of A-, 19 I&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 then employed
despite receiving public benefits for the prior 4 years.)
---------------------------------------------------------------------------
Comment: Another commenter stated that the earliest effective date
of the proposed rule should be 2099 or later, or it should otherwise
not be implemented.
Response: DHS declines to accept the recommendation. This final
rule's 60-day effective date complies with both the Congressional
Review Act and the APA (which requires a minimum of 30 days). See 5
U.S.C. 553(d) and 5 U.S.C. 801(a)(3).
Comment: Administrators of a state health insurance marketplace
expressed concerns about the timing of the rulemaking, noting they were
already halfway through Open Enrollment and that the issuance of the
final rule would not give them time to conduct appropriate outreach to
affected households enrolled in coverage for the upcoming year. They
urged DHS to delay the rule to allow State-based marketplaces to
appropriately adapt their services to the final rule.
Response: As stated in the ``Dates'' section of this final rule,
this rule is effective 60 days after publication. The consideration of
statutory factors, receipt of any means-tested public benefits, and any
other factor an officer determines is relevant to assessing the alien's
likelihood at any time of becoming a public charge will apply to
applications for admission made on or after that date and applications
for adjustment of status filed with USCIS that are postmarked (or if
applicable, electronically submitted) on or after that date.
Applications for admission made before that date and applications for
adjustment of status filed with USCIS that were postmarked (or
electronically filed) before the effective date and accepted by USCIS
pursuant to 8 CFR 103.2(a)(1) and (a)(2), and are pending on the
effective date will be adjudicated under the criteria set forth in the
2022 Final Rule.\278\ For the purposes of determining whether a case
was postmarked before the effective date of the rule, DHS will consider
the postmark date for the application or petition currently before
USCS, not the postmark date for any previously-filed application or
petition that USCIS rejected pursuant to 8 CFR 103.2(a)(7)(ii). DHS
will not further delay the effective date of this final rule.
---------------------------------------------------------------------------
\278\ Note, however, that applications filed prior to the
effective date of the 2022 Final Rule would still be adjudicated
under the 1999 Interim Field Guidance.
---------------------------------------------------------------------------
USCIS revised Form I-485 to make it clear aliens must include
information about the receipt of any and all means-tested public
benefits. It is unclear what additional outreach is needed because DHS
clarified what benefits are being considered, and by whom, and aliens
should expect any such receipt on their part will be considered as part
of the public charge inadmissibility determination. DHS reiterates
receipt of any means-tested public benefit is but one factor \279\ and
officers make a determination considering all relevant
[[Page 45414]]
factors,\280\ including the statutorily mandated factors, in the
totality of the circumstances.
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\279\ 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.'').
\280\ See, e.g., Matter of A-, 19 I&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).
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d. Monitoring and Reporting on Adjudicative Outcomes, Bonds, and
Chilling Effects
Comment: Commenters provided recommendations regarding monitoring
and oversight of public charge inadmissibility determinations,
including: robust and rigorous tracking and oversight efforts, as well
as the publication of disenrollment, denial outcomes, and bond
enforcement data to assess broken out by age, disability, family
status, and household composition. Another commenter recommended that
DHS monitor and publicly report on chilling effects, including data and
research on benefit disenrollment or non-enrollment among eligible
immigrants and mixed-status families, and use that information to guide
further clarification and outreach.
Response: DHS appreciates the suggestions relating to monitoring
and reporting. DHS already collects adjudication information as a
matter of course and USCIS systems reflect adjudicative outcomes.
However, barriers in the data remain in identifying the specific reason
for a denial. For example, while an officer adjudicating an adjustment
of status application may indicate a denial was based on section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), this reason encompasses both
denials based on an insufficient Form I-864 and denials based on an
officer's determination, in the totality of the circumstances, that the
alien was likely at any time to become a public charge. Officers may
also select from a few generic denial reasons in the system that do not
allow identifying the specific reason under section 212(a)(4) of the
INA, 8 U.S.C. 1182(a)(4), for the denial in its data. DHS does not
currently intend to publish data on adjudicative outcomes specific to
the public charge ground of inadmissibility or granular data breaking
down outcomes of public charge inadmissibility determinations based on
certain characteristics.
DHS has no method and no ability to track or publish information
relating to aliens, or others, who are not subject to the public charge
ground of inadmissibility but nevertheless choose to disenroll or forgo
enrollment in means-tested public benefits as a result of this rule.
The data relevant to evaluating the effectiveness of the rule is
different from an analysis of chilling effects. Of most importance to
DHS for evaluation is data concerning receipt of means-tested public
benefits by aliens admitted as immigrants or who adjusted status after
an officer determined they were not likely to become a public charge.
The receipt of means-tested public benefits by such individuals will
inform future policy efforts in this area.
6. Severability
Comment: A commenter disagreed with DHS's proposed changes to 8 CFR
103.6(c) being severable from the full rescission of regulatory
provisions in 8 CFR part 212, expressing concern with the statement if
``a court finds that such rescission is invalid or unenforceable . . .
nevertheless be construed so as to continue to give the maximum
effect,'' and disagreed DHS could cancel a public charge bond at any
time.
Response: The commenters did not provide reasons for disagreeing
with the severability discussion in the NPRM, so DHS is unclear
regarding the basis of the disagreement but believes the commenter
might have misunderstood DHS's proposal with respect to severability of
the bond provision(s). Unlike the remainder of the 2022 Final Rule, DHS
opted to retain the bond provisions with certain changes, as these
provisions predate both the 2019 and the 2022 Final Rules and do not
raise the same policy and legal concerns. The purpose of addressing
severability was to express a clear intent in the event of litigation
on this final rule should a court not separately find those provisions
invalid, such provision should remain valid and enforceable and not be
inadvertently swept up in an adverse decision. However, if a court
found these provisions invalid, or not excluded from any adverse
ruling, notwithstanding DHS's clear intent they remain valid, DHS would
comply with the terms of any such court order with respect to those
provisions.
7. Other Comments
Comment: One commenter stated that the NPRM alleges the rule does
not affect naturalization, but that the NPRM also includes a footnote
stating DHS will revisit whether LPR status previously granted should
have been denied on public charge grounds.
Response: DHS disagrees with this comment. The purpose of this rule
is 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).\281\ This rule does not
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).
---------------------------------------------------------------------------
\281\ See 87 FR 55472 (Sept. 9, 2022). This rule does not
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.
---------------------------------------------------------------------------
DHS acknowledges that in the context of naturalization USCIS may,
in assessing whether an alien was lawfully admitted for permanent
residence, evaluate whether the alien was admissible at the time of
admission or adjustment of status. Section 318 of the INA, 8 U.S.C.
1429, requires naturalization applicants show they were lawfully
admitted to the United States for permanent residence in accordance
with all applicable provisions of the INA in effect at the time of
admission or adjustment of status, including that they were not
inadmissible on public charge grounds at the time of lawful admission
for permanent residence.
Comment: One commenter opposed the NPRM's use of ``alien'' instead
of the word ``immigrant.''
Response: DHS uses the term ``alien'' as defined in section
101(a)(3) of the INA, 8 U.S.C. 1101(a)(3), to refer to ``any person not
a citizen or national of the United States.'' The term ``immigrant''
has a different statutory definition and is not interchangeable with
``alien.'' \282\
---------------------------------------------------------------------------
\282\ See INA sec. 101(a)(15), 8 U.S.C. 1101(a)(15).
---------------------------------------------------------------------------
Comment: A commenter suggested DHS implement streamlined
evidentiary showings, including standardized attestations rather than
extensive third-party documentation.
Response: DHS appreciates the recommendation but has not changed
evidentiary requirements associated with the public charge ground of
inadmissibility in this rule. The current regulation, this final rule,
and the proposed changes to Form I-485 (apart from the information
collected on the form itself) that accompany this rule do not address
evidence.
O. Statutory and Regulatory Requirements
1. Costs, Benefits, and Transfer Payments
a. Methodology
Comment: Commenters stated that the proposed rule understates its
scope, fails to justify replacing current effective regulations, and
does not show that its benefits outweigh widespread harms--
[[Page 45415]]
such as increased poverty, hunger, and forgone medical care. One
commenter remarked that the economic analysis used to justify the
proposed rule is ``defective,'' and provides no rational basis for
concluding that a shift to individualized decision-making would result
in more exclusions, an assumption DHS relies on to project increased
government savings. Another commenter agreed that the proposed rule is
an ``economically significant'' regulatory action but disagreed with
DHS's conclusion that its benefits outweigh its costs. A separate
commenter noted that DHS provided no analysis to support its cost-
benefit conclusions, remarking that DHS must demonstrate reasoned
policy decisions and that the public is unable to comment on a proposed
rule without such detailed analysis.
Response: DHS disagrees that the rule understates scope, fails to
justify its purpose, and does not show benefits outweigh costs. As
noted in the NPRM, the purpose of this rule is to remove overly
restrictive language established by the 2022 Final Rule, improving
implementation of the public charge ground of inadmissibility
consistent with statute, congressional intent, and binding precedent.
DHS provided both quantitative and qualitative analysis in the NPRM
and this final rule, discussing the impacts of this rule, which is
consistent with the requirements of E.O. 12866 and Circular A-4, which
call for quantification where possible and qualitative analysis where
quantification is not feasible.
Furthermore, DHS notes that the ``government savings'' referenced
by a commenter are actually the estimated transfer payments identified
in the economic analysis; no government savings were quantified in the
NPRM or in this final rule. The analysis follows the guidelines set
forth in OMB Circular A-4, which provides guidance for conducting cost-
benefit analyses and, in this case, a discussion on the distinction
between cost and/or benefits and transfer payments. As noted in OMB
Circular A-4, ``[b]enefit and cost estimates should reflect real
resource use. Transfer payments are monetary payments from one group to
another that do not affect total resources available to society.''
\283\ As such, the reduction in transfer payments is quantified in the
transfer payments section of the economic analysis, not in a cost
savings or benefits section, in accordance with OMB's Circular A-4.
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\283\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
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Comment: A commenter stated that DHS failed to analyze what
families would lose as a result of reductions in public benefits.
Specifically noting that OMB Circular A-4 instructs that reductions in
transfer payments do not by themselves represent net social benefits or
costs and should be accompanied by an assessment of their
distributional effects, and the proposed rule does not quantify
household welfare loss, health impacts, increased uncompensated care or
child poverty effects.
Another commenter requested that DHS publish a supplemental RIA
specifically quantifying the chilling effects, health outcomes,
administrative costs, and transfers with uncertainty bounds and
sensitivity analysis, and that DHS solicit public comment on this
analysis prior to rule finalization. Others said the rule failed to
analyze economic costs on state and local economies; housing, family
law, and other critical life services; survivors of domestic violence
and human trafficking; nonprofit organizations; the economic role of
immigrants; impacts on labor supply, tax revenue, housing markets, and
municipal costs; effects on WIC or school meals; and chilling effects
on groups such as citizen children or in areas such as infant health
and uncompensated care. Another commenter criticized the NPRM for
acknowledging that it would cause ``serious harm'' without adequately
analyzing those harms, particularly due to the chilling effect on
benefit use.
Response: DHS appreciates the comments regarding the economic
analysis and the requirements under OMB Circular A-4. DHS disagrees
that it failed to adequately analyze the transfer payments and their
distributional effects in response to a reduction in transfer payments.
As discussed in previous responses, the economic analysis for this
final rule was conducted based on the guidelines set forth in OMB
Circular A-4, which provides guidance to agencies for conducting cost-
benefit analyses and, in this case, a discussion on the distinction
between costs and/or benefits and transfer payments. To the extent
possible the reduction in transfer payments is quantified in the
transfer payments section of the economic analysis of this rule, in
accordance with OMB Circular A-4.\284\
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\284\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
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Furthermore, 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, and discussed these impacts qualitatively.
Where feasible, the analysis qualitatively discusses these potential
impacts. However, quantifying such effects presents significant
methodological challenges due to limited data and uncertainty regarding
the magnitude and scope of behavioral change across diverse populations
and jurisdictions. DHS requested comments on methodologies for
quantifying these non-monetized potential impacts but did not receive
any information that would allow USCIS to further quantify the chilling
effects, and therefore the final rule contains a qualitative analysis,
which includes children and uncompensated care. This approach is
consistent with the requirements of E.O. 12866 and OMB Circular A-4. In
the final rule, DHS has also expanded the economic analysis to include
Medicaid enrollment data for children and WIC in response to similar
concerns.
Comment: A commenter wrote that the proposed rule would have
greater impacts than DHS acknowledged and found it impossible to fully
estimate its impact because its provisions are too broad.
Response: DHS disagrees that the economic analysis did not
acknowledge the impacts of this rule. DHS quantified the indirect
impacts, and where quantification was not possible, the economic
analysis provided a qualitative discussion of the indirect impacts that
might result due to this rule. Due to variations in public benefit
programs across States and differences in eligibility criteria, DHS
could not quantify the number of individuals affected across all means-
tested public benefit programs. Therefore, DHS focused its economic
analysis on Medicaid, which was expanded in this final rule to include
child enrollment. The economic analysis also covered CHIP, SNAP, TANF,
SSI, Federal Rental Assistance, and WIC, which was newly included in
the economic analysis.
b. Population
Comment: A commenter objected to DHS basing its analysis on the
population of individuals subject to a public charge review, reasoning
that impacts of the proposed rule would extend to others who are not
subject, but who would choose to disenroll or forgo enrollment from
benefits for which they are eligible.
[[Page 45416]]
Response: DHS appreciates these comments. 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 in
the economic analysis, the elimination of certain definitions may lead
to public confusion or misunderstanding, which could result in
decreased participation in public benefit programs by individuals who
are not subject to public charge. DHS acknowledges in the economic
analysis that some individuals may disenroll from or forgo enrollment
in public benefit programs beyond those included in the estimates of
this analysis, particularly among populations that are not subject to
the final rule such as U.S. citizen children in mixed-status
households, longtime LPRs, and aliens in categories exempt from public
charge. However, DHS did not propose in the NPRM to, in any way,
regulate or circumscribe the ability to offer public benefits to
immigrants. Similarly, this final rule does not prohibit public
benefits providing agencies from providing benefits to immigrants or
prohibit any immigrants from receiving benefits for which they are
eligible. Aliens entitled to public benefits under Federal, State or
local law may elect to receive such benefits and this rule does not,
and cannot, change that.
Comment: A commenter stated that DHS failed to estimate the number
of public charge denials as a result of the rule and the number of
false positives or individuals inaccurately labeled a public charge
because of removing the current regulations. Another stated DHS would
deny a higher proportion of Form I-485 applications, curb the growth of
a population that constitutes the workforce in some localities, while a
separate commenter requested that DHS analyze patterns in denials of
applications to adjust status. Finally, a commenter remarked that an
analysis found that if applied to U.S. citizens, the 2019 Final Rule
would have found as many as half to be public charges.
Response: DHS appreciates the comment regarding denial rates of
aliens who apply to adjust status. As noted in the economic analysis,
an applicant can be denied on public charge grounds after a full
analysis of the totality of circumstances; however, an applicant can
also be automatically denied on public charge grounds if the required
Form I-864, Affidavit of Support Under Section 213A of the INA, is
missing or insufficient. DHS highlighted Form I-485 annual receipts,
denials (overall), and denials based on public charge grounds from FY
2020 through FY 2024. On average, denials for public charge 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.
Furthermore, a review of the data under the 2019 Final Rule and the
2022 Final Rule indicated many denials were due to a missing or
insufficient Form I-864, and not because of a totality of circumstances
discretionary analysis. During the 2019 Final Rule, approximately 88
adjustment of status applications were denied on public charge grounds;
only three denials and two Notices of Intent to Deny were based on the
totality of circumstances, all later reopened or rescinded and
approved. Therefore, no aliens were found inadmissible on the public
charge ground in the totality of the circumstances analysis under the
2019 and the 2022 Final Rules. DHS clarified in the economic analysis
of this final rule that the historical annual average total Form I-485
denial population is 68,072, and the annual average denied on public
charge grounds is 65. Additionally, several variables hinder DHS's
ability to estimate an overall denial population. For example, this
final rule applies only to all Form I-485 applications filed on or
after the effective date, and receipt of previously excluded means-
tested public benefits will not be considered if such benefits were
only received before the effective date of this final rule. Therefore,
even if DHS were to consider past patterns and trends, those would not
produce an accurate depiction of future trends.
DHS also appreciates the reference to the Center on Budget and
Policy Priorities \285\ article discussing the impacts of the 2018 NPRM
which led to the 2019 Final Rule. DHS finds the data discussed in the
article unfit to ascertain the number of denials under the 2019 Final
Rule regulatory framework. The data presented cannot be applied here
because this final rule is not replacing the 2022 Final Rule's
regulatory framework, rather it is returning to public charge
inadmissibility determinations that do not present a standardized list
of benefits that can be considered, arbitrary limitations on the
exercise of discretion, or rigid definitions and heavily weighted
negative factors. Furthermore, the cited analysis applied the 2019
Final Rule to the U.S.-born population to determine that more than half
of U.S.-born citizens would be considered a public charge. Public
charge inadmissibility determinations are not made on U.S. citizens and
are instead made on aliens who are applying for admission and
adjustment of status. DHS notes that aliens, particularly aliens who
are not LPRs or are not exempt from the public charge ground of
inadmissibility, face strict limitations on eligibility for many public
benefits. For this and other reasons, there are documented differences
in public benefits usage when comparing U.S. citizens and aliens.
Therefore, DHS is unable to project future denial populations as
discussed in section IV.A.4.d of the economic analysis. Finally, DHS
disagrees that this rule would curb the growth of a population that
constitutes the workforce. Its purpose is to improve implementation of
the public charge ground of inadmissibility, not to impede or reduce
the number of available workers in any given locality. As discussed in
Section G.3 of this final rule, the public charge ground of
inadmissibility determination implemented in this final rule will not
have a significant effect on the population of aliens in the United
States.
---------------------------------------------------------------------------
\285\ Danilo Trisi, Trump Administration's Overbroad Public
Charge Definition Could Deny Those Without Substantial Means a
Chance to Come to or Stay in the U.S. Center on Budget and Policy
Priorities, 2019. https://www.cbpp.org/sites/default/files/atoms/files/5-30-19pov.pdf.
---------------------------------------------------------------------------
Comment: A commenter remarked that DHS likely underestimated the
proportion of foreign-born population in the U.S. population by using
Census data; citing another survey finding this population could be as
high as 53.3 million individuals.
Response: DHS disagrees it underestimated the proportion of
foreign-born noncitizens in the U.S. population because it utilized
Census data. The cited study refers back to a Center for Immigration
Studies report utilizing the Current Population Survey (CPS) and
states, ``the foreign-born population as defined by the Census Bureau
includes all persons who were not U.S. citizens at birth--mainly
naturalized citizens, LPRs, long-term temporary visitors, and illegal
immigrants.'' \286\ This study encompasses the entire foreign-born
population, which includes naturalized citizens who are not subject to
public charge and do not submit Form I-485. Therefore, they are not
considered an affected population within this analysis. DHS focused
solely on the category ``Foreign born; Not a U.S. Citizen''
[[Page 45417]]
within Census data. Finally, DHS chose to use the ACS rather than the
CPS because the ACS is a cross-sectional survey that uses a larger
random sample of the population each year including current immigration
classifications.
---------------------------------------------------------------------------
\286\ Steven Camarota, Karen Zeigler, ``Foreign-Born Number and
Share of U.S. Population at All-Time Highs in January 2025,'' Center
for Immigration Studies (March 12, 2025), https://cis.org/Report/ForeignBorn-Number-and-Share-US-Population-AllTime-Highs-January-2025, (Camarota et al. (2025)).
---------------------------------------------------------------------------
Comment: A commenter said DHS's approach to estimating the number
of immigrants receiving public benefits is unsound, because it
incorrectly assumes random distribution of beneficiaries across
households, equates person-level immigrant shares with household-level
probabilities, and treats all members of immigrant households as
foreign-born benefit recipients; finding it would be more appropriate
to rely on person- or household-level microdata to directly identify
households with immigrant members receiving public benefits.
Response: DHS appreciates the comment regarding the estimation on
the number of immigrants receiving public benefits. While DHS
acknowledges that person- or household-level microdata, such as the ACS
or CPS, can be used for this stated population, these sources have
shown underreporting, misreporting, and non-response of public benefit
usage by detailed immigrant status. Given these constraints and the
uncertainty on disenrollment or forgone enrollment rates in public
benefit programs, DHS uses a range of rates to estimate the change in
disenrollment or forgone enrollment. The lower bound of 3.3 percent and
the upper bound of 17.3 percent are based on available data and reflect
the uncertainties surrounding aliens who may choose to disenroll or
forgo enrollment, an indirect impact of this rule. Within the economic
analysis, DHS acknowledges the lower bound could represent an
underestimate due to documented chilling effects on other segments of
the alien and U.S. citizen populations. The upper bound could be an
underestimate because many of the studies reviewed did not include, or
focused less on, WIC, SSI, and TANF. Conversely, the upper bound 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 not found in a longitudinal study with consistent methods.
Therefore, DHS believes presenting a range of estimates is a reasonable
approach to reflect the indirect effects of this rule.
Comment: Another commenter suggested the rule's population
estimates are flawed and do not account for other DHS actions, such as
the December 2, 2025, asylum application pause, which pushes some
migrants into immigration statuses subject to public charge.
Response: DHS acknowledges additional factors not related to this
rule may affect the estimated population, as noted in the economic
analysis. However, DHS disagrees that the December 2, 2025, asylum
pause is a relevant factor.\287\ The memo placed a temporary hold on
Form I-589, Application for Asylum and for Withholding of Removal, to
conduct a comprehensive re-review of approved benefit requests for
aliens from specific countries listed who entered the United States on
or after January 20, 2021. The memo does not prohibit the filing of
asylum applications and as stated in previous comment responses,
asylees and refugees are not subject to the public charge ground.
Aliens who believe they are eligible to apply for asylum are still able
to and will receive a proper adjudication.
---------------------------------------------------------------------------
\287\ DHS, USCIS, ``Hold and Review of all Pending Asylum
Applications and all USCIS Benefit Applications Filed by Aliens from
High-Risk Countries,'' (Dec. 2, 2025), https://www.uscis.gov/sites/default/files/document/policy-alerts/PM-602-0192-PendingApplicationsHighRiskCountries-20251202.pdf.
---------------------------------------------------------------------------
c. Costs and Impacts
i. General Comments on Costs and DHS's Analysis
Comment: Many commenters, including a form letter campaign, stated
that the proposed rule would have negative downstream effects,
including: worse health outcomes and higher prevalence of communicable
diseases; increased rates of uncompensated care and lower revenues for
healthcare providers participating in Medicaid; increased poverty,
housing instability, reduced productivity, and lower educational
attainment; reduced income for companies manufacturing medical supplies
or pharmaceuticals; decreased sales for grocery retailers and
agricultural producers supplying SNAP-eligible foods; and financial
strain on landlords participating in federally funded housing programs.
Response: DHS appreciates the comments and agrees 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, as explained in the economic
analysis. DHS discusses these impacts qualitatively in the economic
analysis. DHS notes that these negative downstream effects are
primarily due to disenrollment or forgone enrollment in public benefits
programs due to fear or confusion by otherwise legally eligible
beneficiaries. However, quantifying such effects presents significant
methodological challenges due to limited data and uncertainty regarding
the magnitude and scope of behavioral change across diverse populations
and jurisdictions.
Comment: Commenters expressed concern that DHS's cost-benefit
analysis in the proposed rule is inadequate and fails to account for
many significant costs and requested that DHS publish more robust
impact analyses; criticized the rule's impact analysis, stating that it
included no or insufficient analysis of its potential impacts on
particular benefit programs, types of entities, or other aspects of
society, including: WIC and other child nutrition programs; public
health; healthcare providers (e.g., uncompensated care and other
reduced revenues); community stability; survivors of domestic violence
and trafficking (including that abusers will be able to prove to their
victims that they could be deported for seeking help); nonprofit
organizations; USCIS' administration of the rule and other immigration
benefits; State and local governments; public schools (i.e., a free
public benefit provided at the State and local level); vulnerable
populations; immigrants' willingness to file taxes; State and local
programs, such as school meals, public pre-K, child care subsidies, and
housing programs; and the workforce.
Response: DHS disagrees that the economic analysis is inadequate,
failed to account for costs related to this rule, or did not discuss
the impacts of the rule at great lengths. DHS quantified the indirect
impacts of this rule, and where quantification was not possible, the
economic analysis provided a qualitative discussion of the impacts that
might result due to this rule, which is consistent with the
requirements of E.O. 12866 and Circular A-4, which call for
quantification where possible and qualitative analysis where
quantification is not feasible. DHS also disagrees that it did not
include analysis on particular benefit programs. Due to variations in
public benefit programs across States and differences in eligibility
criteria, DHS could not quantify the number of individuals affected
across all means-tested public benefits programs. Therefore, DHS
focused on Medicaid, which has been expanded in this final rule to
include child enrollment, CHIP, SNAP, TANF, SSI, Federal Rental
Assistance, and
[[Page 45418]]
WIC, which was newly included in the economic analysis.
Finally, DHS disagrees that the analysis did not account for
downstream effects. The economic analysis qualitatively discusses how
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. DHS also recognizes that reductions in enrollment of public
benefit programs may also affect State and local economies, businesses,
and individuals. While not all potential impacts could be quantified,
to the extent practicable, DHS provided a comprehensive analysis of the
rule's anticipated effects.
ii. Indirect Economic Impacts
a. General Economic Impacts
Comment: Some commenters generally warned that reducing benefits
would reduce broader economic activity, ultimately leading to reduced
tax receipts. Several commenters cited an economic analysis by George
Washington University researchers that found that State economies could
lose about $27.4 billion in 2026 due to the proposed rule,
approximately one-third more than the direct loss of Federal funds, and
that about 212,000 jobs would be lost that year because of the ripple
effects of the rule, particularly in the healthcare sector due to the
loss of Medicaid and CHIP coverage. One of the commenters also provided
upper and lower bound impact estimates, with $13.7 billion and 106,000
jobs lost at the lower end, and $41.2 billion and 318,000 jobs on the
upper end, while adding the economic impact would translate into $2
billion in lost State and local tax revenue, and explained the
mechanisms by which the losses would be incurred: reduced Medicaid and
CHIP benefits would reduce revenue to healthcare providers; those
businesses would then have less money to pay for staff, equipment, and
facilities; the healthcare providers and their suppliers would then be
forced to lay off employees; and laid off employees would spend less on
consumer goods and other needs.
A commenter cited an analysis of the 2019 NPRM by the Fiscal Policy
Institute that estimated it would have led to a reduction of gross
domestic product (GDP) by $24 billion and the loss of 164,000 jobs
nationally. A commenter stated that economic analysis of the ACA
Medicaid expansion in Colorado showed that expanding Medicaid added
more than 31,000 jobs, increased economic activity by $3.8 billion, and
raised household earnings by $643, and that for every alien disenrolled
from Medicaid, Colorado loses $3,277 in state GDP, $1,214 in household
earnings, and leads to employment loss of 0.02.
A commenter stated that DHS failed to estimate the key costs from
lost tax revenues and foreseeable reductions in immigration. The
commenter cited the National Academies of Sciences estimate that recent
immigrants contribute substantially more in tax revenue than they
receive in benefits--approximately $150,000 in net present value per
immigrant over a lifetime. Another commenter similarly remarked that
DHS needs to account for the economic benefits, produced by immigrant
families, that would be lost as a result of the rule.
Response: DHS appreciates the concerns regarding lost revenue and
broader economic impacts. DHS recognizes the studies cited by the
commenters that reference the loss of Federal funds to State and local
economies. However, this final rule does not appropriate or rescind
funding for public benefits programs, nor does it change eligibility
requirements for those who are eligible. The transfer payments
described in the economic analysis result from individuals who choose
to disenroll or forgo enrollment in public benefit programs and
represent reduced payments from Federal and State governments to
certain individuals who would otherwise receive public benefits, which
is not a loss of Federal funding to State and local governments.
DHS also recognizes the studies cited by the commenters and agrees
that reductions in transfer payments could have downstream effects,
such as reduced productivity, and lower revenues for healthcare
providers participating in Medicaid, all of which could lead to job
loss as described by the commenters. DHS provides a more extensive list
of the primary non-monetized potential consequences of the final rule
in the economic analysis.
Additionally, DHS agrees that there is potential for reduced
economic activity, and consequently lower tax revenue, as a result of
decreased participation in public benefit programs. As noted in the
NPRM, reduced access to public benefit programs by eligible
individuals, including aliens and U.S. citizens in mixed-status
households, may lead to impacts on State and local economies,
businesses, and individuals. Reductions in transfer payments may also
have a disproportionately larger impact on low-income individuals and
households, who tend to have a higher marginal propensity to consume
and a higher marginal utility of consumption. As a result, reductions
in their payments can lead to decreased spending, lower total welfare,
and overall reduced economic activity.
This rule also does not in any way regulate or circumscribe the
eligibility of aliens seeking public benefits. Similarly, this final
rule neither prohibits public benefits providing agencies from
providing benefits to immigrants nor prohibits any category of
immigrants from receiving any benefits for which they are eligible.
b. Healthcare System Impacts
Comment: Commenters expressed concern about significant economic
impacts on healthcare systems resulting from the proposed rule.
Specifically, they highlighted the rule's potential to cause
disenrollment from Medicaid, warning that reductions in Medicaid
utilization would shift costs to emergency departments and
uncompensated care, thereby creating financial strain on the healthcare
system. Commenters cited a Manatt Health analysis of the 2018 NPRM,
which estimated that the rule put $17 billion in payments to hospitals
at risk, and reference research finding that each newly uninsured
person is associated with a $900 increase in uncompensated care
annually. One commenter noted that federal courts found the 2019 Final
Rule was likely to cause substantial fiscal and public health harms due
to disenrollment and uncompensated care. Additionally, research was
cited finding that, contrary to DHS's assertion that immigrants'
disenrollment from public health insurance would lead to a reduction in
government expenditure, cost savings from limiting Medicaid are
outweighed by the resulting costs of uncompensated care. Another
analysis of the 2019 Final Rule estimated that safety net clinics and
hospitals were at risk of losing $346 to $624 million, while others
raised concerns about negative impacts on community health centers
(CHCs). From a local business context, a commenter wrote that medical
offices and hospitals would be impacted by reduced usage.
Response: DHS appreciates the concerns regarding costs on the
healthcare system as a result of this rule and the concerns regarding
the impacts on community health centers, and medical offices and
hospitals. DHS also recognizes the studies cited by the commenters and
agrees that reductions in transfer payments could have downstream
effects that lead to increased use of emergency rooms for primary care
due to delayed treatment,
[[Page 45419]]
and increased rates of uncompensated care, where treatments or services
are not paid for by insurers or patients. As noted in the NPRM, 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, and may also affect State and local economies, businesses,
and individuals.
DHS also acknowledges the estimates cited by the commenters
recognize that some entities, such as hospitals, may experience higher
administrative costs as eligible individuals and families cycle on and
off public benefit programs more frequently by enrolling during times
of need and disenrolling due to fear or confusion. These potential
impacts are discussed qualitatively because DHS is unable to determine
the entities that will choose to make administrative changes to their
business processes. However, the NPRM did not propose in any way to
regulate or circumscribe the eligibility of aliens seeking public
benefits. Similarly, this final rule neither prohibits public benefits
providing agencies from providing benefits to immigrants nor prohibits
any category of immigrants from receiving any benefits for which they
are eligible. While these indirect impacts are recognized and discussed
qualitatively to the extent possible in the economic analysis for this
final rule, DHS is generally not able to estimate all the additional
indirect costs that would likely be incurred because of follow-on
economic effects of the initial indirect costs identified in the rule
due to the wide range of these costs.
Comment: One commenter mentioned that there are significant
economic costs associated with the public health consequences of
individuals forgoing medical treatment, such as increases in the spread
of communicable diseases (e.g., citing a studying finding that the flu
costs the United States more than $87 billion annually). Another cited
a study finding that public charge immigration requirements have made
immigrants less likely to receive free immunization services, while
another similarly stated that DHS failed to account for the costs
associated with a potential increase of communicable disease. A
commenter expressed particular concern about this occurring due to an
increase in the number of unvaccinated children and recommended that
DHS incorporate a comprehensive analysis of downstream impacts on
population health, communicable disease prevention, maternal and child
health, and health equity into the final rule.
Response: DHS appreciates the commenters' concern regarding the
spread of communicable diseases. DHS acknowledges in the economic
analysis various indirect effects that could occur because of follow-on
effects of the reduction in transfer payments identified in the final
rule. DHS provides a list of the primary non-monetized potential
consequences of the final rule where disenrollment or forgoing
enrollment in public benefits programs by aliens who are otherwise
eligible could lead to issues such as higher prevalence of communicable
diseases, including among U.S. citizens who are not vaccinated.
Due to data limitations, DHS is generally not able to estimate all
the additional indirect costs that would likely be incurred because of
follow-on economic effects of the initial indirect costs identified in
the rule due to the wide range of these costs. Although commenters
provided studies on the costs of potential public health consequences,
the studies cited lacked sufficient information to quantify these
costs. For example, one study estimated the annual cost of the flu in
the United States at $87 billion, but did not provide data on the
number of aliens or vaccine cost breakdowns. Another study addressed
immigrant use of immunization services but focused only on undocumented
immigrants, which is not the population covered by this final rule.
Therefore, since DHS did not receive adequate methodologies for
quantifying these non-monetized potential impacts, the final rule
contains a qualitative analysis. This approach is consistent with the
requirements of E.O. 12866 and OMB Circular A-4, which call for
quantification where possible and qualitative analysis where
quantification is not feasible.\288\
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\288\ E.O. 12866 is available at https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf; OMB Circular A-4
(Sept. 17, 2003) is available at https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
---------------------------------------------------------------------------
DHS reiterates this rule is not purporting to regulate which aliens
may receive public benefits, nor is it regulating who may choose to
receive a vaccine. Furthermore, this rule does not apply to U.S.
citizens or aliens exempt from the public charge ground of
inadmissibility. Finally, consideration of means-tested public benefits
applied for, approved or certified to be received by aliens who are
both eligible for a public benefit and subject to the ground of
inadmissibility will apply to the aliens and not family members except
as outlined elsewhere in this rule.
Comment: A commenter stated that immigrants make up a significant
share of the health care workforce that the system cannot afford to
lose, with approximately 2.8 million immigrant health care workers in
the United States comprising more than 17 percent of all people working
in health and medicine.
Response: DHS appreciates the concern regarding the immigrant
workers who make up a portion of the healthcare workforce. DHS
acknowledges in the economic analysis that various indirect effects
could occur as a result of reductions in transfer payments identified
in the final rule, such as lower revenues for healthcare providers
participating in Medicaid. However, this rule does not target or
restrict employment for immigration health care workers. DHS reiterates
the purpose of this rule ensures that applicants for adjustment of
status to LPR who are subject to the public charge ground of
inadmissibility, are self-sufficient, i.e., relying on their own
capabilities and resources of their family, sponsor, and private
organizations, rather than depending on public resources.
c. Nutrition Program Impacts and Related Downstream Effects
Comment: A commenter remarked that the United States faces
substantial annual costs, estimated to be $178 billion in 2014, in
avoidable healthcare costs attributable to hunger, and that SNAP
disenrollments would exacerbate this problem. Several commenters cited
USDA estimates that every dollar in SNAP benefits generates between
$1.54 and $1.80 in local economic activity, meaning that reduced SNAP
participation would have a negative multiplier effect throughout local
economies. Another commenter similarly expressed concern that a
reduction in SNAP enrollment would have negative ripple effects across
the economy. Finally, another commenter said that DHS overlooked
benefits programs that provide significant economic stimulus (e.g., the
Department of Agriculture in 2019 estimates that every $1 of SNAP
benefits yields $1.54 in economic activity).
Response: DHS appreciates concerns about the healthcare costs
attributable to hunger that could result from disenrollment from SNAP.
As noted in the NPRM, 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, and may also affect State and
local economies, businesses, and individuals.
[[Page 45420]]
However, DHS did not in any way propose in the NPRM to regulate or
circumscribe the eligibility of aliens seeking public benefits.
Similarly, this final rule neither prohibits public benefits providing
agencies from providing benefits to immigrants nor prohibits any
category of immigrants from receiving any benefits for which they are
eligible. While these indirect impacts are recognized and discussed
qualitatively to the extent possible in the economic analysis for this
final rule, DHS is generally not able to estimate all the additional
indirect costs that would likely be incurred because of follow-on
economic effects of the initial indirect costs identified in the rule
due to the wide range of these costs.
Furthermore, DHS recognizes USDA's report in 2019 that for every $1
of SNAP benefits can generate $1.50 or more in economic activity during
an economic downturn. However, DHS disagrees that these effects were
overlooked. As stated in the economic analysis, where quantification
was not possible, DHS provided a qualitative discussion of these
broader economic impacts, including the potential for reduced economic
activity as a result of decreased participation in public benefit
programs. DHS acknowledges that reductions in transfer payments may
have a disproportionately large impact on low-income individuals and
households, who tend to have a higher marginal propensity to consume
and a higher marginal utility of consumption. However, DHS notes that
unlike direct costs, which involve a consumption of resources (like
labor or materials), transfers move money from one group to another,
such as from taxpayers to beneficiaries, without a direct change in
aggregate social welfare.
d. School and Education System Impacts
Comment: Commenters expressed concern about the economic impacts on
schools and educational systems, raising burdens to local school
districts through loss of Medicaid reimbursement for special education
services and reduced participation in school meal programs. Other
commenters expressed concern that the impacts to mixed status families
would extend beyond immigrant families experiencing poverty, affecting
program viability and its ability to serve all eligible children, and
criticized the NPRM for not analyzing this effect. Finally, another
commenter stated that losing economies of scale due to immigrant
children disenrolling would make it more difficult for the program to
serve other eligible children.
Response: DHS appreciates concerns about the impacts on schools and
educational systems. As noted in the NPRM, 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, and may also affect
State and local economies, businesses, and individuals. DHS is not able
to quantify these impacts due to uncertainty and availability of data.
DHS discussed these impacts qualitatively to the extent possible in the
economic analysis for this final rule.
However, DHS did not in any way propose in the NPRM to regulate or
circumscribe the eligibility of aliens seeking public benefits.
Similarly, this final rule neither prohibits public benefits providing
agencies from providing benefits to immigrants nor prohibits any
category of immigrants from receiving any benefits for which they are
eligible. While these indirect impacts are recognized and discussed
qualitatively to the extent possible in the economic analysis for this
final rule, DHS is not able to estimate all the additional indirect
costs that would likely be incurred because of follow-on economic
effects of the initial indirect costs identified in the rule due to the
wide range of these costs.
e. Denial of Entry or Adjustment of Status
Comment: A commenter expressed concern that DHS fails to
acknowledge the denial of entry for ``hundreds of thousands of
immigrants'' as a cost of removing structured application review in
favor of subjective determinations by consular officers further stating
that the proposed rule would prevent many citizens from living with
their relatives and would have a ``life-changing impact'' on U.S.
citizens. Another commenter noted the proposal does not adequately
capture qualitative impacts on ``dignity, equity, and fairness,'' and
reasoned its inclusion would exacerbate the chilling effect impacting
eligible groups such as U.S. citizen children.
Response: DHS appreciates the comments but notes this final rule
stems from a DHS proposal to remove the DHS 2022 Final Rule and
addresses the administration of the public charge ground of
inadmissibility only by DHS, not by DOS. As noted in the NPRM, the
estimation of costs and benefits for this rule focuses on individuals
applying for adjustment of status with USCIS using Form I-485, although
the 2022 Final Rule also generally governed inadmissibility
determinations made by CBP. Aliens apply for adjustment of status from
within the United States, rather than applying for a visa from a DOS
consular officer at a U.S. embassy or consulate abroad. DOS consular
officers are responsible for applying the public charge ground of
inadmissibility as part of the visa application process. This rule does
not revise DOS standards or processes. In addition, as stated in the
NPRM, DHS acknowledges that aliens at or between ports of entry seeking
admission to the United States with CBP are generally subject to the
public charge ground of inadmissibility, though some may be exempt by
law. However, DHS cannot quantify the number of aliens who would appear
to be inadmissible to CBP under this final rule due to uncertainty
regarding the number of aliens who would be encountered at or between
ports of entry, as well as the discretionary authority officers and
agents have in determining whether an alien appears to be a public
charge. For this reason, DHS qualitatively acknowledges the potential
impact. Furthermore, this rule does not prevent U.S. citizens from
living with their relatives but ensures that applicants for adjustment
of status to that of an LPR who are subject to the public charge ground
of inadmissibility, are self-sufficient.
DHS also recognizes that E.O. 12866 and E.O. 13563 direct agencies
to consider regulatory approaches that maximize net benefits, including
consideration of values that are difficult or impossible to quantify,
such as equity, human dignity, and fairness. However, DHS disagrees
this rule did not adequately capture impacts on ``dignity, equity, and
fairness.'' DHS did not propose in the NPRM to, in any way, regulate or
circumscribe the ability of states to offer public benefits to
immigrants. Similarly, this final rule neither prohibits states from
providing benefits to immigrants nor prohibits any category of
immigrants from receiving any state or local benefits for which they
are eligible. Aliens eligible for means-tested public benefits under
Federal, Tribal, State, territorial, or local law may elect to receive
such benefits. However, DHS believes the receipt of public benefits
should not be an incentive to come to the United States and aligns
DHS's administration of the INA to those principles.
iii. Administrative Burdens and Costs
a. Rule Familiarization
Comment: A commenter said the 2018 NPRM, which the commenter
characterized as ``far narrower'' in scope than the 2025 NPRM,
estimated that
[[Page 45421]]
familiarization would take 8 to 10 hours; the commenter reasoned the
current rulemaking would require significantly greater time and
resources to understand and implement. Similarly, another commenter
stated that DHS estimates that it will take an individual 2 to 3 hours
to read the proposed rule in its entirety and understand its
application to themselves, is an unreasonable expectation for families
struggling to make a daily living and DHS's estimate of an opportunity
cost of $96.10 to $144.15 per individual is an underestimate, not
accounting for the time spent with service providers determining
eligibility for public benefits, consultations with immigration
attorneys, or time spent navigating the nation's complex immigration
laws.
Response: DHS appreciates the concerns regarding the
familiarization costs in the economic analysis but disagrees that
familiarization costs are underestimated. These costs involve the time
spent reviewing a rule to familiarize themselves with it, not the time
spent determining eligibility for public benefits programs or
consulting with an attorney about immigration law. An alien might
review the rule to determine whether they are subject to the rule. To
the extent an individual who is directly regulated by the rule incurs
familiarization costs, those familiarization costs are a cost of the
rule. Other entities or individuals who choose to read the rule such as
immigration lawyers, immigration advocacy groups, benefits providing
agencies, nonprofit organizations, non-governmental organizations, and
religious organizations, among others, would be considered costs of
this rule as well. However, DHS recognizes they would incur the same
opportunity cost of time.
As stated in the NPRM, DHS assumes the average professional reads
technical documents at a rate of about 250 to 300 words per minute.
Based on the approximate word count of the NPRM, DHS estimated for the
NPRM it will take approximately 2 to 3 hours per person to read the
rule. The 2019 NPRM was a much longer document, containing 183 pages,
whereas this rule's NPRM was 57 pages. DHS applied the same methodology
as was conducted in the 2019 Final Rule.
DHS requested public comments on appropriate methodologies for
quantifying the number of individuals who would choose to familiarize
themselves with this rule but did not receive any comments. Therefore,
DHS uses the same methodology in this final rule, to update the
familiarization costs. Using the average total rate of compensation as
$48.05 per hour for all occupations, DHS estimates the time necessary
to read this final rule is approximately 8 to 9 hours, with an
opportunity cost of time ranging from about $384.40 to $432.45 per
individual who must read and review the final rule. Due to data
limitations, DHS is unable to estimate or quantify the number of
individuals who will familiarize themselves with this rule.
Comment: A commenter cited a study and expressed concern about the
high administrative burden, such as the compliance costs, from
restrictive public benefits rules and the impact on children's access
to benefits. Another commenter generally expressed concern that the
proposed rule would add significant administrative burden to ``an
already strained system.''
Response: DHS appreciates the concerns regarding the administrative
and compliance costs expressed by the commenters. DHS agrees that some
entities, such as public benefits providing agencies, may incur an
increase in familiarization and regulatory costs as described in the
economic analysis. However, DHS considers these costs as qualitative,
unquantified effects of the final rule.
Furthermore, DHS disagrees that this rule would impact children's
access to public benefits. DHS reiterates this rule is not purporting
to regulate who may receive public benefits and any individual,
including children, who are entitled to public benefits may elect to
receive such benefits.
b. State and Local Government Administrative Costs
Comment: Commenters stated the proposed rule would increase
``churn'' in benefit programs, as consumers disenroll and then re-
enroll when circumstances become dire, resulting in duplicative work
for agencies. One of these commenters cited a study of health
insurance-related churn found the costs averaged between $400 to $600
for each instance of churn that requires a new application. Another
commenter cited a study of SNAP-related churn found the costs averaged
$80 for each instance of churn that requires a new application.
Additionally, many commenters specifically stated fear-based
disenrollment and other confusion about the impacts of the proposed
rule will significantly increase hospital administrative burdens and
long-term costs, impacting patient care for everyone. A different
commenter expressed concern that State and local agencies would be
unable to handle the additional burden of facilitating mass
disenrollment and confusion, stating agencies would have to redesign
benefits systems to ensure individuals are not at public charge risk.
Finally, a separate commenter concluded the withdrawal of individuals
from Federal benefits programs and resulting increased reliance on
State, county, and municipal governments would, among other impacts,
increase administrative workloads for States.
Response: DHS appreciates receiving comments regarding the
potential for increased ``churn'' in benefit programs and the
associated administrative costs. DHS recognized in the NPRM that some
entities may experience 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 may result in higher administrative costs for
states and agencies. DHS discusses these potential impacts
qualitatively in the analysis of this final rule. However, DHS is
unable to determine the entities that will choose to make
administrative changes to their business processes or how extensive
those changes would be.
Comment: Many commenters remarked that the proposed rule would
increase costs and administrative burdens on State and local
governments and agencies, requiring significant resources for staff
training, updating forms and notices, revising guidance materials, and
responding to increased inquiries from confused residents. Commenters
asserted that DHS incorrectly assumed these would be one-time costs.
Commenters stated that increased costs and burdens are compounded
during times of disaster. Several commenters emphasized that the
pressure on State and local governments to fund public programs comes
at a time when States are already facing significant Federal
disinvestment in core public benefits, citing changes to SNAP under the
July 4, 2025, budget reconciliation law (H.R. 1), and expressed concern
about compounding effects and exacerbated impacts given the significant
changes to Medicaid and SNAP. Similarly, commenters expressed concern
that the NPRM ignored the fact that many benefit programs are jointly
financed between the States and the Federal Government, which would
require States to backfill coverage with their own funds and absorb
costs. Commenters provided annual estimates of $500 million in
California and $400 million in New York. A commenter from Illinois
estimated that 1 hour of training for caseworkers would require more
than 3,300 person-hours and over
[[Page 45422]]
$140,000, and that caseworkers would need to advise and support
individuals seeking to disenroll from benefits, which could cost up to
$5.6 million in staff time.
Many commenters stated immigrant populations contribute
significantly to local and State taxes, helping municipalities fund
public programs that benefit all residents. Another commenter noted
that in States such as Massachusetts, local governments operate health
systems and will require increased State and local revenue to serve a
greater number of uninsured individuals as a result of the rule.
Response: DHS appreciates concerns about the potential increase in
costs and administrative burdens to State and local governments and
agencies. DHS agrees that some State and local governments and agencies
may incur costs related to changes that commenters identified, such as
an increase in familiarization and regulatory costs, as discussed in
the economic analysis. However, DHS considers these costs as
qualitative, unquantified effects of the final rule since it is unclear
how many entities will choose to make administrative changes to their
business processes as a result of this rule. Any downstream effects on
State and local governments and agencies specific to this rule would
arise solely due to their voluntary choices and would not be a
consequence of an enforceable duty imposed by this rule. Additionally,
DHS has updated the economic analysis in this final rule to make it
clearer that these administrative costs could be ongoing for entities
who chose to make changes to their business practices.
Furthermore, DHS disagrees with the commenter's assertion that
every reduction in Federal transfer payments requires State and local
governments to adjust and/or increase their budgets and absorb
additional costs. This final rule does not add or take away funding for
public benefits programs, meaning that States are not required to
change how they contribute funds to these programs. The transfer
payments described in the economic analysis are about individuals who
choose to disenroll or forgo enrollment in public benefit programs and
represent fewer payments from Federal and State governments to those
individuals who choose to no longer enroll in these programs.
Furthermore, this rule does not regulate how State and local
governments administer such programs, and any changes that they choose
to make to their budgets would not arise as a result of this rule.
DHS also appreciates concerns about the potential additional strain
on State and local governments and other public benefits providing
agencies, such as healthcare facilities. DHS recognizes external
factors unrelated to this rule, such as H.R. 1, are expected to
indirectly impact State and local governments and other entities that
administer public benefits due to recent changes to Medicaid and
SNAP.\289\ However, it is too early to assess the impact of these
policies, particularly regarding public benefit usage, and
consequently, overall impacts.
---------------------------------------------------------------------------
\289\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
---------------------------------------------------------------------------
Finally, DHS acknowledges the comments regarding local and State
taxes and agrees there is potential for reduced economic activity, and
consequently lower tax revenue, as a result of decreased participation
in public benefit programs. As noted in the NPRM, reduced access to
public benefit programs by eligible individuals, including aliens and
U.S. citizens in mixed-status households, may lead to impacts on State
and local economies, businesses, and individuals. Reductions in
transfer payments may also have a disproportionately larger impact on
low-income individuals and households, who tend to have a higher
marginal propensity to consume and a higher marginal utility of
consumption. As a result, reductions in their payments can lead to
decreased spending, lower total welfare, and overall reduced economic
activity. USCIS has qualitatively discussed these potential impacts in
the 12866 section but is unable to quantify them. DHS notes that this
rule does not in any way regulate or circumscribe the eligibility of
aliens seeking public benefits. Similarly, this final rule neither
prohibits public benefits providing agencies from providing benefits to
immigrants nor prohibits any category of immigrants from receiving any
benefits for which they are eligible.
c. Housing Provider Administrative Costs
Comment: Commenters expressed concern about administrative burdens
and costs the proposed rule would impose on housing providers and
public housing authorities, including: answering consumer questions
about the rule; more bureaucratic procedures and costs from increased
call volumes, updates to forms and notices, increased tenant turnover,
leading to reduced quality of services; and needing to provide
immigrants with documentation regarding their history of benefit
receipt, creating additional administrative costs for affordable
housing providers that are not equipped financially nor have the
capacity to respond to these queries; all of which lead to immigrants
forgoing housing assistance, increased tenant turnover, and increased
homelessness. Specifically, one of these commenters noted, in San
Francisco, this could lead to tens of millions in additional costs to
provide re-housing services locally.
Response: DHS appreciates receiving comments regarding the
potential administrative burden and associated costs. As noted in the
NPRM, DHS recognizes that some entities may experience administrative
costs associated with familiarization with the provisions of the rule.
These costs include the opportunity cost of time to read the proposed
rule and subsequently determine applicability of the rule's provisions.
DHS estimates the time to read this final rule in its entirety would be
8 to 9 hours per individual. DHS estimates that the opportunity cost of
time will range from about $384.40 to $432.45 per individual who must
read and review the proposed rule. However, DHS cannot determine the
number of individuals who will read the proposed rule, nor determine
the entities that will choose to make administrative changes to their
business processes.
DHS also appreciates concerns about the risk of homelessness. As
noted in the NPRM, 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, and may also affect State and
local economies, businesses, and individuals. These are discussed in
the economic analysis, but DHS is generally not able to quantify these
impacts due to uncertainty and availability of data. Further, DHS did
not propose in any way in the NPRM or this final rule to regulate or
circumscribe the eligibility of aliens seeking public benefits.
Similarly, this final rule neither prohibits public benefits providing
agencies from providing benefits to immigrants nor prohibits any
category of immigrants from receiving any benefits.
d. Federal Agency Administrative Costs
Comment: Commenters expressed concern about the administrative
costs the proposed rule would impose on Federal agencies, particularly
USCIS. Commenters stated the cost analysis in the rule addresses only
the costs to the public, not the administrative costs to USCIS of
implementing the rule.
Response: DHS acknowledges concerns about potential future costs to
USCIS; however, DHS sets the fees
[[Page 45423]]
associated with requesting immigration benefits as necessary to recover
the full operating costs associated with administering the nation's
lawful immigration system, safeguarding its integrity, and adjudicating
immigration benefit requests efficiently and fairly. Nonetheless,
should DHS determine the fees set for the relevant forms related to the
public charge review process are not sufficient to cover the full cost
of the associated services adjudicating immigration benefit requests,
the agency will propose to adjust these form fees in a subsequent fee
rule.
Comment: A commenter stated the proposed rule would reduce revenue
for USCIS because it would deprive USCIS of filing fees associated with
non-victim-based applications for adjustment of status and the cost-
benefit analysis for the proposed rule does not account for this. The
commenter stated that failure to consider the costs of a proposed rule
while only considering the rule's financial benefits violates the APA.
Response: DHS disagrees that the rule deprives USCIS of revenue. As
shown in the NPRM, the number of receipts for Form I-485 remained
relatively steady over a six-year period from FY 2019 to FY 2024. DHS
did see a period of low applications in FY 2020, 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. Due to the relative stable receipts over
the prior six-year period DHS estimates the projected annual average
total population of aliens filing Form I-485 is 727,192. Therefore, the
economic analysis does not consider a significant loss of revenue.
iv. Failure To Meet Impact Analysis Requirements
Comment: Commenters stated the proposed rule fails to meet the
requirements of E.O. 13563, which directs agencies to propose or adopt
a regulation only upon a reasoned determination that its benefits
justify its costs; the regulation is tailored to impose the least
burden on society, consistent with achieving the regulatory objectives;
and in choosing among alternative regulatory approaches, DHS selected
those approaches that maximize net benefits. Other commenters generally
remarked the NPRM's analysis of impacts is insufficient to the point of
violating E.O. 12866 and E.O. 13563, while one commenter stated DHS
failed to consider the benefits of individuals receiving the public
benefits subject to the rule, writing that Congress has stated those
benefits advance social strength, public health, and self-sufficiency.
Another commenter wrote the cost-benefit analysis presents an
incomplete and potentially misleading picture of the NPRM's true
economic consequences, as it treats lower enrollment and lower spending
on low-income families as a positive effect of the rule without
assessing the associated losses to low-income families, including those
with U.S. citizen children. Joint commenters wrote DHS should carefully
weigh all the attendant costs and benefits of the proposed rule,
stating the public is unable to comment on whether DHS appropriately
weighed the costs and benefits since DHS has not offered any analysis.
Providing detailed remarks, they said their work on behalf of low-
income individuals suggests there will be costly implications of the
proposed rule that go far beyond access to benefits. Another commenter
wrote the negative impacts resulting from a lack of access to basic
services harm the health of both immigrants and U.S. citizens and would
likely cost more in the long-term than the immediate savings in Federal
and State budgets made by the NPRM.
Additionally, another commenter wrote that the RIA omits or
understates the downstream costs of the predictable chilling effects,
failing to comply with E.O. 12866, which requires transparent and
evidence-backed assessments of the need for the proposed rule and its
quantified costs and benefits. The commenter stated the proposed rule
does not comply with OMB Circular A-4, which explicitly requires
agencies to articulate indirect effects such as health impacts and
distributional consequences, and referenced several studies and DHS's
own 2022 Final Rule highlighting the substantial costs of the chilling
effects. Costs mentioned include but are not limited to ``additional
administrative frictions at State agencies'' that lead to loss of
resources and uncompensated care absorbed by hospitals and State and
local governments. The commenter requested the RIA present which groups
(e.g., U.S.-born children, State and local taxpayers, safety-net
providers) bear the calculated costs and forgone benefits, as per
Circular A-4 directions.
Response: DHS disagrees that the economic analysis is insufficient.
As noted in the NPRM, due to data limitations, DHS is generally not
able to estimate all the additional indirect costs that would likely be
incurred because of follow-on economic effects of the initial indirect
costs identified in the rule due to the wide range of these costs. DHS
provides a list of the primary non-monetized potential consequences of
the final rule, where disenrollment or forgoing enrollment in public
benefits programs by aliens who are otherwise eligible could lead to
issues such as those described by the commenters. The economic analysis
describes, to the extent possible, the populations that could be
affected as a result of a decrease in public benefit participation.
These are all considered non-monetized impacts of the final rule and
are discussed qualitatively. This approach is consistent with the
requirements of E.O. 12866 and OMB Circular A-4, which call for
quantification where possible and qualitative analysis where
quantification is not feasible. Furthermore, DHS notes the ``savings''
that a commenter refers to are actually the estimated transfer payments
of the rule as shown in the economic analysis. The reduction in
transfer payments is quantified in the transfer payments section of the
economic analysis of this rule, not in a cost savings or benefits
section, in accordance with OMB's Circular A-4.
DHS also disagrees that the analysis associates lower public
benefits enrollment and lower spending on low-income families as a
positive effect. As noted in the NPRM, reduced access to public
benefits programs by eligible individuals, including aliens and U.S.
citizens in mixed-status households, may lead to impacts on State and
local economies, businesses, and individuals. Reductions in transfer
payments may also have a disproportionately larger impact on low-income
individuals and households, who tend to have a higher marginal
propensity to consume and a higher marginal utility of consumption. As
a result, reductions in their payments can lead to decreased spending,
lower total welfare, and overall reduced economic activity.
Additionally, DHS recognizes that E.O. 13563 directs agencies to
consider regulatory approaches that maximize net benefits, including
consideration of values that are difficult or impossible to quantify,
such as equity, human dignity, and fairness. DHS updated the economic
analysis to reflect this additional indirect impact qualitatively.
Furthermore, DHS believes the benefits of this policy outweigh the
costs of this rule. As discussed throughout this preamble, the purpose
of this rule is to remove overly restrictive language established by
the 2022 Final Rule to improve implementation of the public charge
ground of inadmissibility consistent with statute and congressional
intent
[[Page 45424]]
which DHS anticipates will ensure that fewer individuals who are likely
at any time to become a public charge will be granted admission into or
adjustment of status in the United States. While most aliens are not
immediately eligible for means-tested public benefits, they may
eventually become eligible for public benefits. Therefore, giving
adjudicators more discretion to consider both the alien's current
circumstances and the likelihood that the alien may use a broader range
of available means-tested public benefits in the future may reduce the
pressure on a broader range of public benefit programs over time, and
better align the public charge ground of inadmissibility with
congressional intent. DHS is making this change to better adhere to the
statute's requirement that aliens not be likely to become a public
charge at any time, consistent with Congress' goal that aliens be self-
sufficient and not rely on public benefits into the future. This final
rule better implements the statute governing public charge
inadmissibility and the broader policy that aliens should be self-
sufficient.
Comment: A few commenters said the proposed rule failed to evaluate
alternatives, such as adjustments to current regulations, and did not
contemplate any alternatives that are less burdensome and instead puts
forth an even more burdensome and vague proposal. One of these
commenters, without identifying such an alternative, indicated DHS
failed to evaluate a likely alternative, violating the APA, while
another stated DHS did not provide any thoughts on alternative pathways
to reduce the grave and potentially expansive chilling impacts of the
rescission of the current public charge regulation. Specifically, DHS
did not consider keeping or instituting certain guardrails, like
defining the term public charge, even while acknowledging that these
terms are undefined in the INA and prior immigration law dating back to
1882. Other commenters criticized the NPRM for not considering
mechanisms that could be implemented to mitigate the rule's costs.
Response: DHS disagrees alternatives were not considered. As
discussed in the NPRM, DHS considered retaining the 2022 Final Rule and
the implications of implementing the 2019 Final Rule. However, the
Secretary has determined this rulemaking would be the most consistent
with the national policies contained in E.O. 14218 \290\ and PRWORA,
insofar as prior rules limited the factors and information that DHS
could consider in making a public charge inadmissibility determination.
To varying degrees, the 2019 and 2022 rules prevented officers from
considering relevant evidence essential to making accurate and valid
public charge inadmissibility determinations that are consistent with
the statute and congressional intent. While commenters indicated that
as an alternative to rescinding the 2022 Final Rule in its entirety,
DHS could define the term ``public charge'' or modify rather than
rescind the 2022 Final Rule, these commenters do not take into
consideration DHS's clear underlying rationale for the rescission as
needing to align public charge inadmissibility determinations with
congressional intent, which such modifications would not accomplish.
DHS believes this final rule is consistent with congressional intent,
as set forth in the PRWORA. By considering an alien's receipt of means-
tested public benefits and how such receipt reflects on self-
sufficiency in the totality of the circumstances, DHS is ensuring that
it is faithfully administering the public charge ground of
inadmissibility and ensuring that the availability of public benefits
is not an incentive for aliens to immigrate to the United States. This
rule aligns DHS's administration of the INA to those principles and
ensures that applicants requesting adjustment of status to LPR who are
subject to the public charge ground of inadmissibility are self-
sufficient.
---------------------------------------------------------------------------
\290\ Ending Taxpayer Subsidization of Open Borders, 90 FR 10581
(Feb. 25, 2025).
---------------------------------------------------------------------------
Furthermore, the costs the commenters are referring to are not
costs of the rule but instead transfer payments. The economic analysis
for this final rule was conducted based on the guidelines set forth in
OMB Circular A-4, which provides guidance to agencies for conducting
cost-benefit analyses and, in this case, a discussion on the
distinction between cost and/or benefits and transfer payments. As
noted in OMB Circular A-4, ``[b]enefit and cost estimates should
reflect real resource use. Transfer payments are monetary payments from
one group to another that do not affect total resources available to
society.'' \291\ The reduction in transfer payments is quantified in
the transfer payments section of the economic analysis of this rule, in
accordance with OMB's Circular A-4. A reduction in transfer payments is
not quantified in the costs section of this rule.
---------------------------------------------------------------------------
\291\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
---------------------------------------------------------------------------
Comment: Commenters stated that even if deterring immigrants and
their families from benefits is not the intent of the regulation, this
is a likely outcome because of ambiguities in the rule; the commenters
reasoned that DHS must take this possibility into account in its
analysis and that DHS is required to show that it cannot achieve its
goals in an alternative way that causes less harm.
Response: DHS appreciates the concerns regarding immigrants who may
disenroll or forgo enrollment in public benefits programs. DHS
disagrees that decreased participation was not considered within the
economic analysis. While the intent of this rule is to allow DHS to
better apply the public charge ground of inadmissibility consistent
with the administration's objectives and congressional intent, DHS
recognizes this rule may lead to public confusion or misunderstanding,
which could result in decreased participation in public benefits
programs. This potential impact is discussed extensively in the
transfer payments section of the economic analysis.
DHS believes that the benefits of this policy outweigh the costs
and that this rule is the best way to achieve regulatory objectives
with the least harm. The rule is meant to ensure that applicants for
adjustment of status to lawful permanent resident who are subject to
the public charge ground of inadmissibility are self-sufficient, i.e.,
relying on their own capabilities and resources of their family,
sponsor, and private organizations, rather than depending on public
resources.
Comment: A commenter criticized DHS's rationale and evidence for
the proposed rule as inadequate. The commenter remarked that the rule
conflates one immigration statute for another and treats officer
discretion as paramount, while creating ``enormous'' costs by
penalizing aliens for receiving supplemental benefits for which they
are legally eligible and the receipt of which does not truly show a
burden of supporting the alien will be cast on the public.
Response: DHS disagrees with the commenter's assertion that the
rationale and evidence for the rule is inadequate. As discussed in the
NPRM, this rule removes the overly restrictive language established by
the 2022 Final Rule to improve the implementation of the public charge
ground of inadmissibility consistent with congressional intent.
Regarding the claim that the rule conflates PRWORA and IIRIRA, DHS
disagrees. This rule, and section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), do not change the eligibility requirements for public
benefit
[[Page 45425]]
programs and do not intend to change those eligibility requirements.
DHS also notes just because the statement of national policy concerning
welfare and immigration was contained within PRWORA does not mean that
the only statutory tools that our country has historically used or
continues to use to achieve those goals were contained within PRWORA.
To the contrary, PRWORA itself references ``this country's earliest
immigration statutes'' when describing how self-sufficiency has long
``been a basic principle of United States immigration law.'' This
reference in PRWORA clearly points to the initial exclusion ground from
1882, of which the public charge ground of inadmissibility is the
direct descendant. The public charge ground of inadmissibility has
always been one of the tools used by Congress to encourage self-
sufficiency. PRWORA merely approached the same issue from another
perspective, adding new eligibility limitations for certain public
benefits. IIRIRA added another such tool, the legally enforceable
affidavit of support (Form I-864).
Finally, DHS disagrees this rule would create ``enormous'' costs by
penalizing aliens for receiving public benefits. The rule does not
eliminate or bar aliens from accessing public benefits. DHS did not
propose in the NPRM or in this final rule, in any way, to regulate or
circumscribe the ability of public benefits providing agencies to offer
public benefits to immigrants. Aliens entitled to public benefits under
Federal, State or local law may elect to receive such benefits.
However, DHS believes the consideration of an alien's receipt of
designated public benefits is consistent with congressional intent, as
set forth in PRWORA, that the receipt of public benefits should not be
an incentive to come to the United States, and aligns DHS's
administration of the INA to those principles. The rule ensures that
applicants for adjustment of status to LPR who are subject to the
public charge ground of inadmissibility are self-sufficient.
Comment: A commenter wrote DHS did not indicate it sought Federal
interagency review, which would have helped DHS consider the
acknowledged consequences of forgone lawful benefit use.
Response: DHS does not agree that the Federal interagency review
process was not followed. As stated in the NPRM and this final rule,
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 OMB, who conducts the
Federal interagency review.
Comment: A commenter said DHS has failed to consider the financial
costs and administrative burdens the proposed rule would impose on
State and local governments, as required by the APA, asserting the
failure is especially perplexing because DHS was presented with reams
of relevant social science research, comments, briefings, court
decisions, and declarations filed in litigation underscoring the
magnitude of State and local government costs associated with changes
to DHS's implementation of the public charge ground of inadmissibility.
The commenter requested that DHS review and consider the commenter's
December 10, 2018, submission from the 2019 rulemaking and the
declarations constituting the evidentiary record in the ensuing
litigation of the costs and harms the 2019 Rule imposed on the
commenter's organization.
Response: DHS disagrees financial costs and administrative burdens
were not considered. DHS agrees that some State and local governments
and agencies may incur an increase in administrative costs as described
in the economic analysis. However, DHS was unable to quantify these
costs and provides a qualitative discussion of the effects of the final
rule instead. DHS has considered comments relevant to the rescission of
the 2022 Final Rule but declines to consider comments submitted on a
different rulemaking that reflected a comprehensive regulatory scheme
that differs from this final rule. That said, as discussed throughout
this final rule, DHS has considered the impacts of this rulemaking and
adequately addressed indirect impacts of the rulemaking.
d. Transfer Payments
i. DHS's Estimates of the Chilling Effects Rate
a. The Rule's Chilling Effect in the Broader Current Environment
Comment: Commenters wrote that even without the proposed rule,
immigrant use of benefits is being chilled in the current immigration
environment, citing a survey from fall 2025 finding that 18 percent of
immigrant parents said they already avoided applying for safety net
programs due to their immigration status. Another commenter wrote that
before the rule was proposed, as of 2023, nearly three-quarters of
immigrant adults reported either uncertainty about how use of non-cash
assistance programs impacts immigration status or incorrectly believed
that use may reduce the chances of getting a Green Card in the future.
Response: DHS agrees external factors unrelated to this rule may
cause aliens to disenroll or forgo enrollment in public benefits
programs. As noted within the economic analysis, DHS anticipates
disenrollment or forgone enrollment rates may fluctuate independently
of this rule. However, it is too early to assess the impact of these
external factors on public benefit usage, and consequently, on overall
impact.
Comment: A commenter stated the economic analysis cited in the NPRM
found the rule would cause hundreds of thousands of eligible people to
forgo enrollment in public benefits programs out of fear, with 10
percent of households including legal immigrants disenrolling from
benefits, removing almost $5.2 billion from the economy. The same
commenter asserted the proposed rule punishes residents for accessing
safety nets they are legally eligible to use.
Response: DHS disagrees that the rule will remove $5.2 billion from
the economy. The estimate the commenter is referencing is the Federal
share of the transfer payments presented in the economic analysis. DHS
estimates that the total reduction in transfer payments from the
Federal Government could be approximately $7.71 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. This is an increase from the estimate in the NPRM because the
analysis was expanded in this final rule to include Medicaid child
enrollment data and the WIC program in response to public comments.
As discussed in other responses, the economic analysis for this
final rule was conducted based on the guidelines set forth in OMB
Circular A-4, which provides guidance to agencies for conducting cost-
benefit analyses and, in this case, a discussion on the distinction
between cost and/or benefits and transfer payments. As noted in OMB
Circular A-4, ``[b]enefit and cost estimates should reflect real
resource use. Transfer payments are monetary payments from one group to
another that do not affect total resources available to society.''
\292\ The transfer payments described in the economic analysis result
from individuals who choose to disenroll or forgo enrollment in public
benefit programs, and represent reduced payments from
[[Page 45426]]
Federal and State governments to certain individuals who would
otherwise receive public benefits, which is not considered a method of
moving money out of the economy as asserted by the commenter. Instead,
the rule affects the distribution of resources (e.g., such as
participation in public benefits), which are classified as transfers
because they reallocate resources rather than create a net loss to the
overall economy. While these transfers may have meaningful
distributional consequences, they are not counted as costs in the
primary economic analysis.
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\292\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
---------------------------------------------------------------------------
DHS also disagrees that this rule is barring eligible aliens from
accessing public benefits. DHS did not propose in the NPRM to regulate
or circumscribe the ability of states to offer public benefits to
immigrants. Similarly, this final rule neither prohibits states from
providing benefits to immigrants nor prohibits any category of
immigrants from receiving any state or local benefits for which they
are eligible. Aliens entitled to public benefits under Federal, State
or local law may elect to receive such benefits and this rule does not,
and cannot, change that fact. However, DHS believes that the
consideration of an alien's receipt of designated public benefits is
consistent with congressional intent, as set forth in PRWORA, that the
receipt of public benefits should not be an incentive to come to the
United States, and aligns DHS's administration of the INA to those
principles.
ii. Historical Evidence of Chilling Effects
a. 2018 NPRM and 2019 Final Rule
Comment: A commenter cited research finding the 2018 NPRM was
associated with a nationwide childhood enrollment decrease of
approximately 260,000 in Medicaid, 149,000 in SNAP, and 21,000 in WIC.
Another commenter stated between 2016 and 2019, which covers the period
during which changes to public charge were previously proposed,
participation in SNAP and TANF fell by 36 percent while Medicaid
participation fell by 18 percent among immigrant families.
A commenter cited a study finding that the 2019 Final Rule led to
one in seven adults in immigrant families avoiding public benefit
programs because of Green Card concerns. Commenters cited multiple
studies finding after the 2019 Final Rule, a quarter of mixed status
households avoided participating in non-cash benefits programs like
Medicaid, SNAP, and housing subsidies. Several commenters stated
participation in Medicaid and CHIP among low income U.S. citizen
children with an alien in the household fell twice as fast as among
children in citizen-only households following the 2019 Final Rule.
A commenter wrote analyses predicted that the 2019 Final Rule could
have led to a 20- to 60-percent decline in immigrant use of benefits
and impacted up to 26 million people (immigrants and U.S. citizens in
mixed households).
Response: DHS appreciates the comments citing research on the
chilling effects of the 2019 Public Charge Rule. DHS acknowledges
studies conducted between 2016 and 2020 have shown reductions in
enrollment due to ``chilling effects,'' ranging from 4.1 percent to 48
percent.293 294 For the purposes of its economic analysis,
DHS utilized a range of 3.3 percent and 17.3 percent to estimate
potential disenrollment or forgone enrollment in public benefits
programs, including Medicaid, CHIP, TANF, SSI, Federal Rental
Assistance, and WIC. DHS recognizes decreased participation in public
benefit programs may include those not subject to the public charge
ground of inadmissibility, such as children in mixed-status households,
longtime LPRs, and aliens in categories exempt from public charge.
However, this rule does not change eligibility for public benefits
programs. Instead, it ensures applicants requesting adjustment of
status to LPR who are subject to the public charge ground of
inadmissibility, are self-sufficient.
---------------------------------------------------------------------------
\293\ Randy Capps, et al., MPI, ``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)).
\294\ Hamutal Bernstein, et al., Urban Institute, ``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)).
---------------------------------------------------------------------------
b. 2022 Final Rule
Comment: A commenter criticized DHS's analysis for not considering
how chilling effects arose or were mitigated by the 2022 Final Rule,
reasoning that when considering a significant change to the regulatory
framework through rescission of existing regulations, it is necessary
to review the impacts of current regulations in the new rulemaking.
Response: DHS disagrees that the economic analysis did not consider
how chilling effects arose or were mitigated by the 2022 Public Charge
Rule. As noted in the NPRM, since the publication of the 2022 Final
Rule, studies 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. DHS
discussed studies that aligned with the affected populations in the
economic analysis and used an average of the disenrollment and forgone
enrollment rates from those studies to develop the upper bound
disenrollment rate of 17.3 percent, which was applied throughout the
analysis.
c. PRWORA
Comment: Several commenters stated studies following PRWORA showed
significant disenrollment among eligible populations. A commenter wrote
that USDA found between 1994 and 1998, food stamp usage fell by 53
percent among eligible U.S. citizen children in families with an alien
parent--and by 60 percent among refugees--even though the law did not
restrict their eligibility; for Medicaid, the drop was 17 percent among
citizen children in families with an alien parent and 39 percent among
refugees.
Commenters stated that DHS cited evidence of a disenrollment rate
between 21 to 54 percent following the passage of PRWORA in the 1990s.
Another commenter stated that DHS dismissed estimates disenrollment
rates of 21 to 54 percent following the passage of PRWORA because those
rates were not observed, finding this reasoning as flawed because the
2019 Final Rule was immediately enjoined and it ignores the chilling
effect of immigration today.
Response: DHS appreciates the commenters' concern regarding
disenrollment rates related to PRWORA. While DHS acknowledges comments
referencing disenrollment as high as 54 percent, as stated in the NPRM,
DHS does not believe observed disenrollment or forgone enrollment rates
will be this high as a direct result of this final rule. DHS referenced
a number of independent and peer-reviewed studies, that observed
disenrollment rates between 2016 and 2025, none of which reported rates
as high as 54 percent as a direct result of a public charge rule.\295\
DHS uses the average of these same studies, focusing only on studies
conducted between 2022 and 2025, in this final rule, as it represents
the
[[Page 45427]]
uncertainty in disenrollment and forgone enrollment of the specific
population discussed in this rule.\296\
---------------------------------------------------------------------------
\295\ Capps et al. (2020); Bernstein et al. (2021); Pillai et
al. (2022); KFF (2025); Bernstein, Gonzalez et al. (2022); Gonzalez
et al. (2023); and Gonzalez, Bernstein et al. (2023).
\296\ Pillai et al. (2022); KFF (2025); Bernstein, Gonzalez et
al. (2022); Gonzalez et al. (2023); and Gonzalez, Bernstein et al.
(2023).
---------------------------------------------------------------------------
iii. DHS's Disenrollment Estimates
a. Underestimation or Mischaracterization of Affected Populations
Comment: Many commenters stated that DHS underestimated the
population to which the chilling rate should be applied. Commenters
cited KFF's analysis of American Community Survey data finding that
approximately 13.4 million Medicaid or CHIP enrollees live in
households with at least one alien, compared to DHS's estimate of 3.5
million Medicaid enrollees and 570,000 CHIP enrollees. One commenter
remarked that the population data used by KFF was more accurate than
the data used by DHS in its regulatory analysis. Many of the commenters
also stated that KFF's analysis identified nearly 1.8 million uninsured
people, who are eligible for but not enrolled in Medicaid or CHIP,
living in households with at least one alien and who could thus be
deterred from applying.
Several commenters stated that one in four children in the United
States--19 million children--have at least one immigrant parent, the
majority of these children are U.S. citizens, and only about 3 percent
of children in the United States are themselves aliens. Additionally, a
few commenters remarked that DHS underestimated the proposed rule's
chilling effect on health care and referenced KFF's analysis found that
of the 13.4 million Medicaid or CHIP enrollees who live in a household
with at least one alien, 5.9 million are U.S. citizen children that
would likely be impacted.
Finally, a commenter stated that various literature shows that
uncertainty leads many immigrants and their families to disenroll or
forgo enrolling in public benefit programs and the estimates in the
impact analysis may be underestimated due to the proposed rule's
vagueness and broader scope.
Response: DHS appreciates the concern regarding the estimated
population to which the disenrollment or forgone rates should be
applied to in the economic analysis. The cited study from KFF was
published on December 2, 2025, after the NPRM was published on November
19, 2025, making it impossible for DHS to consider including this study
within the NPRM's economic analysis, and instead DHS utilized several
independent and peer-reviewed studies available including earlier KFF
reports published in May 2022 \297\ and January 2025.\298\ The December
2025 KFF study was not integrated into the analysis in the final rule
because it focuses on 1-year data from the 2023 ACS for public benefit
enrollment figures, whereas DHS uses the average enrollment numbers
from FY 2019 through FY 2024 for each public benefits program analyzed
to develop an overall estimated enrollment population. For example,
this difference causes KFF to have an affected population of 13.4
million for Medicaid and CHIP, whereas DHS estimated affected
population is 6.7 million for the same programs. The study also
explicitly explains the methodology differences between their analysis
and the analysis DHS presented regarding the affected population. DHS
deems it reasonable to use the average of the prior six years, as
explained in the economic analysis, to smooth out any fluctuations in
the data.
---------------------------------------------------------------------------
\297\ Drishti Pillai, Samantha Artiga, KFF, 2022 Changes to the
Public Charge Inadmissibility Rule and the Implications for Health
Care (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)).
\298\ 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).
---------------------------------------------------------------------------
Finally, due to the uncertainty of the rate of disenrollment or
forgone enrollment in public benefits programs, DHS recognizes that
estimates provided could be an underestimate or, in some cases, an
overestimate. DHS used the best available data and methods at the time
of the analysis and deems this analysis reasonable to use for this
final rule because a multi-year approach helps account for year-to-year
variability and isolates the rule's effects providing a more stable and
reliable estimate than relying on a single year of data, which can be
influenced by other factors unrelated to the policy changes made by
this rule.
Comment: A commenter stated that DHS's analysis excluded Medicaid
child enrollment from the modeled disenrollment base, understating
forgone Medicaid enrollment and associated long-term social costs. The
commenter remarked that children are more likely to be eligible for and
enrolled in Medicaid or CHIP due to higher income thresholds, and they
are far more likely to be U.S. citizens even in households with alien
adults. The commenter also wrote that DHS misinterpreted the KFF
estimate by describing affected individuals as ``alien'' Medicaid and
CHIP enrollees, while the KFF analysis refers to ``noncitizens or
citizens living in a family with a noncitizen,'' meaning the estimate
includes U.S. citizen children in mixed-status households who are not
aliens under the INA definition; the commenter reasoned that this
mischaracterization narrows the group and obscures the documented
chilling effects on eligible U.S. citizen children.
Response: DHS appreciates the concern regarding children enrolled
in Medicaid and CHIP. DHS has expanded the economic analysis in this
final rule to include child enrollment within the Medicaid estimates
that are presented. DHS has also clarified the cited study within the
analysis. However, as stated in the NPRM, the reduction in transfer
payments from the Federal and State Governments to individuals who may
choose to disenroll from or forgo enrollment in a public benefits
program includes aliens as well as U.S. citizens who are members of
mixed-status households.
Comment: A commenter stated that DHS's estimates of households
receiving Federal rental assistance failed to provide an accurate
picture of the rule's impact, noting that it was unclear how DHS's
calculations resulted in 340,000 households, expressing concern that
DHS may have conflated households and individuals and only considered a
subset of Federal rental assistance programs.
Response: DHS disagrees that it did not provide a sufficient
analysis of the impact on Federal rental assistance. DHS notes that the
supplemental economic analysis accompanying both the NPRM and this
final rule, which can be found in the rule docket at https://www.regulations.gov, provides additional information and further
details about the estimates presented.\299\ The supplemental analysis
provides a detailed explanation of where and how DHS derived the
enrollment and expenditure figures for Federal rental assistance and
clarifies that these estimates are at the household level.
---------------------------------------------------------------------------
\299\ Department of Homeland Security. [CIS No. 2836-25; DHS
Docket No.USCIS-2025-0304]; RIN 1615-AD06. Notice of Proposed
Rulemaking: Public Charge Ground of Inadmissibility Economic
Analysis Supplemental Information for Analysis of Public Benefits
Programs Examined in the Transfer Payments and Indirect Impacts of
the Regulatory Change.
---------------------------------------------------------------------------
DHS estimated that 5,189,000 households may be receiving benefits.
To estimate the number of benefits-receiving households with at least
one alien, DHS multiplied the estimated number of households receiving
benefits in the United States by 6.61 percent,
[[Page 45428]]
which is the foreign-born noncitizen population as a percentage of the
U.S. total population using U.S. Census Bureau population estimates.
The analysis also clarifies that the figures presented include HUD
Section 8 Project-based Rental Assistance, HUD Section 8 HCVs, HUD
Public Housing, HUD Section 202/811, and USDA Section 521, and would
apply to the number used throughout the analysis.
DHS understands the numbers for Federal rental assistance may be
overestimated. However, as explained in the NPRM, due to the
uncertainty of the rate of disenrollment or forgone enrollment in
public benefits programs, DHS recognizes that estimates provided could
be an underestimate or, in some cases, an overestimate, and therefore
used a range from 3.3 percent to 17.3 percent, with a midpoint of 10.3
percent to present disenrollment and forgone enrollment figures. DHS
used the best available data and methods at the time of the analysis
and deems this analysis reasonable to use for this final rule.
b. Disenrollment Figures and Aggregate Financial Impacts
Comment: Many commenters expressed concern about harm that would
result from the program disenrollment as estimated by DHS, including
approximately 447,000 people from SNAP, 364,000 from Medicaid, 64,000
from SSI, 59,000 from CHIP, and 16,000 from cash assistance under TANF.
A couple of commenters addressed DHS's $9 billion estimation of reduced
annual government spending on benefit programs, with one concluding
that it is a clear demonstration of chilling effects that would harm
families and communities, primarily U.S. citizens and LPRs. Another
commenter stated that in Pennsylvania alone, there are 223,723
individuals in Medicaid households that include at least one alien,
indicating that DHS's broader estimate of 3.5 million nationally is a
significant underestimate, and estimated that the NPRM's chilling
effects would result in a $1.55 billion financial loss, at minimum, in
the State of Pennsylvania alone.
Response: DHS appreciates the concern regarding the potential
disenrollment or forgone enrollment of the public benefits programs
explored in the economic analysis. DHS acknowledges in the analysis
various indirect effects that could occur because of follow-on effects
of the reduction in transfer payments from Federal and State
governments to individuals, to include aliens as well as U.S. citizens
who are members of mixed-status households, who may choose to disenroll
from or forgo enrollment in a public benefits program.
DHS also acknowledges that some States or local governments may
choose to change their policies in response to this rule, and considers
these costs as qualitative, unquantified indirect effects of the final
rule. Any downstream effects on State and local governments specific to
this final rule would arise solely due to their voluntary choices and
would not be a consequence of an enforceable duty imposed by this rule.
However, DHS reiterates this rule is not purporting to regulate which
aliens may receive public benefits and any alien entitled to public
benefits may elect to receive such benefits.
Comment: Many commenters stated that DHS significantly
underestimated the chilling effect that would result from the proposed
rule. Commenters expressed that DHS's primary estimate of a 10.3
percent disenrollment or forgone enrollment rate was not based on any
specific estimate of chilling effect but was rather the mathematical
midpoint between a 3.3 percent estimate rate (based on the share of all
aliens who adjust status each year) and a 17.3 percent estimated rate.
Some of these commenters criticized DHS for not explaining how it
arrived at this estimate. Many of the commenters cited a KFF analysis
that estimated disenrollment rates would range from 10 to 30 percent,
with 20 percent as a more plausible midpoint estimate, meaning, for
example, 1.3 to 4 million people would be disenrolled from Medicaid or
CHIP. A couple of commenters also stated that KFF estimated that
between 1.3 million and 4.0 million people could disenroll from
Medicaid or CHIP, including nearly 600,000 to about 1.8 million citizen
children. One of these commenters added that between about 200,000 to
500,000 uninsured people could forgo enrolling in Medicaid or CHIP
despite being eligible, including over 50,000 to more than 150,000
citizen children. Similarly another commenter added that one quarter of
U.S. citizen children have at least one immigrant parent and many U.S.
citizens and LPR's would lose coverage. Another commenter added that
the KFF estimated rate was more accurate because it was based on ``a
2025 nationally representative survey of immigrants conducted by KFF
and the New York Times and a similar 2023 KFF/Los Angeles Times survey
that queried immigrants about their willingness to use public
benefits.''
Additionally, another commenter stated that even DHS's upper
estimate of 17.3 percent disenrollment rate was likely an
underestimate, citing evidence of disenrollment rates between 15 and 35
percent after the 2019 Final Rule; the commenter added that in the 2019
NPRM, DHS conceded that its methodology for estimating the impacted
population may result in underestimates if aliens disenroll from
benefits years before they apply for adjustment of status. Another
commenter remarked that DHS has admitted that it underestimated the
chilling effects of the 2019 Final Rule, but that it has not offered
improved analysis or mitigation for the present rulemaking.
Finally, a commenter provided a comparison of the KFF, George
Washington University (GW), and DHS analyses and produced estimates of
the rule's chilling effect. The comparison found 3.7 million members of
immigrant households could lose benefits (with a range of 1.85 to 5.56
million), leading to $21.3 billion cost in Federal benefits lost in
2026 (with estimates ranging from $10.5 billion to $32.0 billion) and
commented that DHS's analysis underestimated the rule's impact by about
three-quarters. The commenter said that the cause of the difference in
results from DHS's analysis was that the other studies used a 20
percent chilling effect rate, used more up-to-date data on Medicaid and
CHIP participation, and used more accurate information related to
program costs (FY 2026 estimates from the CBO). The commenter said the
other studies are more consistent with earlier analyses about the
chilling effects caused by public charge rules, such as those based on
research by the Urban Institute. The commenter concluded that DHS's
estimates of the chilling effect and its impact are about three
quarters too low based on the figures of the KFF and GW studies.
Another commenter wrote in support of this commenter's analysis, while
another commenter urged DHS to rely on independent, peer-reviewed
economic and public health analyses such as the analysis conducted by
researchers at GW.
Response: DHS appreciates the concern regarding the disenrollment
and forgone enrollment estimates used in the transfer payments of the
economic analysis. DHS disagrees that it did not explain how the
estimates were derived, and notes there are various methodology
differences between the DHS, KFF, and GW analyses. As stated in the
NPRM, DHS estimated the 3.3 percent disenrollment/forgone enrollment
rate by dividing the annual number of approved aliens who adjusted
status by the estimated alien
[[Page 45429]]
population of the United States. For the upper bound estimate of 17.3
percent rate, DHS discussed numerous studies that observed differing
disenrollment/forgone enrollment rates and assumed an average
disenrollment rate from the studies conducted between 2022 and 2025.
The cited study from KFF was published on December 2, 2025, after
the NPRM was published on November 19, 2025, making it impossible for
DHS to consider including this study within the economic analysis for
the NPRM. The December KFF study was not integrated into the analysis
of the final rule because the study relies on survey data from 2025 to
estimate its midpoint and a single year (2023) of ACS data to estimate
its enrollment population, whereas DHS' approach reflects a broader and
more methodologically robust analysis. DHS estimates data across
multiple years, informed by the observed impacts of the two prior
rules, and derives a midpoint based on the average of estimated low-
and high-end effects over that period. This multi-year approach helps
account for year-to-year variability and better isolates the effects
attributable to the rule itself. Accordingly, DHS's methodology
provides a more stable and reliable basis for estimating impacts than a
single year snapshot.
Furthermore, the cited study from KFF states that the upper bound
estimate of 30 percent, ``accounts for potential increased effects
relative to the experiences reported in the survey due to subsequent
policy changes, including the public charge proposal and CMS notice of
plans to share Medicaid data with ICE, that were released after the
survey was fielded as well as ongoing public enforcement activity,
which may further deter participation,'' \300\ indicating that the
study is including external factors in their disenrollment/forgone
enrollment rates, not solely as a result of this rule. DHS agrees that
external factors unrelated to this rule may cause aliens to disenroll
or forgo enrollment in public benefit programs. However, those external
factors are separate and independent of this rule.
---------------------------------------------------------------------------
\300\ Samantha Artiga, Drishti Pillai, Sammy Cervantes, Akash
Pillai, and Matthew Rae, KFF, ``Potential ``Chilling Effects'' of
Public Charge and Other Immigration Policies on Medicaid and CHIP
Enrollment,'' (Dec. 2, 2025), https://www.kff.org/medicaid/potential-chilling-effects-of-public-charge-and-other-immigration-policies-on-medicaid-and-chip-enrollment/https://www.kff.org/medicaid/potential-chilling-effects-of-public-charge-and-other-immigration-policies-on-medicaid-and-chip-enrollment/ (Artiga et al.
(2025))).
---------------------------------------------------------------------------
Additionally, the cited study from GW was submitted alongside the
public comments, making it impossible for DHS to consider it in the
economic analysis for the NPRM.\301\ The December GW study was not
integrated into the analysis in the final rule because their analysis
applied estimates of Medicaid, CHIP, SNAP and SSI costs per participant
for FY 2026 from the Congressional Budget Office baseline projections,
which does not represent final expenditures. Whereas the DHS estimates
used the total annual average public benefits payments to calculate a
6-year average using historical data. DHS deems it reasonable to use
the average of the prior six years, as explained in the economic
analysis, to smooth out any short-term fluctuations in the data to
estimate the disenrollment and forgone enrollment and corresponding
reduction in transfer payments. Importantly, this multi-year approach
also helps minimize the influence of other contemporaneous factors
affecting enrollment over time (e.g., a change in the job market or
inflation), reducing the risk that estimates are driven by any single
year's conditions.
---------------------------------------------------------------------------
\301\ Leighton Ku, Ph.D., MPH, Maddie Krips, MPP, Hanna
Silverman, MPH, GW, Appendix 1, ``Economic and Mortality Analyses of
the DHS Proposed Rule: Public Charge Ground of Inadmissibility,''
pgs. 31-44 (Dec. 3, 2025) https://hpmmatters.publichealth.gwu.edu/sites/g/files/zaxdzs6671/files/2025-12/Public%20Charge%20NPRM%202025_FINAL_121825.pdf (Leighton et al.
(2025).
---------------------------------------------------------------------------
The GW study also used visa processing determinations by DOS to
develop their affected population, whereas DHS used data based on
individuals applying for adjustment of status using Form I-485. As
noted in the NPRM and in this final rule, this rule addresses the
administration of the public charge ground of inadmissibility only by
DHS, not by DOS. While DOS consular officers are responsible for
applying the public charge ground of inadmissibility as part of the
visa application process, this rule does not revise DOS standards or
processes, and therefore DHS does not find it reasonable to base the
affected population of this rule on DOS data. While DHS recognizes
these other approaches, DHS used the best available data and methods
for the analysis and deems this analysis reasonable to use for this
final rule.
Finally, the commenter who provided a comparative analysis based on
a comparison of the DHS, KFF, and GW estimates failed to recognize the
methodological differences between the three that would result in
differing outcomes. DHS recognizes the methodology used in both the KFF
and GW analyses, which, as explained above, differs from the DHS
analysis. DHS also disagrees with the commenters' assertion that
independent peer-review analyses was not considered. DHS utilized
several independent and peer-reviewed studies available at the time, as
discussed in the economic analysis. Furthermore, DHS cited and used a
range of disenrollment estimates observed between 2022 and 2025 by
other organizations within its estimates of transfer payments.\302\ DHS
uses the average of these same studies in this final rule, as it
represents the uncertainty in disenrollment and forgone enrollment of
the specific population this rule discusses.
---------------------------------------------------------------------------
\302\ Pillai et al. (2022); KFF (2025); Bernstein, Gonzalez et
al. (2022); Gonzalez et al. (2023); and Gonzalez, Bernstein et al.
(2023).
---------------------------------------------------------------------------
Comment: A commenter stated that DHS's analysis does not take into
account the hundreds of thousands of U.S. citizens who would be
impacted by the proposed rule, and that of the 950,124 individuals who
DHS calculates will either disenroll from or forgo enrollment into
public benefits, 645,715 will be either U.S. citizens or other
categories of aliens not subject to the public charge rule.
Response: DHS appreciates the concerns regarding U.S. citizens who
may be indirectly impacted by the rule. However, DHS disagrees that the
3.3 percent disenrollment and forgone enrollment rate represents
aliens, and the 10.3 percent rate represents U.S. citizens. As
explained in the NPRM, due to the uncertainty of the rate of
disenrollment or forgone enrollment in public benefits programs, DHS
used a range from 3.3 percent to 17.3 percent, with a midpoint of 10.3
percent to present disenrollment and forgone enrollment figures. These
figures represent individuals who might choose to disenroll from or
forgo future enrollment in a public benefits program who may be aliens
as well as U.S. citizens who are members of mixed-status households.
Due to data limitations, it is unclear how many aliens or U.S. citizens
would disenroll or forgo enrollment at the 3.3 percent, 10.3 percent,
or 17.3 percent rates.
iv. Specific Impacts From Disenrollment
a. Impacts on Families, Children, Pregnant Women, and Health Care
Comment: A commenter cited research finding that public benefits
for children promote healthy development and are associated with
numerous positive outcomes, such as higher overall health, lower
incidences of high blood pressure, lower obesity rates,
[[Page 45430]]
fewer emergency room visits, better high school graduation rates,
college attendance, and higher income prospects as adults; while harms
from benefit disenrollment linger, with long-lasting harm still
impacting children as a result of the 2019 Final Rule. Other commenters
echoed concerns the rule would increase hardship for children and urged
DHS to quantify the downstream impacts of disenrollment on child health
outcomes and providing a plan to mitigate avoidable harms.
Another commenter cited economic research finding that children's
access to public health insurance improved health outcomes and lowered
government expenditures by a factor of 4 to 1, and when the lifetime
benefits to children were factored into this analysis, the benefit-cost
ratio rose to 12.66 to 1. Others cited research that improved access to
Medicaid and WIC significantly increased use of prenatal care and
support more regular prenatal visits, ameliorated nutritional deficits
in infants, improved infant weight, lowered the risks of preterm birth
and low birth weight, and promoted breastfeeding, resulting in improved
pregnancies and birth outcomes (e.g., average gestational length and
birthweight).
Several commenters stated the proposed rule would shift care to the
most expensive setting, as patients avoid primary and preventive care
due to immigration-related fears and delay seeking treatment until
conditions become acute and present to the emergency department. Other
commenters similarly wrote that healthcare providers would experience
reduced willingness among patients to enroll in or maintain Medicaid,
higher levels of uninsured visits and uncompensated care, lower
utilization of preventive and chronic disease services, higher
utilization of emergency care, and more patients presenting with
advanced or unmanaged conditions resulting in adverse effects on
hospitals. One commenter specifically cited research to detail the
health benefits of health insurance enrollment, including for children,
better health, educational, and employment outcomes, lower mortality
rates, and reduced hospitalizations and emergency visits; and reduced
adverse birth outcomes for pregnant women. Additionally, another
commenter cited research finding that the 2019 Final Rule led to
immigrants avoiding health care settings altogether.
A commenter stated when the 2019 Final Rule was issued, researchers
estimated that Medicaid disenrollments associated with the chilling
effect could lead to as many as 4,000 excess deaths every year and
after disenrolling from Medicaid or CHIP, most do not transition to and
retain other coverage, resulting in people forgoing necessary
preventive services, medications, and continuous care for chronic
illnesses. The commenter also cited research finding that Medicaid
participation was associated with a 0.132 percentage-point reduction in
the annual mortality rate. The commenter concluded that the proposed
rule would cause 2.7 million individuals to lose Medicaid or CHIP
health coverage, and could therefore lead to approximately 3,500
additional premature deaths per year (with a range of 1,800 to 5,300
additional deaths).
Response: DHS appreciates the concerns regarding pregnant women and
children using public benefits and healthcare facilities and providers.
DHS acknowledges in the economic analysis various indirect effects that
could occur because of follow-on effects of the reduction in transfer
payments identified in the final rule. DHS provides a list of the
primary non-monetized potential consequences of the final rule where
disenrollment or forgoing enrollment in public benefits programs by
aliens who are otherwise eligible could lead to issues such as worse
health outcomes, such as increased prevalence of obesity and
malnutrition (especially among pregnant or breastfeeding women,
infants, and children), reduced prescription adherence, increased use
of emergency rooms for primary care due to delayed treatment, increased
rates of uncompensated care, where treatments or services are not paid
for by insurers or patients, and lower revenues for healthcare
providers participating in Medicaid.
DHS recognizes the research cited discussing positive outcomes for
pregnant women and children on public benefit programs, such as
Medicaid and WIC, as well as research discussing ``chilling effects''
from disenrolling or forgoing enrollment in public benefit programs
such as Medicaid, including the potential impacts on health outcomes
and mortality. DHS notes the economic analysis in the final rule
includes analysis on Medicaid, which has been expanded in this final
rule to include child enrollment, and CHIP, and the analysis was
further expanded to include WIC in response to these concerns. Finally,
DHS reiterates this rule is not purporting to regulate which aliens may
receive public benefits and any alien entitled to public benefits may
elect to receive such benefits.
b. Impacts on State and Local Governments
Comment: Several commenters stated the proposed rule causes a
substantial cost shift to States and localities, as the financial
responsibility for food, housing, and health care shifts to State,
county, and municipal governments, which must fill gaps previously
covered by Federal funds. Separately, another commenter stated the rule
leads to an unsustainable burden and diversion of resources for State,
county, and municipal governments. One noted the rule would shift costs
to States and coincide with shifts in Federal spending as a result of
H.R. 1 passed earlier in the year, which would require States to pay 75
percent of administrative costs associated with their SNAP programs (up
from about 50 percent currently) starting in FY 2027. Another commenter
wrote the rule undermines State and local investments in public health
infrastructure, disease prevention, and maternal and child health
services. Additionally, another commenter stated imposing immigration
consequences on State residents who receive essential health care
benefits effectively denies States the ability to extend program
eligibility as permitted by Congress.
Response: DHS disagrees that this rule shifts costs from the
Federal Government to State and local governments. This final rule does
not appropriate or rescind funding for public benefits programs, nor
does it change eligibility requirements for those who are eligible. The
transfer payments described in the economic analysis result from
individuals who choose to disenroll or forgo enrollment in public
benefit programs and represent reduced payments from Federal and State
governments to certain individuals who would otherwise receive public
benefits.
Furthermore, DHS disagrees that this rule imposes consequences on
residents of States or denies States the ability to offer public
benefits programs to aliens. This rule is not purporting to regulate
which aliens may receive public benefits or how states and local
governments administer benefits programs. DHS acknowledges that some
States or local governments may choose to change their policies in
response to this rule, and considers these costs as qualitative,
unquantified effects of the final rule. Any downstream effects on State
and local governments would arise solely due to their voluntary choices
and would not be a consequence of an enforceable duty imposed by this
rule. DHS also notes that any cost shifting resulting from external
factors, such as H.R. 1, are outside the scope of this rule.
[[Page 45431]]
c. Other General Impacts
Comment: Other commenters criticized the NPRM for not sufficiently
analyzing disenrollment or forgone enrollment effects on particular
populations, benefit programs, and other aspects of society, including:
child nutrition and related assistance programs like WIC or School
meals (e.g., endangering healthy child diets, sufficient nutrient
intake, mental health, and academic achievement); education programs,
like Head Start; child care subsidies; pregnant people; downstream
public health and administrative costs, any transfers or distributional
impacts on States and local governments, real administrative,
transactional, and resource costs incurred by State, local agencies,
and impacted service providers; demand in State and local economies and
tax receipts (particularly during recessions); housing security,
housing assistance entities, and homeless people; individuals' ability
to obtain and maintain employment; trust in government (e.g.,
penalizing individuals for using benefits previously said to be safe
reduces trust in government, in turn reducing tax compliance,
participation in the Census, etc.), disaster-related programs (e.g.,
Federal Emergency Management Agency, D-SNAP, and Disaster Unemployment
Assistance); economic stability and mobility; Asian American, Black,
Latino, Pacific Islander, and immigrant U.S. communities; TANF and SSI;
and The Affordable Care Act. Additionally, another commenter noted, the
chilling effect of the current proposed rule will likely result in even
more devastation not only resulting in fewer individuals applying for
programs that they are eligible for, but also deterring individuals who
continue to have coverage from seeking routine and preventive health
care, and the impact is inadequately reflected in the analysis, but is
required by E.O. 12866 and OMB Circular A-4. Some other commenters
expressed particular concern about the rule causing families to
disenroll from multiple benefits simultaneously, compounding the rule's
negative impacts on them.
Response: DHS appreciates the concerns regarding the analysis on
these populations, benefit programs, and other aspects of society,
along with the requirements of E.O. 12866 and OMB Circular A-4.
However, DHS disagrees that the economic analysis did not sufficiently
address the potential direct and indirect effects of this rule. As
stated in the NPRM and consistent with E.O. 12866 and Circular A-4, DHS
quantified the indirect impacts of this rule, and where quantification
was not possible, the economic analysis provided a qualitative
discussion of the indirect impacts that might result due to this rule.
The method and calculation of the estimated transfer payments is shown
as clearly as possible in the economic analysis of the rule.
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. Therefore,
DHS focused on Medicaid, which was expanded in this final rule to
include child enrollment, CHIP, SNAP, TANF, SSI, Federal Rental
Assistance, and WIC, which was newly included in the economic analysis.
It also acknowledges that while other programs may be impacted, DHS is
unable to provide a comprehensive quantified analysis of all means-
tested benefit programs and thus recognizes this qualitatively.
Therefore, as stated within the economic analysis, the primary sources
of the reduction in transfer payments from the Federal and State
governments of this final rule are the disenrollment or foregone
enrollment of individuals in public benefits programs. DHS estimates
that the total reduction in transfer payments from the Federal and
State governments could be approximately $13.05 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, affecting an estimated 1,265,993 individuals and 35,294
households across the public benefits programs examined in the economic
analysis. This is an increase from the NPRM, because of the changes in
the analysis referenced earlier.
Furthermore, 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, and discussed these impacts qualitatively.
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. However, any
downstream effects on such entities would be considered an indirect
effect and arise solely due to their voluntary choices and would not be
a consequence of an enforceable duty imposed by this rule. This
approach is consistent with the requirements of E.O. 12866 and Circular
A-4, which call for quantification where possible and qualitative
analysis where quantification is not feasible.
v. DHS's Characterization of Cost Savings and Benefits From
Disenrollment
Comment: Commenters stated that DHS improperly characterized the
rule's chilling effect--including the harm caused to U.S. citizen
children due to the reduced enrollment and disenrollment from public
benefits--as a ``cost savings benefit'' resulting from the NPRM. One
commenter criticized DHS's analysis for not distinguishing reduced
transfer payments from reduced enrollment as a result of restricted
eligibility versus reducing enrollment through fear or
misunderstanding. Another said dissuading LPRs from using benefits for
which they are eligible is not a ``government saving''.
Response: DHS appreciates the comments regarding transfer payments;
however, DHS disagrees that it improperly characterized the transfer
payments as a ``government saving'' or the chilling effects as a ``cost
savings.'' DHS notes that the savings the commenters are referring to
are actually the estimated transfer payments. The economic analysis for
this final rule was conducted based on the guidelines set forth in OMB
Circular A-4, which provides guidance to agencies for conducting cost-
benefit analyses and, in this case, the distinction between cost and/or
benefits and transfer payments. As noted in OMB Circular A-4,
``[b]enefit and cost estimates should reflect real resource use.
Transfer payments are monetary payments from one group to another that
do not affect total resources available to society.'' \303\ As such,
the reduction in transfer payments is quantified in the transfer
payments section, not in a cost saving or benefit section, of the
economic analysis of this rule.
---------------------------------------------------------------------------
\303\ OMB, ``Circular A-4'', p. 38, (Sept. 17, 2003) https://www.whitehouse.gov/wp-content/uploads/2025/08/CircularA-4.pdf.
---------------------------------------------------------------------------
DHS appreciates the comment regarding the difference between
disenrollment or forgone enrollment due to restricted eligibility
versus fear or misunderstanding. DHS acknowledged external factors,
such as H.R. 1, could impact disenrollment and forgone enrollment due
to changing eligibility requirements, but those are outside the scope
of the rulemaking. DHS recognizes elimination of certain
[[Page 45432]]
definitions may lead to public confusion or misunderstanding of the
rule, which could result in disenrollment in public benefit programs by
those not subject to public charge. In this rule, those are individuals
and/or households who disenroll or forgo enrollment due to confusion or
misunderstanding of the rule.
Furthermore, the NPRM did not dissuade LPRs from using any public
benefits for which they are eligible. DHS is not purporting to regulate
which aliens may receive public benefits or how such programs are
administered. Aliens entitled to public benefits under Federal, State
or local law may elect to receive such benefits.
Comment: A commenter stated that DHS's estimate of $8.97 billion in
annual benefit savings is comprised of approximately $5.29 billion in
forgone Federal payments and $3.68 billion in forgone State payments,
representing a ``devastating'' cost to vulnerable families and shifts
the cost of unmet health care, food, and housing needs for immigrants
and their U.S. citizen children to State and local emergency systems.
This commenter reasoned these reductions in transfer payments would be
better understood as a combination of lost Federal revenue for States
and shifted costs.
Similarly, commenters wrote that DHS's characterization of the
reduction of transfer payments as positive is not the intent of PRWORA
and does not account for consequent increased emergency and crisis
costs, harms to U.S. citizens who lose benefits to which they are
entitled, and broader economic impacts to businesses.
Response: DHS appreciates the comments regarding transfer payments.
DHS disagrees that this rule would result in a loss of Federal revenue
to States or shift costs to States. This final rule does not
appropriate or rescind funding for public benefits programs nor does it
change the eligibility requirement to obtain public benefits for aliens
who are eligible. The transfer payments described in the economic
analysis result from individuals who choose to disenroll or forgo
enrollment in public benefit programs and represent reduced payments
from Federal and State governments to certain individuals who would
otherwise receive them.
DHS recognizes that this final rule may have indirect impacts on
public health, such as increased use of emergency rooms for primary
care and housing instability. However, DHS believes that the benefits
of this policy outweigh the costs of this rule by ensuring that
applicants for adjustment of status to LPR, who are subject to the
public charge ground of inadmissibility, are self-sufficient. Finally,
reductions in transfer payments are not characterized as a positive
outcome but are reported in accordance with OMB Circular A-4.
vi. Other Analytical Comments and Recommendations for DHS
Comment: A commenter criticized DHS's impact analysis as incomplete
and, because the rule does not limit the set of public benefits that
officers can consider when making a public charge determination, they
stated the impact analysis must consider the full range of potentially
impacted benefit programs.
Response: DHS disagrees that the economic analysis is incomplete.
As noted in the NPRM, due to variations in public benefit programs
across States and differences in eligibility criteria, DHS could not
quantify the number of individuals affected across all means-tested
public benefits programs. Therefore, DHS focused on Medicaid, which was
expanded in this final rule to include child enrollment, CHIP, SNAP,
TANF, SSI, Federal Rental Assistance, and WIC, which was newly included
in the economic analysis. While other programs may be impacted, DHS is
unable to provide a comprehensive quantified analysis of all means-
tested benefit programs and thus recognizes this qualitatively.
Comment: A commenter wrote that DHS's analysis applies inconsistent
valuation approaches across public benefit programs, using median per-
capita costs to estimate Medicaid impacts and average annual per-
recipient payments for other programs, without explaining why CHIP is
not treated similarly, despite comparable State-level variation. The
commenter also remarked that DHS applied a uniform 59-percent FMAP to
both Medicaid and CHIP, even though CHIP's federal matching rate is
substantially higher under statute, distorting the distribution of
costs between the Federal Government and State governments and
introducing bias into the estimated reductions in transfer payments.
Response: DHS appreciates the comments regarding valuation methods
and matching rates. For each benefit, except 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. For Medicaid, DHS uses
CMS' median per capita expenditure estimate across all States for
calendar year 2022, which is the most recent year of data available.
For CHIP, data was available that allowed for the average per-recipient
payment to maintain consistency with all the other non-Medicaid
programs.
Furthermore, DHS acknowledges that Federal Financial Participation
(FFP) varies by State 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, Federal expenditures for CHIP were less than 3 percent of Federal
Medicaid spending, indicating that applying the eFMAP rate to CHIP
would have a negligible impact on overall estimates. Therefore, DHS
finds it reasonable to use the FMAP percentage of 59 for both Medicaid
and CHIP, as explained in the NPRM and this final rule.
Comment: A commenter requested that DHS disaggregate the projected
transfer-payment reductions by State and clarify how projected
reductions would be allocated across States. Similarly, another
commenter recommended that DHS provide a State-by-State analysis of
projected disenrollment effects on businesses, service providers, and
housing markets as well as identify methods to mitigate avoidable local
harms.
Response: DHS declines to project or allocate the payment
reductions by State or disenrollment effects by State. As explained in
the NPRM and this final rule, FFP varies by State, DHS uses an average
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).\304\ 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 the enhanced FMAP for
State expenditures on the adult group covered under the Affordable Care
Act's Medicaid expansion and the additional FMAP increases from the
Families First Coronavirus Response Act, which ended in 2023. While DHS
recognizes this could result in an underestimate DHS deems it
reasonable to use an average of the FMAP to estimate the total annual
transfer payments from State
[[Page 45433]]
governments to public benefits recipients.
---------------------------------------------------------------------------
\304\ DHS acknowledges that FFP varies by State 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, Federal expenditures for CHIP
were less than 3 percent of Medicaid spending. Therefore, DHS finds
it reasonable to use the FMAP percentage of 59 for both Medicaid and
CHIP.
---------------------------------------------------------------------------
DHS recognizes that the 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, as explained in the economic analysis. Additionally, this
rule does not directly regulate State and local governments and does
not require them to make changes to their business processes or
programs. Therefore, DHS declines to estimate projected disenrollment
effects on businesses, service providers, and housing markets. These
costs are considered indirect qualitative, unquantified effects of the
final rule since it is unclear how many State and local governments
will choose to make administrative changes to their business processes
and the cost of making such changes.
vii. Other Comments on the Rule's Chilling Effects
Comment: One commenter criticized the proposed rule for not
estimating the chilling effect separately for families with children,
stating that these families have experienced higher chilling effects
than others. Another commenter wrote that the chilling effect of the
changes to public charge determination processes would be compounded by
new restrictions on access to safety net programs, and expanded data
sharing between Federal agencies to support enforcement priorities.
Response: DHS appreciates the concern regarding estimating the
``chilling effect'' on families with children separately. DHS
recognizes households, whether single or married with or without
children, may experience different indirect effects. However, due to
data limitations DHS is unable to quantify the transfer payments
separately for families with children and instead provides estimates at
the individual or household level for each benefit program that was
analyzed in the economic analysis.
DHS appreciates the concern regarding compounded effects on public
benefit programs due to external factors. However, this rule does not
impose any new restrictions on an alien's access to public benefit
programs for which they are eligible. This rule also does not expand
data sharing with other Federal Government agencies. While DHS
acknowledges that the elimination of certain definitions in this rule
may lead to public confusion or misunderstanding, which could result in
decreased participation in public benefit programs, the intent of this
rule is to allow DHS to better apply the public charge ground of
inadmissibility consistent with congressional intent.
e. Cost-Benefit Comparison
Comment: A commenter warned that costs, related to undermining
individuals' well-being and economic opportunities, would greatly
exceed the benefits described in the rule, and expressed concern that
the rule would reduce education access and eventually decrease economic
activity and tax revenue. While acknowledging that DHS recognizes
various anticipated costs, a commenter concluded ``such steep costs are
not worth the allowance of discretion for individual officers.''
Another wrote that the NPRM fails to explain how savings from
disenrollments would outweigh the costs those disenrollments impose on
the benefit recipients and to the broader economy. Similarly, another
commenter stated there is no attempt to reduce harm or justify how the
rule's benefits will outweigh the costs, specifically related to public
health.
A commenter acknowledged that DHS anticipated qualitative benefits
associated with the proposed rule but said that many organizations have
provided quantitative impacts. Regarding costs and benefits, they noted
that areas such as health, nutrition, and housing would be negatively
impacted and disagreed that the rule would produce benefits.
Response: DHS disagrees that this rule would undermine an
individual's well-being or their corresponding economic opportunities.
DHS also disagrees that this rule would reduce education access and,
thus, decrease economic activity and tax revenues. As noted in the
NPRM, the removal of overly restrictive language established by the
2022 Final Rule is intended to improve implementation of the public
charge ground of inadmissibility consistent with statute and
congressional intent. This final rule better implements the statute
governing public charge inadmissibility and the broader policy that
aliens should be self-sufficient.
DHS notes the concern regarding the quantitative impacts provided
by other organizations; however, the commenter did not specify which
organizations or studies they were referring to. The commenter cited
various articles, including the KFF study, for which DHS has already
explained the methodological differences in other comment responses,
and noted that DHS does quantify disenrollment or forgone enrollment as
the KFF study did but using different methodology and estimates. The
commenter also referenced anecdotal articles on Medicaid, SNAP, and WIC
making it unclear what specific quantitative impacts are being referred
to, as DHS has addressed potential impacts and quantified them in the
transfer payments section of the economic analysis. DHS reviewed
available studies submitted by other commenters discussing impacts of
individuals who may choose to disenroll or forgo enrollment in public
benefits programs. As discussed in previous comment responses, DHS
quantified the indirect impacts of this rule, and where quantification
was not possible, the economic analysis provided a qualitative
discussion of the indirect impacts that might result due to this rule.
DHS determined that disenrollment or forgone enrollment would be the
primary sources of the reduction in transfer payments from the Federal
and State governments of this final rule. DHS also 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 and discussed it
qualitatively. However, any downstream effects on such entities would
be considered an indirect effect and arise solely due to their
voluntary choices and would not be a consequence of an enforceable duty
imposed by this rule.
Despite the reduction in transfer payments and the corresponding
indirect effects, DHS believes that the benefits of this policy
outweigh the costs of this rule.
2. Regulatory Flexibility Act (RFA)
Comment: A commenter acknowledged the proposed rule would ``not
have a significant economic impact on a substantial number of small
entities.''
Response: DHS agrees that this final rule would not have a direct
impact on small entities. This final rule requires an individual
seeking admission at the port of entry or adjusting status to establish
that he or she is not likely at any time in the future to become a
public charge. This rule's regulatory changes do not fall under the RFA
because they directly regulate individuals who are not, for purposes of
the RFA, within the definition of small entities established by 5
U.S.C. 601(6).
Comment: A commenter said DHS could not rely on a conclusory
certification that the proposed rule would have no significant impact,
without factual basis. The commenter discussed small entities (e.g.,
civil surgeons and panel physicians that
[[Page 45434]]
operate small medical practices; small business surety companies and
agents; small nonprofit legal and social service providers) that would
incur direct compliance obligations and recommended DHS prepare an
Initial Regulatory Flexibility Analysis (IRFA) and Final Regulatory
Flexibility Analysis (FRFA) identifying impacted small entities,
quantifying impacts, and analyzing less burdensome alternatives.
Another commenter similarly wrote the RFA requires DHS to withdraw its
blanket certification and prepare a regulatory flexibility analysis or
to provide evidence that the rule would have no significant small
entity impacts.
Response: DHS disagrees with these comments because this final rule
does not have direct effects on small entities. The RFA 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. This final rule does not mandate any actions or requirements
for small entities in the process of an individual applying for
adjustment of status, and an individual is not defined as a small
entity. DHS is not purporting to regulate which aliens may receive
public benefits or how programs are administered by small entities such
as hospital systems and other organizations that provide public
assistance to aliens and their household. Consequently, indirect
impacts from a rule on small entities are not considered as costs for
RFA purposes. Therefore, in accordance with the RFA, this rule requires
no further agency action or analysis.
3. Paperwork Reduction Act (PRA)
Comment: A commenter said DHS substantially underestimated the
rule's implementation costs reasoning of the 500,000 to 700,000
adjustment of status applications USCIS adjudicates annually,
approximately 250,000 to 350,000 would likely be affected by the
proposed rule; the rule would require an additional 4 to 8 hours to
gather documentation per affected applicant; and translates to an
additional 1.8 million hours annually; and therefore, at a $40 per hour
loaded cost, the rule would create an annual cost of $72 million.
Response: Regarding the population estimate, DHS notes the
population figures suggested by the commenter are lower than those used
by DHS in the NPRM and this final rule. Specifically, the commenters
used an annual adjustment of status application volume of 500,000 to
700,000, and a population of adjustment of status applicants subject to
public charge inadmissibility of 250,000 to 350,000. DHS, meanwhile, is
using a 6-year average of 727,192 aliens annually applying for
adjustment of status, 587,706 of whom, on average, are subject to
public charge inadmissibility. However, being subject to the public
charge ground of inadmissibility does not easily or categorically
translate into implementation costs. For example, DHS notes under
longstanding precedent decision a healthy person in the prime of life
who is already employed in the United States or who has prospective
employment may be subject to public charge but generally would not be
found likely at any time to become a public charge.\305\ As such, DHS
does not anticipate USCIS would issue 250,000 to 350,000 RFEs or NOIDs
annually based on the public charge ground of inadmissibility.
Similarly, regarding the commenter's suggestion ``the rule's new
documentation requirements (e.g., assembling detailed asset/liability
records, health insurance proofs, education/skills evidence,
translations) would require an estimated addition 4-8 hours per
applicant, in addition to existing I-485/I-864 burdens,'' DHS strongly
disagrees. The commenter appears to have manufactured, without
evidence, their claim of ``new documentation requirements.'' The
regulatory and information collection changes finalized in this rule
impose no new documentation requirements for applicants for adjustment
of status or admission. There are no changes to Form I-864 as a result
of this rule, and only minor changes with no increase in burden to Form
I-485.\306\
---------------------------------------------------------------------------
\305\ See Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974) (``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.''
(citing Matter of Martinez-Lopez, 10 I&N Dec. 409, 421-22 (BIA 1962;
A.G.1964)).
\306\ While DHS acknowledges that the removal of the 2022 Final
Rule expands the universe of means-tested public benefits that may
be considered in the totality of the circumstances, DHS believes
that the population of aliens who are both subject to the public
charge ground of inadmissibility and eligible to receive means-
tested public benefits before becoming LPRs is small. Furthermore,
in clarifying the prospective application of this final rule, DHS
has clarified on the instruction to Form I-485 that aliens should
only report the receipt of SSI, TANF, State, Tribal, territorial,
local public cash assistance for income maintenance, and long-term
institutionalization at government expense, if received before the
effective date of this rule.
---------------------------------------------------------------------------
DHS emphasizes that by limiting consideration to cash assistance
and long-term institutionalization in the 2022 Final Rule, the Form I-
485 burden increased rather than decreased. Thus, it is consistent that
this rule rescinding this limiting language should not result in an
increase in respondent burden.\307\
---------------------------------------------------------------------------
\307\ This burden increase for Form I-485 under the 2022 Final
Rule was mostly attributable to the expansion of the public charge
information collection on the Form I-485 itself. While in the 2022
Final Rule DHS significantly scaled back the overall information
collection pertaining to the public charge ground of inadmissibility
by not reviving Form I-944, Declaration of Self Sufficiency, DHS
added the streamlined data collection to the Form I-485, thus
increasing the burden associated with that form. With the exception
of the expanded universe of means-tested public benefits that will
be considered after this final rule is in effect, the information
collected is generally the same as under the 2022 Final Rule.
---------------------------------------------------------------------------
Furthermore, in analysis of this rule's impacts, DHS projected a
potential reduction in transfer payments from Federal and State
governments due to disenrollment or foregone enrollment in public
benefit programs by members of households that include aliens. See 90
FR 52220 (Nov. 19, 2025). DHS believes the population of aliens who are
both subject to the public charge ground of inadmissibility and
eligible to receive means-tested public benefits before becoming LPRs
is small. This rule is expected to result in disenrollment or foregone
enrollment by alien members of this already-small population. It should
be apparent that this rule cannot reasonably result in both substantial
foregone enrollment from public benefits and a larger population of
aliens expending 4 to 8 additional hours (a 58%-117% increase of
existing burden) reporting these benefits. This is particularly true in
light of the changes to the Form I-485 instructions directing
applicants to only report the receipt of SSI, TANF, State, Tribal,
territorial, and local public cash assistance for income maintenance,
and long-term institutionalization at government expense, if received
before the effective date of this final rule. While some aliens may
spend more time gathering the information necessary to respond to these
questions on Form I-485 as a result of this rule, DHS believes this
will represent a negligible percentage of all respondents. It is
plausible that there will be more aliens who disenroll from public
benefits and have nothing to report than aliens who spend numerous
hours gathering this information. While DHS has not estimated a burden
reduction resulting from fewer applicants having any means-tested
public benefit receipt to report, the
[[Page 45435]]
balance of evidence leans toward lower or unchanged rather than
increased burden.
Finally, DHS discusses the challenges to accurately estimate public
benefits reductions from this rule in Section IV.A.5.b. and
contemplated a broad range of possible chilling effect magnitudes. The
burden to report past public benefit use is constrained by the
magnitude of these chilling effects, which is itself constrained by
factors external to this rule, such as H.R. 1's restrictions on
Medicaid and SNAP, as well as chilling effects from the 2019 rule, the
2022 rule, and other prior policy changes over the past several
decades. More succinctly, an alien cannot disenroll or forgo enrollment
from public benefits as a direct result of this rule if they had
already avoided that public benefit due to a prior rule or external
factor. As a result, DHS rejects the commenter's suggestion. The
current estimated time burden for Form I-485 is 6 hours and 51 minutes,
exclusive of familiarization costs to aliens and associated households,
discussed in the RIA. This includes the time for reviewing
instructions, gathering the required documentation and information,
completing the form, preparing statements, attaching necessary
documentation, and submitting the form. USCIS reports this information
collection has been revised to reflect changes made by this final rule,
but there is no change to the annual estimated time and cost burden to
respondents for information collection.
Comment: A commenter generally expressed opposition to the
revisions proposed to Form I-485, Form I-356, and Form I-945 in the
NPRM, adding consideration of means-tested public benefits to both the
public charge inadmissibility and the public charge bond process.
Response: DHS must update USCIS forms to reflect changes to agency
regulations to ensure they accurately reflect current regulatory
requirements. This process is governed by the PRA, 44 U.S.C. 3501 et
seq., and PRA implementing regulations at 5 CFR part 1320, which set
forth the procedures that agencies must follow when making changes to
information collections associated with proposed rules. The regulatory
changes reflected in Form I-485, Form I-356, and Form I-945 are
themselves governed by the APA and result from the notice and comment
process that is culminating in this final rule. 5 U.S.C. 553.
Therefore, DHS is modifying all impacted USCIS forms to reflect these
changes and collect information necessary to effectuate the removal of
the 2022 Final Rule.
Comment: A commenter remarked the proposed rule undermines the PRA
by imposing ``extensive new documentation requirements'' and the
``potentially unlimited range of records . . . undermines the PRA's
core mandate.'' A commenter wrote the proposed expansion of the
``totality of circumstances'' test without specifying required
documentation would create an unacknowledged paperwork burden and DHS
must demonstrate the utility of broad data collection under the PRA,
and without clear definitions, the rule leads to arbitrary data
collection excessively burdening applicants and sponsors.
Response: DHS disagrees that this rule imposes extensive
documentation requirements or requests an unlimited range of records.
On the contrary, in compliance with the PRA, DHS has modified the
relevant information collections to ensure that these forms reflect
rescission of the 2022 Final Rule and provide DHS with the information
it needs to make public charge inadmissibility determinations
consistent with the statute and binding precent, as well as to make
decisions regarding breach and cancellation of public charge bonds.
Specifically, DHS has updated Form I-485 to collect information
pertaining to the alien's receipt of any means-tested public benefits,
including the reason for receipt of the benefit. The changes made to
Form I-945 are necessary to ensure the bonded alien is aware that any
receipt of means-tested public benefits while the public charge bond is
in effect will result in a breach of the bond and will preclude
cancellation of the bond. The changes made to Form I-356 are necessary
to ascertain whether the bonded alien has received means-tested public
benefits while the public charge bond is in effect, resulting in denial
of the cancellation request due to the breach of the bond.
DHS notes that all new changes reflected in the revised information
collections are subject to review and approval by the OMB, including an
assessment of their necessity, practical utility, and burden. Where
possible, DHS has made necessary changes that are the least burdensome
for DHS to make public charge inadmissibility determinations and bond
breach, and cancellation determinations consistent with this
rulemaking. See 5 CFR 1320.5(d).
Comment: A commenter expressed concern that the proposed rule would
further complicate Form I-485, which is already complex, leading to
more applicant mistakes. A commenter similarly stated that, without the
2022 Final Rule's specificity, applicants would be burdened and left
uncertain about necessary documentation resulting in incomplete
submissions, delays, or incorrect denials. The commenter also suggested
that applicants may over-document their history because of the
increased reliance on discretion that would inevitably vary across
USCIS sites, which would increase time, cost, and stress in completing
forms such as Form I-485. Another commenter similarly stated that the
removal of clear guidance for completing Form I-485, Form I-356, and
Form I-945 as well as the NPRM's ``regulatory silence'' on future tools
to guide determinations would require more supplementary documentation,
increasing information collection burdens on applicants and USCIS.
Response: DHS notes that the revisions to Form I-485 made as a part
of this rulemaking project shorten the form while requesting almost the
same information relating to the public charge ground of
inadmissibility. DHS acknowledges that the current version of Form I-
485 requests information only about the receipt of certain public
benefits (SSI, TANF, or State, Tribal, territorial, or local cash
benefit programs for income maintenance, and long-term
institutionalization at government expense) because under the 2022
Final Rule those were the benefits considered by officers when making a
public charge inadmissibility determination. Under this final rule,
however, this limitation from the 2022 Final Rule is rescinded. The
information collected on Form I-485 has been updated to reflect the
change. Instead of collecting information tied to the rescinded 2022
Final Rule, the form now collects information relevant to public charge
inadmissibility determinations under this final rule, specifically, in
the context of past or current receipt of any means-tested public
benefit.
DHS acknowledges that this question is broader and the lack of a
regulatory definition of means-tested public benefit may present a
challenge to some applicants. However, as described in previous comment
responses USCIS will formulate and publish appropriate policy and
interpretive tools in advance of the effective date of the final rule
to guide USCIS officers in making public charge inadmissibility
determinations. Such guidance will also help inform aliens about the
public charge ground of inadmissibility and lessen any potential
confusion related to the lack of a definition in regulation.
[[Page 45436]]
DHS acknowledges that some aliens applying for adjustment of status
may provide significant amounts of evidence not required at the time of
filing due to uncertainty and fear. However, this was true before the
publication of this final rule and will remain true in the future. DHS
cannot control what documents applicants for adjustment of status
submit or prevent them from submitting superfluous evidence. DHS has
not updated Form I-485 to require any additional initial evidence in
connection with this final rule and it is neither required nor able to
estimate the time/burden associated with any information applicants
chose to submit but which is not collected or referenced on USCIS
forms.
Comment: A commenter said that the proposed rule's information
collection revisions include PRA deficiencies and large unaccounted
burdens, recommending that DHS identify each affected collection,
enumerate burden changes, and publish the Information Collection
Request (ICR)(s), including draft forms, instructions, and supporting
statements for at least 60 days of public comment, refrain from
enforcing any new or revised collection until OMB has approved and
assigned control numbers; and if emergency clearance is sought under 5
CFR 1320.13, provide the required written determination of the
emergency, demonstrate that normal clearance is impracticable, and
limit approval to the statutory period while concurrently pursuing the
regular clearance route.
Response: USCIS complied with the PRA and its implementing
regulations at 5 CFR 1320.11 and has not sought emergency clearance
under 5 CFR 1320.13, for the affected information collections. The
affected information collections (Form I-485, Form I-356, and Form I-
945) proposed drafts were made available in the NPRM docket at
Regulations.govfor a 60-day public comment period, along with table-of-
changes documents highlighting the proposed revisions and estimated
time burden. USCIS will not seek emergency clearance. USCIS anticipates
that OMB will approve the revised information collections in advance of
this final rule's effective date at which time they will be
implemented, but not prior to such approval.
Comment: A commenter stated that DHS is obligated to simultaneously
submit the ICR to OMB; publish a summary burden estimate; describe the
need and utility of the collection; and solicit PRA-specific comments.
The commenter added that the Federal Register Notice for the proposed
rule should have specified: each new or revised information collection
request, and whether it is covered by an existing OMB Control number or
requires a new number; the annual number of respondents, responses,
hours per response, and total burden hours and costs; and, where to
send PRA-specific comments, including the OMB Desk Officer address. The
commenter concluded that because the notice does not include these
items, DHS must submit the ICR(s) now, publish the PRA summary, and
reopen the comment period for at least 60 days on the specific
instruments and burdens.
Response: DHS disagrees that it must take any additional actions to
comply with the PRA given that USCIS already complied with the
requirements of 5 CFR 1320.11. The revised draft information collection
documents were sent to OMB Office of Information and Regulatory Affairs
(OIRA) for review prior to the publication of the NPRM. All the
required information about the three associated information collections
(Form I-485, Form I-356, and Form I-945) based on this NPRM was made
available to the public in the NPRM publication, including a table
identifying each impacted information collection and associated OMB
control numbers, and an overview of each information collection. 90 FR
52168, 52222-24 (Nov. 19, 2025). The NPRM specifically solicited public
comments for a period of 60 days and included instructions for the
public submitting such comments. The draft form documents, and the
table of changes documents, were also published along with the proposed
rule and were available to the public in the rulemaking docket on
https://www.regulations.gov under the DHS Docket No. USCIS-2025-0304.
Comment: A commenter expressed concern about whether interpretive
tools were to entail additional information collection comparable to
what was proposed by DOS in 2019,\308\ it would impact the U.S. economy
by having a chilling effect on the artist visa applicant pool and
making the United States a less desirable destination for international
touring musicians and performing artists.
---------------------------------------------------------------------------
\308\ 60-Day Notice of Proposed Information Collection: Public
Charge Questionnaire, 84 FR 57142 (Oct. 24, 2019).
---------------------------------------------------------------------------
Response: DHS notes that it, and not DOS, determines the
information necessary for the administration of the public charge
ground of inadmissibility by DHS components. The information collection
referenced by the commenter appears related to the DOS changes to the
public charge ground of inadmissibility, which, together with a later
published Interim Final Rule (IFR), reflect similar policies as the
2019 Final Rule. DHS proposed no such additional information collection
in the NPRM. This final rule similarly contains no additional
information collection comparable to the one referenced by the
commenter. Rather, the information collection request associated with
this final rule adapts the existing information collection requirements
to account for the rescission of the 2022 Final Rule. In addition, DHS
notes this final rule does not apply to DOS public charge
determinations and none of the three information collections associated
with this rulemaking project have any relevance to aliens seeking
admission as nonimmigrant touring musicians and performing artists.
Comment: A commenter suggested DHS revise Form I-485 and its
instructions to state that aliens should not provide information
relating to the receipt of means-tested public benefits (other than
cash assistance for income maintenance and long-term
institutionalization at government expense) prior to the effective date
of the Final Rule. Another commenter urged DHS to clarify the data
related to financial status, employment history, and public benefits
usage that would replace the quantitative thresholds being eliminated.
The commenter also wrote that if DHS intends to mandate that applicants
submit previously excluded information such as the receipt of public
benefits by household members of the applicant, it must provide
explicitly detailed instructions for Forms I-485, I-945, and I-356. A
commenter questioned which expanded data elements would be added to
Forms I-485, I-945, and I-356 as well as how DHS would minimize burden
and barriers while maintaining decision quality.
Response: DHS agrees with the suggestion about the collection of
information from adjustment of status applicants regarding their
receipt of means-tested public benefits (other than public cash
assistance for income maintenance or long-term institutionalization at
government expense) prior to the effective date of this final rule. DHS
has updated the Dates section of this rule to state that the receipt of
previously excluded means-tested public benefits will be considered
consistently with the 2022 Final Rule, meaning only public cash
assistance for income maintenance and long-term institutionalization at
government expense will be considered. In addition, USCIS has added
text to the Form I-485 instructions to clarify that applicants
[[Page 45437]]
who received means-tested public benefits before the effective date of
this Final Rule should only report the receipt of public cash
assistance for income maintenance and long-term institutionalization at
government expense. DHS published, as a part of this rulemaking
project, revised versions of Forms I-485, I-945, and I-356 for public
comment. There was no proposed elimination of any ``quantitative
thresholds'' in these information collections, and there were no
``quantitative thresholds'' under the 2022 Final Rule. The revised
version of Form I-485 contains questions explicitly establishing what
information ``related to financial status, employment history, and
public benefits usage'' is required from applicants for adjustment of
status. DHS has not updated Form I-485 to request that applicants
submit information on the past or current receipt of public benefits by
household members of the applicant and therefore need not provide
instructions relating to information it is not collecting. As stated in
this final rule, DHS is neither collecting nor attributing the receipt
of public benefits by the alien's family members to the alien.
Regarding expanded data elements, DHS again notes that the versions of
Forms I-485, I-945, and I-356 published for public comment clearly show
what information DHS intends to collect on these forms.
a. Form I-485
Comment: A commenter remarked that because any blank or
inconsistent information on an alien's Form I-485 is grounds for
application denial, additional staff time will be required from
benefit-granting agencies to ensure completeness. A local government
agency reasoned that the proposed information collection requirements
would increase administrative burden for State and local benefits
providing agencies.
Response: DHS disagrees that this rule imposes additional burdens
on benefit providing agencies. It is the alien, not the benefit
providing agencies, who completes and signs the Form I-485. The alien
must provide information that is complete, true, and correct about his
or her receipt of means-tested public benefits, including the dates or
receipt, the amount of receipt, and the reason for receipt, on Form I-
485.
Comment: A commenter noted that ``Part 9 item 56, the second-to-
last item, says, `Spouse, Child, or Parent of a U.S. Active-Duty
Service Member in the Armed Forces under the National Defense
Authorization Act (NDAA) (Form I-130 or Form I-360).' It may be unclear
to the applicant what provision this is referring to, since there is an
NDAA every fiscal year, and this does not clarify which fiscal year's
NDAA and which section of that NDAA it is referring to.''
Response: DHS thanks the commenter for their careful review of Form
I-485. This comment, while helpful, does not relate to this rule or the
proposed form revision. DHS may clarify that this refers to the NDAA
for Fiscal Year 2004, Public Law 108-136, in a future form revision.
Comment: The same commenter noted that Page 5 contains a section
`Acknowledgement of Selective Service,' which says, 'Review the
Selective Service Acknowledgement in Part 10.' However, there is no
Selective Service acknowledgement in Part 10 of the Form I-485, nor
anywhere else on the form.''
Response: DHS thanks the commenter for their careful review of Form
I-485. This comment, while helpful, does not relate to this rule or the
proposed form revision. DHS was already aware that the Selective
Service acknowledgement was erroneously deleted during a recent form
revision and intends to correct the error soon.
Comment: The same commenter noted that Part 2 item 3.a, under
``Immediate relative of a U.S. citizen, Form I-130, I-129F, or I-360
(select your specific category below):'', has checkboxes for ``Spouse
of a U.S. Citizen,'' ``Unmarried child under 21 years of age of a U.S.
citizen'', and ``Person admitted to the United States as a
fianc[eacute](e) or child of a fianc[eacute](e) of a U.S. citizen (K-1/
K-2 Nonimmigrant).'' They suggested that the form should be clarified,
either by separating the boxes for Forms I-130, I-129F, and I-360 under
separate headings, or explicitly specifying that the first two boxes
are only for those with Form I-130.
Response: This comment does not relate to this rule or the proposed
form revision. DHS will not update the form as recommended as a part of
this rulemaking.
Comment: Another commenter similarly provided detailed comments
regarding the proposed changes to Form I-485, including: The proposed
changes would cause confusion and potentially increase the chilling
effects of the rule because while the revised form will collect
information on past or current use of ``means-tested public benefits''
by the applicant, and require the applicant to exclude income from
``means-tested public benefits'' from their household income, neither
the form nor the rule define ``means-tested public benefits.'' Another
commenter discussed in detail Form I-485 and its instructions, stating:
``Neither the form nor the instructions define a 'means-tested public
benefit,' nor do the instructions refer the applicant to a regulation
or other place to find the definition.''
Response: The exclusion of income from means-tested public benefits
considered during the public charge inadmissibility determination is a
consistent approach taken by the agency in recent years. The
information collections associated with both the 2019 and 2022 Final
Rules instructed applicants to exclude any income from public benefits
considered under those rules. As DHS is rescinding the regulatory text
referencing cash assistance for income maintenance and long-term
institutionalization at government expense, it must also update its
form instructions to reflect this change. There is no need to spell out
which benefits DHS will consider when DHS will consider any and all
public benefits funded by the government for which eligibility is
determined by assessing whether the alien's means are below the
specified level. DHS believes it has made it clear what benefits are
being considered and therefore what sources of income should be
excluded from the alien's reported household income.
Comment. The same commenter asserted that DHS did not provide a
statutory or regulatory basis for requesting additional information
from applicants on Form I-485.
Response: DHS disagrees with the commenter's assertion. The current
version of Form I-485 contains four questions relating to the receipt
of certain public benefits. The form collects information about those
benefits (SSI, TANF, or State, Tribal, territorial, or local cash
benefit programs for income maintenance, and long-term
institutionalization at government expense) because under the 2022
Final Rule those were the benefits considered by officers when making a
public charge inadmissibility determination. Under this final rule,
however, this limitation from the 2022 Final Rule is rescinded. The
information collected on Form I-485 has been updated to reflect the
change in the regulation; this rule is the basis for the form change.
Instead of collecting information (using four questions) tied to the
now-rescinded 2022 Final Rule, the form now collects information (using
two questions nearly identical to the previous questions) relevant to
public charge determinations in this new context. The rescission drives
the need for form change. It would make no sense to collect information
tied to the narrow understanding of public charge
[[Page 45438]]
contained in the 2022 Final Rule once that rule has been rescinded.
Comment: The same commenter, as well as some others, wrote that
when considering the proposed changes to Form I-485 in conjunction with
the new Notice to Appear guidance, it is far more likely that an alien
whose application for adjustment of status is denied due to a public
charge inadmissibility determination will face enforcement action.
Further, they wrote that nonimmigrants who fail to maintain their
lawful status while their application for adjustment of status is
pending would be placed into removal proceedings. The alien would, upon
denial, also lose their EAD.
Response: This is not actually a comment about the revisions to
Form I-485 but rather a general comment on the rule itself. DHS is
committed to faithfully implementing the immigration laws established
by Congress. USCIS will issue an NTA to a removable alien upon the
denial of his or her application for adjustment of status. If such
alien was in a lawful nonimmigrant status at the time of applying for
adjustment of status, and chooses to fail to maintain that nonimmigrant
status while the application for adjustment of status is pending, the
alien has violated U.S. immigration laws and is removable under section
237(a)(1)(C) of the INA, 8 U.S.C. 1227(a)(1)(C). The alien is removable
because he or she violated immigration laws, not because of this rule.
The harms described by the commenter are the normal consequences faced
by removable aliens when DHS faithfully implements our immigration
laws.
Comment: A commenter urged DHS to maintain Form I-485 in its
current form. The commenter expressed opposition to the proposed
revisions, particularly the replacement of the explicit list of public
benefits with the open-ended prompt mandating applicants list all
means-tested benefits. The commenter's rationale included that:
The collection of information relating to the receipt of
undefined ``means-tested public benefits'' is unnecessary for agency
functionality and would result in the collection of information with
reduced practical utility, quality, and clarity;
Such an open-ended question would undermine fairness,
efficiency, and public confidence in the adjustment of status process
and increase administrative burdens for USCIS;
The proposed form revisions are accompanied by inaccurate
burden estimates because aliens will need to engage in open-ended legal
determinations and contact many public benefits providing agencies to
obtain the required information;
The revisions fail the PRA standard to minimize respondent
burden by shifting administrative complexity to the public; and
The form revisions would have inequitable impacts on
certain populations such as low-income immigrants or those with limited
English proficiency, further contravening the PRA mandate to minimize
respondent burden and undermining fairness in Federal administrative
processes.
Response: While this comment was submitted after the comment period
on the rule had closed, and while DHS was only accepting comments on
the form revisions at that time, most of this comment expresses
opposition to the NPRM rather than the related form updates. DHS cannot
maintain the current version of Form I-485 while rescinding the 2022
Final Rule. Certain elements of the current form are directly connected
to the now-rescinded definitions and that rule's approach to public
charge inadmissibility determinations. For aliens to provide relevant
and useful information to adjudicators that will allow the aliens to
meet their burden of proof in demonstrating eligibility for adjustment
of status, DHS had to update Form I-485 and its instructions to reflect
the rescission.
There is no need to specify which benefits DHS will consider when
DHS will consider any and all means-tested public benefits funded by
the government for which eligibility is determined by assessing whether
the alien's means are below the specified level. DHS believes it has
made it clear what benefits are being considered.
The current estimated time burden for Form I-485 is 6 hours and 51
minutes. This includes the time for reviewing instructions, gathering
the required documentation and information, completing the form,
preparing statements, attaching necessary documentation, and submitting
the form. USCIS is reporting that this information collection has been
revised to reflect changes proposed by the Public Charge Ground of
Inadmissibility NPRM, however, there is no change to the annual
estimated time and cost burden to respondents for this information
collection as a result of this change. DHS disagrees with the
commenter's statement that this estimate is inaccurate because
applicants will be required to spend significantly more time pondering
whether a particular public benefit they received is ``means-tested''
and contacting public benefits agencies to obtain detailed information
about when they received benefits and in what amount. As previously
noted, if it is a benefit funded by the government for which
eligibility is determined by assessing whether the alien's means are
below a specified level, it is a means-tested public benefit. If an
alien received a public benefit for which income, resources, or
financial need played no role in determining either eligibility for the
benefit or the amount of the benefit, it is not a means-tested public
benefit.
The commenter further states that DHS should ``minimize respondent
burden'' by ``preserving a closed, clearly defined list of benefits
aligned with current law.'' DHS declines to do so, and notes that there
is no such ``clearly defined list of benefits aligned with current
law.'' No statute or court has ever created such a list, and Congress
has clearly indicated that its concerns regarding self-sufficiency are
not tied to a few specific public benefits but rather public benefits
as a whole. DHS believes that requiring aliens to report on their
current or past use of any means-tested public benefits and considering
such use in the totality of the circumstances when making a public
charge inadmissibility determination is the approach most consistent
with the law.
Finally, DHS disagrees with the commenter's assertion that the form
revisions will have a disparate and inequitable impact on certain
vulnerable populations. It declines to make the recommended changes to
Form I-485, which would be inconsistent with the rescission of the 2022
Final Rule.
Comment: Other commenters expressed further concerns that the
revised Form I-485 contains overly broad and unclear language that
creates difficulties for immigration attorneys and legal service
providers to issue precise guidance.
Response: As previously stated, DHS believes it has been clear
about what benefits are being considered. If it is a benefit directly
provided or funded by the government for which eligibility is
determined by assessing whether the alien's means are below a specified
level, it is a means-tested public benefit. If an alien received a
public benefit for which income, resources, or financial need played no
role in determining either eligibility for the benefit or the amount of
the benefit, it is not a means-tested public benefit. Attorneys and
legal services providers should take this plain language approach to
understanding ``means-tested public benefit.''
[[Page 45439]]
Comment: A commenter expressed concern about uncertainties and
inconsistencies in how adjudicators will review public charge
assessments based on the proposed changes to Form I-485 and recommended
that forms and instructions are clear and minimally burdensome as per
the PRA. The commenter also made the following specific
recommendations:
Readjust the estimated burdens for completing Form I-485
given its growing length and complexity;
Ensure clarity in Form I-485 and its instructions,
particularly for Items 57, 58, 59, 60, 61, and 62 in Part 9, General
Eligibility and Inadmissibility Grounds; and
Address ambiguity concerns about other Form I-485 areas
including Part 3; Items 23, 26, 27, 28, 29, and 40 of Part 9; and Part
12.
Response: DHS thanks the commenter for their review and feedback.
We acknowledge their comments about the increase in the length of Form
I-485 over the past 10 years, the increase in the information
collected, and the commenter's suggestion that DHS revisit the burden
estimate, which they suggest does not reflect the changes over that
decade. The current estimated time burden for Form I-485 is 6 hours and
51 minutes. This includes the time for reviewing instructions,
gathering the required documentation and information, completing the
form, preparing statements, attaching necessary documentation, and
submitting the form. DHS believes this estimate is accurate and
reflects all considerations required by OMB.
Regarding the commenter's detailed suggestions for how DHS should
amend its form and instructions relating to family status (Form I-485
Part 9, Item 57), DHS declines to make the recommended changes. As the
commenter notes, ``family status'' is not defined in the INA. Because
DHS proposed to remove the 2022 Final Rule in its entirety, and not
define any of the statutory terms, DHS cannot create a binding
definition of ``family status'' for purposes of the public charge
ground of inadmissibility without including it in regulatory text that
was previously proposed for public comment. The full rescission of all
public charge inadmissibility regulations, leaving only the amended
bond previsions, precludes DHS from doing so. While USCIS intends to
provide additional subregulatory guidance to officers and the public as
to its understanding of ``family status,'' it will not do so in
regulatory text or the form instructions. DHS also declines to remove
the question from Form I-485, as it must collect information relating
to this mandatory statutory factor. DHS notes that ``family status''
has been consistently understood under both the 2019 and 2022 Final
Rules as ``household size'' and suggests that this is a reasonable
approach for applicants to take when completing Form I-485.
DHS disagrees with the commenter's assertion that the lack of a
clear definition of ``family status'' makes it difficult to determine
household income, assets, or liabilities (Form I-485 Part 9, Items 58-
60). The elimination of the regulatory definition of ``household''
(former 8 CFR 212.21(f)) could have such an effect, but not the lack of
a definition for ``family status.'' USCIS will provide guidance to its
officers and the public that will suggest which individuals may be
considered members of an applicant's household in an adjustment of
status adjudication, though not a binding definition. In the absence of
a binding definition, officers will be able to consider the plain
meaning of the term including whether the alien is single, married,
cohabiting with family members, and the impact of family status on
other aspects of a public charge inadmissibility determination, such as
whether and how any other individuals in the alien's life make them
less likely to become a public charge.
DHS declines to provide additional guidance in its form
instructions relating to educational systems in other countries and how
to map those onto the options available for Form I-485 Part 9, Item 61.
DHS agrees that aliens should provide their best understanding of an
appropriate answer based on different systems of education.
As for the commenter's concerns regarding the collection of
information relating to an alien's skills (Form I-485 Part 9, Item 63),
DHS declines to amend the form in response to those concerns. DHS notes
that the change in the question is minor. The previous version of Form
I-485 stated ``[l]ist your certifications, licenses, skills obtained
through work experience, and educational certificates'' followed by a
small one-column table. The revised version associated with this Final
Rule instead states ``[l]ist your skills (for example, certifications,
licenses, skills obtained through work experience, and educational
certificates).'' This is again followed by the same one-column table.
DHS amended the form to align with the statutory text, which
directs officers to consider the alien's ``skills.'' DHS continues to
believe that certifications, licenses, skills obtained through work
experience, and educational certificates are representative of an
alien's skills. However, DHS has rescinded former 8 CFR
212.22(a)(1)(v), which specifically stated that DHS would consider an
alien's ``skills, as evidence by the alien's . . . certifications,
licenses, skills obtained through work experience . . ., and
educational certificates.'' Without that regulatory text to support it,
the previous phrasing of the question was too limiting to continue
unrevised. Applicants are strongly encouraged to continue listing their
certifications, licenses, skills obtained through work experience, and
educational certificates in response to this question, as well as any
other information relating to skills that they possess.
As the commenter noted, it took this opportunity to provide
comments on sections of the form unrelated to this rulemaking project
and form revisions. While DHS appreciates the commenter's thoroughness,
these are outside of the scope of this project and DHS declines to
amend the form or provide substantive responses to those comments.
b. Form I-356
Comment: Another commenter urged DHS to incorporate two additional
grounds that would make immigrants eligible to request public charge
bond cancellation: (1) having or being credited with 40 qualifying
quarters of work and (2) readjusting status in removal proceedings. The
commenter reasoned that 40 qualifying quarters of work serves as the
threshold for exemption or discontinuation of sponsor support under
other regulations, indicating that this standard is indicative an
immigrant is unlikely to become a public charge. Similarly, the
commenter wrote that under other forms and regulations, a second
adjustment of status can serve as grounds for ceasing support
obligations. The commenter concluded that failure to include these
provisions would be arbitrary, capricious, and contrary to law.
Response: This comment was submitted on January 20, 2026, well
after the end of the NPRM comment period on December 19, 2025. While
the commenter wrote their comment as if it related to Form I-356, the
changes they suggest for the form would require regulatory changes to 8
CFR 103.6, relating to the cancellation of public charge bonds. Form I-
356 merely reflects the permissible bond cancellation scenarios
outlined in 8 CFR 103.6(c)(1)(i)(A) through(C). DHS cannot add new
bases for cancellation to the form without amending the regulation. As
for the suggestion that this would be permissible because the
regulation permits USCIS to ``cancel a public
[[Page 45440]]
charge bond at any time after determining that the alien is not likely
at any time to become a public charge,'' the commenter should have
known from the NPRM that DHS was proposing to remove this regulatory
language. DHS has done so in this final rule. Since the suggestion that
Form I-356 be updated to include two new bond cancellation scenarios is
in truth a suggestion that DHS amend 8 CFR 103.6(c)(1), this portion of
the comment was untimely.
Comment: A commenter recommended the following changes to Form I-
356:
Part 4, Item 3: include a checkbox for each of the various
ways in which an alien can depart permanently from the United States,
instead of the current approach of merely asking if they have
permanently departed followed by the collection of certain applicable
details.
Part 4, Item 6: provide a clear definition of ``means-
tested public benefit'' through regulations, the form, or its
instructions and an itemized list of the benefit in the form with
corresponding checkboxes.
Response: DHS thanks the commenter for their recommendations.
Regarding the questions about permanent departure, DHS declines to make
the recommended edits to the form. DHS believes that the current form
is sufficiently clear, particularly as the instructions for Form I-356
outline what constitutes a permanent departure for the purpose of
cancellation of the bond and what evidence is required to demonstrate
such departure. The USCIS Policy Manual also contains detailed
information for officers and the public on the topic, in Volume 8, Part
G.
Regarding the suggestion about means-tested public benefits, DHS
will not provide a definition in the regulation, on the form, or in the
form instructions. Given the many means-tested public benefits that an
LPR may be eligible for while a bond is in effect, from all levels of
government, providing a comprehensive itemized list, complete with
checkboxes, would be impossible.
c. Form I-945
Comment: A commenter recommended the following changes to Form I-
945:
Part 2, Item 12: revise the language relating to Form G-28
as follows: ``If the attorney or accredited representative does not
submit Form G-28 for this Form I-945, U.S. Citizenship and Immigration
Services (USCIS) will not be able to communicate with the attorney or
accredited representative on behalf of the bonded alien regarding the
bond.'';
Part 3: provide additional guidance on the conditions and
riders that may be attached to a public charge bond;
Part 3, Item 3: provide a definition of ``means-tested
public benefit'' and make it available in Form I-945 and its
instructions; and
Part 3, Item 5: provide a more specific definition for the
term ``permanent,'' as it relates to the phrase ``permanent departure
of the alien.''
Response: DHS thanks the commenter for their recommendations
concerning Form I-945. Regarding the recommended clarifying language
for Part 2, Item 12, DHS agrees that the addition of ``regarding the
bond'' would be helpful and has made this adjustment on the form. DHS
will make a similar minor clarifying update to the instructions.
Regarding the bond conditions and riders in Part 3 of the form, DHS
declines to provide guidance or details about what such conditions or
riders might be on Form I-945 or in its instructions. Congress has
granted the Secretary of Homeland Security the authority to include any
``such conditions as he may prescribe.'' This authority, and the open-
ended nature of this portion of the bond form, is common across the
various types of immigration bonds. USCIS will provide subregulatory
guidance to its officers and the public on public charge bonds.
DHS declines to provide a definition of ``means-tested public
benefit'' in regulation or on Form I-945 or its instructions. Regarding
the recommendation that DHS cross-reference or include in the form
instructions the clarification of ``permanent'' (in the context of
``permanent departure'') provided in Volume 8, Part G of the USCIS
Policy Manual, DHS declines to do so. As the commenter notes, the
language comes directly from the statute. The form used for
cancellation of public charge bonds, Form I-356, includes sufficient
detail for aliens who have submitted public charge bonds to understand
when they may be cancelled due to permanent departure. Finally, DHS
intends to continue providing additional clarification about permanent
departure in the USCIS Policy Manual.
4. Other Statutory and Regulatory Requirements
a. National Environmental Policy Act
Comment: A commenter stated that while it agreed that the NPRM and
this final rule do not have significant environmental impact, it found
DHS's implementation process of the National Environmental Policy Act
(NEPA) to be lacking. Specifically, the commenter found the statement
in the NPRM NEPA discussion that DHS has ``reviewed this proposed
rule'' and determined it has ``no significant impact,'' implied DHS
conducted an environmental analysis, though, in the commenter's view,
DHS had not. The commenter suggested DHS's conclusion regarding no
significant environmental impact of the final rule and invocation of
the categorical exclusion A3 would stand on firmer ground if DHS stated
the rule is strictly administrative and procedural before concluding
that it fits within categorical exclusion A3. The commenter noted,
however, that DHS's NEPA implementing procedures do not define what is
strictly administrative and procedural, and commented broadly about the
appropriateness of DHS's reliance on this categorical exclusion across
immigration regulations particularly if those regulations increase
immigration population. The commenter recommended DHS, in line with
E.O. 13154, Unleashing American Energy, take the opportunity to adopt
new NEPA procedures and, if appropriate, develop categorical exclusions
relating to immigration specifically to further immigration enforcement
efforts. Another commenter acknowledged the proposed rule would have no
significant impact on the environment.
Response: DHS appreciates these comments and agrees the final rule
will have no significant impact on the environment and affirms there
will be no change in environmental effect resulting from the amendments
being made by this final rule. Regarding the commenters' suggestion to
strengthen the NEPA discussion as related to this rulemaking, DHS notes
it did first review the rule to determine it is administrative and
procedural and explained its conclusion--the rule removes regulatory
provisions from existing DHS regulations leaving officers to administer
the public charge ground of inadmissibility consistently with the
statute, controlling precedent, and any guidance DHS issues to guide
their determinations. This approach reflects what officers did for
decades leading up to the 2019 Final Rule, and subsequently the 2022
Final Rule regulations it is now removing (with the exception of the
bond provisions). Only then did DHS indicate that the rule clearly fits
within the categorical exclusion A3. With respect to commenters'
concerns regarding rules that increase populations, nothing in the NPRM
or this final rule suggests it will increase the immigrant population.
DHS also appreciates the comment making detailed recommendations
for
[[Page 45441]]
improving DHS's NEPA compliance but notes the commenter's
recommendations go beyond the scope of this rulemaking.
b. Unfunded Mandates Reform Act (UMRA)
Comment: Without providing a specific analysis, a commenter
acknowledged the proposed rule does not contain a Federal mandate as
defined under UMRA.
Response: DHS agrees that this final rule does not contain a
Federal mandate as defined under UMRA. Therefore, in accordance with
UMRA, this rule requires no further agency action or analysis.
Comment: Commenters wrote that the proposed rule would trigger
significant private-sector expenditures, into the tens of millions of
dollars annually, and cause material State and local expenditures from
increased uncompensated care, public hospital subsidies, and
administrative processing related to disenrollment and re-enrollment.
The commenters stated DHS should prepare and publish the UMRA statement
or provide detailed, evidence-based explanation of why UMRA does not
apply, including quantitative estimates showing the threshold is not
met.
Response: DHS disagrees with these comments as this final rule does
not contain a Federal mandate under UMRA. The term ``Federal mandate''
means a Federal intergovernmental mandate or a Federal private sector
mandate. See 2 U.S.C. 1502(1), 658(6). The term ``Federal
intergovernmental mandate'' means, in relevant part, a provision that
would impose an enforceable duty upon State, local, or Tribal
governments (except as a condition of Federal assistance or a duty
arising from participation in a voluntary Federal program). 2 U.S.C.
658(5). The term ``Federal private sector mandate'' means, in relevant
part, a provision that would impose an enforceable duty upon the
private sector (except as a condition of Federal assistance or a duty
arising from participation in a voluntary Federal program). 2 U.S.C.
658(7). This final rule does not contain such mandates, because it is
not purporting to regulate which aliens may receive public benefits or
how states and local governments administer such programs. Therefore,
this rule does not impose any enforceable duty upon any other level of
government or private sector entity and any costs or transfer effects
on States and local governments would not result from a Federal mandate
as defined under UMRA.
c. Federalism
Comment: Without providing additional rationale, a commenter
remarked the proposed rule does not have sufficient federalism
implications.
Response: DHS agrees that this final rule does not have federalism
implications because it does not have substantial direct effects on 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, this rule requires no further agency action or analysis.
Comment: Several commenters remarked that DHS is obligated to
prepare a federalism impacts analysis, reasoning that the proposed rule
disregards States' congressional authorization to provide benefits to
aliens, infringes on State and local sovereign authority by penalizing
provision of benefits, and imposes costs on States and localities. One
of these commenters provided data indicating the money saved by their
State investing in preventative care benefits, which they said would be
threatened by the proposed rule. Another commenter encouraged DHS to
ensure the final rule respects State sovereignty, particularly in the
realm of public benefits. A commenter elaborated that DHS appears to
have avoided conducting a federalism impacts analysis by ``delineating
between direct and indirect effects''; the commenter expressed
disagreement with this delineation, stating that effects considered by
DHS to be indirect would be direct effects upon implementation (e.g.,
eliminating the current prohibition on counting benefit use by
dependents, including U.S. citizen children, from counting towards
public charge determinations).
Response: DHS disagrees with these comments. This final rule does
not have federalism implications because it does not have substantial
direct effects on the States, or on the distribution of power and
responsibilities among the various levels of government. Although this
rule removes 8 CFR 212.21 and 212.22, the core elements of the 2022
Final Rule and may cause some aliens to disenroll from or forgo
enrollment in public benefit programs, DHS is not regulating which
aliens may receive public benefits or how states and local governments
administer such programs. DHS does not expect this final rule will
impose substantial direct compliance costs on State and local
governments, or preempt State law. Accordingly, in accordance with
section 6 of E.O. 13132, this rule requires no further agency action or
analysis.
Comment: Commenters addressed federalism and stated the proposed
rule undermines State programs by creating uncertainty for state
Medicaid agencies; causing people to withdraw from State-supported
programs, which disrupts State health planning; increasing State
healthcare expenditures due to preventable medical emergencies; and
burdening State-level social services and public health departments.
Another commenter stated the absence of clear Federal guidance
undermines federalism. The commenter provided examples of lawful State
public health benefits provided by the State of Oregon, reasoning that
if families avoid accessing these benefits for preventative care out of
fear and confusion of the proposed rule, these families would
ultimately seek emergency care instead, imposing costs to hospitals,
schools, nonprofits, and taxpayers. Another commenter, a legal services
provider, provided several examples of clients who received public
medical benefits in their state, remarking that the proposed rule would
infringe on the State's ability to provide these benefits and the
commenter's ability to support these clients.
Response: DHS disagrees that this rule undermines State programs
that provide healthcare services. This final rule rescinds 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), in which DHS too narrowly defined 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 statute and congressional intent. DHS did not propose
in the NPRM to, in any way, regulate or circumscribe the ability of
states to offer public benefits to intending immigrants. Similarly,
this final rule neither prohibits states from providing benefits to
immigrants nor prohibits any category of immigrants from receiving any
state or local benefits for which they are eligible.
DHS appreciates the comment regarding the effects on State health
care planning and expenditures. DHS agrees that some entities, such as
State and local governments may incur costs related to the rescission
of the 2022 Public Charge rule. However, these costs are indirect costs
of the rule since this rule does not directly regulate State and local
governments and does not require them to make changes to their business
processes or programs. Therefore, DHS considers these indirect costs as
qualitative, unquantified effects of the final rule since it is unclear
how many
[[Page 45442]]
State and local governments will choose to make administrative changes
to their business processes and the cost of making such changes.
Comment: One commenter said the rulemaking process lacked
meaningful consultation with State and local officials and requested
that DHS conduct additional outreach to develop collaborative
approaches with jurisdictions responsible for on-the-ground
implementation, while another requested confirmation on whether DHS
consulted with State human services agencies. Another commenter wrote
DHS did not indicate that they sought State, local, or Tribal feedback
on the costs attendant to its proposed policy's serious impacts on
individuals lawfully eligible for benefits, the economy, and public
health, declaring feedback would have helped DHS consider the proposed
rule's acknowledged consequences of forgone lawful benefit use to
adequately and reasonably assess the costs of chilling effects and the
downstream consequences of their proposed deviation from a framework
generally in place since 1999.
Response:. DHS solicited public comments through the NPRM, a
standard method for gathering input, which included receiving feedback
from State and local governments. DHS does not expect that this final
rule will impose substantial direct compliance costs on State and local
governments and therefore does not need their consultation. DHS also
declines to consult, beyond soliciting public comments, with State
human service agencies because this rule does not regulate which aliens
may receive public benefits or how states and local governments
administer such programs. Any downstream effects on State and local
governments and human service agencies specific to this final rule
would arise solely due to voluntary choices and would not be a
consequence of an enforceable duty imposed by this rule. While DHS
agrees that some entities, such as State and local governments may
incur costs related to the rescission of the 2022 Public Charge rule,
these costs are considered to be indirect costs of the rule since this
rule does not directly regulate State and local governments and does
not require them to make changes to their business processes or
programs. Therefore, DHS considers these indirect costs as qualitative,
unquantified effects of the final rule since it is unclear how many
State and local governments will choose to make administrative changes
to their business processes and the cost of making such changes.
d. Civil Justice Reform
Comment: Without providing additional rationale, a commenter
disagreed with DHS's statement that the proposed rule meets the
applicable Civil Justice Reform standards. A different commenter said
the rule would not comply with E.O. 12988, Civil Justice Reform,
because the rule is contrary to congressional intent in enacting
certain tax credits. The commenter reasoned that DHS relied on or would
rely on the Memorandum Opinion issued by the Department of Justice to
the General Counsel of the Department of the Treasury \309\ and any
future Treasury Department regulations to include EITC and CTC as means
tested public benefits which would result in extensive litigation were
DHS to consider tax credits as means-tested public benefits.
---------------------------------------------------------------------------
\309\ Status of the Refundable Portion of Certain Tax Credits as
Federal Public Benefits https://www.justice.gov/olc/media/1419131/dl
(Nov. 19, 2025).
---------------------------------------------------------------------------
Response: DHS strongly disagrees with commenters. Both the NPRM and
this final rule were drafted in accordance with E.O. 12988 \310\ to
provide a clear legal standard for affected conduct. Both were reviewed
carefully to eliminate drafting errors and ambiguities to minimize
litigation and undue burden on the Federal court system. Both describe
and explain in clear terms the effect of the 2022 Final Rule rescission
on future public charge inadmissibility determinations, including that
they will be governed by the statute, binding precedent, and any
guidance the agency issues to guide but not prescribe officer
discretion. To provide additional clarity, this final rule states that
the rule applies prospectively to applications for admission made and
adjustment of status applications filed on or after the effective date
and that previously excluded means-tested public benefits received
before the rule's effective date will be treated consistently with the
2022 Final Rule. While the NPRM did not propose and this final rule
does not codify regulatory provisions, including binding key
definitions, it relies on commonly understood terms that are described
in binding precedent, and which officers have successfully applied for
decades. Finally, both the NPRM and this final rule were reviewed and
approved by the Department of Justice and the Office and Management and
Budget for clarity and general draftsmanship. For these reasons, both
the NPRM and this final rule comply with E.O. 12988.
---------------------------------------------------------------------------
\310\ 61 FR 4729 (Feb. 7, 1996) https://www.federalregister.gov/documents/1996/02/07/96-2755/civil-justice-reform.
---------------------------------------------------------------------------
DHS disagrees that consideration of EITC and CTC will result in
extensive litigation in contrast to E.O. 12988's objectives. This final
rule clarifies that these tax credits will be considered in the
totality of the circumstances. However, given they are generally
available to both low income and middle income families, their
probative value in the totality of the circumstances analysis will
depend on whether the alien is otherwise determined to be self-
sufficient, and could elect to either receive or not receive such tax
credits based on the alien's employment, income, assets and all other
relevant considerations in the totality of the circumstances. DHS
believes the clarifications eliminate any ambiguity regarding the
consideration of these tax credits. DHS also clarifies for the purpose
of this rulemaking it did not rely on any recommended classification by
the Department of Justice of EITC and CTC regarding whether these tax
credits, if received by aliens, can be considered in public charge
ground of inadmissibility determinations.
e. Family Assessment
Comment: Several commenters stated the proposed rule would affect
family well-being, reasoning that the proposed rule would negatively
affect families by leading to poverty, loss of healthcare, or impacts
to family stability and education. Commenters stated that the proposed
rule would harm families with mixed immigration status, in violation of
Section 654 of the Treasury and General Government Appropriations Act,
1999, criticized DHS's family assessment from the NPRM as inadequate,
and encouraged DHS to conduct a Family Policymaking Assessment
consistent with the statute in order to fully understand the impact of
the proposed rule on the well-being of American families, including
families of alien parents with U.S. citizen children. Another commenter
further elaborated that the family assessment included by DHS in the
NPRM does not cover all the required topics under that law, addressing
only one (whether the financial impacts on families are justified)
while ignoring the requirement to address the other 6 issues included
in the law.
A commenter found the proposed rule's family assessment inadequate,
reasoning the proposed rule would limit aliens' routes to U.S.
citizenship, thus impacting family autonomy (because citizens have more
rights and access to benefits, so autonomy would be lessened if aliens
were prevented from becoming citizens). They also stated that the
absence of a U.S. citizen in a family
[[Page 45443]]
would limit the autonomy of the family unit, adding that the NPRM's
predicted disenrollment effects would also be negatively impacted, such
as by illness, food insecurity, or lack of housing.
Another commenter stated their view that there is clear evidence
that discouraging families from accessing Medicaid and CHIP will
undermine child and maternal health, as well as household financial
stability. Another provided specific details on the potential negative
effects of the proposed rule on children and families, citing evidence
of positive health outcomes for children with access to means-tested
public benefits and pointing to the rise in children without health
insurance.
Response: DHS disagrees with the commenters' assertions that it did
not engage in an adequate assessment under Section 654 of the Treasury
and General Government Appropriations Act, 1999.\311\ Section 654
requires Federal agencies to issue a Family Policymaking Assessment for
any rule that may affect family well-being. Agencies must assess
whether: (1) The action strengthens or erodes the stability or safety
of the family and, particularly, the marital commitment; (2) the action
strengthens or erodes the authority and rights of parents in the
education, nurture, and supervision of their children; (3) the action
helps the family perform its functions, or substitutes governmental
activity for the function; (4) the action increases or decreases
disposable income or poverty of families and children; (5) the proposed
benefits of the action justify the financial impact on the family; (6)
the action may be carried out by State or local government or by the
family; and whether (7) the action establishes an implicit or explicit
policy concerning the relationship between the behavior and personal
responsibility of youth, and the norms of society.
---------------------------------------------------------------------------
\311\ Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998).
---------------------------------------------------------------------------
As discussed in the NPRM, DHS assessed the rule's effect on family
well-being and determined that the rule may decrease disposable income
and increase the poverty of certain families and children, including
U.S. citizen children, although DHS believes at least some of these
potential impacts could be mitigated by clear communication regarding
the application of the final rule and how the public charge
inadmissibility determinations work in the totality of the
circumstances, such as the guidance USCIS intends to publish on or
before the effective date of this rule. Ultimately, however, DHS
continues to believe that the financial impact on the family is
justified. Given the compelling legal and policy reasons associated
with this rulemaking, including but not limited to, better ensuring
self-sufficiency among those aliens Congress has determined should be
subject to the public charge ground of inadmissibility, DHS determined
that this rulemaking's impact is justified and no further actions are
required. DHS disagrees with commenters that this rule would have an
impact on avenues for immigration or family autonomy. DHS also
determined that this final rule will not have any impact on the
autonomy or integrity of the family as an institution and disagrees
with commenters on that point. Furthermore, with this rulemaking, DHS
does not intend to separate families. DHS's intent is to implement
Congress's mandate to assess whether an alien has met his or her burden
to demonstrate that he or she is not likely at any time to become a
public charge under section 212(a)(4)(A) of the INA, 8 U.S.C.
1182(a)(4), given the congressional policy to ensure those coming to
the United States should be self-sufficient and not rely on the
government for assistance to meet their needs. DHS agrees that family
unity is a significant tenet of the family-based immigration system. As
indicated above, the rule does not alter eligibility criteria for a
family-based immigrant petition, although it could have some impact on
the ultimate outcome of such petitions.
With respect to comments discussing family stability and impacts on
the rule on Medicaid and CHIP enrollment, DHS recognized the beneficial
impacts of these programs and clearly explained that the receipt of
Medicaid and/or CHIP will be considered only as received by the
individual alien subject to the public charge ground of inadmissibility
and also considered along with any other relevant information in the
totality of the circumstances.
Finally, DHS has taken steps to mitigate the effects of this rule
on families. Like all other applicants for admission or adjustment of
status who are subject to the public charge or any other ground of
inadmissibility, aliens are not guaranteed admission or adjustment of
status merely by virtue of their relationship to a U.S. citizen or LPR.
As discussed previously, DHS clarified both in the NPRM and in this
final rule that receipt of public benefits is not alone outcome
determinative and has ensured that this final rule will be applied
prospectively only to applications filed on or after the effective date
of the final rule. In the same vein, DHS has also clarified that
previously excluded means-tested public benefits received before the
effective date of this final rule will not be considered. In addition,
DHS has clarified in this final rule that it will not attribute U.S.
citizen children's receipt of public benefits to their parents who are
subject to the public charge inadmissibility ground, however, DHS may
consider the parents' legal obligation to support the children in the
totality of the circumstances. As stated elsewhere in this final rule,
USCIS will issue subregulatory guidance to assist its officers
adjudicating adjustment of status applications in exercising their
discretion, including ascertaining relevance of receipt of public
benefits depending on the interplay of various factors that are in
their discretion to consider. DHS believes that these explanations and
clarifications will help mitigate some of the impacts of this rule and
believes that any such impacts are justified.
P. Out-of-Scope
1. Support for Immigration and Opposition to Restrictive Immigration
Policies
Comment: Multiple comments expressed general support for
immigration, including support for immigrants and immigration into the
United States, and stated that the United States is made up of
immigrants. Multiple commenters made remarks about the positive
contributions immigrants make to society and the economy. Some of the
comments included positive anecdotal experiences with immigrants.
Response: Comments regarding generalized support for immigration to
the United States and immigrants are outside the scope of the rule.
Comment: Several commenters expressed opposition to what they
perceived as aggressive, harmful, inhumane, or discriminatory
immigration enforcement that instills fear. One commenter generally
disagreed with the policies of the U.S. immigration system, and another
thought efforts should be redirected to other issues that require more
attention and that there is a long list of more important things to fix
in the United States and in the U.S. immigration system.
Response: All comments opposing generalized restrictive immigration
policies are outside the scope of the rule.
Comment: One commenter was concerned that the benefit eligibility
for Afghan nationals and Ukrainians has expired and they can no longer
receive
[[Page 45444]]
benefits, because some Afghan nationals risked their lives to help the
U.S. in wartime and the Ukrainians are still at war.
Response: To the extent that the comment seeks changes in U.S.
policy concerning benefit eligibility for Afghans and Ukrainians, it is
outside the scope of the rulemaking.
2. Opposition to Immigration Generally
Comment: Some comments expressed general opposition to immigration
and urged ending all immigration into the United States. Multiple
commenters expressed concerns about immigrants receiving public
benefits, some remarked on culture and demographic shifts related to
immigration, and others urged the reversal of the Hart-Celler Act. Some
commenters included anecdotal experiences about the negative economic
impacts of immigration. A commenter urged the enforcement and penalties
against immigrants.
Response: Comments regarding generalized opposition for immigration
to the United States and immigrants are outside the scope of the rule.
3. Miscellaneous
Comment: One commenter expressed opposition to changes to the
regulations due to fear of the impact on LPRs, stating that there is no
practical reason to deny health benefits to LPRs because the government
already vetted and fully accepted these LPRs into the country.
Response: To the extent that this commenter is concerned that DHS
is changing eligibility requirements for means-tested public benefits,
this comment is outside the scope of this rulemaking. This rule does
not affect eligibility criteria for means-tested public benefits or
create bars to LPRs qualifying for health benefits. If the commenter is
concerned with deportability under the public charge ground at section
237(a)(5) of the INA, 8 U.S.C. 1227(a)(5), this comment is also out of
scope because this rule does not interpret or change DHS's application
of this ground.
DHS notes an alien who is already an LPR already underwent a public
charge inadmissibility determination at the time he or she applied for
their immigrant visa and/or at the time of admission as an immigrant or
when the alien applied for adjustment of status unless she or he was
exempt from such a determination. The LPR would not undergo another
public charge inadmissibility determination unless upon the LPR's
return from a trip abroad, CBP determines that he or she is an
applicant for admission based on one of the criteria set forth in
section 101(a)(13)(C) of the INA, 8 U.S.C. 1101(a)(13)(C).
Comment: Several commenters said their submissions include numerous
citations supporting research and relevant documents, including direct
links for the benefit of DHS's review. The commenters requested that
the full text of each of the items cited, along with the full text of
their comment, be considered part of the administrative record in this
matter for purposes of the APA.
Response: Comments such as these are outside of the scope of this
rulemaking. The comment does not raise significant issues relevant to
the content of the proposed rule but rather purports to direct DHS on
how it must comply with its obligations under the APA.
Comment: Multiple commenters expressed criticism of specific
political figures or administrations. These comments included general
disapproval of policies, leadership, or perceived political
motivations, as well as opposition to fascism.
Response: The comments are outside the scope of the rulemaking.
Comment: One commenter recommended protected status for Syrian
people who have been allowed to enter the United States. Another
commenter requested assistance with their immigration application,
specifically, to address the breach and cancellation of their public
charge bond, assistance with updating USCIS records, and an exemption
from the alien sponsorship requirement.
Response: The comments involving other aspects of the immigration
system are outside the scope of the rulemaking.
Comment: Without mentioning immigration or the public charge ground
specifically, some commenters provided remarks outside the scope of the
rulemaking including: concerns about equality, diversity, and
compassion; general concerns about the U.S. economy, governing, and
U.S. citizen rights; general discussions about public benefit programs,
such as SNAP and WIC; general concerns about veterans and service
members, and detailed comments on disaster recovery assistance.
Response: While DHS appreciates the comments, they are outside the
scope of this rulemaking. Through this rulemaking, DHS is exercising
its authority to rescind regulations implementing the public charge
ground of inadmissibility and to modify the public charge bond
regulations.
Comment: A commenter wrote that the proposed rule must be read in
conjunction with HUD's November 26, 2025, Notice, titled ``PRWORA;
Interpretation of `Federal Public Benefit,' '' which was issued just
one week after publication of the proposed rule. The commenter stated
it is not coincidental that HUD's notice interprets the term ``Federal
public benefit'' to include ``all HUD programs related to public or
assisted housing.'' The commenter criticized HUD's pronouncement as
conclusory and failing to satisfy the heightened review standards
required of significant and impactful policy changes, particularly
where substantial reliance interests are at stake.
Response: This comment relates to the application of the definition
of ``Federal public benefit'' under 8 U.S.C. 1611(c) by Federal
benefits-granting agencies in connection with their implementation of
PRWORA. HUD, as well as a number of other agencies, published Federal
Register Notices on the topic in 2025. The issue is under active
litigation and is outside of the scope of this rulemaking. As for the
commenter's assertion that the NPRM ``must be read in conjunction
with'' HUD's Federal Register Notice, DHS disagrees. The efforts are
independent and any temporal correlation in publication date was mere
happenstance.
Comment: A commenter requested a technical correction to the
proposed rule regarding citizens of the Freely Associated States (FAS).
The commenter remarked that on page 52176 of the proposed rule, DHS
lists Micronesians and citizens of the two other FAS as being subject
to the waiting period applicable to other foreign nationalities. The
commenter remarked that under the U.S. Federated States of Micronesia,
Compact of Free Association (COFA), and under relevant U.S. law,
Micronesian citizens do not have a five-year waiting period before they
are eligible for public benefits. The commenter requested a footnote be
added to the list regarding this exception.
Response: DHS thanks the Embassy of the Federated States of
Micronesia for their comment. DHS will not amend the already-published
NPRM, but appreciates the correction provided by the embassy regarding
the effects of section 209(f) (``Compact Impact Fairness Act'') of the
Consolidated Appropriations Act of 2024, Public Law 118-42, on the
eligibility of certain citizens of the Federated States of Micronesia,
the Republic of the Marshall Islands, and the Republic of Palau, for
Federal public benefits without a waiting period.
Comment: One commenter suggested that enlisted pay for the active
military
[[Page 45445]]
be raised enough as not to require families to rely on benefits.
Response: While DHS appreciates the suggestion, it is outside the
scope of DHS's rulemaking.
IV. 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 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 of Changes From the Notice of Proposed Rulemaking to the
Final Rule
In this final rule, the estimated 10-year total transfers are 45.51
percent higher than in the NPRM. DHS received several comments
regarding the various public benefits programs that could be impacted
as a result of this final rule, with a particular concern on the
impacts to children and the WIC program. Therefore, DHS has expanded
the analysis in this final rule to include child enrollment data for
Medicaid and WIC, in the disenrollment and forgone enrollment
estimates. Table IV.9 through Table IV.16 have been updated to reflect
these data changes and overall estimates may differ from the NPRM.
Table IV.1 summarizes the changes in estimated undiscounted and
annualized discounted impacts from the proposed rule to the final rule.
[GRAPHIC] [TIFF OMITTED] TR20JY26.003
2. Summary of the Regulatory Changes
DHS is removing most of the 2022 Final Rule provisions to allow DHS
to better implement the public charge ground of inadmissibility. The
final rule is expected to impose new benefits and transfers. To assess
the impacts of the 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 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 rule ensures that officers can make highly individualized, fact-
specific, case-by-case public charge inadmissibility decisions based on
the totality of each alien's individual circumstances. This approach
will prevent the application of overly restrictive criteria that
straitjackets DHS officers' ability to make public charge
inadmissibility determinations.
The rule will also result in a reduction in transfer payments from
Federal and State governments 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 $13.05 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 rule could be approximately $111.28
billion at a 3-percent discount rate and about $91.62 billion at a 7-
percent discount rate. This total includes DHS's estimate that Federal
transfer payments could decrease by approximately $65.76
[[Page 45446]]
billion at a 3-percent discount rate and about $54.14 billion at a 7-
percent discount rate. Using the average FMAP, DHS further estimates
that State transfer payments could decrease by approximately $45.52
billion at a 3-percent discount rate and approximately $37.48 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 rule. For example, the recent changes to Medicaid and SNAP
included in H.R. 1 are expected to impact enrollment rates, adding
complexity to quantification efforts.\312\ DHS anticipates that
disenrollment or forgone enrollment rates may fluctuate independently
of this rule, potentially affecting the transfer payment estimates
presented. However, those external factors are separate and independent
of this rule.
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\312\ See H.R. 1 Reconciliation Bill, e.g., secs. 10108 (SNAP
Eligibility); 71109 (Alien Medicaid Eligibility); Public Law 119-21
(July 4, 2025).
---------------------------------------------------------------------------
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. Landlords participating in federally
funded housing programs may also experience financial strain, such as
increased tenant turnover and higher administrative costs.
---------------------------------------------------------------------------
\313\ For a complete list of regulatory changes in this rule,
please see section V. ``List of Subjects and Regulatory
Amendments.''
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Table IV.2 provides a detailed summary of the regulatory changes
and the estimated costs, benefits, and transfers associated with the
expected impacts.\313\
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3. 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 Form I-864 submitted under section
213A of the INA, 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 Form I-864 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 Form
I-864 (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
removes or amends provisions related to public charge definitions,
public charge inadmissibility determinations, public charge bonds, and
other aspects outlined in the preamble. This rule would align public
charge inadmissibility determinations with the national policy
contained in E.O. 14218, PRWORA, and the spirit of the broad statutory
text in INA sec. 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 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;
education and skills; and any Form I-864; 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 rule, through removal of certain provisions from the 2022
Final Rule, removes the limitations on considering only past and
current receipt of public cash assistance for income maintenance or
long-term institutionalization at government expense. It also removes
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 amends
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 rule also provides 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.
The estimation of costs and benefits for this 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 or
between ports of entry seeking admission with 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 rule, but it is unable to
determine this potential cost due to data limitations. For example, CBP
officers and agents spend time examining aliens arriving at or between
ports of entry seeking admission, which may be pursuant to a previously
issued visa, as a traveler for whom visa requirements have been waived,
or an entry without inspection, and determining if they are likely at
any time to become a public charge. However, DHS is not able to
quantify the number of aliens who would appear to be inadmissible by
CBP based on a public charge inadmissibility determination as a
consequence of this rule due to uncertainty regarding the number of
aliens who would be encountered at or between ports of entry, as well
as the discretionary authority officers and agents have in determining
whether an alien appears to be a public charge. For this reason, DHS
qualitatively acknowledges the potential impact.
4. Population
The population affected by USCIS' implementation of this rule
consists of aliens who are present in the United States and apply for
adjustment of status to that of an LPR.\315\ By statute, an alien
[[Page 45453]]
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 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 rule will 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.
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\315\ DHS recognizes the memorandum, Adjustment of Status is a
Matter of Discretion and Administrative Grace, and an Extraordinary
Relief that Permits Applicants to Dispense with the Ordinary
Consular Visa Process, published on May 21, 2026, which reminds
officers that adjustment of status is a discretionary action and is
not intended to replace the ordinary consular process for immigrant
visas. The data presented in this analysis represents historical
data of aliens who are present in the United States and requested
adjustment of status using Form I-485. DHS acknowledges, under this
memo, some of these aliens might have been impacted (had their
applications been denied, or had they decided not to apply with
USCIS in the first instance) and been directed to proceed with their
application through consular services overseas. Therefore, using
historical data could overestimate the population presented in this
analysis.
---------------------------------------------------------------------------
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 rule.
a. Population Seeking Adjustment of Status
DHS estimates the affected population based on historical data from
FY 2019 through FY 2024. Table IV.4 shows the annual Form I-485
receipts and approvals from FY 2019 through FY 2024.
[GRAPHIC] [TIFF OMITTED] TR20JY26.010
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.\316\
These trends are evident in this population estimate and 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.\317\
---------------------------------------------------------------------------
\316\ 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 (Mar. 17, 2020),
https://www.uscis.gov/archive/uscis-temporarily-closing-offices-to-the-public-march-18-april-1. See also, USCIS, USCIS Offices
Preparing to Reopen on June 4 (Apr. 24, 2020), https://www.uscis.gov/archive/uscis-offices-preparing-to-reopen-on-june-4.
\317\ DHS recognizes the memorandum, Adjustment of Status is a
Matter of Discretion and Administrative Grace, and an Extraordinary
Relief that Permits Applicants to Dispense with the Ordinary
Consular Visa Process, published on May 21, 2026, which reminds
officers that adjustment of status is a discretionary action and is
not intended to replace the ordinary consular process for immigrant
visas. The data presented in this analysis represents historical
data of aliens who are present in the United States and requested
adjustment of status using Form I-485. DHS acknowledges, under this
memo, some of these aliens might have been impacted (had their
applications been denied, or had they decided not to apply with
USCIS in the first instance) and been directed to proceed with their
application through consular services overseas. Therefore, using
historical data could overestimate the population presented in this
analysis.
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[[Page 45454]]
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. Table IV.5 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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[GRAPHIC] [TIFF OMITTED] TR20JY26.012
BILLING CODE 9111-97-C
To estimate the annual total population of aliens seeking to adjust
status who are 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
[[Page 45457]]
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 IV.6), 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.
[GRAPHIC] [TIFF OMITTED] TR20JY26.013
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.\318\ 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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\318\ 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 who could be deemed
inadmissible based on public charge inadmissibility determinations.
---------------------------------------------------------------------------
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 a Form I-864, 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 Form I-864 will result in the alien being found inadmissible
under the public charge ground of inadmissibility without review of the
statutory minimum factors.\319\ When a sponsor executes a Form I-864 on
behalf of an applicant, the sponsor establishes a legally enforceable
contract between the sponsor and the U.S. Government with an obligation
to financially support the applicant and, if the sponsored alien
receives means-tested public benefits during the period of
enforceability, to
[[Page 45458]]
reimburse the appropriate benefit providing agency. See INA sec.
213A(a) and (b), 8 U.S.C. 1183a(a) and (b).
---------------------------------------------------------------------------
\319\ See INA sec. 212(a)(4)(C) and (D), 213A(a), 8 U.S.C.
1182(a)(4)(C) and (D), 1183a(a).
[GRAPHIC] [TIFF OMITTED] TR20JY26.014
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.\320\ Table IV.8 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.
---------------------------------------------------------------------------
\320\ 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.
---------------------------------------------------------------------------
On average, denials on public charge grounds accounted for 0.0958
percent of adjustment of status denials. Relative to the entire Form I-
485 applicant population, such denials represented only 0.0087 percent.
While DHS estimates the historical annual average total denial
population for Form I-485 is 68,072, and the average annual number of
Form I-485 denials on the public charge ground of inadmissibility is
65, DHS is unable to project the future number of denials due to data
limitations.
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 rather than a totality of circumstances analysis. 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. Therefore, no aliens were found inadmissible on the
public charge ground totality of the circumstances analysis under the
2019 and the 2022 Final Rules, and DHS is unable to use historical data
to project an estimated population who would be denied on public charge
grounds under section 212(a)(4)(A) of the INA, 8 U.S.C. 1182(a)(4).
Additionally, several variables hinder DHS's ability to estimate an
overall denial population. This final rule expands the number of means-
tested public benefits considered under a public charge inadmissibility
determination compared to the 2022 Final Rule (and also compared to the
2019 Final Rule), introducing new benefits that make historical data
obsolete when projecting a future estimate. This final rule applies to
all Form I-485 applications filed on or after the effective date, and
receipt of previously excluded means-tested public benefits will not be
considered if such benefits were only received before the effective
date of this final rule, (i.e., of the benefits received by an alien
prior
[[Page 45459]]
to the effective date of this final rule, DHS will only consider public
cash assistance for income maintenance and long-term
institutionalization at government expense). Therefore, even if DHS
were to consider past patterns and trends of benefit receipt, those
would not produce an accurate depiction of future trends. Public charge
determinations are also based on highly individualized and fact-
specific information and as DHS has stated throughout this final rule,
receipt of means-tested public benefits is not alone outcome
determinative. However, even if an alien were found likely at any time
to become a public charge, in some cases, an officer may use discretion
to offer a public charge bond, and approve Form I-485 upon receipt of a
suitable and proper bond, which further complicates quantification
efforts. DHS anticipates these variables could affect the denial
population; however, it is too early to assess the overall impact these
variables will have.
[GRAPHIC] [TIFF OMITTED] TR20JY26.015
5. Cost-Benefit Analysis
DHS expects this 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 rule. The no-action baseline represents the
current state of the world absent regulatory action. The no-action
baseline for this rule includes how DHS applies the public charge
ground of inadmissibility consistent with the 2022 Final Rule. For this
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 rule to the baseline.
a. Benefits of the Regulatory Changes
DHS anticipates this rule will produce benefits but is limited to
providing a qualitative analysis. The primary benefit of the rule is
the removal of overly restrictive provisions promulgated in the 2022
Final Rule that hinders officers in making public charge
inadmissibility determinations. By removing rigid regulatory
definitions and standards, this rule ensures 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 will 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.
[[Page 45460]]
b. Transfer Payments and Indirect Impacts of the Regulatory Change
i. Transfer Payments
DHS has analyzed the potential effects of the regulatory changes on
transfer payments from Federal, State, Tribal, territorial, and local
governments to individuals receiving public benefits. As stated in the
preamble, this 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 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 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 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 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. DHS received several
comments regarding the various public benefits programs that could be
impacted as a result of this final rule, with a particular concern on
the impacts on children and the WIC program. Therefore, DHS expanded
the analysis in this final rule to include child enrollment data for
Medicaid and the WIC program.
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 focuses on Medicaid--inclusive of adult and child
enrollment data--CHIP, WIC, SNAP, TANF, 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 LPRs, 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).\321\ With the elimination of the
definitions and other core elements of the 2022 Final Rule, individuals
both directly and indirectly affected by this 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
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 $7.71 billion. DHS also
estimates that the total annual transfer payments from the State
government to public benefits recipients could be reduced by
approximately $5.34 billion.\322\ 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 rule.
---------------------------------------------------------------------------
\321\ These similar transfer payments and indirect effects were
also discussed in the Regulatory Alternative section of the 2022
Final Rule.
\322\ Total annual Federal and State reduction in transfer
payment = (Estimated Reduction in Transfer Payments to Medicaid,
CHIP, SNAP, TANF, SSI and Federal Rental Assistance based on the
Federal Government from Table IV.12)/(average FMAP across all States
and U.S. territories) = $7,678,846,837/0.59 = $13.01 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: $13.01 billion (rounded)--$7.71
billion (rounded) = $5,336,147,802. DHS recognizes that WIC is a
Federal program that is fully funded by the Federal Government and
States are not required to match a share of the funds. Therefore,
WIC is not included in the calculations of the State transfer
payments.
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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 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
[[Page 45461]]
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 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 rule would be 3.3 percent.323 324 325
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\323\ 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, https://data.census.gov/cedsci (last visited July 22, 2025).
\324\ 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.
\325\ Using the projected annual average total population of
aliens filing Form I-485 (727,192) may overestimate the low end
transfer payment due to the memorandum, Adjustment of Status is a
Matter of Discretion and Administrative Grace, and an Extraordinary
Relief that Permits Applicants to Dispense with the Ordinary
Consular Visa Process, published on May 21, 2026. However, decreased
participation in public benefit programs includes individuals who
are not subject to the public charge ground of inadmissibility, such
as certain aliens and U.S. citizens in mixed-status holds. The
foreign-born population used to generate this estimate represents a
substantially larger group compared to those applying for adjustment
of status. Therefore, DHS considers the low rate of disenrollment or
forgone enrollment of 3.3 percent to be a reasonable percentage for
estimating the number of individuals who may choose to disenroll or
foregone enrollment in a public benefits program, given the mixed
nature of the population.
---------------------------------------------------------------------------
Studies conducted between 2016 and 2020 have shown reductions in
enrollment due to a ``chilling effect,'' ranging from 4.1 percent to 48
percent.326 327 The largest disenrollment occurred between
2018 and 2019,\328\ 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.\329\ These fears led to significant disenrollment,
with an estimated 2.0 to 4.7 million Medicaid and CHIP enrollees,
comprised of aliens or U.S. citizens living in a family with an alien,
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. In an updated January 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.\330\
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\326\ Randy Capps, et al., MPI, Anticipated `Chilling Effects'
of the public-charge rule are real: Census data reflect steep
decline in benefits use by immigrant families (Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (Capps et al. (2020)).
\327\ Hamutal Bernstein, et al., Urban Institute, Immigrant
Families Continued Avoiding the Safety Net during the COVID-19
Crisis (Feb. 1, 2021), https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (Bernstein et al. (2021)).
\328\ Capps et al. (2020).
\329\ Drishti Pillai, Samantha Artiga, KFF, 2022 Changes to the
Public Charge Inadmissibility Rule and the Implications for Health
Care (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)).
\330\ 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).
---------------------------------------------------------------------------
Similarly, the Urban Institute (2022) reported that many adults in
immigrant families avoided applying for safety net programs because of
immigration-related fears.\331\ In 2021, 20.6 percent avoided non-cash
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
non-cash government benefits like Medicaid, SNAP, or housing subsidies
in 2022 due to green card concerns.332 333 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).\334\ 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).\335\
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\331\ Hamutal Bernstein, et al., Urban Institute, Immigrant
Families Faced Multiple Barriers to Safety Net Programs in 2021
(Nov. 10, 2022), https://www.urban.org/research/publication/immigrant-families-faced-multiple-barriers-safety-net-programs-2021
(Bernstein, Gonzalez et al. (2022)).
\332\ Dulce Gonzalez, Jennifer Haley, and Genevieve Kenney,
Urban Institute, One in Six Adults in Immigrant Families with
Children Avoided Public Programs in 2022 Because of Green Card
Concerns (Nov. 30, 2023), https://www.urban.org/research/publication/one-six-adults-immigrant-families-children-avoided-public-programs-2022 (Gonzalez et al. (2023)).
\333\ Dulce Gonzalez and Hamutal Bernstein, Urban Institute, One
in Four Adults in Mixed-Status Families Did Not Participate in
Safety Net Programs in 2022 Because of Green Card Concerns, (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)).
\334\ Gonzalez, Bernstein et al. (2023).
\335\ Pillai et al. (2022); KFF (2025); Bernstein, Gonzalez et
al. (2022); Gonzalez et al. (2023); and Gonzalez, Bernstein et al.
(2023).
---------------------------------------------------------------------------
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
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
WIC, 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
[[Page 45462]]
introduced observed changes that would not appear in a true
longitudinal study with consistent methods.
DHS uses 10.3 percent as the primary estimate to estimate the
annual reduction in Federal Government transfer payments associated
with this 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 requested comments on the estimation of the
disenrollment or forgone enrollment rate used in this analysis and
received comments comparing DHS's estimates to KFF \336\ and GW.\337\
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\336\ Samantha Artiga, Drishti Pillai, Sammy Cervantes, Akash
Pillai, and Matthew Rae, KFF, ``Potential ``Chilling Effects'' of
Public Charge and Other Immigration Policies on Medicaid and CHIP
Enrollment,'' (Dec. 2, 2025), https://www.kff.org/medicaid/potential-chilling-effects-of-public-charge-and-other-immigration-policies-on-medicaid-and-chip-enrollment/https://www.kff.org/medicaid/potential-chilling-effects-of-public-charge-and-other-immigration-policies-on-medicaid-and-chip-enrollment/ (Artiga et al.
(2025)).
\337\ Leighton Ku, Ph.D., MPH, Maddie Krips, MPP, Hanna
Silverman, MPH, GW, Appendix 1, ``Economic and Mortality Analyses of
the DHS Proposed Rule: Public Charge Ground of Inadmissibility,''
pgs. 31-44 (Dec. 3, 2025) https://hpmmatters.publichealth.gwu.edu/sites/g/files/zaxdzs6671/files/2025-12/Public%20Charge%20NPRM%202025_FINAL_121825.pdf (Leighton et al.
(2025).
---------------------------------------------------------------------------
The study from KFF develops their midpoint estimate of 20 percent
based on experiences reported in their 2025 Survey of Immigrants.
Whereas DHS's uses the average annual receipts of Form I-485 against
the estimated alien population to develop a low estimate, and an
average of disenrollment estimate from a review of studies between 2022
and 2025 to develop the high estimate, creating the midpoint. The cited
study from KFF also states that the upper bound estimate of 30 percent,
``accounts for potential increased effects relative to the experiences
reported in the survey due to subsequent policy changes, including the
public charge proposal and CMS notice of plans to share Medicaid data
with ICE, that were released after the survey was fielded as well as
ongoing public enforcement activity, which may further deter
participation,'' \338\ indicating that the study includes external
factors in the disenrollment and forgone enrollment rates. While DHS
agrees that external factors unrelated to this rule may cause aliens to
disenroll or forgo enrollment in public benefits programs, it is not
reasonable to include these factors in the economic impact analysis.
These external factors do not represent an individual choosing to
disenroll or forgo enrollment as a direct result of this final rule.
---------------------------------------------------------------------------
\338\ Samantha Artiga, et al., KFF, Potential ``Chilling
Effects'' of Public Charge and Other Immigration Policies on
Medicaid and CHIP Enrollment (Dec. 2, 2025), https://www.kff.org/medicaid/potential-chilling-effects-of-public-charge-and-other-immigration-policies-on-medicaid-and-chip-enrollment/ (Artiga et al.
(2025)).
---------------------------------------------------------------------------
Additionally, the GW study used the same disenrollment and forgone
enrollment rates as KFF. However, GW furthered their analysis by
applying estimates of Medicaid, CHIP, SNAP and SSI costs per
participant for FY 2026 from the Congressional Budget Office baseline
projections, whereas DHS estimates relied on the total annual average
public benefits payments to calculate a 6-year average using historical
data. DHS deems it reasonable to use the average of the prior six years
to smooth out any short-term fluctuations in the data. Furthermore, the
GW study based its affected population on visa processing
determinations by DOS, while DHS used data based on individuals
applying for adjustment of status using Form I-485. While DOS consular
officers are responsible for applying the public charge ground of
inadmissibility as part of the visa application process, this rule does
not revise DOS standards or processes, and therefore DHS does not find
it reasonable to base the affected population of this rule on DOS data.
While DHS recognizes these approaches, for the reasons stated above,
DHS does not find it reasonable to use the methods in these studies to
estimate disenrollment and forgone enrollment rates, the affected
population, or the corresponding reduction in transfer payments.
Therefore, the analysis remains unchanged for this final rule.
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 $7.71 billion for an estimated 1,265,993 individuals
and 35,294 households across the public benefits programs examined.
To estimate the reduction in transfer payments under this 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, WIC, SNAP, TANF,
SSI, and Federal Rental Assistance); \339\ and (2) the value of the
forgone benefits.
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\339\ 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.
---------------------------------------------------------------------------
Table IV.9 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 rule. The table
also shows estimates of the number of households with at least one
alien family member that may have received public
benefits.340 341 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.342 343
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\340\ 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 American Community Survey
(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, LPRs, 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.
\341\ 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).
\342\ 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 person receiving benefits to estimate the population
living in benefits-receiving households that include an alien.
\343\ 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.
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[[Page 45463]]
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.344 345 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.\346\ 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.
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\344\ 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).
\345\ DHS uses the average household size from the ``2023: ACS
5-Year Estimates Subject Tables'' because data for 2024 were 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.
\346\ 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.
\347\ 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).
---------------------------------------------------------------------------
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.\347\
BILLING CODE 9111-97-P
[[Page 45464]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.016
[[Page 45465]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.017
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 IV.10. 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.\348\ For
Medicaid, DHS uses 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.
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\348\ 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 45466]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.018
As discussed earlier, using the midpoint reduction rate of 10.3
percent, Table IV.11 shows the estimated population that may disenroll
or forgo enrollment in a federally funded public benefits program under
this rule.
[[Page 45467]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.019
BILLING CODE 9111-97-C
Table IV.12 shows the estimated population that would be likely to
disenroll from or forgo enrollment in federally funded public benefits
programs due to this 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.\349\
Multiplying the estimated population that would be likely to disenroll
from or forgo enrollment in public benefit programs due to this 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
[[Page 45468]]
would be approximately $7.71 billion for an estimated 1,265,993
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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\349\ 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.
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Since the Federal share of FFP varies by State, DHS uses an average
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)).\350\ 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 the enhanced FMAP for
State expenditures on the adult group covered under the Affordable Care
Act's Medicaid expansion and the additional FMAP increases from the
Families First Coronavirus Response 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 IV.12 shows that
Federal annual transfer payments for Medicaid and CHIP would be reduced
by about $5.82 billion under this rule.\351\ 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
$9.87 billion.\352\ From that total amount, DHS estimates State annual
transfer payments would be reduced by approximately $4.05 billion due
to the disenrollment or forgone enrollment of aliens and their
households from Medicaid and CHIP.\353\
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\350\ DHS acknowledges that FFP varies by State 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, Federal expenditures for CHIP
were less than 3 percent of Medicaid spending. Therefore, DHS finds
it reasonable to use the FMAP percentage of 59 for both Medicaid and
CHIP.
\351\ 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) = $5,704,886,880 + $116,377,807 = $5,821,264,687.
\352\ 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 IV.12)/(average FMAP
across all States and U.S. territories) = $5,821,264,687/0.59 =
$9.87 billion (rounded).
\353\ 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 = $9.87 billion-$5.82 billion = $4.05 billion
(rounded).
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For this analysis, DHS conservatively assumes that the Federal
Government pays 100 percent of benefits values for SNAP \354\ and
Federal Rental Assistance. With regards to TANF, DHS recognizes states
must spend a minimum amount of their own funds, known as maintenance of
effort (MOE), but DHS's analysis was limited to Federally-funded TANF
basic assistance, and did not account for families who receive TANF
basic assistance funded with MOE dollars. DHS also recognizes that WIC
is a federal program that is fully funded by the Federal Government and
States are not required to match a share of the funds. Therefore, Table
IV.11 shows the Federal share of annual transfer payments would be
about $1.41 billion for WIC, SNAP, TANF, and Federal Rental
Assistance.\355\ 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.\356\ Some States
supplement the Federal SSI benefit with additional payments, which make
the total SSI benefit levels higher in those States.\357\ Moreover, the
estimates of expenditures for Federal Rental Assistance relate to
purely Federal funds, although housing programs are administered by
State and local public housing authorities, which may supplement
program funding. However, DHS is unable to quantify the State portion
of the transfer payment due to a lack of data related to State-level
administration of these public benefit programs.
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\354\ DHS recognizes that the estimated reductions in transfer
payments are approximations and could be influenced by external
factors unrelated to this final rule. For example, the recent
changes to SNAP in the H.R. 1 Reconciliation Bill are expected to
impact the share of Federal Government payments of SNAP benefits,
adding complexity to quantification efforts. DHS also notes that
H.R. 1 changed the benefit cost sharing between States and the
Federal Government. Beginning in FFY 2028, States with high payment
error rates will be required to share the cost of SNAP benefits and
the Federal Government will no longer pay 100 percent of benefit
values for SNAP.
\355\ From Table IV.12, transfer payment reduction for WIC is
$30,072,620, for SNAP is $1,018,393,920, for TANF is $27,449,190,
and for Federal Rental Assistance is $329,787,136. Calculation of
the sum: $1,405,702,866.
\356\ See Social Security Administration, How much you could get
from SSI, https://www.ssa.gov/ssi/amount (last visited July 19,
2025).
\357\ 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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DHS requested public comments on data related to the State
contributions and share of costs of these public benefit programs and
received comments regarding the use of eFMAP for the CHIP program.
While DHS acknowledges that the FFP varies by States for CHIP, and the
share is determined by the eFMAP, which uses a higher average rate of
71 percent, CHIP expenditures are significantly lower than Medicaid
expenditures. For example, in FY 2023, Federal expenditures for CHIP
were less than 3 percent of Medicaid spending, indicating that applying
the eFMAP rate to CHIP would have a negligible impact on overall
estimates. Therefore, DHS finds it reasonable to use the FMAP
percentage of 59 for both Medicaid and CHIP to estimate the reduction
in transfer payments to State governments, which remains unchanged for
this final rule.
BILLING CODE 9111-97-P
[[Page 45469]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.020
As shown in Table IV.13, 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 $2.48 billion for an
estimated 407,128 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
$12.94 billion for an estimated 2,124,753 individuals and 59,235
households across the public benefits programs examined.
[[Page 45470]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.021
BILLING CODE 9111-97-C
DHS acknowledges prior studies that examine 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. DHS also appreciates the
concern expressed in public comments regarding not using a
disenrollment rate as high as 54 percent in the disenrollment and
forgone enrollment rates described in this analysis. However, while
these studies estimated a reduction in public benefits usage, as stated
in the NPRM, it was unclear how many individuals would disenroll from
or forgo enrollment in public benefits programs as a direct result of
the 2019 Final Rule.
Furthermore, DHS does not believe observed disenrollment or forgone
enrollment rates will be this high as a direct result of this final
rule. DHS referenced a number of independent and peer-reviewed studies
that observed disenrollment rates between 2016 and 2025, none of which
reported rates as high as 54 percent as a direct result of a public
charge rule.\358\ Therefore, DHS uses the average of these same
studies, focusing only on studies conducted between 2022 and 2025, in
this final rule, as it represents the uncertainty in disenrollment and
forgone enrollment of the specific population discussed in this
rule.\359\ Finally, DHS recognizes that the estimated reductions in
transfer payments are approximations and could be influenced by
external factors unrelated to this rule. For example, the recent
changes to Medicaid and SNAP included in H.R. 1 are expected to impact
enrollment rates, adding complexity to quantification efforts.\360\ DHS
anticipates that disenrollment or forgone enrollment rates may
fluctuate independently of this rule, potentially affecting the
transfer payment estimates presented in this analysis. While DHS
appreciates the concern regarding these external factors expressed in
public comments, any enrollment changes as a result of H.R. 1 are
attributable to the bill, not this rule. These external factors are
separate and independent of this rule.
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\358\ Capps et al. (2020); Bernstein et al. (2021); Pillai et
al. (2022); KFF (2025); Bernstein, Gonzalez et al. (2022); Gonzalez
et al. (2023); and Gonzalez, Bernstein et al. (2023).
\359\ Pillai et al. (2022); KFF (2025); Bernstein, Gonzalez et
al. (2022); Gonzalez et al. (2023); and Gonzalez, Bernstein et al.
(2023).
\360\ 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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ii. Indirect Impacts of the Regulatory Changes
DHS notes that, as described in the 2019 and 2022 Final Rules, the
rule may produce indirect effects. For example, a reduction in transfer
payments from the
[[Page 45471]]
Federal Government to individuals who receive public benefits due to
increased disenrollment or forgone enrollment in public benefit
programs may have indirect effects. DHS is generally not able to
estimate all the additional indirect costs that would likely be
incurred because of follow-on economic effects of the initial indirect
costs identified in the rule due to the wide range of these costs. DHS
requested comments on other possible indirect impacts of the rule and
appropriate methodologies for quantifying these non-monetized potential
impacts but did not receive any comments on how to quantify these
potential impacts. However, DHS did receive additional qualitative
impacts and have expanded the list of potential qualitative impacts in
this analysis.
A likely impact of the 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 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 providing agencies, nonprofit
organizations, non-governmental organizations, and religious
organizations, among others, may want to become familiar with the
provisions of this rule. DHS believes such nonprofit organizations and
other advocacy groups might choose to read the rule to provide
information to aliens and associated households who may be subject to
the rule. Familiarization costs incurred by those not directly
regulated are indirect costs. Indirect impacts are borne by entities
that are not specifically regulated by this rule but may incur costs
due to changes in behavior related to this rule.
DHS estimates that the time necessary to read the rule is
approximately 8 to 9 hours per person, resulting in opportunity costs
of time. DHS assumes the average professional reads technical documents
at a rate of about 250 to 300 words per minute. An entity, such as a
nonprofit or advocacy group, may have more than one person who reads
the 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 $384.40 to $432.45 per individual who must
read and review the rule.\361\ Due to data limitations, DHS is unable
to estimate or quantify the number of individuals who will familiarize
themselves with this rule. DHS requested comments on appropriate
methodologies for quantifying the number of individuals who would
choose to familiarize themselves with this rule and did not receive any
comments regarding this matter. Therefore, the analysis remains
unchanged in this final rule.
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\361\ Calculation: (Average total compensation for all
occupations) * (Time to read rule - lower bound) = (Opportunity cost
of time [OCT] to read rule) = $48.05 * 8 hours = $384.40 OCT per
individual to read rule, 8 hours (rounded) = (approximately 138,348
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 * 9 hours = $432.45 OCT per individual to
read rule, 10 hours = (approximately 138,348 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 updated Sept. 12, 2025).
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Another source of indirect costs of the 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 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 rule. In response to comments
received, DHS further clarifies that these familiarization and
administrative costs could be ongoing rather than a one-time cost for
entities who chose to make changes to their business practices on a
continuing basis.
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, food insecurity and hunger, housing
instability and homelessness, reduced productivity, lower educational
attainment, and reduced participation in school meal programs.
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: \362\
---------------------------------------------------------------------------
\362\ See ``Public Charge Final Rule_ECON_RIA'' contained within
the docket of the 2019 Final Rule. 84 FR 41292, 41493 (Aug. 14,
2019).
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Lower revenues for healthcare providers participating in
Medicaid, to include hospitals, medical providers, and pharmacies, and/
or loss of Medicaid reimbursement for special education services.
Reduced income for companies manufacturing medical
supplies or pharmaceuticals.
Decreased sales for grocery retailers participating in
SNAP, to include farmer's markets, and agricultural producers.
Economic impacts on agricultural producers supplying SNAP-
eligible foods.
Financial strain on landlords participating in federally
funded housing programs, such as increased tenant turnover and higher
administrative costs.
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
[[Page 45472]]
deaths annually.\363\ Another academic projected in a court filing that
1.8 million fewer people would use SNAP benefits, many of whom are U.S.
citizens.\364\ Loss of Federal housing security could further
exacerbate health issues and reliance on other social safety net
programs.
Furthermore, during the notice and comment period of the 2022
Public Charge 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 rule but cannot precisely
estimate the burden states will face due to increased churn.
Finally, DHS appreciates concerns expressed in public comments we
received about the negative impacts that are associated with a
reduction in public benefits enrollment and recognizes that the final
rule could produce various other unanticipated consequences and
indirect costs not described within this economic analysis. However,
DHS reiterates that this final rule does not regulate or circumscribe
the ability to offer public benefits to immigrants. Similarly, this
final rule neither prohibits public benefits providing agencies from
providing benefits to immigrants nor prohibits any category of
immigrants from receiving any benefits for which they are eligible.
Aliens entitled to public benefits under Federal, State, or local law
may elect to receive such benefits.
c. Estimated Reduced Transfer Payments
To compare costs over time, DHS applied a 3- and a 7-percent
discount rate to the total estimated costs associated with the rule.
DHS presents the total estimated quantified reduction in transfer
payments from the Federal Government, the State Governments, and a
combined reduction in Tables IV.14, VI.15, and VI.16, respectively. The
total estimated costs are presented in undiscounted dollars, at 3- and
7-percent discount rates.
Table IV.14 shows the Federal share of the total estimated amount
of transfer payments of the rule. The 10-year undiscounted amount of
Federal transfer payments based on the provisions of this rule is about
$7.71 billion annually. The 10-year discounted amount of Federal
transfer payments based on the provisions of this rule is approximately
$65.76 billion at a 3-percent discount rate and about $54.14 billion at
a 7-percent discount rate.
[GRAPHIC] [TIFF OMITTED] TR20JY26.022
In addition, since the State share of FFP varies from State to
State, DHS uses the average of the FMAP across all States and U.S.
territories of 59 percent \365\ to estimate the amount of State
transfer payments. See 87 FR 74429 (Dec. 5, 2022). Table IV.15 shows
the State share of the total estimated amount of transfer payments of
the rule.
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\363\ Leighton Ku, Health Affairs, New Evidence Demonstrates
That the Public Charge Rule Will Harm Immigrant Families and Others
(Oct. 9, 2019), https://www.healthaffairs.org/do/10.1377/hblog20191008.70483/full.
\364\ Id.
\365\ 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.
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[[Page 45473]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.023
The 10-year undiscounted amount of State transfer payments based on
the provisions of this rule is about $5.34 billion annually. The 10-
year discounted amount of State transfer payments based on the
provisions of this rule is approximately $45.52 billion at a 3-percent
discount rate and about $37.48 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 rule in Table IV.16.
[GRAPHIC] [TIFF OMITTED] TR20JY26.024
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
$130.45 billion (undiscounted). In addition, DHS estimates that the 10-
year discounted transfers of this rule are approximately $111.28
billion at a 3-percent discount rate and about $91.62 billion at a 7-
percent discount rate due
[[Page 45474]]
to disenrollment or forgone enrollment in various Federal public
benefits programs.\366\
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\366\ DHS reiterates that the estimated reductions in transfer
payments are approximations and could be influenced by external
factors unrelated to this rule. DHS anticipates that disenrollment
or forgone enrollment rates may fluctuate independently of this
rule, potentially affecting the transfer payment estimates presented
in this analysis.
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Disenrollment or forgone enrollment in public benefits programs
could occur whether or not such aliens are directly affected by the
provisions of the 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.\367\
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\367\ 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 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 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 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 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. 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 $213 million in 2025 based on the Consumer Price Index
for All Urban Consumers (CPI-U).\368\
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\368\ 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://data.bls.gov/timeseries/CUUR0000SA0?years_option=all_years (last visited Feb. 6, 2026).
Calculation of inflation: (1) Calculate the average monthly CPI-U
for the reference year (1995) and the current year (2025); (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 2025 - Average monthly CPI-U for 1995) / (Average monthly
CPI-U for 1995)] x 100 = [(324.054 - 152.383) / 152.383] = (171.671/
152.383) = 1.127 x 100 = 112.7 percent = 113 percent. Calculation of
inflation-adjusted value: $100 million in 1995 dollars x 2.13 = $213
million in 2025 dollars.
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This final 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.\369\ 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.\370\ The requirements of title II of UMRA,
therefore, do not apply, and DHS has not prepared a statement under
UMRA. DHS has, however, analyzed many of the potential effects of this
action in the RIA above.
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\369\ The term ``Federal mandate'' means a Federal
intergovernmental mandate or a Federal private sector mandate. See 2
U.S.C. 1502(1), 658(6).
\370\ See 2 U.S.C. 1502(1), 658(6).
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D. Small Business Enforcement Fairness Act of 1996 (Congressional
Review Act)
The Congressional Review Act was included as part of SBREFA by
section 804 of SBREFA, Public Law 104-121, 110 Stat. 847, 868, et seq.
This final rule would be a major rule as defined by section 804 of
SBREFA because it is expected to result in an annual effect on the
economy of $100 million or more. See 5 U.S.C. 804(2)(A). Accordingly,
this final rule will be effective at least 60 days after the date on
which Congress receives a report submitted by DHS as required by 5
U.S.C. 801(a)(1).
E. Executive Order 13132 (Federalism)
This final 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 rule does not have sufficient
federalism implications to warrant the preparation of a federalism
summary impact statement.
F. Executive Order 12988 (Civil Justice Reform)
This final rule was drafted and reviewed in accordance with E.O.
12988, Civil Justice Reform. This 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.
G. 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
[[Page 45475]]
determination is affirmative, then the Agency must prepare an impact
assessment to address criteria specified in the law. DHS has determined
that this final 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
final rule will 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 INA, 8 U.S.C. 1182(a)(4),
will likely increase over time. However, this potential impact is
mitigated by two factors. First, as discussed elsewhere in this rule,
Congress, through Public Law 119-21 has further limited immigration-
status-based eligibility for certain public benefits that would be
considered under this 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 rulemaking's impact is justified and no
further actions are required. DHS also determined that this rule will
not have any impact on the autonomy or integrity of the family as an
institution.
H. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This final rule will not have Tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it will 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.
I. National Environmental Policy Act
DHS and its components analyze regulatory actions to determine
whether 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) \371\
establish the policies and procedures that DHS and its components use
to comply with NEPA.
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\371\ 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.\372\
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\372\ 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: (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.\373\
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\373\ Instruction Manual at V.B(2)(a) through (c).
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This final rule is limited to removing existing regulatory criteria
pertaining to public charge inadmissibility determinations. This rule
is strictly administrative and procedural and will amend DHS's existing
regulations to remove most of the provisions put into place by the 2022
Final Rule, however, DHS officers will continue to make public charge
inadmissibility determinations governed by existing law. DHS has
reviewed this rule and finds no significant impact on the environment,
or any change in environmental effect would result from the amendments
in this rule.
Accordingly, DHS finds that this 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.
J. Paperwork Reduction Act
Under the 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 IV.17 lists the information collections
that are part of this rulemaking. In compliance with the PRA, DHS
published a notice of proposed rulemaking on Nov 19, 2025 (90 FR
52168), in which comments on the revisions to the information
collections associated with this rulemaking were requested. DHS
responded to those comments in section III. O. 3 of this final rule.
[[Page 45476]]
[GRAPHIC] [TIFF OMITTED] TR20JY26.025
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 amends chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 103--IMMIGRATION BENEFIT REQUESTS; USCIS FILING REQUIREMENTS;
BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS
0
1. The authority citation for part 103 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1184,
1185 note, 1304, 1356, 1365b, 1372, 1801-1815; 31 U.S.C. 9701; 48
U.S.C. 1806; 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. 112-45, 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--(i)
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:
(A) 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)(ii) of this section.
(B) A public charge bond may also be cancelled in order to allow
substitution of another bond.
(C) 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)(ii) of this section.
(ii) Breach. A public charge bond submitted on or after September
18, 2026 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 September 18, 2026 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.
* * * * *
[[Page 45477]]
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.
Markwayne Mullin,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2026-14539 Filed 7-16-26; 11:15 am]
BILLING CODE 9111-97-P