Public Charge Ground of Inadmissibility

Federal RegisterFeb 24, 2022

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DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 212 and 245

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

RIN 1615-AC74

Public Charge Ground of Inadmissibility

AGENCY:

U.S. Citizenship and Immigration Services, DHS.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The U.S. Department of Homeland Security (DHS) proposes to prescribe how it determines whether a noncitizen is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA) because they are likely at any time to become a public charge. Noncitizens 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. Under this proposed rule, a noncitizen would be considered likely at any time to become a public charge if they are likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. In August of 2019, DHS issued a different rule on this topic, which is no longer in effect. This proposed rule, if finalized, would implement a different policy than the August 2019 Final Rule.

DATES:

Written comments and related material must be submitted on or before April 25, 2022.

ADDRESSES:

You may submit comments on this NPRM, identified by DHS Docket No. USCIS-2021-0013, through the Federal eRulemaking Portal:

https://www.regulations.gov.

Follow the website instructions for submitting comments.

Comments submitted in a manner other than the one listed above, including emails or letters sent to the Department of Homeland Security (DHS) or U.S. Citizenship and Immigration Services (USCIS) officials, will not be considered comments on the NPRM and may not be considered by DHS. Please note that DHS and USCIS cannot accept any comments that are hand-delivered or couriered. In addition, USCIS cannot accept comments contained on any form of digital media storage devices, such as CDs/DVDs and USB drives. USCIS is not accepting mailed comments. If you cannot submit your comment by using

https://www.regulations.gov,

please contact Samantha Deshommes, Chief, Regulatory Coordination Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, Department of Homeland Security, by telephone at (240) 721-3000 for alternate instructions.

FOR FURTHER INFORMATION CONTACT:

Andrew Parker, Branch Chief, Residence and Admissibility Branch, Residence and Naturalization Division, Office of Policy and Strategy, U.S. Citizenship and Immigration Services, DHS, 5900 Capital Gateway Drive, Camp Springs, MD 20746; telephone (240) 721-3000 (this is not a toll-free number).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation

II. Executive Summary

A. Major Provisions of the Regulatory Action

B. Summary of Legal Authority

C. Summary of Costs and Benefits

III. Background

A. Legal Authority

B. Grounds of Inadmissibility Generally

C. The Public Charge Ground of Inadmissibility

1. Public Charge Statutes and Case Law, Pre-IIRIRA

2. Public Benefits Under PRWORA

3. Changes Under IIRIRA

4. INS 1999 Notice of Proposed Rulemaking and Interim Field Guidance

5. DHS Inadmissibility on Public Charge Grounds Notice of Proposed Rulemaking and 2019 Final Rule

6. Litigation History and Vacatur of DHS 2019 Final Rule

7. Consideration of Chilling Effects

8. Other Burdens of the 2019 Final Rule

9. The COVID-19 Pandemic

D. Public Charge Bonds

IV. DHS 2021 Inadmissibility on Public Charge ANPRM and Listening Sessions

V. Discussion of Proposed Rule

A. Introduction

B. Applicability

1. Applicants for Admission

2. Adjustment of Status Applicants

3. Rule Does Not Cover Extension of Stay/Change of Status

4. Summary Tables

C. Definitions

1. Likely at Any Time To Become a Public Charge

2. Public Benefits

3. Public Cash Assistance for Income Maintenance

4. Long-Term Institutionalization at Government Expense

5. Receipt (of Public Benefits)

6. Government

7. Additional Definitions

D. Public Charge Inadmissibility Determination

1. Factors

2. Totality of the Circumstances

3. Denial Decision

4. Exclusion From Consideration of Receipt of Certain Public Benefits

E. Exemptions and Waivers

1. Exemptions

2. Limited Exemption

3. Waivers

F. Public Charge Bonds

VI. Statutory and Regulatory Requirements

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

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. Executive Order 13132 (Federalism)

E. Executive Order 12988 (Civil Justice Reform)

F. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

G. Family Assessment

H. National Environmental Policy Act

I. Paperwork Reduction Act

VII. List of Subjects and Regulatory Amendments

Table of Abbreviations

ADA—Americans with Disabilities Act

ANPRM—Advance Notice of Proposed Rulemaking

ASC—Application Support Center

BIA—Board of Immigration Appeals

BLS—Bureau of Labor Statistics

CBP—Customs and Border Protection

CDC—Centers for Disease Control and Prevention

CFR—Code of Federal Regulations

CHIP—Children's Health Insurance Program

COS—Change of Status

COVID-19—Coronavirus Disease 2019

DACA—Deferred Action for Childhood Arrivals

DHS—U.S. Department of Homeland Security

DOS—U.S. Department of State

DOJ—Department of Justice

EOS—Extension of Stay

FAM—Department of State Foreign Affairs Manual

FBR—Federal Benefit Rate

FDA—Food and Drug Administration

HCBS—Home and Community Based Services

HCV—Housing Choice Voucher

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

HSA—Homeland Security Act

HUD—U.S. Department of Housing and Urban Development

IIRIRA—Illegal Immigration Reform and Immigrant Responsibility Act of 1996

INA—Immigration and Nationality Act

INS—Immigration and Naturalization Service

IRCA—Immigration Reform and Control Act

LPR—Lawful Permanent Resident

LRIF—Liberian Refugee Immigration Fairness Act

NACARA—Nicaraguan Adjustment and Central American Relief Act

NATO—North Atlantic Treaty Organization

NEPA—National Environmental Policy Act

NOID—Notice of Intent to Deny

NPRM—Notice of Proposed Rulemaking

OAW—Operation Allies Welcome

OMB—Office of Management and Budget

PHA—Public Housing Agency

PHE—Public Health Emergency

PRA—Paperwork Reduction Act

PRWORA—Personal Responsibility and Work Opportunity Reconciliation Act of 1996

RFA—Regulatory Flexibility Act of 1980

RFE—Request for Additional Evidence

RIA—Regulatory Impact Analysis

SIPP—Survey of Income and Program Participation

SNAP—Supplemental Nutrition Assistance Program

SSA—Social Security Administration

SSI—Supplemental Security Income

TANF—Temporary Assistance for Needy Families

TPS—Temporary Protected Status

UMRA—Unfunded Mandates Reform Act of 1995

USCIS—U.S. Citizenship and Immigration Services

USDA—U.S. Department of Agriculture

VAWA—Violence Against Women Act

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

I. Public Participation

DHS invites all interested parties to submit written data, views, comments, and arguments on all aspects of this NPRM. Comments must be submitted in English, or an English translation must be provided.

Instructions for comments:

All submissions may be posted, without change, to the Federal eRulemaking Portal at

https://www.regulations.gov,

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

https://www.regulations.gov.

Docket:

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

https://www.regulations.gov,

referencing DHS Docket No. USCIS-2021-0013. You may also sign up for email alerts on the online docket to be notified when comments are posted, or a final rule is published.

II. Executive Summary

DHS seeks to administer section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in a manner that will be clear and comprehensible for officers as well as for noncitizens

and their families and will lead to fair and consistent adjudications, thereby mitigating the risk of unequal treatment of similarly situated individuals. DHS proposes to define the term “likely at any time to become a public charge” in regulation and to identify the types of public benefits that would be considered as part of the public charge inadmissibility determination. DHS also proposes to establish general principles regarding consideration of current and past receipt of public benefits in public charge inadmissibility determinations.

For purposes of this discussion, USCIS uses the term “noncitizen” colloquially to be synonymous with the term “alien.”

Additionally, DHS proposes the factors that DHS would consider in prospectively determining, under the totality of the circumstances framework, whether an applicant for admission or adjustment of status before DHS is inadmissible under the public charge ground. DHS proposes to amend existing information collections submitted with applications for adjustment of status to that of a lawful permanent resident to include questions relevant to the statutory minimum factors. DHS also proposes to require that all written denial decisions issued by USCIS to applicants reflect consideration of each of the statutory minimum factors, as well as the Affidavit of Support Under Section 213A of the INA where required, consistent with the standards set forth in the proposed rule, and specifically articulate the reasons for the officer's determination.

On August 14, 2019, DHS issued a different rule on the public charge ground of inadmissibility, which is no longer in effect.

The 2019 Final Rule expanded DHS's definition of “public charge,” and was associated with a heavy direct paperwork burden on applicants and adjudicators. The 2019 Final Rule was also associated with widespread indirect effects, primarily with respect to those who were not even subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households. Notwithstanding these widespread indirect effects, during the time that the 2019 Final Rule was in place, of the 47,555 applications for adjustment of status to which the rule was applied, DHS issued only 3 denials (which were subsequently reopened and approved) and 2 Notices of Intent to Deny (which were ultimately rescinded, and the applications were approved) based on the totality of the circumstances public charge inadmissibility determination under section 212(a)(4)(A)-(B) of the INA, 8 U.S.C. 1182(a)(4)(A)-(B).

See

84 FR 41292 (Aug. 14, 2019), as amended by

Inadmissibility on Public Charge Grounds; Correction,

84 FR 52357 (Oct. 2, 2019).

This proposed rule, if finalized, would implement a different policy than the 2019 Final Rule. As discussed at greater length below, DHS believes that, in contrast to the 2019 Final Rule, this proposed rule would effectuate a more faithful interpretation of the statutory concept of “likely at any time to become a public charge”; avoid unnecessary burdens on applicants, adjudicators, and benefits-granting agencies; and mitigate the possibility of widespread “chilling effects” with respect to individuals disenrolling or declining to enroll themselves or family members in public benefits programs for which they are eligible, especially by individuals who are not subject to the public charge ground of inadmissibility.

A. Major Provisions of the Regulatory Action

DHS proposes to include the following major changes:

• Amending 8 CFR 212.18, Application for waivers of inadmissibility in connection with an application for adjustment of status by T nonimmigrant status holders. This section clarifies that T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility.

• Adding 8 CFR 212.20, Applicability of public charge inadmissibility. This section identifies the categories of noncitizens who are subject to the public charge ground of inadmissibility.

• Adding 8 CFR 212.21, Definitions. This section establishes key regulatory definitions: Likely at any time to become a public charge, public cash assistance for income maintenance, long-term institutionalization at government expense, receipt (of public benefits), and government.

• Adding 8 CFR 212.22, Public charge inadmissibility determination. This section clarifies that evaluating the likelihood at any time of becoming a public charge is a prospective determination based on the totality of the circumstances. This section provides details on how the statutory minimum factors, as well as an Affidavit of Support Under Section 213A of the INA, if required, and current or past receipt of public benefits would be considered when making a public charge inadmissibility determination. This section also states that the fact that an applicant has a disability, as defined by section 504 of the Rehabilitation Act (Section 504), will not alone be a

sufficient basis to determine whether the noncitizen is likely at any time to become a public charge. This section also includes categories of noncitizens whose past or current receipt of public benefits will not be considered in a public charge inadmissibility determination.

• Adding 8 CFR 212.23, Exemptions and waivers for public charge ground of inadmissibility. This section provides a list of statutory and regulatory exemptions from and waivers of the public charge ground of inadmissibility.

• Amending 8 CFR 245.23, Adjustment of aliens in T nonimmigrant classification. This section clarifies that T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility.

B. Summary of Legal Authority

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

C. Summary of Costs and Benefits

The proposed rule would result in new costs, benefits, and transfers. To provide a full understanding of the impacts of the proposed rule, DHS considers the potential impacts of this proposed rule relative to two baselines. The No Action Baseline represents a state of the world under the 1999 Interim Field Guidance, which is the policy currently in effect. The second baseline is the Pre-Guidance Baseline, which represents a state of the world before the issuance of the 1999 Interim Field Guidance (

i.e.,

a state of the world in which the 1999 Interim Field Guidance did not exist). DHS also considers the potential effects of a regulatory alternative that is a rulemaking similar to the 2018 NPRM and the 2019 Final Rule (that is no longer in effect). As DHS noted in the 2019 Final Rule, those effects would primarily be experienced by persons who are not subject to the public charge ground of inadmissibility who might be disenrolled from public benefits or forgo enrollment in public benefits due to fear and confusion regarding the scope of the regulatory alternative. Further discussion of the regulatory alternative can be found in the “Regulatory Alternative” section.

Relative to the No Action Baseline, the primary source of quantified new direct costs for the proposed rule is the increase in the time required to complete Form I-485. DHS estimates that the proposed rule would impose additional new direct costs of approximately $12,871,511 annually to applicants filing Form I-485. In addition, the proposed rule would result in an annual savings for a subpopulation of affected individuals; T nonimmigrants applying for adjustment of status would no longer need to submit Form I-601 to seek a waiver of the public charge ground of inadmissibility. DHS estimates the total annual savings for this population would be $15,359. DHS estimates that the total annual net costs would be $12,856,152.

Calculations: Total annual net costs ($12,856,152) = Total annual costs ($12,871,511) − Total annual savings ($15,359)

Over the first 10 years of implementation, DHS estimates the total net costs of the proposed rule would be approximately $128,561,520 (undiscounted). In addition, DHS estimates that the 10-year discounted total net costs of this proposed rule would be about $109,665,584 at a 3-percent discount rate and about $90,296,232 at a 7-percent discount rate.

DHS expects the primary benefit of this proposed rule to be the qualitative benefit of establishing clear standards governing a determination that a noncitizen is inadmissible based on the public charge ground.

Tables 1 and 2 provide a more detailed summary of the proposed provisions and their impacts relative to the No Action Baseline and Pre-Guidance Baseline, respectively.

BILLING CODE 9111-97-P

EP24FE22.005

EP24FE22.006

EP24FE22.007

EP24FE22.008

EP24FE22.009

EP24FE22.010

BILLING CODE 9111-97-C

III. Background

A. Legal Authority

The Secretary's authority for issuing this proposed rule is found in various sections of the Immigration and Nationality Act (INA, 8 U.S.C. 1101

et seq.

), and the Homeland Security Act of 2002 (HSA).

See

Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101

et seq.

(Nov. 25, 2002).

Section 102 of the HSA, 6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary with the administration and enforcement of the immigration laws of the United States. Section 101 of the HSA, 6 U.S.C. 111, establishes that part of DHS's primary mission is to ensure that efforts, activities, and programs aimed at securing the homeland do not diminish either the overall economic security of the United States or the civil rights and civil liberties of persons.

In addition to establishing the Secretary's general authority for the administration and enforcement of immigration laws, section 103 of the INA, 8 U.S.C. 1103, enumerates various related authorities, including the Secretary's authority to establish such regulations, prescribe such forms of bond, issue such instructions, and perform such other acts as the Secretary deems necessary for carrying out such authority.

Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), provides that an applicant for a visa, admission, or adjustment of status is inadmissible if they are likely at any time to become a public charge.

In general, under section 213 of the INA, 8 U.S.C. 1183, the Secretary has the discretion to admit into the United

States a noncitizen who is determined to be inadmissible based only on the public charge ground upon the giving of a suitable and proper bond or undertaking approved by the Secretary.

See

INA sec. 213, 8 U.S.C. 1183.

Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of applicants for admission, including inadmissibility determinations of such applicants.

Section 245 of the INA, 8 U.S.C. 1255, generally establishes eligibility criteria for adjustment of status to that of a lawful permanent resident.

B. Grounds of Inadmissibility Generally

The United States has a long history of permitting noncitizens to enter the United States, whether permanently or on a temporary basis. At the same time, Congress has sought to exclude noncitizens who pose a threat to the safety or general welfare of the country or who seek to violate immigration laws.

See Fiallo

Bell,

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

Congress has exercised this authority in part by establishing the concepts of admission

and inadmissibility in the INA.

Noncitizens may be inadmissible due to a range of acts, conditions, and conduct.

If a noncitizen is inadmissible as described in section 212(a) of the INA, 8 U.S.C. 1182(a), that noncitizen is ineligible to be admitted to the United States and ineligible to receive a visa. Congress has extended the applicability of the inadmissibility grounds beyond the context of applications for admission and visas by making admissibility an eligibility requirement for certain immigration benefits.

If a noncitizen is inadmissible, that noncitizen is also ineligible for those benefits unless the noncitizen is eligible to apply for and is granted a discretionary waiver of inadmissibility or other form of relief to overcome the inadmissibility, where available and appropriate.

Admission is defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.”

See

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

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

Ibid.

For example, adjustment of status.

See

INA sec. 245(a)(2), 8 U.S.C. 1255(a)(2).

See, e.g.,

INA sec. 212(a)(9)(B)(v), 8 U.S.C. 1182(a)(9)(B)(v), INA sec. 212(h), 8 U.S.C. 1182(h), INA sec. 212(i), 8 U.S.C. 1182(i); INA sec. 212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii);

see also

USCIS Policy Manual, Volume 9—Waivers,

https://www.uscis.gov/policy-manual/volume-9.

C. The Public Charge Ground of Inadmissibility

Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), provides that an applicant for a visa, admission, or adjustment of status is inadmissible if they are likely at any time to become a public charge. The public charge ground of inadmissibility, therefore, applies to individuals applying for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident.

By statute, some categories of noncitizens are exempt from the public charge inadmissibility ground, while others may apply for a waiver of the public charge inadmissibility ground.

See

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

See

INA sec. 245(j).

See

8 CFR 245.11.

See

INA sec. 245(d)(2)(B).

See

INA sec. 212(d)(3)(A).

The INA does not define the term “public charge.” It does, however, specify that when determining whether a noncitizen is likely at any time to become a public charge, consular officers and immigration officers must, at a minimum, consider the noncitizen's age; health; family status; assets, resources, and financial status; and education and skills.

Additionally, section 212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits the consular officer or the immigration officer to consider any Affidavit of Support Under Section 213A of the INA, 8 U.S.C. 1183a, submitted on the applicant's behalf, when determining whether the applicant is likely at any time to become a public charge.

In fact, with very limited exceptions, most noncitizens seeking family-based immigrant visas and adjustment of status, and some noncitizens seeking employment-based immigrant visas or adjustment of status, must submit a sufficient Affidavit of Support Under Section 213A of the INA in order to avoid being found inadmissible as likely at any time to become a public charge.

See

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

See

INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). When required, the applicant must submit an Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ).

See

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

In general, under section 213 of the INA, 8 U.S.C. 1183, the Secretary has the discretion to admit into the United States a noncitizen who is determined to be inadmissible based only on the public charge ground upon the giving of a suitable and proper bond or undertaking approved by the Secretary.

See

INA sec. 213, 8 U.S.C. 1183.

1. Public Charge Statutes and Case Law, Pre-IIRIRA

Since at least 1882, the United States has denied admission to noncitizens on public charge grounds.

The INA of 1952 excluded noncitizens who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the government at the time of application for admission, were likely at any time to become public charges.

The government has long interpreted the words “in the opinion of” as evincing the subjective nature of the determination.

The determination is also necessarily subjective to some degree due to its prospective nature.

See

Immigration Act of 1882, ch. 376, secs.1-2, 22 Stat. 214, 214. Section 11 of the Act also provided that a noncitizen who became a public charge within 1 year of arrival in the United States from causes that existed prior to their landing was deemed to be in violation of law and was to be returned at the expense of the person or persons, vessel, transportation, company, or corporation who brought the noncitizen into the United States.

see also

42 U.S.C. 1382c(a)(1). This discretionary waiver applies only to IRCA legalization and not to adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a).

The former Immigration and Naturalization Service (INS) promulgated 8 CFR 245a.3,

which established that immigration officers would make public charge inadmissibility 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 provided that the determination is a “prospective evaluation based on the alien's age, health, income, and vocation.”

See Adjustment of Status for Certain Aliens,

54 FR 29442 (Jul. 12, 1989). This regulation does not apply to adjustment of status under section 245(a) of the INA, 8 U.S.C. 1255, or to applications for admission with CBP. It is limited to adjustment from temporary to permanent resident status under the legalization provisions of IRCA. DHS does not propose amending 8 CFR 245a.3.

See

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

Ibid.

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

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

Matter of A-,

INS again pursued a totality of the circumstances approach in public charge determinations for applicants for legalization.

“Even though the test is prospective,” INS “considered evidence of receipt of prior public assistance as a factor in making public charge determinations.”

INS also considered a noncitizen's work history, age, capacity to earn a living, health, family situation, affidavits of support, and other relevant factors in their totality.

See

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

Ibid.

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

Ibid.

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 INA, 8 U.S.C. 1182(a), and redesignated the public charge provision as section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).

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

added to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), the mandatory statutory factors and the enforceable affidavit of support.

Also in 1996, in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which is commonly known as the 1996 welfare reform law, Congress stated that noncitizens generally should not depend on public resources and that the availability of public benefits should not constitute an incentive for immigration to the United States.

See

Immigration Act of 1990, Public Law 101-649, sec. 601(a), 104 Stat. 4978, 5072. In 1990, Congress reorganized INA sec. 212(a), redesignating the public charge provision as INA sec. 212(a)(4).

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

See

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

2. Public Benefits Under PRWORA

PRWORA significantly restricted noncitizens' eligibility for many Federal, State, and local public benefits.

When Congress enacted PRWORA, it set forth a self-sufficiency policy statement that noncitizens should be able to financially support themselves with their own resources or by relying on the aid of family members, sponsors, and private organizations, without depending on government assistance.

Although not defined in PRWORA, in context, self-sufficiency is tied to a noncitizen's ability to meet their needs without depending on public resources.

8 U.S.C. 1601-1646.

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

Ibid.

PRWORA defines the term “Federal public benefit”

and provides that an “alien” who is not a “qualified alien” is ineligible for any such benefits,

subject to certain exceptions.

Among the exceptions established by Congress allowing for eligibility for all noncitizens, are provision of medical assistance for the treatment of an emergency medical condition; short term, in-kind, non-cash emergency disaster relief; and public health assistance related to immunizations and treatment of the symptoms of a

communicable disease.

The exceptions were further clarified by the Department of Justice (DOJ) and some of the agencies that administer these public benefits. On January 16, 2001, the DOJ published a notice of final order, “Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,”

which indicated that PRWORA does not preclude noncitizens from receiving certain other widely available programs, services, or assistance as well as certain benefits and services for the protection of life and safety.

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

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

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

See

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

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

66 FR 3613 (Jan. 16, 2001);

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

62 FR 61344 (Nov. 17, 1997).

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).

PRWORA further identified three types of benefits and related eligibility rules. First, there are “specified Federal programs,” for which even “qualified aliens” are generally not eligible.

Second, there are “Federal means-tested public benefits,” for which “qualified aliens” are generally eligible after a 5-year waiting period.

And finally, there are “designated federal programs,” for which States are allowed to determine whether and when a “qualified alien” is eligible, subject to certain restrictions.

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

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

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

Subsequent legislation has added additional categories of noncitizens, many with humanitarian statuses, to PRWORA's various exceptions and special provisions in order to meet the needs of those vulnerable populations. DHS also discusses these statuses and modifications to PRWORA in the section below.

The following is a list of immigration categories that are “qualified aliens” under PRWORA. As noted above, subject to certain exceptions, “qualified aliens” are generally eligible for Federal public benefits after 5 years. As indicated in the section of this preamble on “Exemptions and Waivers” below, most categories of “qualified aliens” are not subject to the public charge ground of inadmissibility.

• An alien who is lawfully admitted for permanent residence under the INA.

8 U.S.C. 1641(b)(1).

• An alien who is granted asylum under section 208 of the INA.

8 U.S.C. 1641(b)(2).

• A refugee who is admitted to the United States under section 207 of the INA.

8 U.S.C. 1641(b)(3).

• An alien who is paroled into the United States under section 212(d)(5) of the INA for a period of at least 1 year.

8 U.S.C. 1641(b)(4). Noncitizens who have been paroled have not been admitted.

See

INA sec. 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B);

see also

INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5).

• An alien whose deportation is being withheld under section 243(h)

of the INA or section 241(b)(3) of the INA, as amended.

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

8 U.S.C. 1641(b)(5).

• An alien who is granted conditional entry under section 203(a)(7) of the INA as in effect before April 1, 1980.

8 U.S.C. 1641(b)(6).

• An alien who is a Cuban and Haitian entrant as defined in section 501(e) of the Refugee Education Assistance Act of 1980.

8 U.S.C. 1641(b)(7).

• An individual who lawfully resides in the United States in accordance with the Compacts of Free Association between the Government of the United States and the Governments of the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau referred to in 8 U.S.C. 1612(b)(2)(G) (but only with respect to Medicaid).

8 U.S.C. 1641(b)(8).

• An alien who has been battered or subjected to extreme cruelty in the United States by a spouse or a parent or by a member of the spouse or parent's family residing in the same household as the alien and the spouse or parent consented to, or acquiesced in, such battery or cruelty but only if (in the opinion of the agency providing such benefits) there is a substantial connection between such battery or cruelty and the need for the benefits to be provided, and the alien has been approved or has a petition pending that sets forth a prima facie case for status under section 204(a)(1)(A)(i)-(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under section 244(a)(3) of the INA, or cancellation of removal pursuant to INA sec. 240A(b)(2).

8 U.S.C. 1641(c)(1).

• An alien whose child has been battered or subjected to extreme cruelty in the United States by a spouse or a parent of the alien (without active participation by the alien in such battery or cruelty), or by a member of the spouse or parent's family residing in the same household as the alien and the spouse or parent consented to, or acquiesced to such battery or cruelty (and the alien did not actively participate in such battery or cruelty), but only if (in the opinion of the agency providing such benefits) there is a substantial connection between such battery or cruelty and the need for the benefits to be provided, and the alien has been approved or has a petition pending which sets forth a prima facie case for status under section 204(a)(1)(A)(i)-(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under section 244(a)(3) of the INA, or cancellation of removal pursuant to INA section 240A(b)(2).

8 U.S.C. 1641(c)(2).

• An alien child who resides in the same household as a parent who has been battered or subjected to extreme cruelty in the United States by that parent's spouse or by a member of the spouse's family residing in the same household as the parent, and the spouse consented to, or acquiesced to such battery or cruelty, but only if (in the opinion of the agency providing such benefits) there is a substantial connection between such battery or cruelty and the need for the benefits to be provided, and the alien has been approved or has a petition pending which sets forth a prima facie case for status under section 204(a)(1)(A)(i)-(iv), or classification pursuant to section 204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under section 244(a)(3) of the INA, or cancellation of removal pursuant to INA section 240A(b)(2).

8 U.S.C. 1641(c)(3).

• An alien who has been granted nonimmigrant status under section 101(a)(15)(T) of the INA or who has a pending application that sets forth a prima facie case for eligibility for such nonimmigrant status.

8 U.S.C. 1641(c)(4).

There are additional categories of noncitizens who may be eligible for certain benefits notwithstanding limitations set under PRWORA. For instance, the following noncitizens are treated as though they are refugees for benefits eligibility purposes, under other provisions of law:

• An alien who is a victim of a severe form of trafficking in persons, or an

alien classified as a nonimmigrant under 8 U.S.C. 1101(a)(15)(T)(ii).

22 U.S.C. 7105(b)(1)(A).

• An Iraqi or Afghan alien granted special immigrant status under section 8 U.S.C. 101(a)(27).

Public Law 111-118, Div. A., Tit. VIII., sec. 8120, 123 Stat. 3409, 3457 (2009).

• A citizen or national of Afghanistan (or a person with no nationality who last habitually resided in Afghanistan) paroled into the United States after July 31, 2021, who meets certain requirements, until March 31, 2023, or the term of parole granted, whichever is later.

Public Law 117-43, sec. 2502(b) (Sept. 30, 2021).

In addition, in the Medicaid context, States may also elect to provide medical assistance under Title XIX of the Social Security Act to cover all lawfully residing children under age 21 or pregnant individuals.

See

sections 1903(v)(4) of the Social Security Act (42 U.S.C. 1396b(v)(4)).

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

Some States and localities have funded public benefits for some noncitizens who may not be eligible for Federal public benefits.

See

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

See, e.g.,

U.S. Dep't of Health & Human Servs. (HHS), 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 certain noncitizens to receive certain public benefits (

e.g.,

Medicaid limited to treatment of an emergency medical condition (all noncitizens);

Supplemental Nutrition Assistance Program (SNAP) (“qualified alien” children under 18)), Congress, except in very limited circumstances,

did not prohibit DHS from considering the receipt of such benefits in a public charge inadmissibility determination under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), or direct DHS to do so.

See

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

See

INA sec. 212(s), 8 U.S.C. 1182(s).

The following table presents a list of the major categories of noncitizens eligible for SSI, TANF, or Medicaid who would be subject to a public charge inadmissibility determination were they later to apply for adjustment of status or admission to the United States, unless another statutory exemption applies that is particular to their individual circumstances.

The table is provided for background purposes only and should not be used to determine benefits eligibility.

A list of statutory exemptions to the public charge ground of inadmissibility can be found in the Applicability section of this preamble and in proposed 8 CFR 212.23.

BILLING CODE 9111-97-P

EP24FE22.011

EP24FE22.012

BILLING CODE 9111-97-C

DHS welcomes comments on the table, including proposed clarifications or corrections, and may update the table as appropriate in the preamble to a final rule.

3. Changes Under IIRIRA

Congress, in IIRIRA,

codified in the public charge inadmissibility statute the following minimum factors that must be considered when making public charge inadmissibility determinations:

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

See

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

• Age;

• Health;

• Family status;

• Assets, resources, and financial status; and

• Education and skills.

See

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

Section 531(a) of IIRIRA amended section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), to require an enforceable affidavit of support under newly added section 213A of the INA, 8 U.S.C. 1183a,

for certain noncitizens to avoid a finding of inadmissibility under that section.

The law required submission of an Affidavit of Support Under Section 213A of the INA for most family-based immigrants and certain employment-based immigrants and provided that these noncitizens are inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), unless a sufficient affidavit is filed on their behalf.

Congress also permitted, but did not require, consular and immigration officers to consider the Affidavit of Support Under Section 213A of the INA as a factor in the public charge inadmissibility determination.

In the House Conference Report on IIRIRA, the committee indicated that the amendments to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), were designed to “expand” the public charge ground of inadmissibility by requiring DHS to find inadmissible those who lack a sponsor willing to support them.

Section 551 of IIRIRA created INA sec. 213A, 8 U.S.C. 1183a, and specified the requirements for a sponsor's affidavit, including making it enforceable.

See

INA sec. 213A, 8 U.S.C. 1183a; sec. 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).

See

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

See

INA sec. 213A, 8 U.S.C. 1183a.

See

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

See

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

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).

DHS may appropriately consider the policy goals articulated in PRWORA and IIRIRA when administratively implementing the public charge ground of inadmissibility, and may also consider other important goals including, but not limited to, clarity, fairness, and administrability. DHS acknowledges the potential tension between the availability of public benefits to some noncitizens as set forth in PRWORA and statutory provisions that deny visa issuance, admission, and adjustment of status to noncitizens who are likely to become a public charge. Congress, in enacting PRWORA and IIRIRA very close in time, made certain public benefits available to a small number of noncitizens who are also subject to the public charge ground of inadmissibility, even though receipt of some such benefits could influence a determination of whether the noncitizen is inadmissible as likely at any time to become a public charge.

Under the statute crafted by Congress, noncitizens generally would not be issued visas, admitted to the United States, or permitted to adjust status if they are likely at any time to become a public charge. Congress nonetheless recognized that certain noncitizens present in the United States who are subject to the public charge ground of inadmissibility might reasonably find themselves in need of public benefits that, if obtained, could influence a determination of whether they are inadmissible as likely at any time to become a public charge. Consequently, in PRWORA, Congress allowed certain noncitizens to be eligible for some

public benefits even though they may later seek a visa, admission, or adjustment of status and thereby be subject to the public charge ground of inadmissibility. However, Congress, except in very limited circumstances,

did not prohibit DHS from considering the receipt of such benefits in a public charge inadmissibility determination under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). In other words, although a noncitizen may obtain public benefits for which they are eligible, the receipt of those benefits may be considered for public charge inadmissibility determination purposes.

See

INA sec. 212(s), 8 U.S.C. 1182(s).

4. INS 1999 Notice of Proposed Rulemaking and Interim Field Guidance

On May 26, 1999, INS issued a proposed rule, Inadmissibility and Deportability on Public Charge Grounds

(1999 NPRM), and on that same day issued interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (1999 Interim Field Guidance).

64 FR 28676 (May 26, 1999).

64 FR 28689 (May 26, 1999). Due to a printing error, the

Federal Register

version of the 1999 Interim Field Guidance appears to be dated “March 26, 1999,” even though the guidance was actually signed May 20, 1999; became effective May 21, 1999; and was published in the

Federal Register

on May 26, 1999, along with the NPRM.

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.”

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

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.

See

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

See

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

See

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

When developing the proposed rule, INS consulted with Federal benefit-granting agencies such as the U.S. Department of Health and Human Services (HHS), the Social Security Administration (SSA), and the Department of Agriculture (USDA). The Deputy Secretary of HHS, whose Department 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.

The Deputy Commissioner for Disability and Income Security Programs at SSA agreed that the receipt of Supplemental Security Income (SSI) “could show primary dependence on the government for subsistence fitting the INS definition of public charge.”

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

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 from adopting a different definition consistent with statutory authority.

See

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

See

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

See

64 FR 28676, 28688 (May 26, 1999).

INS defined public charge in the 1999 proposed rule, as well as in the 1999 Interim Field Guidance, to mean, for purposes of admission and adjustment of status, “an alien who is likely to become . . . primarily dependent

on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.”

The 1999 proposed rule provided that non-cash benefits, as well as “supplemental, special-purpose cash benefits should not be considered” for public charge purposes, in light of INS's decision to define public charge by reference to primary dependence on public benefits.

Ultimately, however, INS did not publish a final rule conclusively addressing these issues.

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

See

64 FR 28676, 28681 (May 26, 1999); 64 FR 28689 (May 26, 1999). The proposed rule also defined public charge to mean, “for purposes of removal as a deportable alien means an alien who has become primarily dependent on the Government for subsistence as demonstrated by either: (i) The receipt of public cash assistance for income maintenance purposes, or (ii) Institutionalization for long-term care at Government expense (other than imprisonment for conviction of a crime).” 64 FR 28676, 28684 (May 26, 1999).

See

64 FR 28676, 28692-93 (May 26, 1999).

The 1999 Interim Field Guidance was issued as an attachment to the 1999 proposed rule in order to “provide additional information to the public on the Service's implementation of the public charge provisions of the immigration laws . . . in light of the recent changes in law.”

The 1999 Interim Field Guidance explained how the agency would determine if a person is likely to become a public charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a), for admission and adjustment of status purposes, and whether a person is deportable as a public charge under section 237(a)(5) of the INA, 8 U.S.C. 1227(a)(5).

The 1999 Interim Field Guidance also was intended to stem the fears that were causing noncitizens to refuse certain supplemental public benefits, such as transportation vouchers and childcare assistance, that were intended to help recipients become better able to obtain and retain employment and establish self-sufficiency.

See

64 FR 28689, 28689 (May 26, 1999).

See

64 FR 28689, 28692-93 (May 26, 1999).

See

64 FR 28689 (May 26, 1999).

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

Until both agencies published new regulations and policy guidance, including changes to the FAM, in 2018 and 2019, USCIS had continued to follow the 1999 Interim Field Guidance in its adjudications, and DOS had continued following the public charge guidance set forth in the FAM in 1999.

See

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

See

9 FAM 302.8,

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

(accessed Dec. 12, 2021).

5. DHS Inadmissibility on Public Charge Grounds Notice of Proposed Rulemaking and 2019 Final Rule

In August 2019, DHS issued a final rule, Inadmissibility on Public Charge Grounds (2019 Final Rule). The 2019 Final Rule (that is no longer in effect), changed DHS's public charge standards and procedures.

The 2019 Final Rule redefined the term public charge to mean “an alien who receives one or more public benefits, as defined in [the 2019 Final Rule], for more than 12

months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).”

100

It also defined the term public benefit to include cash assistance for income maintenance (other than tax credits), SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.

101

DHS tailored the 2019 Final Rule to limit the rule's effects in certain ways, such as with respect to the consideration of public benefits received by active duty military members and their spouses and children, and consideration of public benefits received by children in certain contexts.

102

See

84 FR 41292 (Aug. 14, 2019), as amended by

Inadmissibility on Public Charge Grounds; Correction,

84 FR 52357 (Oct. 2, 2019).

100

See

84 FR 41292 (Aug. 14, 2019).

101

Ibid.

102

See

84 FR 41292 (Aug. 14, 2019). For example, under that rule, public benefits did not include public benefits received by those who, at the time of receipt, filing the application for admission or adjustment of status, or adjudication, is enlisted in the U.S. Armed Forces, serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or the spouse of children of such service members. Also under that rule, public benefits did not include benefits received by children of U.S. citizens whose lawful admission for permanent residence would result in automatic acquisition of U.S. citizenship.

The 2019 Final Rule also provided an evidentiary framework under which USCIS would determine public charge inadmissibility and explained how DHS would interpret the statutory minimum factors for determining whether “in the opinion of”

103

the officer, a noncitizen is likely at any time to become a public charge. Specifically, for adjustment of status applications before USCIS, DHS created a new Declaration of Self-Sufficiency, Form I-944, which collected information from applicants relevant to the 2019 Final Rule's approach to the statutory factors and other factors identified in the rule that would be considered in the totality of the circumstances.

104

103

See

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

104

The Declaration of Self-Sufficiency requirement only applied to adjustment applicants and not applicants for admission at a port of entry.

The 2019 Final Rule also contained a list of negative and positive factors that DHS would consider as part of this inadmissibility determination, and directed officers to consider these factors “in the totality of the circumstances.”

105

These positive or negative factors, as well as the “heavily weighted” positive and negative factors, operated as guidelines to help the officer determine whether the noncitizen was likely at any time to become a public charge.

106

In the 2019 Final Rule, DHS indicated that apart from a lack of an Affidavit of Support Under Section 213A of the INA, where required, the presence of a single positive or negative factor, or heavily weighted negative or positive factor, would never, on its own, create a presumption that an applicant was inadmissible as likely at any time to become a public charge or determine the outcome of the public charge inadmissibility determination.

107

Rather, a public charge inadmissibility determination would be based on the totality of the circumstances presented in an applicant's case.

108

105

See

84 FR 41292 (Aug. 14, 2019).

106

Ibid.

107

Ibid.

108

See

84 FR 41292 (Aug. 14, 2019).

Additionally, the 2019 Final Rule added provisions that rendered certain nonimmigrants ineligible for extension of stay or change of status if they received one or more public benefits, as defined in the rule, for more than 12 months in the aggregate within any 36-month period since obtaining the nonimmigrant status they wished to extend or change.

109

Ibid.

The 2019 Final Rule also revised DHS regulations governing the Secretary's discretion to accept a public charge bond under section 213 of the INA, 8 U.S.C. 1183, for those seeking adjustment of status.

110

Ibid.

The 2019 Final Rule did not interpret or change DHS's implementation of the public charge ground of deportability.

111

See

INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5).

See

84 FR 41292, 41295 (Aug. 14, 2019).

6. Litigation History and Vacatur of DHS 2019 Final Rule

The 2019 Final Rule was set to take effect on October 15, 2019, but, before it did, numerous Plaintiffs filed suits challenging the 2019 Final Rule in five district courts, across four circuits.

112

All five district courts preliminarily enjoined the 2019 Final Rule. Although differing in some particulars, all five concluded that the 2019 Final Rule's definition was contrary to the INA because the term “public charge” had a long-settled definition with which the 2019 Final Rule conflicted. Some courts also concluded that the 2019 Final Rule was likely arbitrary and capricious, and that the 2019 Final Rule likely violated the Rehabilitation Act.

113

112

CASA de Maryland, Inc., et al.,

Trump,

19-cv-2715 (D. Md.);

City and County of San Francisco, et al.,

DHS, et al.

, 19-cv-04717 (N.D. Ca.);

City of Gaithersburg, et al.

Trump, et al.,

19-cv-02851 (D. Md.);

Cook County et al.

McAleenan et al.,

19-cv-06334 (N.D. Ill.);

La Clinica De La Raza, et al.,

Trump, et al.,

19-cv-4980 (N.D. Ca.);

Make the Road New York, et al.

Cuccinelli, et al.,

19-cv-07993 (S.D.N.Y.);

New York, et al.

DHS, et al.,

19-cv-07777 (S.D.N.Y.);

State of California, et al.,

DHS, et al.,

19-cv-04975 (N.D. Cal.);

State of Washington, et al.

DHS, et al.,

19-cv-05210 (E.D. Wa.).

113

Cook County.

Wolf,

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

The cases took differing paths through the courts of appeals. The Ninth and Fourth Circuits granted the government's requests for stays pending appeal.

114

The Second and Seventh Circuits declined to grant stays; however, the Supreme Court subsequently granted stays in those cases, pending final resolution by the Court of the government's appeals.

115

The 2019 Final Rule was ultimately implemented on February 24, 2020.

114

See, City and County of San Francisco, et al.

DHS,

944 F.3d 773 (9th Cir. Dec. 5, 2019),

City and County of San Francisco, et al.

DHS,

No. 19-17213 (9th Cir. Jan. 20, 2021);

CASA de Maryland, Inc. et al.

Trump,

No. 19-2222 (4th Cir. Dec 9, 2019).

115

See DHS

New York,

140 S. Ct. 599 (2020);

Wolf

Cook County,

140 S. Ct. 681 (2020).

On June 10, 2020, the Seventh Circuit affirmed the lower court's preliminary injunction.

116

See Cook County

Wolf,

962 F.3d 208 (7th Cir. 2020) (then-Judge Barrett dissenting).

On July 29, 2020, the United States District Court for the Southern District of New York entered a second preliminary injunction prohibiting enforcement of the 2019 Final Rule nationwide during the pendency of the COVID-19 public-health emergency.

117

On August 12, 2020, the Second Circuit issued an order staying the second preliminary injunction outside of the States within the Second Circuit. Then, on September 11, 2020, the Second Circuit stayed the second preliminary injunction in its entirety.

118

117

See New York

DHS,

475 F. Supp. 3d 208 (S.D.N.Y. 2020).

118

See New York

DHS,

974 F.3d 210 (2d Cir. 2020).

Meanwhile, on August 4, 2020, the Second Circuit issued a decision affirming the original Fall 2019 injunctions on appeal before that court.

119

See New York

Department of Homeland Security,

969 F.3d 42 (2d Cir. 2020).

One day later, on August 5, 2020, the Fourth Circuit reversed the Maryland district court's injunction.

120

Plaintiffs filed a timely motion for en banc rehearing, and on December 3, 2020, the Fourth Circuit granted that motion. By ordering en banc rehearing, the Fourth Circuit vacated the prior panel decision.

120

See CASA de Maryland

Trump,

971 F.3d 220 (4th Cir. 2020).

On October 7, 2020, the government filed petitions for writ of certiorari in

the Second and Seventh Circuit cases.

121

The government urged the Court to grant certiorari in the Second Circuit case, and to hold the Seventh Circuit case pending its resolution of the Second Circuit case.

121

See Department of Homeland Security

New York,

No. 20-449 (S. Ct.);

Wolf

Cook County,

No. 20-450 (S. Ct.).

On November 2, 2020, the United States District Court for the Northern District of Illinois entered a partial final judgment in favor of Plaintiffs in the Cook County case and vacated the 2019 Final Rule nationwide.

122

The Seventh Circuit stayed the judgment pending the Supreme Court's resolution of the government's certiorari petition in the preliminary injunction appeal.

122

See Cook County

Wolf,

2020 WL 6393005 (N.D. Ill. Nov. 2, 2020).

On December 2, 2020, the Ninth Circuit affirmed preliminary injunctions entered by the U.S. district courts in California and Washington.

123

See City & County of San Francisco

USCIS,

981 F.3d 742 (9th Cir. 2020).

On January 19, 2021, the government submitted a petition for writ of certiorari in the Ninth Circuit case, which asked the Court to hold the petition until it decided the New York case.

124

See USCIS

City & County of San Francisco,

No. 20-962 (S. Ct.). The petition was submitted on January 19, 2021, and docketed on January 21, 2021.

On February 2, 2021, President Biden directed the Secretary, along with the Attorney General, the Secretary of State, and other relevant agency heads, to “review all agency actions related to implementation of the public charge ground of inadmissibility . . . and the related ground of deportability.”

125

The President ordered the agencies to complete that review within 60 days.

126

125

See

Exec. Order No. 14012, sec. 4, 86 FR 8277, 8278.

126

Ibid.

On February 22, 2021, the Supreme Court granted the government's petition for writ of certiorari in

DHS

New York,

No. 20-449, in order to review the preliminary injunctions issued in October 2019 by the United States District Court for the Southern District of New York.

Approximately 2 weeks later, DHS announced its determination that continuing to defend the 2019 Final Rule before the Supreme Court and in the lower courts would not be in the public interest or an efficient use of government resources. Consistent with that determination, the government filed stipulations with the Supreme Court dismissing

DHS

New York,

No. 20-449;

Mayorkas

Cook County,

No. 20-450; and

USCIS

City & County of San Francisco,

No. 20-962.

The government likewise filed motions to dismiss public charge related appeals in the lower courts. The Seventh Circuit granted the government's motion and dismissed the appeal. As a consequence, the vacatur ordered by the United States District Court for the Northern District of Illinois became effective. The government subsequently published a notice in the

Federal Register

formally removing the 2019 Final Rule from the Code of Federal Regulations.

127

See Inadmissibility on Public Charge Grounds; Implementation of Vacatur,

86 FR 14221, 14221 (Mar. 15, 2021).

On March 11, 2021, the United States Court of Appeals for the Fourth Circuit granted DHS's unopposed motion to dismiss the appeal and issued a mandate making the order dismissing the appeal effective. On the same day, a group of States filed motions in the Fourth and Seventh Circuits to intervene and recall the respective mandates. On March 15, 2021, the Seventh Circuit motion was denied. On March 18, 2021, the Fourth Circuit motion was denied.

On March 19, 2021, the same collection of States filed with the Supreme Court an application to intervene and to stay the vacatur judgment of the United States District Court for the Northern District of Illinois.

128

That application was denied on April 26, 2021.

128

See Texas, et al.

Cook County, Illinois, et al.,

20A150.

On March 10, 2021, a different collection of States filed a motion to intervene in the Ninth Circuit case.

129

On April 8, 2021, that motion was denied.

129

See City and County of San Francisco, et al.,

USCIS, et al.,

19-17213.

On April 30, 2021, the same collection of States filed a motion for leave to intervene in the Supreme Court in order to pursue further review of the Ninth Circuit's judgment.

130

On June 1, 2021, the Court ordered that the matter be held in abeyance to permit the prospective intervenors an opportunity to file a petition for writ of certiorari from the denial of their motion to intervene in the United States Court of Appeals for the Ninth Circuit.

130

See Arizona, et al.

City and County of San Francisco, et al.,

20M81.

On June 18, 2021, the same collection of States filed a petition for writ of certiorari with the Supreme Court, in which the States presented three questions.

131

See Arizona, et al.

City and County of San Francisco, et al.,

20-1775. The questions presented were: (1) Whether States with interests should be permitted to intervene to defend a rule when the United States ceases to defend; (2) whether the rule is contrary to law or arbitrary and capricious; and (3) alternatively, whether the decision below as to the rule should be vacated as moot under

Munsingwear.

On October 29, 2021, the Supreme Court granted the petition limited to the question of whether the States should be permitted to intervene.

7. Consideration of Chilling Effects

In this proposed rule, DHS gives more thorough consideration to the potential chilling effects of promulgating regulations governing the public charge inadmissibility determination. In considering such effects, DHS took into account the former INS's approach to chilling effects in the 1999 Interim Field Guidance and 1999 NPRM, the 2019 Final Rule's discussion of chilling effects, judicial opinions on the role of chilling effects, evidence of chilling effects following the 2019 Final Rule, and public comments on chilling effects following the August 2021 Advance Notice of Proposed Rulemaking (ANPRM).

a. Discussion of Chilling Effects in the 1999 NPRM and 1999 Interim Field Guidance

The 1999 NPRM and accompanying 1999 Interim Field Guidance specifically cited public confusion regarding the meaning of the statutorily undefined term “public charge,” and the potential negative public health consequences, as creating a need for urgent action to provide “better guidance as to the types of public benefits that will and will not be considered in public charge determinations.”

132

The 1999 NPRM explained that, following the enactment of PRWORA and its restrictions on the eligibility of certain noncitizens for many Federal, State, and local public benefits,

132

See

64 FR 28676 (May 26, 1999); 64 FR 28689 (May 26, 1999).

numerous legal immigrants and other aliens are choosing not to apply for . . . benefits [for which Congress expressly made them eligible] because they fear the negative immigration consequences of potentially being deemed a `public charge.' This tension between the immigration and welfare laws is exacerbated by the fact that `public charge' has never been defined in statute or regulation. Without a clear definition of the term, noncitizens have no way of knowing which benefits they may safely access without risking deportation or inadmissibility.

133

64 FR 28676 (May 26,1999).

The INS went on to note that, according to Federal and State benefit-granting agencies,

this growing confusion is creating significant, negative public health consequences across

the country. This situation is becoming particularly acute with respect to the provision of emergency and other medical assistance, children's immunizations, and basic nutrition programs, as well as the treatment of communicable diseases. Immigrants' fears of obtaining these necessary medical and other benefits are not only causing them considerable harm, but are also jeopardizing the general public. For example, infectious diseases may spread as the numbers of immigrants who decline immunization services increase.

134

64 FR 28676, 28677 (May 26, 1999).

For these reasons, and following on-the-record consultation with HHS, USDA, and SSA, as well as consideration of the historical understandings of the term “public charge,” the INS proposed (and in the 1999 Interim Field Guidance, implemented) a clear definition of “public charge” that excluded from consideration non-cash benefits (other than institutionalization for long-term care at government expense).

135

See

64 FR 28677, 28678-28686 (May 26, 1999).

b. Discussion of Chilling Effects in the 2019 Final Rule

In the 2019 Final Rule, DHS adopted a markedly different approach to chilling effects as compared to the former INS's approach in the 1999 NPRM and 1999 Interim Field Guidance. In the 2019 Final Rule, DHS acknowledged that the rule could result in a chilling effect with respect to the use of public benefits by noncitizens, even among individuals who were not subject to the rule, and with respect to public benefits that are not covered by the rule.

136

DHS received a significant number of detailed public comments regarding the chilling effects of that rule.

137

Commenters pointed to past studies regarding the effects of PRWORA

138

on public benefits eligibility for noncitizens.

139

Some commenters discussed chilling effects that resulted from confusion and fear regarding the 2018 NPRM that preceded that 2019 Final Rule.

140

Some commenters reported direct knowledge of such effects.

141

In response to the comments, although DHS did not dispute the studies cited by commenters, DHS made three arguments regarding its approach in the 2019 Final Rule.

136

See, e.g.,

84 FR 41292, 41310

et seq.

(Aug. 14, 2019).

137

See, e.g.,

84 FR 41292, 41310 (Aug. 14, 2019) (“Commenters said that the rule's disenrollment effect would have lasting impacts on the health and safety of our communities and that immigrant families are experiencing significant levels of fear and uncertainty that has a direct impact on the health and well-being of children. Citing studies and research, many commenters asserted that the chilling effect will increase hunger, food insecurity, homelessness and poverty. They added that the chilling effect will also decrease educational attainment and undermine workers' ability to acquire new skills for in-demand occupations. Many commenters stated that negative public health, social, and economic outcomes (

e.g.,

hunger, food insecurity, decreased nutrition, unmet physical and mental health needs, unimmunized individuals, disease, decreased school attendance and performance, lack of education, poverty, homelessness) collectively damage the prosperity and health of our communities, schools, and country. Several commenters said that the rule would drive up uncompensated care costs, increase use of medical emergency departments, increase healthcare costs, endanger maternal and infant health, and heighten the risk of infectious disease epidemics. One commenter indicated that the rule would make child poverty worse and harm communities as well as infrastructure that serves all of us.”).

138

See

Public Law 104-193, title IV, 110 Stat. 2260 (1996).

139

One commenter wrote that “[a] U.S. Department of Agriculture analysis found that welfare reform's restrictions on legal immigrants' ability to receive food stamps appears to have deterred participation by their children, many of whom retained their eligibility.” Another wrote that “[r]esearch shows that following PRWORA, enrollment declined both in programs whose eligibility PRWORA did not change and among individuals and families that remained eligible (that is, who were unaffected by the

eligibility

changes but were fearful of receiving benefits).” (emphasis in original.)

140

A commenter reported that “just months after the first leaks of the executive order, a Los Angeles-based health care provider serving a largely Latino community reported a 20 percent drop in SNAP enrollment and a 54 percent drop in Medicaid enrollment among children, as well as an overall 40 percent decline in program re-enrollments.” Another reported that “community providers have already reported changes in healthcare use, including decreased participation in Medicaid and WIC in the wake of the release of the draft proposal.”

141

A commenter stated that “[a]s the Intake Coordinator, I have spoken with several families whose children are in dire need of mental health services (experiencing depression, anxiety, grief, trauma, disruptive behaviors), but the caregivers are afraid to utilize their child's Medi-Cal insurance. As a result, these children are not receiving the services they need.”). Another stated that “[l]ast year when there were early press accounts about a change in the public charge test, the health center's WIC program experienced a sudden drop off in attendance based on rumors in the immigrant community that it was no longer safe to participate in WIC.”

First, DHS emphasized that the government's interest, as stated in 8 U.S.C. 1601, in reducing noncitizens' incentive to immigrate to or adjust status in the United States due to the availability of public benefits, and in promoting the self-sufficiency of noncitizens within the United States, was “a sufficient basis to move forward.”

142

DHS also cited its “authority to take past, current, and likely future receipt of public benefits into account, even where it may ultimately result in discouraging aliens from receiving public benefits.”

143

Accordingly, DHS stated that it expected noncitizens seeking lawful permanent resident status or nonimmigrant status in the United States to “make purposeful and well-informed decisions commensurate with the immigration status they are seeking.”

144

Although DHS acknowledged that individuals subject to the 2019 Final Rule may decline to enroll in, or choose to disenroll from, public benefits for which they are eligible under PRWORA to avoid the 2019 Final Rule's negative consequences, DHS stated that it would not “limit the effect of the rulemaking to avoid the possibility that individuals subject to this rule may disenroll or choose not to enroll, as self-sufficiency is the rule's ultimate aim.”

145

142

See

84 FR 41292, 41312 (Aug. 14, 2019).

143

Ibid.

144

84 FR 41292, 41312 (Aug. 14, 2019).

145

Ibid.

Second, DHS stated that it was “difficult to predict the rule's disenrollment impacts with respect to the regulated population, although DHS has attempted to do so in the . . . Final Regulatory Impact Analysis” that accompanied the 2019 Final Rule.

146

DHS stated that “data limitations [have impeded DHS from developing] a precise count [or a] reasonable estimate of the number of aliens who are both subject to the public charge ground of inadmissibility and are eligible for public benefits in the United States.”

147

But DHS also acknowledged that there is little overlap between the population regulated by the 2019 Final Rule and the public benefits considered in public charge inadmissibility determinations under the 2019 Final Rule:

146

84 FR 41292, 41312 (Aug. 14, 2019). The Final Regulatory Impact Analysis (RIA) did not contain any estimates that took into account the regulated population's actual eligibility for the covered benefits.

147

DHS also wrote that the difficulty in producing an estimate “is compounded by the fact that most applicants subject to the public charge ground of inadmissibility and therefore this rule are generally unlikely to suffer negative consequences resulting from past receipt of public benefits because they will have been residing outside of the United States and therefore, ineligible to have ever received public benefits.” 84 FR at 41292, 41313 (Aug. 14, 2019).

• “Aliens who are unlawfully present and nonimmigrants physically present in the United States . . . are generally barred from receiving federal public benefits other than emergency assistance”;

148