# Public Charge Ground of Inadmissibility > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-03788 ## Record - **Collection:** Federal Register - **Document type:** Proposed Rule - **Published:** February 24, 2022 - **Citation:** 87 FR 10570 ## Text 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 In August of 2019, DHS issued a different rule on this topic, which is no longer in effect.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 1 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. 1 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. 2 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). 2 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. 3 3 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). 4 4 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. 5 5 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. 6 6 See Fiallo v. Bell, 430 U.S. 787, 787 (1977) (The Supreme Court has “long recognized [that] the power to expel or exclude aliens [i]s a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control”). Congress has exercised this authority in part by establishing the concepts of admission 7 and inadmissibility in the INA. 8 Noncitizens may be inadmissible due to a range of acts, conditions, and conduct. 9 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. 10 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. 11 7 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). 8 INA sec. 212(a), 8 U.S.C. 1182(a). 9 Ibid. 10 For example, adjustment of status. See INA sec. 245(a)(2), 8 U.S.C. 1255(a)(2). 11 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. 12 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. 13 12 See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 13 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. 14 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. 15 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. 16 14 See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 15 See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). When required, the applicant must submit an Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ). 16 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. 17 17 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. 18 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. 19 The government has long interpreted the words “in the opinion of” as evincing the subjective nature of the determination. 20 The determination is also necessarily subjective to some degree due to its prospective nature. 18 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, e.g., Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917, ch. 29, sec. 3, 39 Stat. 874, 876; INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and Immigrant Responsibility Act, Public Law 104-208, sec. 531(a), 110 Stat. 3009-546, 3009-674-75 (1996); Violence Against Women Reauthorization Act of 2013, Public Law 113-4, 127 Stat. 54. 19 See INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163, 183. 20 See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l Cmm'r 1974) (“[T]he determination of whether an alien falls into that category [as likely to become a public charge] rests within the discretion of the consular officers or the Commissioner . . . Congress inserted the words `in the opinion of' (the consul or the Attorney General) with the manifest intention of putting borderline adverse determinations beyond the reach of judicial review.” (citation omitted)); see also Matter of Martinez-Lopez, 10 I&N Dec. 409, 421 (Att'y Gen. 1962) (“[U]nder the statutory language the question for visa purposes seems to depend entirely on the consular officer's subjective opinion.”). A series of administrative decisions after the passage of the INA of 1952 clarified that a totality of the circumstances review was the proper framework for making public charge determinations and that receipt of public benefits would not, alone, lead to a finding of likelihood of becoming a public charge. In Matter of Martinez-Lopez, the Attorney General opined that the statute “require[d] more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact showing that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where he has friends or relatives in the United States who have indicated their ability and willingness to come to his assistance in case of emergency.” 21 In Matter of Perez, the Board of Immigration Appeals (BIA) held that 21 10 I&N Dec. 409, 421-23 (BIA 1962; Att'y Gen. 1964) (emphasis added). DHS discusses Matter of Martinez-Lopez, and consideration of disability, at greater length elsewhere in this preamble. [t]he determination of whether an alien is likely to become a public charge . . . is a prediction based upon the totality of the alien's circumstances at the time he or she applies for an immigrant visa or admission to the United States. The fact that an alien has been on welfare does not, by itself, establish that he or she is likely to become a public charge. 22 22 15 I&N Dec. 136, 137 (BIA 1974). As stated in Matter of Harutunian, public charge determinations should take into consideration factors such as a noncitizen's age, incapability of earning a livelihood, a lack of sufficient funds for self-support, and a lack of persons in this country willing and able to assure that the noncitizen will not need public support. 23 23 14 I&N Dec. 583, 589 (Reg'l Comm'r 1974). The totality of the circumstances framework for public charge inadmissibility determinations was codified in relation to one specific class of noncitizens in the 1980s. In 1986, Congress passed the Immigration Reform and Control Act (IRCA), providing eligibility for adjustment of status to that of a lawful permanent resident to certain noncitizens who had resided in the United States continuously prior to January 1, 1982. 24 No changes were made to the language of the public charge exclusion ground under former section 212(a)(15) of the INA, 8 U.S.C. 1182(a)(15), but IRCA contained special public charge rules for noncitizens seeking legalization under section 245A of the INA, 8 U.S.C. 1255a. Although IRCA provided otherwise eligible noncitizens an exemption or waiver for some grounds of excludability, the noncitizens generally remained subject to the public charge ground of exclusion. 25 Under IRCA, however, if an applicant demonstrated a history of self-support through employment and without receiving public cash assistance, they would not be ineligible for adjustment of status based on being inadmissible on the public charge ground. 26 In addition, IRCA contained a discretionary waiver of public charge inadmissibility for noncitizens who were “aged, blind or disabled” as defined in section 1614(a)(1) of the Social Security Act who applied for lawful permanent resident status under IRCA and were determined to be inadmissible based on the public charge ground. 27 24 See IRCA of 1986, Public Law 99-603, sec. 201, 100 Stat. 3359, 3394. 25 See INA sec. 245A(d)(2)(B)(ii)(IV), 8 U.S.C. 1255a(d)(2)(B)(ii)(IV). 26 See INA sec. 245A(d)(2)(B)(iii), 8 U.S.C. 1255a(d)(2)(B)(iii). 27 See INA sec. 245A(d)(2)(B)(ii), 8 U.S.C. 1255a(d)(2)(B)(ii); see also 42 U.S.C. 1382c(a)(1). This discretionary waiver applies only to IRCA legalization and not to adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a). The former Immigration and Naturalization Service (INS) promulgated 8 CFR 245a.3, 28 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.” 29 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. 30 Further, the regulation provided that the determination is a “prospective evaluation based on the alien's age, health, income, and vocation.” 31 28 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. 29 See 8 CFR 245a.3(g)(4)(i). 30 Ibid. 31 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. 32 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. 33 In Matter of A-, INS again pursued a totality of the circumstances approach in public charge determinations for applicants for legalization. 34 “Even though the test is prospective,” INS “considered evidence of receipt of prior public assistance as a factor in making public charge determinations.” 35 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. 36 32 See 8 CFR 245a.3(g)(4)(iii). 33 Ibid. 34 19 I&N Dec. 867 (Comm'r 1988). 35 Ibid. 36 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). 37 In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) 38 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. 39 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. 40 37 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). 38 Public Law 104-208, div. C, 110 Stat 3009-546. 39 Public Law 104-208, div. C, 110 Stat 3009-546. 40 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. 41 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. 42 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. 43 41 8 U.S.C. 1601-1646. 42 8 U.S.C. 1601(2). 43 Ibid. PRWORA defines the term “Federal public benefit” 44 and provides that an “alien” who is not a “qualified alien” is ineligible for any such benefits, 45 subject to certain exceptions. 46 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. 47 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,” 48 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. 44 8 U.S.C. 1611(c). 45 8 U.S.C. 1611(a). 46 8 U.S.C. 1611(b). 47 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). 48 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. 49 Second, there are “Federal means-tested public benefits,” for which “qualified aliens” are generally eligible after a 5-year waiting period. 50 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. 51 49 8 U.S.C. 1612(a). 50 8 U.S.C. 1613(a). 51 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. 52 52 8 U.S.C. 1641(b)(1). • An alien who is granted asylum under section 208 of the INA. 53 53 8 U.S.C. 1641(b)(2). • A refugee who is admitted to the United States under section 207 of the INA. 54 54 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. 55 55 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) 56 of the INA or section 241(b)(3) of the INA, as amended. 57 56 As in effect immediately before the effective date of section 307 of division C of Public Law 104-208, 110 Stat. 3009-546. 57 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. 58 58 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. 59 59 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). 60 60 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). 61 61 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). 62 62 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). 63 63 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. 64 64 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). 65 65 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). 66 66 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. 67 67 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. 68 68 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. 69 Some States and localities have funded public benefits for some noncitizens who may not be eligible for Federal public benefits. 70 69 See 8 U.S.C. 1621(d). 70 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); 71 Supplemental Nutrition Assistance Program (SNAP) (“qualified alien” children under 18)), Congress, except in very limited circumstances, 72 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. 71 See 8 U.S.C. 1611(b)(1)(A). 72 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. 73 The table is provided for background purposes only and should not be used to determine benefits eligibility. 73 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, 74 codified in the public charge inadmissibility statute the following minimum factors that must be considered when making public charge inadmissibility determinations: 75 74 Public Law 104-208, div. C, 110 Stat 3009-546 (1996). 75 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. 76 76 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, 77 for certain noncitizens to avoid a finding of inadmissibility under that section. 78 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. 79 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. 80 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. 81 77 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). 78 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. 79 See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D). 80 See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). 81 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, 82 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. 82 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 83 (1999 NPRM), and on that same day issued interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (1999 Interim Field Guidance). 84 83 64 FR 28676 (May 26, 1999). 84 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.” 85 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. 86 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. 87 85 See 64 FR 28676, 28676 (May 26, 1999). 86 See 64 FR 28676, 28676-77 (May 26, 1999). 87 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. 88 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.” 89 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.” 90 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. 88 See 64 FR 28676, 28686-87 (May 26, 1999). 89 See 64 FR 28676, 28687 (May 26, 1999). 90 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 91 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.” 92 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. 93 Ultimately, however, INS did not publish a final rule conclusively addressing these issues. 91 Former INS defined “primarily dependent” as “the majority” or “more than 50 percent.” 92 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). 93 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.” 94 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). 95 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. 96 94 See 64 FR 28689, 28689 (May 26, 1999). 95 See 64 FR 28689, 28692-93 (May 26, 1999). 96 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. 97 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. 98 97 See 64 FR 28676, 28680 (May 26, 1999). 98 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. 99 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 99 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. 109 109 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. 110 110 Ibid. The 2019 Final Rule did not interpret or change DHS's implementation of the public charge ground of deportability. 111 111 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., v. Trump, 19-cv-2715 (D. Md.); City and County of San Francisco, et al., v. DHS, et al. , 19-cv-04717 (N.D. Ca.); City of Gaithersburg, et al. v. Trump, et al., 19-cv-02851 (D. Md.); Cook County et al. v. McAleenan et al., 19-cv-06334 (N.D. Ill.); La Clinica De La Raza, et al., v. Trump, et al., 19-cv-4980 (N.D. Ca.); Make the Road New York, et al. v. Cuccinelli, et al., 19-cv-07993 (S.D.N.Y.); New York, et al. v. DHS, et al., 19-cv-07777 (S.D.N.Y.); State of California, et al., v. DHS, et al., 19-cv-04975 (N.D. Cal.); State of Washington, et al. v. DHS, et al., 19-cv-05210 (E.D. Wa.). 113 Cook County. v. 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. v. DHS, 944 F.3d 773 (9th Cir. Dec. 5, 2019), City and County of San Francisco, et al. v. DHS, No. 19-17213 (9th Cir. Jan. 20, 2021); CASA de Maryland, Inc. et al. v. Trump, No. 19-2222 (4th Cir. Dec 9, 2019). 115 See DHS v. New York, 140 S. Ct. 599 (2020); Wolf v. Cook County, 140 S. Ct. 681 (2020). On June 10, 2020, the Seventh Circuit affirmed the lower court's preliminary injunction. 116 116 See Cook County v. 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 v. DHS, 475 F. Supp. 3d 208 (S.D.N.Y. 2020). 118 See New York v. 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. 119 119 See New York v. 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 v. 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 v. New York, No. 20-449 (S. Ct.); Wolf v. 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 v. 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. 123 123 See City & County of San Francisco v. 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. 124 124 See USCIS v. 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 v. 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 v. New York, No. 20-449; Mayorkas v. Cook County, No. 20-450; and USCIS v. 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. 127 127 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. v. 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., v. 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. v. 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. 131 131 See Arizona, et al. v. 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. 133 133 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. 134 134 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). 135 135 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”; 148 148 84 FR 41292, 41313 (Aug. 14, 2019). • “[A]pplicants for admission and adjustment of status . . . are generally ineligible for SNAP benefits and therefore, would not need to disenroll from SNAP to avoid negative consequences”; 149 and 149 84 FR 41292, 41313 (Aug. 14, 2019). • “[C]ertain lawfully present children and pregnant women in certain states and the District of Columbia [are eligible for Medicaid, but] this final rule exempts receipt of Medicaid by such persons.” 150 150 84 FR 41292, 41313 (Aug. 14, 2019). Third, DHS wrote that it was “difficult to predict the rule's disenrollment impacts with respect to people who are not regulated by this rule, such as people who erroneously believe themselves to be affected.” 151 DHS wrote that 151 84 FR 41292, 41313 (Aug. 14, 2019). because DHS will not consider the receipt of public benefits by U.S. citizens and aliens not subject to public charge inadmissibility . . . it would be unwarranted for U.S. citizens and aliens exempt from public charge inadmissibility to disenroll from a public benefit program or forgo enrollment in response to this rule when such individuals are not subject to this rule. DHS will not alter this rule to account for such unwarranted choices. 152 152 84 FR 41292, 41313 (Aug. 14, 2019). Instead, DHS committed itself to “issue clear guidance that identifies the groups of individuals who are not subject to this rule,” 153 and noted that DHS had excluded multiple public benefits from consideration. 153 84 FR 41292, 41313 (Aug. 14, 2019). c. Judicial Opinions Regarding Chilling Effects Several courts have considered the appropriate role of chilling effects in public charge inadmissibility determinations. All the cases challenging the 2019 Final Rule involved allegations that DHS failed to adequately consider the potential chilling effects of the 2019 Final Rule. In a June 2020 opinion, the Seventh Circuit reasoned that the rule's chilling effects were foreseeable and, in some respects, represented a rational response by immigrants to the 2019 Final Rule, insofar as the 2019 Final Rule did not create a predictable framework for weighing past receipt of designated public benefits, and did not foreclose DHS from designating additional public benefits for consideration in the future. 154 The court held that DHS failed to adequately grapple with “the collateral consequences of . . . disenrollments” resulting from the rule, including “reduce[d] access to vaccines and other medical care, resulting in an increased risk of an outbreak of infectious disease among the general public.” 155 The court also held that DHS failed to adequately consider “the added burden on states and local governments, which must disentangle their purely state-funded programs from covered federal programs,” and noted that notwithstanding the rule's potential effects on State and local governments, DHS had also concluded that the rule would not have “substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government.” 156 154 See Cook County Ill. v. Wolf, 962 F.3d 208, 230-31 (7th Cir. 2020). 155 See Cook County Ill., 962 F.3d at 230-31. 156 See Cook County Ill., 962 F.3d at 230-31. In a December 2019 opinion that stayed multiple preliminary injunctions against the 2019 Final Rule, a panel of the Ninth Circuit Court of Appeals reasoned that DHS's “only mandate is to regulate immigration and naturalization, not to secure transfer payments to state governments or ensure the stability of the health care industry. Any effects on those entities are indirect and well beyond DHS's charge and expertise.” 157 But a later decision by the Ninth Circuit took an opposing view. The later panel emphasized the substantial evidence in the record regarding chilling effects and characterized the 2019 Final Rule's response to comments regarding chilling effects as “a generality coupled with an expression of uncertainty.” 158 The court found that, although “[t]he record before DHS was replete with detailed information about, and projections of, disenrollment and associated financial costs to state and local governments . . . . DHS made no attempt to quantify the financial costs of the Rule or critique the projections offered.” 159 The court concluded that DHS likely failed to satisfy its duty to “examine the relevant data.” 160 Similarly, with respect to the financial impacts of the 2019 Final Rule's public health consequences, the court found that “DHS itself repeatedly acknowledged that hospitals might face financial harms as a result of the Rule, but DHS repeatedly declined to quantify, assess, or otherwise deal with the problem in any meaningful way.” The court also observed that 157 See City & Co. of San Francisco v. USCIS et al., 944 F.3d 773, 804 (9th Cir. 2019). 158 See City & Co. of San Francisco v. USCIS et al., 981 F.3d 742, 759 (9th Cir. 2020). 159 See City & Co. of San Francisco v. USCIS et al., 981 F.3d 742, 759 (9th Cir. 2020). 160 See City & Co. of San Francisco v. USCIS et al., 981 F.3d 742, 759 (9th Cir. 2020). DHS insisted that vaccines would “still be available” to Medicaid-disenrolled individuals because “local health centers and state health departments” would pick up the slack . . . despite objections voiced by such local health centers and state health departments themselves showing that the Rule will put the populations they serve—citizens and non-citizens alike—in danger. 161 161 See City & Co. of San Francisco v. USCIS et al., 981 F.3d 742, 759 (9th Cir. 2020). Finally, in the Second Circuit, a panel that upheld a preliminary injunction against the rule cited the plaintiffs' allegations of chilling effects as being sufficient to establish standing. 162 However, the panel did not cite such chilling effects in its evaluation of the merits of the policy. 163 162 See New York v. DHS, 969 F.3d 42, 59-61 (2020). 163 A few days prior to the panel's decision, a court in the Southern District of New York had issued a second preliminary injunction against the 2019 Final Rule, based primarily on a range of alleged harms associated with the rule's chilling effects during the COVID-19 pandemic. See New York v. DHS, 475 F. Supp. 3d 208, 226-30 (S.D.N.Y 2020). The Second Circuit later stayed that second preliminary injunction, “based primarily on the district court's apparent lack of jurisdiction to issue the preliminary injunction during the appeal of its prior, virtually identical injunction (coupled with DHS's showing of irreparable harm resulting from its inability to enforce its regulation).” See New York v. DHS, 974 F.3d 210 (2d Cir. 2020). d. Evidence of Chilling Effects Related to the 2019 Final Rule DHS is aware of evidence that the 2019 Final Rule, and the rulemaking process that preceded it, resulted in significant disenrollment effects among noncitizens and U.S. citizens in immigrant families. For instance, in February 2021, the Urban Institute published a report describing the following survey findings: • “In 2020, almost one in seven adults in immigrant families (13.6 percent) reported that they or a family member avoided a noncash government benefit program, such as Medicaid, the Children's Health Insurance Program, the Supplemental Nutrition Assistance Program, or housing assistance, because of concerns about future green card applications. This `chilling effect' was most significant in families more likely to be directly affected by the rule, those in which one or more members do not have a green card (27.7 percent).” 164 164 See Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen Zuckerman (2021), Immigrant Families Continued Avoiding the Safety Net during the COVID-19 Crisis 1 (The Urban Institute), available at https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (accessed Feb. 13, 2021). • “In 2020, more than one in six adults in immigrant families (17.8 percent) reported avoiding a noncash government benefit program or other help with basic needs because of green card concerns or other worries about immigration status or enforcement. More than one in three adults in families in which one or more members do not have a green card (36.1 percent) reported these broader chilling effects.” 165 165 Ibid. • “Immigrant families avoided public benefits and supports not only because of perceived risks of how the public charge rule might affect their ability to secure a green card but because of broader immigration concerns, such as the risk of information being shared with immigration enforcement authorities or the deportation of family members.” 166 166 Ibid. These findings were generally consistent with the findings described in prior reports, which documented similar chilling effects and confusion in the aftermath of the 2018 NPRM on public charge inadmissibility and after implementation of the 2019 Final Rule. 167 167 See Bernstein, H., Dulce Gonzalez, Michael Karpman, and Stephen Zuckerman (2020), Amid Confusion over the Public Charge Rule, Immigrant Families Continued Avoiding Public Benefits in 2019 (Urban Institute) (accessed Jan. 26, 2022); Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen Zuckerman (2019), One in Seven Adults in Immigrant Families Reported Avoiding Public Benefit Programs in 2018 (Urban Institute).). Similarly, in December 2020, the Migration Policy Institute published an analysis showing that from 2017 to 2019, participation in [Temporary Assistance for Needy Families (TANF)], SNAP, and Medicaid declined twice as fast among noncitizens as citizens . . . . Between 2016 and 2019, the number of low-income noncitizens participating in SNAP fell by 37 percent, as did the number using TANF or similar cash assistance programs . . . . At the same time, Medicaid participation by low-income noncitizens fell by 20 percent. Across all the programs, the decline in participation for U.S.-born citizens was far smaller, decreasing only about half as much as for noncitizens and with even smaller drops for naturalized citizens. 168 168 See Randy Capps et al., Migration Policy Institute, Anticipated “Chilling Effects” of the Public-Charge Rule Are Real: Data Reflect Steep Decline in Benefits Use by Immigrant Families (Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (accessed Jan. 26, 2022). The analysis also showed notable declines “among low-income U.S.-citizen children under age 18 with noncitizens in the household, as their program participation dropped almost as rapidly as that of noncitizens themselves . . . . Participation in [SNAP, TANF, and Medicaid] fell about twice as fast over the 2016 to 2019 period for U.S.-citizen children with noncitizens in the household as for those with only citizens in the household.” 169 169 See Randy Capps et al., Migration Policy Institute, Anticipated “Chilling Effects” of the Public-Charge Rule Are Real: Data Reflect Steep Decline in Benefits Use by Immigrant Families (Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (accessed Jan. 26, 2022). Similar outcomes were described in an October 2019 report regarding immigrant communities in San Diego and San Francisco issued by the Kaiser Family Foundation. That report relayed qualitative assertions from various social and legal services providers that “an increasing number of families are disenrolling themselves and their children from programs, including Medi-Cal (California's Medicaid program), and not renewing or not enrolling in programs even though they or their children are eligible and are not directly affected by the policy changes.” 170 For instance, a family services provider is quoted as saying, “they're scared to apply for certain much needed funding whether it's Calfresh [food assistance] or it's Medi-Cal, to get them the health insurance.” 171 A health provider is quoted as stating that “we had a patient who had a breast mass. Our physician had told her to go see a specialist. And because she had heard about public charge, she did not want to go see the specialist.” 172 170 See Samantha Artiga et al., Kaiser Family Foundation, Issue Brief: Addressing Health and Social Needs of Immigrant Families: Lessons from Local Communities at 7 (Oct. 28, 2019), available at https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/ (accessed Jan. 26, 2022). 171 See Samantha Artiga et al., Kaiser Family Foundation, Issue Brief: Addressing Health and Social Needs of Immigrant Families: Lessons from Local Communities at 7 (Oct. 28, 2019), available at https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/ (accessed Jan. 26, 2022). 172 See Samantha Artiga et al., Kaiser Family Foundation, Issue Brief: Addressing Health and Social Needs of Immigrant Families: Lessons from Local Communities at 8 (Oct. 28, 2019), available at https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/ (accessed Feb. 12, 2021). An October 2019 Kaiser Family Foundation report described similar results, as follows: • “Based on findings from the health center survey, nearly half (47%) of health centers reported that many or some immigrant patients declined to enroll themselves in Medicaid in the past year . . . . In addition, nearly one-third (32%) said that many or some immigrant patients disenrolled from or declined to renew Medicaid coverage.” 173 173 Jennifer Tolbert et al., Kaiser Family Foundation, Issue Brief: Impact of Shifting Immigration Policy on Medicaid Enrollment and Utilization of Care among Health Center Patients at 2 (Oct. 15, 2019), available at https://www.kff.org/medicaid/issue-brief/impact-of-shifting-immigration-policy-on-medicaid-enrollment-and-utilization-of-care-among-health-center-patients/ (accessed Feb. 14, 2021). • “Health centers also report enrollment declines among children in immigrant families. More than a third of (38%) health centers reported that many or some immigrant patients were declining to enroll their children in Medicaid over the past year, while nearly three in ten (28%) reported many or some immigrant patients were disenrolling or deciding not to renew Medicaid coverage for their children.” 174 174 Id. at 2-3. • “Follow-up interviews with health center staff are consistent with these survey findings of declining Medicaid enrollment among immigrant patients and their families . . . . In addition, enrollment staff who assist patients in applying for Medicaid and other coverage have access to this information as part of the application process. At some health centers interviewed, these changes were widespread with many patients dropping Medicaid while at others, the changes were occurring among only a small number of patients.” 175 175 Id. at 3. • “Health center respondents reported that immigrant patients are increasingly afraid to disclose personal information. Interview respondents across all health centers reported that some immigrant patients have become reluctant to disclose any personal information out of fear that the health center would share that information with authorities.” 176 176 Ibid. • “Health center interview respondents reported that the patients disenrolling or declining to enroll in Medicaid are a broader group of immigrants than those targeted by the public charge rule . . . . Respondents also reported that patients have expressed concerns that enrolling their children in these programs, even if their children were born in the United States, may jeopardize their status or the status of family members. In addition, although pregnant women are categorically eligible for Medicaid and would be unaffected by public charge if they enroll in Medicaid, health center respondents reported that pregnant women are declining to enroll in Medicaid or disenrolling, in some cases out of fear of risking future opportunities for residency or citizenship.” 177 177 Id. at 5. • “Fear of public charge implications extends beyond Medicaid to other health and social service programs, including some that are not included in the public charge rule . . . . Several respondents noted that their WIC caseloads are down and attributed the trend to public charge fears. Respondents in California and Missouri also noted that immigrant patients are declining to enroll in or accept referrals for state and local food assistance programs, even though these programs are not subject to public charge. A health center serving New York City reported that patients with HIV or AIDS are hesitating to enroll in or are disenrolling from the city-run HIV/AIDS Services Administration (HASA) program out of fear that the program's services fall under the public charge rule.” 178 178 Ibid. The Kaiser Family Foundation report, like the other reports described in this section, raises critical questions about the chilling effects of the 2019 Final Rule on noncitizens and citizens alike, including pregnant women and children. e. Comments on Chilling Effects in Response to the 2021 ANPRM On August 23, 2021, DHS issued an ANPRM on the public charge ground of inadmissibility. 179 In the ANPRM, DHS asked the public how it should address the possibility that individuals who are eligible for public benefits, including U.S. citizen relatives of noncitizens, would forgo the receipt of those benefits as a result of DHS's consideration of certain public benefits in the public charge inadmissibility determination. DHS asked for any data and information it should consider about the direct and indirect effects of past public charge policies in this regard. In addition, DHS asked about data that it could use to estimate any potential direct and indirect effects, economic or otherwise, of the public charge ground of inadmissibility related to the 2019 Final Rule. DHS also specifically sought information from State, territorial, local, and Tribal benefit granting agencies regarding impacts of the 2019 Final Rule on the application for or disenrollment from public benefit programs, including how DHS could reduce the likelihood that individuals would forgo public benefits out of concern over immigration consequences of such receipt. Commenters overwhelmingly confirmed the existence of chilling effects and cited to studies and data regarding the same. 179 Public Charge Ground of Inadmissibility; Advance Notice of Proposed Rulemaking and Notice of Virtual Public Listening Sessions, 86 FR 47025 (Aug. 23, 2021). For example, a group of 21 Attorneys General urged DHS to weigh and avoid chilling effects when crafting future public charge policies. These commenters stated that, as a consequence of the 2019 Final Rule, increasing numbers of immigrants disenrolled from or declined to enroll in public benefits programs, including programs not covered by the rule. This may have led, for instance, to a “nationwide decrease of approximately 260,000 enrollees in child Medicaid and 21,000 enrollees” in the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), neither of which would have been considered under the 2019 Final Rule in any event. 180 The commenters stated that, according to State benefit granting agencies, because the public charge inadmissibility formula in the 2019 Final Rule was so complex and layered, it was extraordinarily difficult for immigrants and service providers to understand whether or how it applied to them. Those commenters said that many immigrants avoided benefits out of fear and confusion. To underscore the severity of the impact, commenters noted that these immigrants even avoided important benefits like medical care during a pandemic. 180 Alma Guerrero, M.D., M.P.H, et al., Forgoing Healthcare in a Global Pandemic: The Chilling Effects of the Public Charge Rule on Health Access Among Children in California, UCLA Latino Policy & Politics Initiative (Apr. 07, 2021), https://latino.ucla.edu/research/public-charge-ca-children/; Leslie Berestein Rojas, Thousands Of LA Immigrant Families Are No Longer Enrolled In Public Benefits. A Pending Trump Rule Could Be Why, LAist (Aug. 02, 2019), https://laist.com/news/thousands-of-la-immigrant-families-are-no-longer-enrolled-in-public-benefits-a-pending-trump-rule-co. With respect to health effects, in particular, the American Medical Association (AMA) commented that the potential wide-reaching effect of the 2019 Final Rule was anticipated and acknowledged in the 2019 Final Rule and that those predictions were proven to be true, stating that half of the immigrant families surveyed said they had avoided using Medicaid, CHIP, or SNAP. 181 But the commenter acknowledged that most of the individuals who chose not to access non-cash benefits were not subject to the 2019 Final Rule. 182 Like other commenters, the AMA highlighted the amplified chilling effects during the pandemic, stating that “the lead up to, and short-term change of, the public charge rule had a far-reaching chilling effect on the immigrant population and caused eligible individuals to not access benefits during a time when they were most needed, the COVID-19 public health emergency.” 183 The AMA stated that researchers using Census Bureau data have found that, during the public health emergency, “the public charge policy likely caused 2.1 million essential workers and household members to forgo Medicaid and 1.3 million to forgo SNAP” 184 during a time when 41.4 percent of low-income immigrant families were experiencing food insecurity and 52.1 percent were worried about being able to pay for medical costs. 185 181 Bernstein, H., Dulce Gonzalez, Michael Karpman, and Stephen Zuckerman (2020), Amid Confusion over the Public Charge Rule, Immigrant Families Continued Avoiding Public Benefits in 2019 (Urban Institute). https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_2.pdf (accessed Jan 26, 2022). 182 Shaw, April. The Public Charge Rule and Public Health (Apr. 6, 202), Network for Public Health Law, https://www.networkforphl.org/resources/the-public-charge-rule-and-public-health/ (accessed Jan. 18, 2022). 183 Barofsky, Jeremy et al. Spreading Fear: The Announcement of The Public Charge Rule Reduced Enrollment in Child Safety-Net Programs (Oct. 2020); Health Affairs Vol. 39, No.10: Children's Health https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763 (accessed Jan. 18, 2022). 184 Touw, Sharon, McCormack, Grace, Himmelstein, David, Woolhandler, Steffie, and Zallman, Leah. “Immigrant Essential Workers Likely Avoided Medicaid And SNAP Because Of A Change To The Public Charge Rule,” (Jul. 2021) Health Affairs, https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2021.00059 (accessed Jan. 18, 2022). 185 Bernstein, H., Dulce Gonzalez, Michael Karpman, and Stephen Zuckerman (2021), Adults in Low-Income Immigrant Families Were Deeply Affected by the COVID-19 Crisis yet Avoided Safety Net Programs in 2020, (The Urban Institute), available at https://www.urban.org/research/publication/adults-low-income-immigrant-families-were-deeply-affected-covid-19-crisis-yet-avoided-safety-net-programs-2020 (accessed Jan. 26, 2022). Similarly, another commenter noted that while chilling effects would have been damaging under any circumstances, they were particularly devastating when the COVID-19 pandemic struck in the United States. The commenter cited to recent evidence that the chilling effect is still impacting many immigrant communities, even though DHS stopped applying the 2019 Final Rule in March 2021. 186 186 Protecting Immigrant Families (PIF), Research Documents Harm of Public Charge Policy During the COVID-19 Pandemic, (Aug. 2021), https://protectingimmigrantfamilies.org/wp-content/uploads/2022/01/PIF-Research-Document_Public-Charge_COVID-19_Jan2022.pdf. A Latino civil rights and advocacy group cited to a Kaiser Family Foundation study, which found that 35 percent of Latino respondents, and 63 percent in the case of potentially undocumented Latino adults, cited concerns that receiving the COVID-19 vaccine would negatively affect either their own or a family member's immigration status, or both. 187 Similarly, a poll conducted by the commenter found that 14 percent of parents are concerned that getting their child vaccinated against COVID-19 might cause immigration problems for themselves or their family. 188 187 Hamel, Liz et al., KFF COVID-19 Vaccine Monitor: COVID-19 Vaccine Access, Information, and Experiences Among Hispanic Adults in the U.S., Kaiser Family Foundation (May 13, 2021), https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-access-information-experiences-hispanic-adults/. 188 UnidosUS, “National Survey of Latino Parents: Economic Concerns and Vaccine Access for Children,” (Washington DC: UnidosUS, September 14, 2021), https://www.unidosus.org/publications/national-survey-of-latino-parents-economic-concerns-and-vaccine-access-for-children/ A State agency wrote that, following issuance of the 2019 Final Rule, the agency spoke to numerous noncitizens who were afraid to apply for public benefits for their U.S. citizen children. This was particularly apparent when [the agency] began its Pandemic-Electronic Benefit Transfer (EBT) program for children. The [agency] program automatically provided food assistance in the form of an EBT card to families in Chicago with children enrolled in the Chicago Public Schools and provided ready to go meals at schools during the height of the pandemic. Many parents did not utilize the assistance for fear of being deemed a public charge in the future. The same agency expressed concern that “if [medical or nutrition benefits] are included in a new public charge rule or if the new final rule is as cumbersome and untenable” as was the 2019 Final Rule, the rule would “likely increase demand for other state-funded social services, such as non-Medicaid behavioral health services, emergency food assistance, and other safety net resources.” When addressing how DHS could reduce or minimize chilling effects when issuing rules addressing public charge inadmissibility, commenters had a number of suggestions, including: • Consider only the use of cash assistance from TANF and SSI in public charge determinations, not the use of Medicaid, SNAP, or public housing benefits, including Medicaid institutional care benefits. • Exclude consideration of other public benefits, such as the Children's Health Insurance Program, the health insurance marketplaces, WIC, or National School Lunch or Breakfast programs, or receipt of the Earned Income or Child Tax Credit. • Exclude dependents' and family members' use of benefits, especially use of benefits by children, as well as by those who use benefits due to reasons such as domestic violence. • Exclude past, current, or future receipt of public benefits from public charge inadmissibility determinations, and instead only find noncitizens inadmissible if they are determined to be likely in the future to rely on the Federal Government to such an extent that the reliance is permanent, primary, and total, meaning the use of the benefits is necessary to avoid destitution. • Limit public charge consideration to only two Federal cash-assistance programs (TANF and SSI), and excluding all State, local, and Tribal benefits from consideration, to make the guidelines simple to communicate and understand. • Clearly define which public benefits would not be considered in a public charge inadmissibility determination ( e.g., SNAP, CHIP, Medicaid, and Affordable Care Act premium subsidies for health coverage through an exchange). In addition, commenters emphasized the importance of simple, streamlined, and easy to communicate rules, and encouraged DHS and other Federal agencies to provide outreach to immigrant communities about the relief afforded by any revised rules. DHS appreciates that the consideration of past and current benefit receipt has resulted and may continue to result in chilling effects, notwithstanding that few categories of noncitizens are actually subject to the public charge ground of inadmissibility, and these categories of noncitizens would likely not have received such benefits to begin with. As discussed elsewhere in this preamble, however, DHS nonetheless believes that it is important to consider a noncitizen's past or current receipt of certain benefits, to the extent that such receipt occurs, as part of the public charge inadmissibility determination. DHS remains interested in public comment regarding ways to shape public communications around the final rule to mitigate chilling effects among U.S. citizens and among the great majority of noncitizens who are either ineligible for the public benefits covered by this rule prior to admission or adjustment of status or are exempt from a public charge determination under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Although such communications materials are not part of the rulemaking, DHS is keenly aware of the established effects of its actions in this policy area and wishes to ensure that the final rule faithfully applies the public charge statute without causing undue confusion among the public. 8. Other Burdens of the 2019 Final Rule The 2019 Final Rule imposed a range of burdens separate and apart from the chilling effects described above. Commenters responding to the ANPRM, as well as those participating in the listening sessions, expressed concerns regarding those burdens. These comments echoed concerns raised in response to the 2018 NPRM. DHS briefly describes the most recent public input here. Some commenters focused on the information collection and evidentiary burdens associated with the rule. Many commenters objected to the burden of collecting documentation for and completing the Form I-944. The Form I-944, together with its instructions, spanned 30 pages and requested a wide range of information on the statutory minimum factors, some of which was duplicative of other filings. Information and supporting documentation included, for instance, an accounting of all liabilities and debts; a list of all assets that can be converted into cash within 12 months; account statements, evidence of real estate value, and other evidence of the value of assets; credit report, if available (or documentation showing that no such report is available); proof of health insurance; and copies of W-2s and income tax returns. One commenter, a professional association, noted that the scope and burden of the Form I-944 created a variety of practical problems. The first is one of simple adjudicative inefficiency. Instead of an adjustment of status application consisting of completed forms and a reasonable number of supporting documents, filings would include hundreds or even thousands of pages of supporting financial documents. USCIS was then charged with maintaining and organizing this voluminous documentation simply to reach the obvious conclusion that an employment-based immigrant, many of whom are offered employment at high salaries well above the poverty line, [is] unlikely to become a public charge. The commenter also noted that the form's scope and burden forced applicants to choose between seeking adjustment of status and collecting and then transmitting, first to an attorney and then to USCIS, a wide range of sensitive financial documents. The commenter encouraged USCIS to limit information collection regarding financial status from employment-based immigrants who have an approved immigrant visa petition containing a valid labor certification or (for an immigrant category for which a labor certification is not required) a valid U.S. job offer. Other commenters focused on the 2019 Final Rule's burdens on public benefit agencies, healthcare providers, and others who interacted with the public in connection with public benefits and therefore expended resources to familiarize themselves with the 2019 Final Rule and to communicate with the public about the rule's terms. Commenters stated that this kind of research and outreach went well beyond the staff's skills and typical responsibilities. One State agency wrote that it “incurred significant costs to support the needs of immigrant-serving community organizations and in responding to the fear and confusion caused by the 2019 public charge rule (published as an NPRM in October 2018 but broadly leaked and reported on in spring 2018).” The agency issued multiple grants to address misinformation and fear in communities and fund family counseling related to the 2018 NPRM and 2019 Final Rule. The commenter wrote that “staff dedicated hundreds of hours planning and implementing State help for immigrants completing the [Form I-944, including] dozens of meetings with both internal staff members and cross-agency staff members, as well as external partners who work with immigrant communities to understand the extensive requirements of the [Form I-944].” The commenter wrote that the resource burden centered on the Form I-944's questions related to the type, amount, and dates of all benefits ever applied for or received, which in the commenter's view were so detailed as to “[make] it highly unlikely that any noncitizen subject to the 2019 rule would have been able to complete the form without intensive consultation with IDHS caseworkers, potentially even caseworkers in multiple states, and/or administering agencies.” Following issuance of the 2019 Final Rule, the commenter observed “a significant increase in the number of customers to our offices. The amount of work needed to prepare for and meet this demand was overwhelming.” The commenter wrote that “[t]he expense of training caseworkers alone cost more than 2,700 person hours and $91,000. Caseworkers were needed to provide information and services to individuals seeking to disenroll from benefits. The estimated administrative cost ranges from 61,500 to 143,500 person hours and over $3 million.” Similarly, another commenter on the ANPRM stated their belief that the 2019 Final Rule “used administrative burdens as a tool to keep people from adjusting their status with the creation of the I-944” which, in their view, imposed a huge paperwork burden on applicants, legal services providers, and attorneys. This commenter went on to state that “[a]dministrative burdens have a disproportionately harmful effect on people with fewer resources” and that such administrative burdens “like onerous paperwork, complex requirements, and opaque guidelines are barriers to equity in federal policies and programs.” 9. The COVID-19 Pandemic Although DHS believes that the approach contained in this proposed rule would be warranted, on both legal and policy grounds, regardless of the effects of the COVID-19 pandemic, DHS includes brief background on the pandemic's effects for three reasons. First, the onset of the COVID-19 pandemic coincided with the implementation of the 2019 Final Rule and had widespread effects on the same population that adjusted their behavior in response to the 2019 Final Rule. As a result, the COVID-19 pandemic's effects necessarily serve as relevant historical context when considering the effects of the 2019 Final Rule. Second, although DHS recognizes that the COVID-19 pandemic has evolved, the pandemic's effects continue, in a variety of ways, to this day. Third, the current COVID-19 pandemic provides certain evidence that another pandemic is not a hypothetical concern and illustrates the importance that this rule account for similar occurrences in the future. The following description is thus a relevant context for this proposed rule as well. a. The COVID-19 Pandemic and Its Effects on Public Health and the Economy Beginning as early as December 2019, just a few months after publication of the 2019 Final Rule, there was an outbreak of a novel coronavirus, now known as severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2), and the disease it causes, now known as coronavirus disease 2019 (COVID-19). 189 On January 30, 2020, the Director-General of the World Health Organization (WHO) declared the outbreak a “public health emergency of international concern” under the International Health Regulations (2005) and on March 11, 2020, the WHO announced that the COVID-19 outbreak can be characterized as a pandemic. 190 On January 31, 2020, the Secretary of HHS declared a public health emergency dating back to January 27, 2020, under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to COVID-19. 191 On March 13, 2020, President Trump declared a National Emergency concerning the COVID-19 outbreak to control the spread of the virus in the United States. 192 189 See Wang, Chen et al., Comment: A Novel Coronavirus Outbreak of Global Health Concern, The Lancet (Jan. 24, 2020), available at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30185-9/fulltext. 190 See WHO, Statement on the second meeting of the International Health Regulations (2005) Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV) (Jan. 30, 2020), available at https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-novel-coronavirus-(2019-ncov) and WHO, Listing of WHO's Response to COVID-19, https://www.who.int/news/item/29-06-2020-covidtimeline. 191 Determination of Public Health Emergency, 85 FR 7316 (Feb. 7, 2020). See also HHS Renewal of Determination That A Public Health Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx (Jan. 14, 2022). The determination that a public health emergency exists due to COVID-19 has subsequentl [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-03788. Public record. Not legal advice.