Inadmissibility on Public Charge Grounds

Federal RegisterOct 10, 2018

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 213, 214, 245 and 248

[CIS No. 2499-10; DHS Docket No. USCIS-2010-0012]

RIN 1615-AA22

Inadmissibility on Public Charge Grounds

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Department of Homeland Security (DHS) proposes to prescribe how it determines whether an alien is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA) because he or she is likely at any time to become a public charge. Aliens who seek adjustment of status or a visa, or who are applicants for admission, must establish that they are not likely at any time to become a public charge, unless Congress has expressly exempted them from this ground of inadmissibility or has otherwise permitted them to seek a waiver of inadmissibility. Moreover, DHS proposes to require all aliens seeking an extension of stay or change of status to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits as defined in the proposed rule.

DHS proposes to define “public charge” as the term is used in sections 212(a)(4) of the Act. DHS also proposes to define the types of public benefits that are considered in public charge inadmissibility determinations. DHS would consider an alien's receipt of public benefits when such receipt is above the applicable threshold(s) proposed by DHS, either in terms of dollar value or duration of receipt. DHS proposes to clarify that it will make public charge inadmissibility determinations based on consideration of the factors set forth in section 212(a)(4) and in the totality of an alien's circumstances. DHS also proposes to clarify when an alien seeking adjustment of status, who is inadmissible under section 212(a)(4) of the Act, may be granted adjustment of status in the discretion of DHS upon the giving of a public charge bond. DHS is also proposing revisions to existing USCIS information collections and new information collection instruments to accompany the proposed regulatory changes. With the publication of this proposed rule, DHS withdraws the proposed regulation on public charge that the former Immigration and Naturalization Service (INS) published on May 26, 1999.

DATES:

Written comments and related material to this proposed rule, including the proposed information collections, must be received to the online docket via

www.regulations.gov,

or to the mail address listed in the

ADDRESSES

section below, on or before December 10, 2018.

ADDRESSES:

You may submit comments on this proposed rule, including the proposed information collection requirements, identified by DHS Docket No. USCIS-2010-0012, by any one of the following methods:

•

Federal eRulemaking Portal (preferred): www.regulations.gov.

Follow the website instructions for submitting comments.

•

Mail:

Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue NW, Washington, DC 20529-2140. To ensure proper handling, please reference DHS Docket No. USCIS-2010-0012 in your correspondence. Mail must be postmarked by the comment submission deadline.

FOR FURTHER INFORMATION CONTACT:

Mark Phillips, Residence and Naturalization Division Chief, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts NW, Washington, DC 20529-2140; telephone 202-272-8377.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Major Provisions of the Regulatory Action

B. Costs and Benefits

III. Purpose of the Proposed Rule

A. Self-Sufficiency

B. Public Charge Inadmissibility Determinations

IV. Background

A. Legal Authority

B. Immigration to the United States

C. Extension of Stay and Change of Status

D. Public Charge Inadmissibility

1. Public Laws and Case Law

2. Public Benefits Under PRWORA

(a) Qualified Aliens

(b) Public Benefits Exempt Under PRWORA

3. Changes Under IIRIRA

4. INS 1999 Interim Field Guidance

E. Public Charge Bond

V. Discussion of Proposed Rule

A. Applicability, Exemptions, and Waivers

1. Applicants for Admission

2. Extension of Stay and Change of Status Applicants

3. Adjustment of Status Applicants

4. Exemptions

5. Waivers

B. Definition of Public Charge and Related Terms

1. Public Charge

2. Public Benefit

(a) Types of Public Benefits

(b) Consideration of Monetizable and Non-Monetizable Public Benefits

i. “Primarily Dependent” Standard and Its Limitations

ii. Fifteen Percent of Federal Poverty Guidelines (FPG) Standard for Monetizable Benefits

iii. Twelve Month Standard for Non-Monetizable Benefits

iv. Combination of Monetizable Benefits Under 15 Percent of FPG and One or More Non-Monetizable Benefits

i. Supplemental Security Income (SSI)

ii. Temporary Assistance for Needy Families (TANF)

iii. General Assistance Cash Benefits

iv. Supplemental Nutrition Assistance Program (SNAP) v. Housing Programs

a. Section 8 Housing Choice Voucher Program

b. Section 8 Project-Based Rental Assistance

(d) Non-Monetizable Public Benefits

i. Medicaid

a. Description of Program

b. Exceptions for Certain Medicaid Services

c. Exception for Receipt of Medicaid by Foreign-Born Children of U.S. Citizens

ii. Institutionalization for Long-Term Care

iii. Premium and Cost Sharing Subsidies Under Medicare Part D

iv. Subsidized Public Housing

(e) Receipt of Public Benefits by Active Duty and Reserve Servicemembers and Their Families

(f) Unenumerated Benefits

(g) Request for Comment Regarding the Children's Health Insurance Program (CHIP)

(h) Request for Comment Regarding Public Benefit Receipt by Certain Alien Children

(i) Request for Comment Regarding Potential Modifications by Public Benefit Granting Agencies

3. Likely at Any Time To Become a Public Charge

4. Household

(a) Definition of Household in Public Charge Context

(b) Definitions of “Household” and Similar Concepts in Other Public Benefits Contexts

C. Public Charge Inadmissibility Determination

1. Absence of a Required Affidavit of Support

2. Prospective Determination Based on Totality of Circumstances

D. Age

E. Health

1. USCIS Evidentiary Requirements

2. Potential Effects for Aliens With a Disability, Depending on Individual

F. Family Status

G. Assets, Resources, and Financial Status

1. Evidence of Assets and Resources

2. Evidence of Financial Status

(a) Public Benefits

(b) Fee Waivers for Immigration Benefits

(d) Financial Means To Pay for Medical Costs

I. Education and Skills

1. USCIS Evidentiary Requirements

J. Prospective Immigration Status and Expected Period of Admission

K. Affidavit of Support

1. General Consideration of Sponsorship and Affidavits of Support

2. Proposal To Consider Required Affidavits of Support

L. Heavily Weighed Factors

1. Heavily Weighed Negative Factors

(a) Lack of Employability

(b) Current Receipt of One of More Public Benefit

(d) Financial Means To Pay for Medical Costs

(e) Alien Previously Found Inadmissible or Deportable Based on Public Charge

2. Heavily Weighed Positive Factors

(f) Previously Excluded Benefits

M. Summary of Review of Factors in the Totality of the Circumstances

1. Favorable Determination of Admissibility

2. Unfavorable Determination of Admissibility

N. Valuation of Monetizable Benefits

O. Public Charge Bonds for Adjustment of Status Applicants

1. Overview of Immigration Bonds Generally

2. Overview of Public Charge Bonds

(a) Public Charge Bonds

(b) Current and Past Public Charge Bond Procedures

(d) Summary of Proposed Changes

3. Permission To Post a Public Charge Bond

4. Bond Amount and Submission of a Public Charge Bond

5. Public Charge Bond Substitution

6. Public Charge Bond Cancellation

(a) Conditions

(b) Definition of Permanent Departure

(c) Bond Cancellation for Lawful Permanent Residents After 5 Years and Cancellation if the Alien Obtains an Immigration Status Exempt From Public Charge Grounds of Inadmissibility Following the Initial Grant of Lawful Permanent Resident Status

(d) Request To Cancel the Bond, and Adjudication of the Cancelation Request

(e) Decision and Appeal

7. Breach of a Public Charge Bond and Appeal

(a) Breach Conditions and Adjudication

(b) Decision and Appeal

8. Exhaustion of Administrative Remedies

9. Public Charge Processing Fees

10. Other Technical Changes

11. Concurrent Surety Bond Rulemaking

VI. Statutory and Regulatory Requirements

A. Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs)

1. Summary

2. Background and Purpose of the Rule

3. Population

(a) Population Seeking Adjustment of Status

i. Exemptions From Determination of Inadmissibility Based on Public Charge Grounds

ii. Exemptions From the Requirement To Submit an Affidavit of Support

(b) Population Seeking Extension of Stay of Change of Status

4. Cost-Benefit Analysis

(a) Baseline Estimates of Current Costs

i. Determination of Inadmissibility Based on Public Charge Grounds

a. Form I-485, Application to Register Permanent Residence or Adjust Status

b. Form I-693, Report of Medical Examination and Vaccination Record

c. Form I-912, Request for Fee Waiver

d. Affidavit of Support Forms

ii. Consideration of Receipt, or Likelihood of Receipt of Public Benefits Defined in Proposed 212.21(b) for Applicants Requesting Extension of Stay or Change of Status

a. Form I-129, Petition for a Nonimmigrant Worker

b. Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker

c. Form I-539, Application To Extend/Change Nonimmigrant Status

(b) Costs of Proposed Regulatory Changes

i. Form I-944, Declaration of Self-Sufficiency

ii. Extension of Stay/Change of Status Using Form I-129, Petition for a Nonimmigrant Worker; Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker; or Form I-539, Application To Extend/Change Nonimmigrant Status

iii. Public Charge Bond

(d) Discounted Direct Costs and Reduced Transfer Payments

i. Discounted Direct Costs

ii. Discounted Reduction in Transfer Payments

(e) Costs to the Federal Government

(f) Benefits of Proposed Regulatory Changes

B. Regulatory Flexibility Act

C. Congressional Review Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132 (Federalism)

F. Executive Order 12988 (Civil Justice Reform)

G. Executive Order 13175 Consultation and Coordination With Indian Tribal Governments

H. Family Assessment

I. National Environmental Policy Act (NEPA)

J. Paperwork Reduction Act

VII. List of Subjects and Regulatory Amendments

Table of Abbreviations

AFM—Adjudicator's Field Manual

ASEC—Annual Social and Economic Supplement of the Current Population Survey

BIA—Board of Immigration Appeals

BLS—U.S. Bureau of Labor Statistics

CDC—Centers for Disease Control and Prevention

CBP—U.S. Customs and Border Protection

CFR—Code of Federal Regulations

CHIP—Children's Health Insurance Program

CNMI—Commonwealth of the Northern Mariana Islands

DHS—U.S. Department of Homeland Security

DOS—U.S. Department of State

FAM—Foreign Affairs Manual

FCRA—Fair Credit Reporting Act

FPG—Federal Poverty Guidelines

FPL—Federal Poverty Level

Form DS-2054—Medical Examination For Immigrant or Refugee Applicant

Form I-129—Petition for a Nonimmigrant Worker

Form I-129CW—Petition for a CNMI-Only Nonimmigrant Transitional Worker

Form I-130—Petition for Alien Relative

Form I-140—Immigrant Petition for Alien Worker

Form I-290B—Notice of Appeal or Motion

Form I-356—Request for Cancellation of Public Charge Bond

Form I-407—Record of Abandonment of Lawful Permanent Resident Status

Form I-485—Application to Register Permanent Residence or Adjust Status

Form I-539—Application to Extend/Change Nonimmigrant Status

Form I-600—Petition to Classify Orphan as an Immediate Relative

Form I-693—Report of Medical Examination and Vaccination Record

Form I-800—Petition to Classify Convention Adoptee as an Immediate Relative

Form I-864—Affidavit of Support Under Section 213A of the INA

Form I-864A—Contract Between Sponsor and Household Member

Form I-864EZ—Affidavit of Support Under Section 213A of the Act

Form I-864P—HHS Poverty Guidelines for Affidavit of Support

Form I-864W—Request for Exemption for Intending Immigrant's Affidavit of Support

Form I-912—Request for Fee Waiver

Form I-94—Arrival/Departure Record

Form I-944—Declaration of Self-Sufficiency

Form I-945—Public Charge Bond

Form N-600—Application for Certificate of Citizenship

Form N-600K—Application for Citizenship and Issuance of Certificate Under Section 322

GA- General Assistance

GAO—U.S. Government Accountability Office

HHS—U.S. Department of Health and Human Services

ICE—U.S. Immigration and Customs Enforcement IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Service

IRCA—Immigration Reform and Control Act of 1986

NHE—National Health Expenditure

PRA—Paperwork Reduction Act

PRWORA—Personal Responsibility and Work Opportunity Reconciliation Act of 1996

RFE—Request for Evidence

SAVE—Systematic Alien Verification for Entitlements

Secretary—Secretary of Homeland Security

SIPP—Survey of Income and Program Participation

SNAP—Supplemental Nutrition Assistance Program

SSA—Social Security Administration

SSI—Supplemental Security Income

TANF—Temporary Assistance for Needy Families

USDA—U.S. Department of Agriculture

U.S.C.—United States Code

USCIS—U.S. Citizenship and Immigration Services

WIC—Special Supplemental Nutrition Program for Women, Infants, and Children

I. Public Participation

All interested parties are invited to participate in this rulemaking by submitting written data, views, comments and arguments on all aspects of this proposed rule. DHS also invites comments that relate to the economic, legal, environmental, or federalism effects that might result from this proposed rule. Comments must be submitted in English, or an English translation must be provided. Comments that will provide the most assistance to U.S. Citizenship and Immigration Services (USCIS) in implementing these changes will reference a specific portion of the proposed rule, explain the reason for any recommended change, and include data, information, or authority that supports such recommended change.

Instructions:

If you submit a comment, you must include the agency name and the DHS Docket No. USCIS-2010-0012 for this rulemaking. Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at

http://www.regulations.gov,

and will include any personal information you provide. Therefore, submitting this information makes it public. You may wish to consider limiting the amount of personal information that you provide in any voluntary public comment submission you make to DHS. DHS may withhold information provided in comments from public viewing that it determines may impact the privacy of an individual or is offensive. For additional information, please read the Privacy Act notice that is available via the link in the footer of

http://www.regulations.gov.

Docket:

For access to the docket and to read background documents or comments received, go to

http://www.regulations.gov,

referencing DHS Docket No. USCIS-2010-0012. You may also sign up for email alerts on the online docket to be notified when comments are posted or a final rule is published.

The docket for this rulemaking does not include any comments submitted on the related notice of proposed rulemaking published by INS in 1999.

Commenters to the 1999 notice of proposed rulemaking that wish to have their views considered should submit new comments in response to this notice of proposed rulemaking.

See Inadmissibility and Deportability on Public Charge Grounds,

64 FR 28676 (May 26, 1999).

II. Executive Summary

DHS seeks to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient,

i.e.,

do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.

DHS proposes to define the term “public charge” in regulation and to identify the types, amount, and duration of receipt of public benefits that would be considered in public charge inadmissibility determinations. DHS proposes to amend its regulations to interpret the minimum statutory factors for determining whether an alien is inadmissible because he or she is likely to become a public charge. This proposed rule would provide a standard for determining whether an alien who seeks admission into the United States as a nonimmigrant or as an immigrant, or seeks adjustment of status, is likely at any time to become a public charge under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). DHS also provides a more comprehensive framework under which USCIS will consider public charge inadmissibility. DHS proposes that certain paper-based applications to USCIS would require additional evidence related to public charge considerations. Due to operational limitations, this additional evidence would not generally be required at ports of entry.

See

8 U.S.C. 1601(1), (2)(A).

DHS also proposes amending the nonimmigrant extension of stay and change of status regulations by exercising its authority to set additional conditions on granting such benefits. Finally, DHS proposes to revise its regulations governing the discretion of the Secretary of Homeland Security (Secretary) to accept a public charge bond under section 213 of the Act, 8 U.S.C. 1183, for those seeking adjustment of status.

A. Major Provisions of the Regulatory Action

DHS proposes to include the following major changes:

• Amending 8 CFR 103.6, Surety bonds. The amendments to this section set forth DHS's discretion to approve public charge bonds, cancellation, bond schedules, and breach of bond, and move principles governing public charge bonds to 8 CFR 213.1, as proposed to be revised in this NPRM.

• Amending 8 CFR 103.7, adding fees for new Form I-945, Public Charge Bond, and Form I-356, Request for Cancellation of Public Charge Bond.

• Adding 8 CFR 212.20, Applicability of public charge inadmissibility. This section identifies the categories of aliens that are subject to the public charge inadmissibility determination.

• Adding 212.21, Definitions. This section establishes key regulatory definitions, including public charge, public benefit, likely at any time to become a public charge, and household.

• Adding 212.22, Public charge determination. This section clarifies that evaluating the likelihood of becoming a public charge is a prospective determination based on the totality of the circumstances. This section provides details on how the statute's mandatory factors would be considered when making a public charge inadmissibility determination.

• Adding 212.23, Exemptions and waivers for the public charge ground of inadmissibility. This section provides a list of statutory and regulatory exemptions from and waivers of inadmissibility based on public charge.

• Adding 212.24 Valuation of monetizable benefits. This section provides the methodology for calculating the annual aggregate amount of the portion attributable to the alien for the monetizable benefits and considered in the public charge inadmissibility determination.

• Amending 8 CFR 213.1, Adjustment of status of aliens on submission of a public charge bond. The updates to this section change the title of this section and add specifics to the public charge bond provision for aliens who are seeking adjustment of status, including the discretionary availability and the minimum amount for a public charge bond.

• Amending 8 CFR 214.1, Requirements for admission, extension, and maintenance of status. These amendments provide that, with limited

exceptions, an application for extension of nonimmigrant stay will be denied unless the applicant demonstrates that he or she has not received since obtaining the nonimmigrant status he or she seeks to extend, is not receiving, and is not likely to receive, public benefits as described in 8 CFR 212.21(b). Where section 212(a)(4) of the Act does not apply to the nonimmigrant category that the alien seeks to extend, this provision does not apply.

• Amending 8 CFR 245.4 Documentary requirements. These amendments require applicants for adjustment of status to file the new USCIS Form I-944, Declaration of Self-Sufficiency, to facilitate USCIS' public charge inadmissibility determination.

• Amending 8 CFR 248.1, Change of nonimmigrant classification eligibility. This section provides that with limited exceptions, an application to change nonimmigrant status will be denied unless the applicant demonstrates that he or she has not received since obtaining the nonimmigrant status from which the alien seeks to change, is not currently receiving, nor is likely to receive public benefits in the future, as described in proposed 8 CFR 212.21(b). Where section 212(a)(4) of the Act does not apply to the nonimmigrant category to which the alien requests a change of status this provision does not apply.

B. Costs and Benefits

This proposed rule would impose new costs on the population applying to adjust status using Application to Register Permanent Residence or Adjust Status (Form I-485) that are subject to the public charge grounds on inadmissibility. DHS would now require any adjustment applicants subject to the public charge inadmissibility ground to submit Form I-944 with their Form I-485 to demonstrate they are not likely to become a public charge.

The proposed rule would also impose additional costs for seeking extension of stay or change of status by filing Form I-129 (Petition for a Nonimmigrant Worker); Form I-129CW (Petition for a CNMI-Only Nonimmigrant Transitional Worker); or Form I-539 (Application to Extend/Change Nonimmigrant Status) as applicable. The associated time burden estimate for completing these forms would increase because these applicants would be required to demonstrate that they have not received, are not currently receiving, nor are likely in the future to receive, public benefits as described in proposed 8 CFR 212.21(b). These applicants may also incur additional costs if DHS determines that they are required to submit Form I-944 in support of their applications for extension of stay or change of status. Moreover, the proposed rule would impose new costs associated with the proposed public charge bond process, including new costs for completing and filing Form I-945 (Public Charge Bond), and Form I-356 (Request for Cancellation of Public Charge Bond).

DHS estimates that the additional total cost of the proposed rule would range from approximately $45,313,422 to $129,596,845 annually for the population applying to adjust status who also would be required to file Form I-944, the population applying for extension of stay or change of status that would experience opportunity costs in time associated with the increased time burden estimates for completing Form I-485, Form I-129, FormI-129CW, and FormI-539, and the population requesting or cancelling a public charge bond using Form I-945 and Form I-356, respectively.

Over the first 10 years of implementation, DHS estimates the total quantified new direct costs of the proposed rule would range from about $453,134,220 to $1,295,968,450 (undiscounted). DHS estimates that the 10-year discounted total direct costs of this proposed rule would range from about $386,532,679 to $1,105,487,375 at a 3 percent discount rate and about $318,262,513 to $910,234,008 at a 7 percent discount rate.

The proposed rule would impose new costs on the population seeking extension of stay or change of status using Form I-129, Form I-129CW, or Form I-539. For any of these forms, USCIS officers would then be able to exercise discretion in determining whether it would be necessary to issue a request for evidence (RFE) requesting the applicant to submit Form I-944. DHS conducted a sensitivity analysis estimating the potential cost of filing Form I-129, Form I-129CW, or Form I-539 for a range of 10 to 100 percent of filers receiving an RFE requesting they submit Form I-944. The costs to Form I-129 beneficiaries who may receive an RFE to file Form I-944 range from $6,086,318 to $60,863,181 annually and the costs to Form I-129CW beneficiaries who may receive such an RFE from $114,132 to $1,141,315 annually. The costs to Form I-539 applicants who may receive an RFE to file Form I-944 range from $3,164,375 to $31,643,752 annually.

Simultaneously, DHS is proposing to eliminate the use and consideration of the Request for Exemption for Intending Immigrant's Affidavit of Support (Form I-864W), currently applicable to certain classes of aliens. In lieu of Form I-864W, the alien would indicate eligibility for the exemption of the affidavit of support requirement on Form I-485, Application to Register Permanent Residence or Adjust Status.

The proposed rule would potentially impose new costs on individuals or companies (obligors) if an alien has been found to be inadmissible on public charge grounds, but has been given the opportunity to submit a public charge bond, for which USCIS intends to use the new Form I-945. DHS estimates the total cost to file Form I-945 would be at minimum about $34,234 annually.

The proposed rule would also impose new costs on aliens or obligors who would submit a Form I-356; DHS estimates the total cost to file Form I-356 would be approximately $825 annually.

Calculation: $35.66 (cost per obligor to file Form I-945) * 960 (estimated annual population who would file Form I-945) = $34,233.60 = $34,234 (rounded) annual total cost to file Form I-945.

Calculation: $33.00 (cost per obligor to file Form I-356) * 25 (estimated annual population who would file Form I-356) = $825.00 annual total cost to file Form I-356.

Moreover, the proposed rule would also result in a reduction in transfer payments from the federal government to individuals who may choose to disenroll from or forego enrollment in a public benefits program. Individuals may make such a choice due to concern about the consequences to that person receiving public benefits and being found to be likely to become a public charge for purposes outlined under section 212(a)(4) of the Act, even if such individuals are otherwise eligible to receive benefits. For the proposed rule, DHS estimates that the total reduction in transfer payments from the federal and state governments would be approximately $2.27 billion annually due to disenrollment or foregone enrollment in public benefits programs by aliens who may be receiving public benefits. DHS estimates that the 10-year discounted transfer payments of this proposed rule would be approximately $19.3 billion at a 3 percent discount rate and about $15.9 billion at a 7 percent discount rate. Because state

participation in these programs may vary depending on the type of benefit provided, DHS was only able to estimate the impact of state transfers. For example, the federal government funds all SNAP food expenses, but only 50 percent of allowable administrative costs for regular operating expenses.

Similarly, Federal Medical Assistance Percentages (FMAP) in some HHS programs like Medicaid can vary from between 50 percent to an enhanced rate of 100 percent in some cases.

However, assuming that the state share of federal financial participation (FFP) is 50 percent, the 10-year discounted amount of state transfer payments of this proposed policy would be approximately $9.65 billion at a 3 percent discount rate and about $7.95 billion at a 7 percent discount rate. DHS recognizes that reductions in federal and state transfers under federal benefit 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 participating in Medicaid, pharmacies that provide prescriptions to participants in the Medicare Part D Low Income Subsidy (LIS) program, 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.

Per section 16(a) of the Food and Nutrition Act of 2008.

see also

42 U.S.C. 1382c(a)(1). DHS does not propose to apply this proposed rule to legalization applications filed pursuant to section 245A of the INA or otherwise amend the regulations at 8 CFR part 245a. That provision is subject to legal standards and settlement agreements that impact public charge inadmissibility determinations in this specific context.

See, e.g., Catholic Soc. Servs., Inc.

Meese, vacated sub nom. Reno

Catholic Soc.

Servs., Inc.,

509 U.S. 43 (1993);

League of United Latin Am. Citizens

INS, vacated sub nom. Reno

Catholic Soc. Servs., Inc.,

509 U.S. 43 (1993).

INS promulgated 8 CFR 245a.3,

which established that immigration officers would make public charge determinations by examining the “totality of the alien's circumstances at the time of his or her application for legalization.”

According to the regulation, the existence or absence of a particular factor could never be the sole criterion for determining whether a person is likely to become a public charge.

Further, the regulation established that the determination is a “prospective evaluation based on the alien's age, health, income, and vocation.”

A special provision in the rule stated that aliens with incomes below the poverty level are not excludable if they are consistently employed and show the ability to support themselves.

Finally, an alien's past receipt of public cash assistance would be a significant factor in a context that also considers the alien's consistent past employment.

Matter of A-,

INS again pursued a totality of circumstances approach in public charge determinations. “Even though the test is prospective,” INS “considered evidence of receipt of prior public assistance as a factor in making public charge determinations.” INS also considered an alien's work history, age, capacity to earn a living, health, family situation, affidavits of support, and other relevant factors in their totality.

See Adjustment of Status for Certain Aliens,

54 FR 29442 (Jul. 12, 1989).

8 CFR 245a.3(g)(4)(i).

8 CFR 245a.3(g)(4)(iii).

See

8 CFR 245a.3(g)(4)(iii).

19 I&N Dec. 867 (Comm'r 1988).

See

19 I&N Dec. 867, 869 (Comm'r 1988).

The administrative practices surrounding public charge inadmissibility determinations began to crystalize into legislative changes in the 1990s. The Immigration Act of 1990 reorganized section 212(a) of the Act and re-designated the public charge provision as section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4).

In 1996, PRWORA

and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)

altered the legislative landscape of public charge considerably.

Through PRWORA, which is commonly known as the 1996 welfare reform law, Congress declared that aliens generally should not depend on public resources and that these resources should not constitute an incentive for immigration to the United States.

Congress also created section 213A of the Act and made a sponsor's affidavit of support for an alien beneficiary legally enforceable.

The affidavit of support provides a mechanism for public benefit granting agencies to seek reimbursement in the event a sponsored alien received means-tested public benefits.

See

Immigration Act of 1990, Public Law 101-649, section 601(a), 104 Stat. 4978, 5072.

Public Law 104-193, 110 Stat. 2105.

Public Law 104-208, div. C, 110 Stat 3009-546.

In 1990, Congress reorganized INA section 212(a), redesignated the public charge provision as INA section 212(a)(4), and eliminated the exclusion of paupers, beggars, and vagrants as these grounds were sufficiently covered under the public charge provision.

See

Immigration Act of 1990, Public Law 101-649, section 601(a), 104 Stat. 4978, 5072.

See

Public Law 104-193, section 400, 110 Stat. 2105, 2260 (codified at 8 U.S.C. 1601).

See

Public Law 104-193, section 423, 110 Stat. 2105, 2271 (codified at INA section 213A, 8 U.S.C. 1183a). The provision was further amended with the passage of IIRIRA.

See

INA section 213A(b), 8 U.S.C. 1183a(b).

2. Public Benefits Under PRWORA

PRWORA also significantly restricted alien eligibility for many Federal, State, and local public benefits.

With certain exceptions, Congress defined the term “Federal public benefit” broadly as:

See

8 U.S.C. 1601-1646.

(A) Any grant, contract, loan, professional license, or commercial license provided by an agency of the United States or by appropriated funds of the United States; and

(B) Any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.

See

Public Law 104-193, section 401(c), 110 Stat. 2105, 2262 (1996) (codified as amended at 8 U.S.C. 1611(c)). Congress provided that such term shall not apply—

(A) to any contract, professional license, or commercial license for a nonimmigrant whose visa for entry is related to such employment in the United States, or to a citizen of a freely associated state, if section 141 of the applicable compact of free association approved in Public Law 99-239 or 99-658 (or a successor provision) is in effect;

(B) with respect to benefits for an alien who as a work authorized nonimmigrant or as an alien lawfully admitted for permanent residence under the Immigration and Nationality Act [8 U.S.C. 1101

et seq.

] qualified for such benefits and for whom the United States under reciprocal treaty agreements is required to pay benefits, as determined by the Attorney General, after consultation with the Secretary of State; or

(C) to the issuance of a professional license to, or the renewal of a professional license by, a foreign national not physically present in the United States. 8 U.S.C. 1611(c)(2).

(a) Qualified Aliens

Generally, under PRWORA, “qualified aliens” are eligible for federal means-tested benefits after 5 years and are not eligible for “specified federal programs,” and states are allowed to determine whether the qualified alien is eligible for “designated federal programs.”

The following table provides a list of immigration categories that are qualified aliens under PRWORA.

See

Public Law 104-193, tit. IV, 110 Stat. 2105, 2260-77.

See

Public Law 104-193, section 431, 110 Stat. 2105, 2274 (codified at 8 U.S.C. 1641); Trafficking Victims Protection Act of 2000 section 107(b)(1), 22 U.S.C. 7105(b)(1).

EP10OC18.004

The Trafficking

Victims Protection Act of 2000 further provided that an alien who is a victim of a severe form of trafficking in persons, or an alien classified as a nonimmigrant under section 101(a)(15)(T)(ii) of the Act, 8 U.S.C. 1101(a)(15)(T)(ii), is eligible for benefits and services under any Federal or State program or activity funded or administered by any official or agency.

These individuals are generally exempt from the public charge inadmissibility ground.

Lawful permanent residents seeking entry into the United States typically are not applicants for admission, and therefore, generally are not subject to section 212(a) of the INA, 8 U.S.C. 1182(a), including INA section 212(a)(4), 8 U.S.C 1182(a)(4), but lawful permanent residents described in INA section 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), are regarded as seeking admission and generally are subject to inadmissibility grounds.

Parole is not a category of admission.

See

INA section 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); INA section 212(d)(5), 8 U.S.C. 1182(d)(5).

While an alien paroled into the United States is not subject to an admission determination at the time the decision to parole the alien is made, if an alien who has been paroled into the United States is applying for an immigration benefit for which admissibility is required,

e.g.

adjustment of status, the parolee will be subject to section 212(a)(4) of the Act in the context of seeking the subsequent immigration benefit.

As in effect immediately before the effective date of section 307 of division C of Public Law 104-208, 110 Stat. 3009-546.

See

Trafficking Victims Protection Act of 2000 section 107(b)(1), 22 U.S.C. 7105(b)(1).

However, while lawful permanent residents seeking entry into the United States typically are not applicants for admission, and therefore, generally are not subject to section 212(a) of the INA (including section 212(a)(4)), a lawful permanent resident described in section 101(a)(13)(C) of the INA is regarded as seeking admission and is subject to section 212(a)(4).

With certain exceptions, aliens who were not “qualified aliens,” including nonimmigrants and unauthorized aliens, were generally barred from obtaining Federal benefits.

In addition to the federal public benefits definitions, PRWORA categorizes the benefits into the following categories:

See

PRWORA, Public Law 104-193, section 401(a), 110 Stat. 2105, 2261 (codified at 8 U.S.C. 1611(a)).

• Specified Federal Programs;

• Designated Federal Programs; and

• Federal Means-Tested Benefits.

The following tables provide a summary of the definition of federal public benefit and the three categories of public benefits under PRWORA as applicable to aliens and qualified aliens.

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BILLING CODE 4410-10-C

Congress

chose not to restrict eligibility for certain benefits, including

emergency medical assistance; short-term, in-kind, non-cash emergency disaster relief; and public health assistance related to immunizations and treatment of the symptoms of a communicable disease.

122

If section 141 of the applicable compact of free association approved in Public Law 99-239 or 99-658 (or a successor provision) is in effect.

See Final Specification of Community Programs Necessary For Protection Of Life Or Safety Under Welfare Reform Legislation,

66 FR 3613 (Jan. 16, 2001);

see also Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,

61 FR 45985 (Aug. 30, 1996).

See

42 U.S.C. 401-434.

See

8 CFR 1.3(a).

42 U.S.C. 433.

42 U.S.C. 402(t).

Benefits payable under title XVIII of the Social Security Act.

See

42 U.S.C. 1395-1395

lll.

See

8 CFR 1.3(a).

See

42 U.S.C. 1395c to 1395i-5.

See

45 U.S.C. 231-231v.

See

45 U.S.C. 351-369.

See

42 U.S.C. 1381-1383f.

See

Food Stamp Act of 1977.

In addition, there are certain extensions for SSI benefits through fiscal year 2011.

See

8 U.S.C. 1612(a)(2)(M).

See

8 U.S.C. 1612(a)(2)(D).

See

8 U.S.C. 162(a)(2)(J).

As defined in 38 U.S.C. 101.

See

8 U.S.C. 1612(a)(2)(B).

See

8 U.S.C. 1612(a)(2)(C).

See

8 U.S.C. 1612(a)(2)(G);

see also

INA section 289, 8 U.S.C. 1359.

See

8 U.S.C. 1612(a)(2)(G);

see also

25 U.S.C 5304(e) (defining Indian tribe).

See

8 U.S.C. 1612(a)(2)(E).

See

8 U.S.C. 1612(a)(2)(F).

See

8 U.S.C. 1612(a)(2)(A).

As in effect immediately before the effective date of section 307 of division C of Public Law 104-208.

100

8 U.S.C. 1231(b)(3).

101

As defined in section 501(e) of the Refugee Education Assistance Act of 1980.

102

See

section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Public Law 100-202, 101 Stat. 1329, and amended by the 9th proviso under migration and refugee assistance in title II of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1989, Public Law 100-461, 102 Stat. 2268, as amended).

103

An alien who was lawfully residing in the United States and receiving benefits on August 2, 1996, would have continued to receive benefits until January 1, 1997. In addition, an alien who was receiving SSI would still be eligible to receive Medicaid.

See

8 U.S.C. 1612(b)(2)(F).

104

See

42 U.S.C. 601-619.

105

See

42 U.S.C. 1397-1397h.

106

See

42 U.S.C. 1396 to 1396w-5.

107

See

8 U.S.C. 1612(b)(2)(B).

108

See

8 U.S.C. 1612(b)(2)(C).

109

See

8 U.S.C. 1612(b)(2)(E).

110

See

8 U.S.C. 1612(b)(2)(A).

111

As in effect immediately before the effective date of section 307 of division C of Public Law 104-208, 110 Stat. 3009.

112

8 U.S.C. 1231(b)(3).

113

As defined in section 501(e) of the Refugee Education Assistance Act of 1980.

114

See

section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1988 (as contained in section 101(e) of Pub. L. 100-202, 101 Stat. 1329, and amended by the 9th proviso under migration and refugee assistance in title II of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1989, Pub. L. 100-461, 102 Stat. 2268, as amended).

115

See Federal Means-Tested Public Benefits,

63 FR 36653 (July 7, 1998).

116

See

8 U.S.C. 1613(c).

117

See

8 U.S.C. 1613(b)(1).

118

See

section 501(e) of the Refugee Education Assistance act of 1980.

119

See

8 U.S.C. 1612(a)(2)(A)(i)(V).

120

See

8 U.S.C. 1613(b)(2).

121

See

8 U.S.C. 1613(d).

122

See

8 U.S.C. 1611(b)(1);

see also Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,

66 FR 3613 (Jan. 16, 2001);

Interim Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,

62 FR 61344 (Nov. 17, 1997).

PRWORA defined the term “State or local public benefit” in broad terms except where the term encroached upon the definition of Federal public benefit.

123

With certain exceptions for qualified aliens, nonimmigrants, or parolees, PRWORA also limited aliens' ability to obtain certain State and local public benefits.

124

Under PRWORA, States may enact their own legislation to provide public benefits to certain aliens not lawfully present in the United States.

125

PRWORA also provided that a State that chooses to follow the Federal “qualified alien” definition in determining aliens' eligibility for public assistance “shall be considered to have chosen the least restrictive means available for achieving the compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy.”

126

Still, some States and localities have funded public benefits (particularly medical and nutrition benefits) that aliens may be not eligible for federally.

127

123

See

8 U.S.C. 1621(c).

124

See generally

8 U.S.C. 1621.

125

See

8 U.S.C. 1621(d).

126

8 U.S.C. 1601(7).

127

See

U.S. Dep't of Health & Human Servs., Office of the Assistant Sec'y for Planning & Evaluation,

Overview of Immigrants Eligible for SNAP, TANF, Medicaid and CHIP

(Mar. 27, 2012),

available at http://aspe.hhs.gov/hsp/11/ImmigrantAccess/Eligibility/ib.shtml.

While PRWORA allows both qualified aliens and non-qualified aliens to receive certain benefits (

e.g.,

emergency benefits (all aliens); SNAP (qualified alien children under 18)), Congress did not exempt the receipt of such benefits from consideration for purposes of INA section 212(a)(4).”

128

Therefore, DHS may take into consideration for purposes of a public charge determination, receipt of public benefits even if an alien may receive such benefits under PRWORA.

128

See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

(b) Public Benefits Exempt Under PRWORA

Although PRWORA provided a broad definition of public benefits that only qualified aliens are eligible to receive,

129

it also made certain public benefits available even to non-qualified aliens.

130

Congress excluded certain benefits, such as contracts, professional licenses, and commercial licenses from the “federal public benefit” definition.

131

In addition, Congress further provided that the following public benefits are available to all aliens, regardless of whether an individual is a qualified alien:

132

129

See

Public Law 104-193, section 401(c), 110 Stat. 2105, 2262 (codified as amended at 8 U.S.C. 1611(c)). Only qualified aliens may be eligible for certain benefits.

See

8 U.S.C. 1641.

130

See

8 U.S.C. 1611(b).

131

See

8 U.S.C. 1611(c)(2).

132

See 8 U.S.C. 1611(b).

• Medical assistance under title XIX of the Social Security Act [42 U.S.C. 1396

et seq.

] (or any successor program to such title) for care and services that are necessary for the treatment of an emergency medical condition (as defined in section 1903(v)(3) of such Act [42 U.S.C. 1396b(v)(3)]) of the alien involved and are not related to an organ transplant procedure, if the alien involved otherwise meets the eligibility requirements for medical assistance under the State plan approved under such title (other than the requirement of the receipt of aid or assistance under title IV of such Act [42 U.S.C. 601

et seq.

], supplemental security income benefits under title XVI of such Act [42 U.S.C. 1381

et seq.

], or a State supplementary payment).

• Short-term, non-cash, in-kind emergency disaster relief.

133

Such relief would include a range of services and benefits provided by the Federal Emergency Management Agency and other agencies. For instance, it would include the Disaster Supplemental Nutrition Assistance Program (D-SNAP), which “gives food assistance to low-income households with food loss or damage caused by a natural disaster.”

See

DHS, Disaster Assistance.gov,

Disaster Supplemental Nutrition Assistance Program (D-SNAP), available at https://www.disasterassistance.gov/get-assistance/forms-of-assistance/5769

(last updated June 25, 2018).

• Public health assistance (not including any assistance under title XIX of the Social Security Act [42 U.S.C. 1396

et seq.

]) for immunizations with respect to immunizable diseases and for testing and treatment of symptoms of communicable diseases whether or not such symptoms are caused by a communicable disease.

• Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) specified by the Attorney General, in the Attorney General's sole and unreviewable discretion after consultation with appropriate Federal agencies and departments, which (i) deliver in-kind services at the community level, including through public or private nonprofit agencies; (ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance

provided on the individual recipient's income or resources; and (iii) are necessary for the protection of life or safety.

• Programs for housing or community development assistance or financial assistance administered by the Secretary of Housing and Urban Development, any program under title V of the Housing Act of 1949 [42 U.S.C. 1471

et seq.

], or any assistance under section 1926c of title 7, to the extent that the alien is receiving such a benefit on August 22, 1996.

These benefits, which are described in 8 U.S.C. 1611(b), were further clarified by the Department of Justice and some of the agencies that administer these public benefits. On January 16, 2001, the Department of Justice published a notice of final order, “Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,”

134

which indicated that PRWORA does not preclude aliens from receiving police, fire, ambulance, transportation (including paratransit), sanitation, and other regular, widely available services programs, services, or assistance. In addition, the notice provided for a three-part test in identifying excluded benefits and services for the protection of life and safety. Specified programs must satisfy all three prongs of this test:

134

See Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,

66 FR 3613 (Jan. 16, 2001);

see also Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,

61 FR 45985 (Aug. 30, 1996).

1. The government-funded programs, services, or assistance specified are those that: Deliver in-kind (non-cash) services at the community level, including through public or private non-profit agencies or organizations; do not condition the provision, amount, or cost of the assistance on the individual recipient's income or resources; and serve purposes of the type described in the list below, for the protection of life or safety.

2. The community-based programs, services, or assistance are limited to those that provide in-kind (non-cash) benefits and are open to individuals needing or desiring to participate without regard to income or resources. Programs, services, or assistance delivered at the community level, even if they serve purposes of the type described, are not within this specification if they condition on the individual recipient's income or resources: (a) The provision of assistance; (b) the amount of assistance provided; or (c) the cost of the assistance provided on the individual recipient's income or resources.

3. Included within the specified programs, services, or assistance determined to be necessary for the protection of life or safety are the following types of programs:

• Crisis counseling and intervention programs; services and assistance relating to child protection, adult protective services, violence and abuse prevention, victims of domestic violence or other criminal activity; or treatment of mental illness or substance abuse;

• Short-term shelter or housing assistance for the homeless, for victims of domestic violence, or for runaway, abused, or abandoned children;

• Programs, services, or assistance to help individuals during periods of heat, cold, or other adverse weather conditions;

• Soup kitchens, community food banks, senior nutrition programs such as meals on wheels, and other such community nutritional services for persons requiring special assistance;

• Medical and public health services (including treatment and prevention of diseases and injuries) and mental health, disability, or substance abuse assistance necessary to protect life or safety;

• Activities designed to protect the life or safety of workers, children and youths, or community residents; and

• Any other programs, services, or assistance necessary for the protection of life or safety.

In congressional debates leading up to the passage of IIRIRA, Senator Kennedy stated that “[t]hese benefit all, because they relate to the public health and are in the public interest. Where the public interest is not served, we should not provide the public assistance to illegal immigrants.”

135

Therefore, these benefits were provided to all aliens including illegal aliens. These benefits would not be part of the public charge determination under the proposed rule.

136

135

See

142 Cong. Rec. S3282 (daily ed. Apr. 15, 1996) (statement of Sen. Kennedy),

available at https://www.congress.gov/crec/1996/04/15/CREC-1996-04-15-pt1-PgS3276.pdf.

136

See

8 U.S.C. 1611(b)(1)(B);

see also Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,

66 FR 3613 (Jan. 16, 2001);

Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,

61 FR 45985 (Aug. 30, 1996).

3. Changes Under IIRIRA

Under IIRIRA,

137

the public charge inadmissibility statute changed significantly. IIRIRA codified the following minimum factors that must be considered when making public charge determinations:

138

137

Public Law 104-208, div. C, 110 Stat 3009-546 (1996).

138

Public Law 104-208, div. C, section 531, 110 Stat. 3009-546, 3009-674 (1996) (amending INA section 212(a)(4), 8 U.S.C. 1182(a)(4)).

• Age;

• Health;

• Family status;

• Assets, resources, and financial status; and

• Education and skills.

139

See

INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).

Congress also generally permitted but did not require consular and immigration officers to consider an enforceable affidavit of support as a factor in the determination of inadmissibility,

140

except in certain cases where an affidavit of support is required and must be considered at least in that regard.

141

The law required affidavits of support for most family-based immigrants and certain employment-based immigrants and provided that these aliens are inadmissible unless a satisfactory affidavit of support is filed on their behalf.

142

In the Conference Report, the committee indicated that the amendments to INA section 212(a)(4), 8 U.S.C. 1182(a)(4), were designed to expand the public charge ground of inadmissibility.

143

The report indicated that self-reliance is one of the fundamental principles of immigration law and aliens should have affidavits of support executed.

144

140

See

INA section 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).

141

See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4); INA section 213A, 8 U.S.C. 1183A.

142

See

INA section 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).

143

See

H.R. Rep. No. 104-828, at 240-41 (1996) (Conf. Rep.);

see also

H.R. Rep. No. 104-469(I), at 143-45 (1996).

144

See

H.R. Rep. No. 104-828, at 241 (1996) (Conf. Rep.).

DHS believes that the policy goals articulated in PRWORA and IIRIRA should inform its administrative implementation of the public charge ground of inadmissibility. There is no tension between the availability of public benefits to some aliens as set forth in PRWORA and Congress's intent to deny visa issuance, admission, and adjustment of status to aliens who are likely to become a public charge. Indeed, Congress, in enacting PRWORA and IIRIRA very close in time, must have recognized that it made certain public benefits available to some aliens who are also subject to the public charge grounds of inadmissibility, even though receipt of such benefits could render the alien inadmissible as likely to become a public charge.

Under the carefully devised scheme envisioned by Congress, aliens generally would not be issued visas, admitted to the United States, or permitted to adjust status if they are likely to become public charges. This prohibition may deter aliens from making their way to the United States or remaining in the United States permanently for the purpose of availing themselves of public benefits.

145

Congress must have understood, however, that certain aliens who were unlikely to become public charges when seeking a visa, admission, or adjustment of status might thereafter reasonably find themselves in need of public benefits that, if obtained, would render them a public charge. Consequently, in PRWORA, Congress made limited allowances for that possibility. But Congress also did not correspondingly limit the applicability of the public charge statute; if an alien subsequent to receiving public benefits wished to adjust status in order to remain in the United States permanently or left the United States and later wished to return, the public charge inadmissibility consideration (naturally including consideration of receipt of public benefits) would again come into play. In other words, although an alien may obtain public benefits for which he or she is eligible, the receipt of those benefits may be considered for future public charge inadmissibility determination purposes.

145

H.R. Rep. No. 104-469(I), at 144-45 (1996).

4. INS 1999 Interim Field Guidance

On May 26, 1999, INS issued interim

Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.

146

This guidance identified how the agency would determine if a person is likely to become a public charge under section 212(a)(4) of the Act, 8 U.S.C. 1182(a), for admission and adjustment of status purposes, and whether a person is deportable as a public charge under section 237(a)(5) of the Act, 8 U.S.C. 1227(a)(5).

147

INS proposed promulgating these policies as regulations in a proposed rule issued on May 26, 1999.

148

DOS also issued a cable to its consular officers at that time implementing similar guidance for visa adjudications, and its Foreign Affairs Manual (FAM) was similarly updated.

149

USCIS has continued to follow the 1999 Interim Field Guidance in its adjudications, and DOS has continued following the public charge guidance set forth in the FAM.

150

146

See

64 FR 28689 (May 26, 1999).

147

See

64 FR 28689 (May 26, 1999).

148

See Inadmissibility and Deportability on Public Charge Grounds,

64 FR 28676 (May 26, 1999).

149

See

64 FR 28676, 28680 (May 26, 1999).

150

See

Children's Health Insurance Program Reauthorization Act of 2009, Public Law 111-3, section 214, 123 Stat. 8, 56; 9 FAM 302.8-2(B)(2), Determining “Totality of Circumstances,” (g) Public Charge Bonds,

available at https://fam.state.gov/fam/09fam/09fam030208.html.

In the 1999 proposed rule, INS proposed to “alleviate growing public confusion over the meaning of the currently undefined term `public charge' in immigration law and its relationship to the receipt of Federal, State, or local public benefits.”

151

INS sought to reduce negative public health and nutrition consequences generated by the confusion and to provide aliens, their sponsors, health care and immigrant assistance organizations, and the public with better guidance as to the types of public benefits that INS considered relevant to the public charge determinations.

152

INS also sought to address the public's concerns about immigrants' fears of accepting public benefits for which they remained eligible, specifically in regards to medical care, children's immunizations, basic nutrition and treatment of medical conditions that may jeopardize public health. With its guidance, INS aimed to stem the fears that were causing noncitizens to refuse limited public benefits, such as transportation vouchers and child care assistance, so that they would be better able to obtain and retain employment and establish self-sufficiency.

153

151

See

64 FR 28676, 28676 (May 26, 1999).

152

See

64 FR 28676, 28676-77 (May 26, 1999).

153

See

64 FR 28676, 28676-77 (May 26, 1999).

INS defined public charge in its proposed rule and 1999 Interim Field Guidance to mean “the likelihood of a foreign national becoming primarily dependent

154

on the government for subsistence, as demonstrated by either:

154

Former INS defined “primarily dependent” as “the majority” or “more than 50 percent.”

• Receipt of public cash assistance for income maintenance; or

• Institutionalization for long-term care at government expense.”

When developing the proposed rule, INS consulted with Federal benefit-granting agencies such as the Department of Health and Human Services (HHS), the Social Security Administration (SSA), and the Department of Agriculture (USDA). The Deputy Secretary of HHS, which administers Temporary Assistance for Needy Families (TANF), Medicaid, the Children's Health Insurance Program (CHIP), and other benefits, advised that the best evidence of whether an individual is relying primarily on the government for subsistence is either the receipt of public cash benefits for income maintenance purposes or institutionalization for long-term care at government expense.

155

The Deputy Commissioner for Disability and Income Security Programs at SSA agreed that the receipt of SSI “could show primary dependence on the government for subsistence fitting the INS definition of public charge provided that all of the other factors and prerequisites for admission or deportation have been considered or met.”

156

And the USDA's Under Secretary for Food, Nutrition and Consumer Services advised that “neither the receipt of food stamps nor nutrition assistance provided under the Special Nutrition Programs administered by [USDA] should be considered in making a public charge determination.”

157

While these letters supported the approach taken in the 1999 proposed rule and Interim Field Guidance, the letters specifically focused on the reasonableness of a given INS interpretation;

i.e.

primary dependence on the government for subsistence. The letters did not foreclose the agency adopting a different definition consistent with statutory authority.

155

See

64 FR 28676, 28686-87 (May 26, 1999).

156

64 FR 28676, 28687 (May 26, 1999).

157

64 FR 28676, 28688 (May 26, 1999). The USDA letter did not include supportive reasoning. As noted in greater detail elsewhere in this preamble, DHS no longer believes that primary dependence on the government for subsistence is the appropriate standard for public charge determination purposes. In light of the proposed change in the public charge standard and the passage of time, DHS does not believe that the views expressed in those interagency consultations remain fully relevant. DHS has nonetheless considered such views, and has addressed the relevant considerations—legal authority, predictability, administrability, and adverse impacts—throughout this proposed rule.

The 1999 proposed rule provided that non-cash, supplemental and certain limited cash, special purpose benefits should not be considered for public charge purposes, in light of INS' decision to define public charge by reference to primary dependence on public benefits. Ultimately, however, INS did not publish a final rule conclusively addressing these issues.

E. Public Charge Bond

If an alien is determined to be inadmissible on public charge grounds under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), he or she may be admitted in the discretion of the Secretary of Homeland Security, if otherwise admissible, upon the giving of a suitable and proper bond.

158

See

INA section 213, 8 U.S.C. 1183;

see also

8 CFR 103.6; 8 CFR 213.1.

Historically, bond provisions started with states requiring certain amounts to assure an alien would not become a public charge.

159

Bond provisions were codified in federal immigration laws in 1903.

160

Notwithstanding codification in 1903, the acceptance of a bond posting in consideration of an alien's admission and to assure that he or she will not become a public charge apparently had its origin in federal administrative practice earlier than this date. Beginning in 1893, immigration inspectors served on Boards of Special Inquiry that reviewed exclusion cases of aliens who were likely to become public charges because the aliens lacked funds or relatives or friends who could provide support.

161

In these cases, the Board of Special Inquiry usually admitted the alien if someone could post bond or one of the immigrant aid societies would accept responsibility for the alien.

162

159

See, e.g., Mayor, Aldermen & Commonalty of City of N.Y.

Miln,

36 U.S. 102 (1837) (upholding a New York statute that required vessel captains to provide certain biographical information about every passenger on the ship and further permitting the mayor to require the captain to provide a surety of not more than $300 for each noncitizen passenger to indemnify and hold harmless the government from all expenses incurred to financially support the person and the person's children);

see also

H.D. Johnson & W.C. Reddall,

History of Immigration

(Washington, 1856).

160

See

Immigration Act of 1903, ch. 1012, 32 Stat. 1213 (repealed by Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898, and Immigration Act of 1917, ch. 29, 39 Stat. 874).

161

Immigration Act of 1891, ch. 551, 26 Stat. 1084, created the Office of the Superintendent of Immigration within the Treasury Department. The Superintendent oversaw a new corps of U.S. Immigrant Inspectors stationed at the country's principal ports of entry.

See

USCIS History and Genealogy, Origins of Federal Immigration Service,

https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service

(last updated Feb. 4, 2016).

162

See

USCIS History and Genealogy,

Origins of Federal Immigration Service, https://www.uscis.gov/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service

(last updated Feb. 4, 2016).

The present language of section 213 of the Act, 8 U.S.C. 1183, has been in the law without essential variation since 1907.

163

Under section 21 of the Immigration Act of 1917, an immigration officer could admit an alien if a suitable bond was posted. In 1970, Congress amended section 213 of the Act to permit the posting of cash received by the U.S. Department of the Treasury and to eliminate specific references to communicable diseases of public health significance.

164

At that time, Congress also added, without further explanation or consideration, the phrase that any sums or other security held to secure performance of the bond shall be returned “except to the extent forfeited for violation of the terms thereof” upon termination of the bond.

165

Subsequently, IIRIRA amended the provision yet again when adding a parenthetical which clarified that a bond is provided in addition to, and not in lieu of, the affidavit of support and the deeming requirements under section 213A of the Act, 8 U.S.C. 1183A.

166

Regulations implementing the public charge bond were promulgated in 1964 and 1966,

167

and are currently found at 8 CFR 103.6 and 8 CFR 213.1.

163

See

Act of February 20, 1907, ch. 1134, section 26, 34 Stat. 898, 907.

164

See

Public Law 91-313, 84 Stat. 413, 413 (1970);

see also

116 Cong. Rec. S9957 (daily ed. June 26, 1970).

165

See

Public Law 91-313, 84 Stat. 413, 413 (1970).

166

See

Public Law 104-208, div. C, section 564(f), 110 Stat. 3009-546, 3009-684.

167

See Miscellaneous Amendments to Chapter,

29 FR 10579 (July 30, 1964);

Miscellaneous Edits to Chapter,

31 FR 11713 (Sept. 7, 1966).

V. Discussion of Proposed Rule

This proposed rule would establish a proper nexus between public charge and receipt of public benefits by defining the terms public charge and public benefit, among other terms. DHS proposes to interpret the minimum statutory factors involved in public charge determinations and to establish a clear framework under which DHS would evaluate those factors to determine whether or not an alien is likely at any time in the future to become a public charge. DHS also proposes to clarify the role of a sponsor's affidavit of support within public charge inadmissibility determinations.

In addition, DHS proposes that certain factual circumstances would weigh heavily in favor of determining that an alien is not likely to become a public charge and other factual circumstances would weigh heavily in favor of determining that an alien is likely to become a public charge.

168

The purpose of assigning greater weight to certain factual circumstances is to provide clarity for the public and immigration officers with respect to how DHS would fulfill its statutory duty to assess public charge admissibility. Ultimately, each determination would be made in the totality of the circumstances based on consideration of the relevant factors. In addition, DHS proposes that for applications for adjustment of status, the alien would be required to submit a Form I-944.

168

See

proposed 8 CFR 212.22.

DHS also proposes to establish a public charge bond process in the adjustment of status context, and proposes to clarify DHS's authority to set conditions for nonimmigrant extension of stay and change of status applications.

Finally, this proposed rule interprets the public charge inadmissibility ground under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), not the public charge deportability ground under section 237(a)(5) of the Act, 8 U.S.C. 1227(a)(5). Department of Justice precedent decisions would continue to govern the standards regarding public charge deportability determinations.

A. Applicability, Exemptions, and Waivers

This rule would apply to any alien subject to section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), who is applying for admission to the United States or is applying for adjustment of status to that of lawful permanent resident before DHS.

169

DOS screens applicants who are subject to public charge inadmissibility grounds and who are seeking nonimmigrant or immigrant visas at consular posts worldwide. Nearly sixty percent of the 2.7 million immediate relatives, family-sponsored,

170

employment-based, and diversity visa-based immigrants who obtained lawful permanent resident status in the United States between fiscal years 2014 and 2016 consular processed immigrant visa applications overseas prior to being admitted to the United States as lawful permanent residents at a port-of-entry. Fifty-one percent of immediate relatives, ninety-two percent of family-sponsored immigrants, and ninety-eight percent of diversity visa immigrants obtained an immigrant visa at a consular post overseas before securing admission as a lawful permanent resident at a port-of-entry between fiscal years 2014 and 2016.

171

169

See

proposed 8 CFR 212.20.

170

Including first, second, third and fourth preferences of family sponsored immigrants and immediate relatives.

See

DHS,

Yearbook of Immigration Statistics 2016, Table 6, Persons Obtaining Lawful Permanent Resident Status by Type and Major Class of Admission: Fiscal Years 2014 to 2016, available at https://www.dhs.gov/immigration-statistics/yearbook/2016/table6

(last updated Dec. 18, 2017).

171

See

DHS,

(last updated Dec. 18, 2017). The 2016 Yearbook of Immigration Statistics is a compendium of tables that provide data on foreign nationals who are granted lawful permanent residence (

i.e.,

immigrants who receive a “green card”), admitted as temporary nonimmigrants, granted asylum or refugee status, or are naturalized.

This rule also addresses eligibility for extension of stay and change of

status.

172

Because the processes, evidentiary requirements, and nature of the stay in the United States for aliens seeking a visa, admission, extension of stay, change of status, and adjustment of status differ, DHS proposes public charge processes appropriately tailored to the benefit the alien seeks. For instance, aliens seeking adjustment of status undergo a different process than a temporary visitor for pleasure from Canada seeking admission to the United States. The length and nature of the stay of these two subsets of aliens differs significantly, as does frequency of entry. Accordingly, the processes and evidentiary requirements proposed in this rule vary in certain respects depending on the type of benefit and status an alien is seeking, as set forth below.

172

See

proposed 8 CFR 214.1(a)(3)(iv); proposed 8 CFR 214.1(c)(4)(iv); proposed 8 CFR 248.1(a); proposed 8 CFR 248.1(c)(4).

1. Applicants for Admission

Under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), any alien who is applying for a visa or for admission to the United States is inadmissible if he or she is likely at any time to become a public charge. A nonimmigrant is admitted into the United States to stay for the limited period and purpose of the classification under which he or she was admitted and, in most instances, then is expected to depart the United States and return to his or her country. A visa applicant applies directly to a U.S. consulate or embassy abroad for a nonimmigrant visa to travel to the United States temporarily for a limited purpose, such as to visit for business or tourism.

173

DOS consular officers assess whether the alien would be inadmissible, including under section 212(a)(4) of the Act, as applicable.

173

Certain nonimmigrant classifications are subject to petition requirements, and a petition generally must be approved on an alien's behalf by USCIS prior to application for a visa.

See, e.g.,

INA section 214(c), 8 U.S.C. 1184(c). In addition, certain aliens are not subject to a visa requirement in order to seek admission as a nonimmigrant.

See, e.g.,

INA section 217, 8 U.S.C. 1187;

see also

8 CFR 212.1.

Applicants for admission are inspected at, or when encountered between, ports of entry. They are inspected by immigration officers to assess, among other things, whether they are inadmissible under section 212(a) of the Act, including section 212(a)(4). Under the proposed rule, the type of nonimmigrant status and the duration of the nonimmigrant's stay in the United States would be considered in assessing whether the applicant has met his or her burden of demonstrating that he or she is likely to become a public charge. For example, in determining whether an applicant for admission as a B-2 nonimmigrant visitor for pleasure who is coming to the United States for a one-week vacation is inadmissible on public charge grounds, DHS would consider that this temporary visit is short in nature and that the individual likely would only need financial resources to cover the expenses associated with the vacation.

Similarly, an alien who is the beneficiary of an immigrant visa petition approved by USCIS may apply to a DOS consulate abroad for an immigrant visa to allow him or her to seek admission to the United States as an immigrant.

174

As part of the immigrant visa process, DOS determines whether the applicant is eligible for the visa, which includes a determination of whether the alien has demonstrated that he or she is admissible to the United States and that no inadmissibility grounds in section 212(a) of the Act apply. In determining whether the applicant has demonstrated that he or she is not inadmissible on the public charge ground, DOS reviews all of the mandatory factors, including any required affidavits of support submitted under section 213A of the Act, 8 U.S.C. 1183a.

174

See

INA sections 221 and 222, 8 U.S.C. 1201 and 1202; 8 CFR 204; 22 CFR part 42.

This process would not change under the proposed rule, but it is likely that DOS will amend its guidance to prevent the issuance of visas to inadmissible aliens,

175

except as otherwise provided in the Act. DOS would continue to review affidavits of support and screen aliens for public charge inadmissibility in accordance with applicable regulations and instructions prior to the alien undergoing inspection and applying for admission at a pre-inspection location or port-of-entry

175

See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

Additionally, although lawful permanent residents generally are not considered to be applicants for admission upon their return from a trip abroad, in certain limited circumstances a lawful permanent resident will be considered an applicant for admission and, therefore, subject to an inadmissibility determination.

176

This inadmissibility determination includes whether the alien is inadmissible as likely to become a public charge, which will be determined upon the lawful permanent resident's return to the United States.

176

Lawful permanent residents are regarded as applicants for admission in the following circumstances: (1) Lawful permanent residents who have abandoned or relinquished that status; (2) lawful permanent residents who have been outside the United States for a continuous period in excess of 180 days; (3) lawful permanent residents who have engaged in illegal activity after departing the United States; (4) lawful permanent residents who have departed the United States while under legal process seeking removal of the alien from the United States, including removal proceedings and extradition proceedings; (5) lawful permanent residents who have committed an offense identified in section 212(a)(2) of the INA, 8 U.S.C. 1182(a)(2), unless granted a waiver of inadmissibility for such offense or cancellation of removal; and (6) lawful permanent residents attempting to enter at a time or place other than as designated by immigration officers or who have not been admitted to the United States after inspection and authorization by an immigration officer.

See

INA section 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C).

2. Extension of Stay and Change of Status Applicants

As mentioned above, a nonimmigrant is admitted into the United States to stay for the limited period and purpose of the classification under which he or she was admitted and, in most instances, then is expected to depart the United States and return to his or her country. However, consistent with the INA and controlling regulations, DHS may, in its discretion, extend an alien's nonimmigrant status or change an alien's nonimmigrant status from one classification to another.

177

Furthermore, DHS is authorized under the INA to set conditions on the extension of stay or change of status. Consistent with this authority, DHS is proposing to require an applicant for an extension of stay or change of status to attest that he or she has neither received since obtaining the nonimmigrant status he or she seeks to extend or to which he or she seeks to change, is not receiving, nor is likely to receive at any time in the future one or more public benefits as defined in this proposed rule.

177

See

INA sections 214(a)(1) and 248(a), 8 U.S.C. 1184(a)(1) and 1258(a);

see also

8 CFR 214.1, 248.1.

Although section 212(a)(4) of the Act by its terms only applies to applicants for visas, admission, and adjustment of status, and thus does not, by its terms, render aliens who are likely to become a public charge ineligible for the extension of stay or change of status, the government's interest in a nonimmigrant alien's ability to maintain self-sufficiency for the duration of the temporary stay does not end with his or her admission as a nonimmigrant. In particular, the government has an interest in ensuring that aliens present in the United States do not depend on public benefits to meet their needs.

178

Aliens therefore should remain self-sufficient for the entire period of their stay, including any extension of stay or additional period of stay afforded by a change of status. Accordingly, DHS is proposing to consider whether the alien

has received since obtaining the nonimmigrant status he or she seeks to extend or to which he or she seeks to change, is currently receiving, or is likely to receive public benefits as defined in the proposed rule, when adjudicating an application to extend a nonimmigrant stay or change a nonimmigrant status.

178

See

8 U.S.C. 1601(2)(A).

Extension of stay and change of status applicants are already required to provide evidence of maintenance of their current nonimmigrant status.

179

As part of that determination, for some applicants, DHS considers the alien's financial status

180

and believes it sound policy to extend that consideration to extensions of stay and change of status generally, rather than to just subsets of nonimmigrants. Although the INA does not indicate that aliens seeking an extension of stay or change of status must establish self-sufficiency, consideration of such alien's self-sufficiency aligns with the aforementioned policy statements set forth in PRWORA.

181

179

See

INA 214(a)(1), 8 U.S.C. 1184; 8 CFR 214.1(c)(4); INA 248(a), 8 U.S.C. 1258; 8 CFR 248.1(a).

180

See

8 CFR 214.2(f)(1)(i)(B); AFM Ch. 30.2(c)(2)(F) (“Students seeking reinstatement must submit evidence of eligibility, including financial information . . . .”); AFM Ch. 30.3(c)(2)(C) (applicants applying to change status to a nonimmigrant student must demonstrate that they have the financial resources to pay for coursework and living expenses in the United States).

181

8 U.S.C. 1601.

Except where the nonimmigrant status that the alien seeks to extend or to which the alien seeks to change is exempted by law from section 212(a)(4) of the Act, in order for an alien to demonstrate that he or she has neither received since obtaining the nonimmigrant status he or she seeks to extend or from which he or she seeks to change, nor is currently receiving or likely to receive any such public benefits, DHS will require applicants to answer questions on their application form,

182

under penalty of perjury, regarding their receipt of these public benefits. The responses to these questions would be used in determining whether the applicant has met his or her burden to establish eligibility for extension of stay or change of status under the proposed regulation.

182

Aliens in nonimmigrant classifications whose employers will be filing Form I-129 or Form I-129CW on their behalf will be required to provide this information to their employer.

In adjudicating whether the applicant has demonstrated that he or she is not likely to receive public benefits as defined in the proposed rule, at any time in the future, DHS would consider the status to which the alien seeks to extend or to which to change, as well as the anticipated additional period of stay. DHS would also consider whether the applicant has provided evidence of maintenance of status and that he or she has sufficient financial means to maintain the status he or she seeks, or that he or she will be gainfully employed in such status, as applicable. Based on the information the alien provides in support of the application for extension of stay or change of status, USCIS would determine whether the applicant should also submit Form I-944 in order to demonstrate that he or she is unlikely to receive public benefits during the temporary stay in the United States.

For example, if the alien is a B-2 nonimmigrant who was admitted to the United States to seek medical treatment and is seeking to extend his or her visit because he or she requires additional medical treatment that was unanticipated at the time of admission, the alien would need to submit evidence that he or she has the financial means to pay for this additional medical treatment and otherwise support himself or herself during the extended duration of his or her temporary stay. An alien seeking to extend his or her stay in, or change status to, F-1 or M-1 nonimmigrant status would submit evidence of his or her financial ability to pay for his or her study and to financially support himself or herself.

183

An alien seeking to extend stay in or change to an employment-based nonimmigrant status, such as H-2B temporary non-agricultural worker status, would need to submit evidence such as tax return transcripts, W-2, or other documentation evidencing income from gainful employment appropriate to the nonimmigrant status being sought.

184

183

See

8 CFR 214.2(f)(1)(i)(B) (students must present “documentary evidence of financial support in the amount indicated on the SEVIS Form I-20 (or the Form I-20A-B/I-20ID)”); AFM Ch. 30.2(b)(2)(F) (“(F) Students seeking reinstatement must submit evidence of eligibility, including financial information and a current I-20.”); AFM Ch. 30.3(c)(2)(C) (“Aliens seeking F-1 or M-1 status must submit the appropriate Form I-20 and evidence of financial ability to maintain the new status. Aliens seeking J-1 status must submit Form IAP-66.”); AFM Ch. 30.3(b)(3)(D) (“[T]he applicant [for change of status] must demonstrate he or she is able to maintain him or herself in the status sought, particularly financially. This issue needs particular examination when the applicant seeks a prolonged stay in any status where employment is not a routine part of the status, for example student status.”).

184

See, e.g.,

AFM Ch. 30.3(b)(3)(E) (“Because the alien applicant on Form I-129 will be gainfully employed once the new status is granted, it is generally not necessary to further explore an applicant's ability to maintain status financially (unless the rate of remuneration is so low that the principal would be unable to support him/herself and all dependents).”).

Table 4 below provides a summary of nonimmigrant categories and the applicability of the public charge condition to such categories.

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EP10OC18.017

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3. Adjustment of Status Applicants

In general,

an alien who is physically present in the United States may be eligible to apply for adjustment of status before USCIS to that of a lawful permanent resident if the applicant was inspected and admitted or paroled, is eligible to receive an immigrant visa, is admissible to the United States, and has an immigrant visa immediately available at the time of filing the adjustment of status application.

187

As part of the adjustment process, USCIS is responsible for determining whether the applicant has met his or her burden of proof to establish eligibility for the benefit,

188

which includes a determination of whether the alien has demonstrated that no inadmissibility grounds in section 212(a) of the Act apply (or, if they do apply, the alien is eligible for a waiver of the inadmissibility ground). In determining whether the adjustment applicant has demonstrated that he or she is not inadmissible on the public charge ground, DHS proposes to review the mandatory statutory factors together with any required affidavit of support and any other relevant information, in the totality of the circumstances.

185

This classification can no longer be sought as of December 20, 2009. See the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005, Public Law 109-423.

186

J nonimmigrant who are admitted for a specific time period are not eligible for an extension of stay.

187

See

INA section 245, 8 U.S.C. 1255. Aliens in removal proceedings before an immigration judge may also apply for adjustment of status pursuant to 8 CFR 1245.

188

See

INA section 291, 8 U.S.C. 1361.

Tables 5 through 9 below provide a summary of immigrant categories for adjustment of status and the applicability of the public charge inadmissibility determination to such categories.

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189

Applicants who filed a Form I-485 prior to December 19, 1997 are exempt from the Affidavit of Support requirement.

See

Public Law 104-208, div. C., section 531(b), 110 Stat. 3009-546, 3009-675; 8 CFR 213a.2(a)(2)(i) (adjustment applicants) and 213a.2(a)(2)(ii)(B) (applicants for admission). Aliens who acquired citizenship under section 320 of the Act upon admission to the United States are exempt from submitting an affidavit of support.

See

8 CFR 213a.2(a)(2)(ii)(E); Child Citizenship Act, Public Law 106-395, section 101, 114 Stat. 1631, 1631 (2000) (amending INA section 320). In addition, the surviving spouses, children, and parents of a deceased member of the military who obtain citizenship posthumously are exempt from a public charge determination.

See

National Defense Authorization Act For Fiscal Year 2004, Public Law 108-136, section 1703(e), 117 Stat. 1392, 1695 (2003).

190

Including the following categories: IR-6 Spouses; IR-7 Children; CR-7 Children, conditional; IH-8 Children adopted abroad under the Hague Adoption Convention; IH-9 Children coming to the United States to be adopted under the Hague Adoption Convention; IR-8 Orphans

adopted abroad; IR-9 Orphans coming to the United States to be adopted; IR-0 Parents of adult U.S. citizens. Note children adopted abroad generally do not apply for adjustment of status.

191

Including the following categories: A-16 Unmarried Amerasian sons/daughters of U.S. citizens F-16 Unmarried sons/daughters of U.S. citizens; A-17 Children of A-11 or A-16; F-17 Children of F-11 or F-16; B-17 Children of B-11 or B-16.

192

Including the following categories: F-26 Spouses of alien residents, subject to country limits; C-26 Spouses of alien residents, subject to country limits, conditional; FX-6 Spouses of alien residents, exempt from country limits; CX-6 Spouses of alien residents, exempt from country limits, conditional; F-27 Children of alien residents, subject to country limits; C-28 Children of -C-26, or C-27, subject to country limits, conditional; B-28 Children of, B-26, or B-27, subject to country limits; F-28 Children of F-26, or F-27, subject to country limits; C-20 Children of C-29, subject to country limits, conditional; B-20 Children of B-29, subject to country limits; F-20 Children of F-29, subject to country limits; C-27 Children of alien residents, subject to country limits, conditional; FX-7 Children of alien residents, exempt from country limits; CX-8 Children of CX-7, exempt from country limits, conditional; FX-8 Children of FX-7, or FX-8, exempt from country limits; CX-7 Children of alien residents, exempt from country limits, conditional; F-29 Unmarried sons/daughters of alien residents, subject to country limits; C-29 Unmarried children of alien residents, subject to country limits, conditional.

193

Including the following categories: A-36 Married Amerasian sons/daughters of U.S. citizens; F-36 Married sons/daughters of U.S. citizens; C-36 Married sons/daughters of U.S. citizens, conditional; A-37 Spouses of A-31 or A-36; F-37 Spouses of married sons/daughters of U.S. citizens; C-37 Spouses of married sons/daughters of U.S. citizens, conditional; B-37 Spouses of B-31 or B-36; A-38 Children of A-31 or A-36, subject to country limits; F-38 Children of married sons/daughters of U.S. citizens; C-38 Children of C-31 or C-36, subject to country limits, conditional; B-38 Children of B-31 or B-36, subject to country limits.

194

Includes the following categories: F-46 Brothers/sisters of U.S. citizens, adjustments; F-47 Spouses of brothers/sisters of U.S. citizens, adjustments; F-48 Children of brothers/sisters of U.S. citizens, adjustments.

195

Includes the following categories: CF-1 Spouses, entered as fiance(e), adjustments conditional; IF-1 Spouses, entered as fiance(e), adjustments.

196

Includes the following categories: Immediate Relative AR-6 Children, Amerasian, First Preference: A-16 Unmarried Amerasian sons/daughters of U.S. citizens; Third Preference A-36 Married Amerasian sons/daughters of U.S. citizens; See INA 204(f). Note that this program does not have a specific sunset date and technically applicants could apply but should have already applied.

197

Includes the following categories: AM-1 principal (born between 1/1/1962-1/1/1976); AM-2 Spouse, AM-3 child; AR-1 child of U.S. citizen born Cambodia, Korea, Laos, Thailand, Vietnam. Note that this program does not have a specific sunset date and technically applicants could apply but should have already applied.

198

Includes the following categories: IB-6 Spouses, self-petitioning; IB-7 Children, self-petitioning; IB-8 Children of IB-1 or IB-6; IB-0 Parents battered or abused, of U.S. citizens, self-petitioning.

199

Includes the following categories: B-26 Spouses of alien residents, subject to country limits, self-petitioning; BX-6 Spouses of alien residents, exempt from country limits, self-petitioning; B-27 Children of alien residents, subject to country limits, self-petitioning; BX-7 Children of alien residents, exempt from country limits, self-petitioning; BX-8 Children of BX-6, or BX-7, exempt from country limits; B-29 Unmarried sons/daughters of alien residents, subject to country limits, self-petitioning.

200

Includes the following categories: B-36 Married sons/daughters of U.S. citizens, self-petitioning B-37 Spouses of B-36, adjustments; B-38 Children of B-36, subject to country limits; Third Preference VAWA; B-36 Married sons/daughters of U.S. citizens, self-petitioning; B-37 Spouses of B-36, adjustments B-38 Children of B-36, subject to country limits; Third Preference VAWA; B-37 Spouses of B-36, adjustments; B-38 Children of B-36, subject to country limits.

201

Includes the following categories: E-16 Aliens with extraordinary ability; E-17 Outstanding professors or researchers; E-18 Certain Multinational executives or managers; E-19 Spouses of E-11, E-12, E-13, E-16, E-17, or E-18; E-10 Children of E-11, E-12, E-13, E-16, E-17, or E-18.

202

Relative means a husband, wife, father, mother, child, adult son, adult daughter, brother, or sister. Significant ownership interest means an ownership interest of 5 percent or more in a for-profit entity that filed an immigrant visa petition to accord a prospective employee an immigrant status under section 203(b) of the Act.

See

8 CFR.213a.1.

203

Includes the following categories: E-26 Professionals holding advanced degrees; ES-6 Soviet scientists; E-27 Spouses of E-21 or E-26; E-28 Children of E-21 or E-26.

204

Includes the following categories: EX-6 Schedule—A worker; EX-7 Spouses of EX-6; EX-8 Children of EX-6; E-36 Skilled workers; E-37 Professionals with baccalaureate degrees; E-39 Spouses of E-36, or E-37; E-30 Children of E-36, or E-37; EW-8 Other workers; EW-0 Children of EW-8; EW-9 Spouses of EW-8; EC-6 Chinese Student Protection Act (CSPA) principals; EC-7 Spouses of EC-6; EC-8 Children of EC-6.

205

Includes the following categories: C-56 Employment creation, not in targeted area, adjustments, conditional E-56 Employment creation; I-56 Employment creation, targeted area, pilot program, adjustments, conditional; T-56 Employment creation, targeted area, conditional; R-56 Investor pilot program, not targeted, conditional; C-57 Spouses of C-51 or C-56, conditional; E-57 Spouses of E-51 or E-56; I-57 Spouses of I-51 or I-56, conditional; T-57 Spouses of T-51 or T-56, conditional; R-57 Spouses of R-51 or R-56, conditional; C-58 Children of C-51 or C-56, conditional; E-58 Children of E-51 or E-56; I-58 Children of I-51 or I-56, conditional; T-58 Children of T-51 or T-56, conditional; R-58 Children of R-51 or R-56, conditional.

206

EB-5 applicants are Form I-526, Immigrant Petition by Alien Entrepreneur, self-petitioners. The regulation at 8 CFR 213a.1 relates to a person having ownership interest in an entity filing for a prospective employee and therefore the requirements for an affidavit of support under INA section 212(a)(4)(D) is inapplicable.

207

Includes the following categories: SD-6 Ministers; SD-7 Spouses of SD-6; SD-8 Children of SD-6; SR-6 Religious workers; SR-7 Spouses of SR-6; SR-8 Children of SR-6.

208

For this category, although the applicants are subject to public charge under INA section 212(a)(4), the employers (for example, a religious institution), would generally not be a relative of the alien or a for-profit entity and therefore the requirements for an affidavit of support under INA section 212(a)(4)(D) is inapplicable.

209

Includes the following categories: SE-6 Employees of U.S. government abroad, adjustments; SE-7 Spouses of SE-6; SE-8 Children of SE-6. Note that this program does not have a specific sunset date and technically applicants could apply but should have already applied.

210

For this category, although the applicants are subject to public charge under INA section 212(a)(4), the employers (for example, the U.S. armed forces), would generally not be a relative of the alien or a for-profit entity and therefore the requirements for an affidavit of support under INA section 212(a)(4)(D) is inapplicable.

211

Includes the following categories: SF-6 Former employees of the Panama Canal Company or Canal Zone Government; SF-7 Spouses or children of SF-6; SG-6 Former U.S. government employees in the Panama Canal Zone; SG-7 Spouses or children of SG-6; SH-6 Former employees of the Panama Canal Company or Canal Zone government, employed on April 1, 1979; SH-7 Spouses or children of SH-6. Note that this program does not have a specific sunset date and technically applicants could apply but should have already applied.

212

For this category, although the applicants are subject to public charge under INA section 212(a)(4), the employers generally would not be a relative of the alien or a for-profit entity and therefore the requirements for an affidavit of support under INA section 212(a)(4)(D) is inapplicable.

213

Includes the following categories: SJ-6 Foreign medical school graduate who was licensed to practice in the United States on Jan. 9, 1978; SJ-7 Spouses or children of SJ-6; Note that this program does not have a specific sunset date and technically applicants could apply but should have already applied.

214

For this category, although the applicants are subject to public charge under INA section 212(a)(4), the employers would generally not be a relative of the alien or a for-profit entity and therefore the requirements for an affidavit of support under INA section 212(a)(4)(D) is inapplicable.

215

Includes the following categories: SK-6 Retired employees of international organizations; SK-7 Spouses of SK-1 or SK-6; SK-8 Certain unmarried children of SK-6; SK-9 Certain surviving spouses of deceased international organization employees.

216

Includes SN-6 Retired NATO-6 civilian employees; SN-7 Spouses of SN-6; SN-9 Certain surviving spouses of deceased NATO-6 civilian employees; SN-8 Certain unmarried sons/daughters of SN-6.

217

218

Includes the following categories: SM-6 U.S. Armed Forces personnel, service (12 years) after 10/1/91 SM-9 U.S. Armed Forces personnel, service (12 years) by 10/91; SM-7 Spouses of SM-1 or SM-6; SM-0 Spouses or children of SM-4 or SM-9; SM-8 Children of SM-1 or SM-6.

219

220

Includes the following categories: BC-6 Broadcast (IBCG of BBG) employees; BC-7 Spouses of BC-1 or BC-6; BC-8 Children of BC-6.

221

support under INA section 212(a)(4)(D) is inapplicable.

222

Includes the following categories: SI-6 Special immigrant interpreters who are nationals of Iraq or Afghanistan; SI-6, SI-7, SI-8—spouse and child of SI-6; SQ-6 Certain Iraqis and Afghans employed by U.S. Government SQ-6, SQ-7, SQ-8 Spouses and children of SQ-6; SI-6 Special immigrant interpreters who are nationals of Iraq or Afghanistan; SI-7 Spouses of SI-1 or SI-6; SI-8 Children of SI-1 or SI-6.

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Including the following categories: AS-6 Asylees; AS-7 Spouses of AS-6; AS-8 Children of AS-6; SY-8 Children of SY-6; GA-6 Iraqi asylees; GA-7 Spouses of GA-6; GA-8 Children of GA-6.

224

Note that this program does not have a specific sunset date and technically applicants could apply but should have already applied.

225

Includes the following categories: RE-6 Other refugees (Refugee Act of 1980, Public Law 96-212, 94 Stat. 102); RE-7 Spouses of RE-6; RE-8 Children of RE-6; RE-9 Other relatives.

226

Note that this program has a sunset date of two years after enactment, however, some cases may still be pending.

227

Includes the following categories: 1995—HA-6 Principal HRIFA Applicant; Spouse of HA-6, HA-7 and Child of HA-6, HA-8; Unmarried Son or Daughter 21 Years of Age or Older of HA-6, HA-9 Principal HRIFA Applicant paroled into the United States before December 31, 1995- HB-6; Spouse of HB-6, HB-7; Child of HB-6, HB-8; Unmarried Son or Daughter 21 Years of Age or Older of HB-6 HB-9; Principal HRIFA Applicant who arrived as a child without parents in the United States HC-6; Spouse of HC-6, HC-7; Child of HC-6, HC-8; Unmarried Son or Daughter 21 Years of Age or Older of HC-6, HC-9; Principal HRIFA Applicant child who was orphaned subsequent to arrival in the United States HD-6, Spouse of HD-6, HD-7; Child of HD-6, HD-8; Unmarried Son or Daughter 21 Years of Age or Older of HD-6, HD-9 Principal HRIFA Applicant child who was abandoned subsequent to arrival and prior to April 1, 1998—HE-6; Spouse of HE-6, HE-7; Child of HE-6, HE-8; Unmarried Son or Daughter 21 Years of Age or Older of HE-6, HE-9. Note that this program has a sunset date of March 31, 2000; however, dependents may still file for adjustment of status.

BILLING CODE 4410-10-C

4. Exemptions

The public

charge inadmissibility ground does not apply to all applicants who are seeking a visa, admission, or adjustment of status.

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Congress has specifically exempted certain groups from the public charge inadmissibility ground and DHS regulations permit waivers of the ground for certain other groups, as follows:

228

Note that this program has a sunset date of April 1, 2000; however, some cases may still be pending.

229

Note that this program sunset date of September 30, 2014, only applies to parole. Eligible applicants may still apply for adjustment of status.

230

INA section 244(c)(2)(ii), 8 U.S.C. 1254a(c)(2)(ii), authorizes DHS to waive any section 212(a) ground, except for those that Congress specifically noted could not be waived.

231

See

INA section 244(c)(2)(ii), 8 U.S.C. 1254a(c)(2)(ii).

232

See

proposed 8 CFR 212.23(a).

• Refugees and asylees at the time of admission and adjustment of status to lawful permanent resident, pursuant to sections 207(c)(3) and 209(c) of the Act, 8 U.S.C. 1157(c)(3), 1159(c);

• Amerasian immigrants at admission, pursuant to in section 584(a)(2) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, Public Law 100-202, 101 Stat. 1329-183 (Dec. 22, 1987) (as amended), 8 U.S.C. 1101 note 5;

• Afghan and Iraqi Interpreter, or Afghan or Iraqi national employed by or on behalf of the U.S. Government, pursuant to section 1059(a)(2) of the National Defense Authorization Act for Fiscal Year 2006 Public Law 109-163 (Jan. 6, 2006), section 602(b) of the Afghan Allies Protection Act of 2009, as amended Public Law 111-8 (Mar. 11, 2009), and section 1244(g) of the National Defense Authorization Act for Fiscal Year 2008, as amended Public Law 110-181 (Jan. 28, 2008);

• Cuban and Haitian entrants at adjustment, pursuant to section 202 of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (Jan. 3, 1986) (as amended), 8 U.S.C. 1255a, note;

• Aliens applying for adjustment of status, pursuant to the Cuban Adjustment Act, Public Law 89-732 (Nov. 2, 1966) as amended; 8 U.S.C. 1255, note;

• Nicaraguans and other Central Americans who are adjusting status, pursuant to section 202(a) and section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, 111 Stat. 2193 (Nov. 19, 1997) (as amended), 8 U.S.C. 1255 note;

• Haitians who are adjusting status, pursuant to section 902 of the Haitian Refugee Immigration Fairness Act of 1998, Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), 8 U.S.C. 1255 note;

• Lautenberg parolees, pursuant to section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, 103 Stat. 1195 (Nov. 21, 1989), 8 U.S.C.A. 1255 note;

• Special immigrant juveniles, pursuant to section 245(h) of the Act, 8 U.S.C. 1255(h);

• Aliens who entered the United States prior to January 1, 1972, and who meet the other conditions for being granted lawful permanent residence under section 249 of the Act, 8 U.S.C. 1259, and 8 CFR part 249;

• Aliens applying for Temporary Protected Status, pursuant to section 244(c)(2)(ii) of the Act, 8 U.S.C. 1254a(c)(2)(ii) and 8 CFR 244.3(a);

233

INA section 244(c)(2)(ii), 8 U.S.C. 1254a(c)(2)(ii), authorizes DHS to waive any INA section 212(a), 8 U.S.C. 1182(a) ground, except for those that Congress specifically noted could not be waived.

• A nonimmigrant described in section 101(a)(15)(A)(i) and (A)(ii) of the Act, 8 U.S.C. 1101(a)(15)(A)(i) and (A)(ii) (Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family or Other Foreign Government Official or Employee, or Immediate Family), pursuant to section 102 of the Act, 8 U.S.C. 1102, 22 CFR 41.21(d);

• A nonimmigrant classifiable as C-2 (alien in transit to U.N. Headquarters) or C-3 (foreign government official), pursuant to 22 CFR 41.21(d);

• A nonimmigrant described in section 101(a)(15)(G)(i), (G)(ii), (G)(iii), and (G)(iv), of the Act (Principal Resident Representative of Recognized Foreign Government to International Organization, and related categories),

234

8 U.S.C. 1101(a)(15)(G)(i), (G)(ii), (G)(iii), and (G)(iv), pursuant to section 102 of the Act, 8 U.S.C. 1102, 22 CFR 41.21(d);

234

Includes the following categories: G-1—Principal Resident Representative of Recognized Foreign Government to International Organization, Staff, or Immediate Family; G-2—Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family; G-3—Representative of Non-recognized or Nonmember Foreign Government to International Organization, or Immediate Family; G-4—International Organization Officer or Employee, or Immediate Family; G-5—Attendant, Servant, or Personal Employee of G-1 through G-4, or Immediate Family.

• A nonimmigrant classifiable as a NATO representative and related categories,

235

pursuant to 22 CFR 41.21(d);

235

Includes the following categories: NATO 1—Principal Permanent Representative of Member State to NATO (including any of its Subsidiary Bodies) Resident in the U.S. and Resident Members of Official Staff; Secretary General, Assistant Secretaries General, and Executive Secretary of NATO; Other Permanent NATO Officials of Similar Rank, or Immediate Family; NATO 2—Other Representative of member state to NATO (including any of its Subsidiary Bodies) including Representatives, Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement or in Accordance with the provisions of the “Protocol on the Status of International Military Headquarters”; Members of Such a Force if Issued Visas; NATO 3—Official Clerical Staff Accompanying Representative of Member State to NATO (including any of its Subsidiary Bodies), or Immediate Family; NATO-4—Official of NATO (Other Than Those Classifiable as NATO-1), or Immediate Family; NATO-5—Experts, Other Than NATO Officials Classifiable Under NATO-4, Employed in Missions on Behalf of NATO, and their Dependents; NATO 6—Member of a Civilian Component Accompanying a Force Entering in Accordance with the Provisions of the NATO Status-of-Forces Agreement; Member of a Civilian Component Attached to or Employed by an Allied Headquarters Under the “Protocol on the Status of International Military Headquarters” Set Up Pursuant to the North Atlantic Treaty; and their

Dependents; NATO-7—Attendant, Servant, or Personal Employee of NATO-1, NATO-2, NATO-3, NATO-4, NATO-5, and NATO-6 Classes, or Immediate Family.

• A nonimmigrant described in section 101(a)(15)(T) of the Act (Victim of Severe Form of Trafficking), 8 U.S.C. 1101(a)(15)(T), pursuant to section 212(d)(13)(A) of the Act, 8 U.S.C. 1182(d)(13)(A), at time of admission;

• An applicant for, or who is granted, nonimmigrant status under section 101(a)(15)(U) of the Act, 8 U.S.C. 1101(a)(15)(U) (Victim of Criminal Activity), pursuant to section 212(a)(4)(E)(ii) of the Act, 8 U.S.C. 1182(a)(4)(E)(ii);

• Nonimmigrants who were admitted under section 101(a)(15)(U) (Victim of Criminal Activity) of the Act, 8 U.S.C. 1101(a)(15)(U), at the time of their adjustment of status under section 245(m) of the Act, 8 U.S.C. 1155(m), and 8 CFR 245.24;

• An alien who is a VAWA self-petitioner as defined in section 101(a)(51) of the Act, 8 U.S.C. 1101, pursuant to section 212(a)(4)(E)(i) of the Act, 8 U.S.C. 1182(a)(4)(E)(i);

• A qualified alien described in section 431(c) of the PRWORA of 1996 (8 U.S.C. 1641(c)) (certain battered aliens as qualified aliens), pursuant to section 212(a)(4)(E)(iii) of the Act, 8 U.S.C. 1182(a)(4)(E)(iii);

• Applicants adjusting status under section National Defense Authorization Act For Fiscal Year 2004, Public Law 108-136, 117 Stat. 1392 (Nov. 24, 2003) (posthumous benefits to surviving spouses, children, and parents);

• American Indians Born in Canada, pursuant to section 289 of the Act, 8 U.S.C. 1359; and

• Nationals of Vietnam, Cambodia, and Laos adjusting status, pursuant to section 586 of Public Law 106-429 (Nov. 1, 2000).

In general, the aforementioned classes of aliens are vulnerable populations of immigrants and nonimmigrants. Some have been persecuted or victimized and others have little to no private support network in the United States. These individuals tend to require government protection and support. Admission of these aliens also serves distinct public policy goals separate from the general immigration system. Other legal provisions may permit waivers of public charge provisions under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4).

5. Waivers

The proposed regulation at 8 CFR 212.23(b) lists the categories of applicants Congress has authorized to apply for waivers of the public charge inadmissibility ground, as follows:

• Nonimmigrants who were admitted under section 101(a)(15)(T) of the Act, 8 U.S.C. 1101(a)(15)(T) (Victims of Severe Form of Tracking in Persons) at the time of their adjustment of status under section 245(l)(2)(A) of the Act, 8 U.S.C. 1255(l)(2)(A);

• S (alien witness or informant) nonimmigrants described in section 101(a)(15)(S), of the Act, 8 U.S.C. 1101(a)(15)(S);

• Applicants for admission and adjustment of status under section 245(j) of the Act, 8 U.S.C. 1255(j) (alien witness or informant); and

• Other waivers of the public charge inadmissibility provisions in section 212(a)(4) of the Act permissible under the law.

B. Definitions of Public Charge and Related Terms

DHS proposes to add several definitions that apply to public charge inadmissibility determinations.

1. Public Charge

The term “public charge,” as used in section 212(a)(4) of the Act, is not defined.

236

DHS is proposing to define a public charge as an alien who receives one or more public benefits, as defined in 8 CFR 212.21(b).

237

DHS believes that its proposed definition of public charge is consistent with legislative history, case law, and the ordinary meaning of public charge.

236

See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

237

See

proposed 8 CFR 212.21(a) and (c).

Consistent with the public charge inadmissibility statute

238

and Congressional objectives announced in PRWORA, DHS proposes that aliens subject to the public charge inadmissibility ground

239

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.”

240

238

See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4) (emphasis added). The alien is inadmissible if he or she “is

likely at any time to become

a public charge.”

239

Aliens subject to the public charge ground of inadmissibility are aliens outside the United States seeking admission to the country, seeking a visa to permit them to apply for admission as a nonimmigrant or immigrant to the United States, or in the United States seeking to adjust status to that of lawful permanent residents.

240

See

8 U.S.C. 1601(2)(A).

There is a scarcity of legislative guidance and case law defining public charge. Legislative history, however, suggests a link between public charge and the receipt of public benefits. According to a 1950 Senate Judiciary Committee report, which preceded the passage of the 1952 Act, a Senate subcommittee highlighted concerns raised by an immigration inspector about aliens receiving old age assistance. The Senate subcommittee recommended against establishing a strict definition of the term public charge by law. Because the elements that could constitute any given individual's likelihood of becoming a public charge vary, the subcommittee instead recommended that the determination of whether an alien is likely to become a public charge should rest within the discretion of consular officers and the Commissioner.

241

See

The 1950 Omnibus Report of the Senate Judiciary Committee, S. Rep. No. 81-1515, at 349 (1950);