# Public Charge Ground of Inadmissibility > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-18867 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** September 9, 2022 - **Citation:** 87 FR 55472 ## Text DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts 103, 212, 213, 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: Final rule. SUMMARY: The U.S. Department of Homeland Security (DHS) is amending its regulations to prescribe how it determines whether noncitizens are inadmissible to the United States because they are likely at any time to become a public charge. Noncitizens who are applicants for visas, admission, and adjustment of status 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 rule, DHS would determine that a noncitizen is likely at any time to become a public charge if the noncitizen is 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. On August 14, 2019, DHS issued a different rule on this topic, Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule), which is no longer in effect. This rule implements a different policy than the 2019 Final Rule. DATES: This final rule is effective December 23, 2022. This final rule will apply to applications postmarked on or after the effective date. 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. Executive Summary A. Purpose of the Regulatory Action B. Summary of Legal Authority C. Summary of the Proposed Rule D. Summary of Changes From the NPRM to the Final Rule E. Implementation F. Summary of Costs and Benefits II. Background A. Legal Authority B. The Public Charge Ground of Inadmissibility C. 2019 DHS Inadmissibility on Public Charge Ground Final Rule, Vacatur, and Litigation History D. Current Public Charge Inadmissibility Guidance E. Current Rulemaking III. Response to Public Comments on the Proposed Rule A. Summary of Public Comments B. Comments Expressing General Support for the Proposed Rule C. Comments Expressing General Opposition to the Proposed Rule D. Comments Regarding Legal Authority and Statutory Provisions E. Chilling Effects F. Applicability of the Public Charge Ground of Inadmissibility G. Exemptions, Limited Exemption, and Waivers H. Definitions I. Factors J. Totality of the Circumstances K. Receipt of Public Benefits While Noncitizen Is in an Immigration Category Exempt From Public Charge Inadmissibility L. Receipt of Public Benefits by Those Granted Refugee Benefits M. Denial Decision N. Information Collection (Forms) O. Bonds and Bond Procedures P. Economic Analysis Comments & Responses Q. Out-of-Scope Comments IV. 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. Small Business Regulatory Enforcement Fairness Act of 1996 E. Executive Order 13132 (Federalism) F. Executive Order 12988 (Civil Justice Reform) G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) H. Family Assessment I. National Environmental Policy Act J. Paperwork Reduction Act V. List of Subjects and Regulatory Amendments Table of Abbreviations AAO—Administrative Appeals Office 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 DOD—Department of Defense DOS—U.S. Department of State DOJ—Department of Justice E.O.—Executive Order EOS—Extension of Stay FAM—Department of State Foreign Affairs Manual FBR—Federal Benefit Rate FDA—Food and Drug Administration FPG—Federal Poverty Guidelines FOIA—Freedom of Information Act 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 TVPA—Trafficking Victims Protection Act 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. Executive Summary A. Purpose of the Regulatory Action This rule implements the public charge ground of inadmissibility, found in section 212(a)(4) of the Immigration and Nationality Act (INA), 8 U.S.C. 1182(a)(4), in a manner that will be consistent with congressional direction; that will be clear and comprehensible for officers as well as for noncitizens 1 and their families; and that will lead to fair and consistent adjudications, thereby mitigating the risk of unequal treatment of similarly situated individuals. 1 For purposes of this discussion, DHS uses the term “noncitizen” to be synonymous with the term “alien” as it is used in the INA. Under the INA, noncitizens are inadmissible and therefore (1) ineligible for a visa, (2) ineligible for admission, and (3) ineligible for adjustment of status, if, in the opinion of DHS (or the Department of Justice (DOJ)) or consular officers of the Departments of State (DOS), as applicable), 2 they are likely at any time to become a public charge. 3 While the statute does not define the term “public charge,” it does provide that in making an inadmissibility determination, administering agencies must “at a minimum consider the alien's age; health; family status; assets, resources, and financial status; and education and skills.” 4 The agencies may also consider an Affidavit of Support Under Section 213A of the INA submitted on the noncitizen's behalf when such is required. 5 2 Three different agencies are responsible for applying the public charge ground of inadmissibility, each in a different context or contexts. DHS primarily applies the public charge ground of inadmissibility to applicants for admission at or between ports of entry and when adjudicating certain applications for adjustment of status. DOS consular officers are responsible for applying the public charge ground of inadmissibility as part of the visa application process and for determining whether a visa applicant is ineligible for a visa on public charge grounds at the time of application for a visa. This rule does not revise DOS standards or processes. DOJ is responsible for applying the public charge ground of inadmissibility with respect to noncitizens in immigration court. Immigration judges adjudicate matters in removal proceedings, and the Board of Immigration Appeals and in some cases the Attorney General adjudicate appeals arising from such proceedings. This rule does not revise DOJ standards or processes. DOS consular officers are responsible for applying the public charge ground of inadmissibility as part of the visa application process and for determining whether a visa applicant is ineligible for a visa on public charge grounds at the time of application for a visa. This rule does not revise DOS standards or processes. 3 See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A). Congress has by statute exempted certain categories of noncitizens, such as asylees and refugees, from the public charge ground of inadmissibility. See, e.g., INA secs. 207(c)(3) and 209(c), 8 U.S.C. 1157(c)(3) and 1159(c). A full list of exemptions is included in this rule. 4 See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 5 See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). Beginning in 1999, public charge inadmissibility determinations were made in accordance with the May 26, 1999, Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (1999 Interim Field Guidance), issued by the former Immigration and Naturalization Service (INS). 6 Under that approach, “public charge” was defined as a noncitizen who is “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense.” 7 Under the 1999 Interim Field Guidance, a noncitizen's reliance on or receipt of non-cash benefits such as the Supplemental Nutrition Assistance Program (SNAP), also known as food stamps; Medicaid (except for support for long-term institutionalization); and housing vouchers and other housing subsidies were not considered by DHS in determining whether a noncitizen was deemed likely at any time to become a public charge. 6 See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). Due to a printing error, the Federal Register version of the field guidance appears to be dated “March 26, 1999” even though the guidance was actually signed May 20, 1999, became effective May 21, 1999, and was published in the Federal Register on May 26, 1999. 7 See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689, 28692 (May 26, 1999). On August 14, 2019, DHS issued a rule on the public charge ground of inadmissibility, which is no longer in effect. 8 The 2019 Final Rule expanded DHS's definition of “public charge” and imposed a heavy direct paperwork burden on applicants and DHS officers. The 2019 Final Rule was associated with widespread collateral effects as discussed in section III.E below, 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 collateral effects, during the time that the 2019 Final Rule was in effect, of the 47,555 applications for adjustment of status to which the rule was applied, DHS issued only three denials (which were subsequently reopened and approved) and two Notices of Intent to Deny (which were ultimately rescinded, after which the applications were approved) based on the totality of the circumstances of a public charge inadmissibility determination under section 212(a)(4)(A) and (B) of the INA, 8 U.S.C. 1182(a)(4)(A) and (B). 8 See “Inadmissibility on Public Charge Grounds,” 84 FR 41292 (Aug. 14, 2019), as amended by “Inadmissibility on Public Charge Grounds; Correction,” 84 FR 52357 (Oct. 2, 2019). This final rule would implement a different policy than the 2019 Final Rule. As stated above, in this new rule, DHS will implement section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), in a manner that will be clear and comprehensible for officers as well as for noncitizens and their families and will lead to fair and consistent adjudications, thereby mitigating the risk of unequal treatment of similarly situated individuals. In this rule, DHS has declined to include certain aspects of the 2019 Final Rule that in DHS's view caused undue fear and confusion, such as (1) a complicated and unnecessarily broad definition of “public charge”; (2) mandatory consideration of past, current, and future receipt of certain supplemental public benefits, notwithstanding that most noncitizens subject to the public charge ground of inadmissibility would not have been eligible for such benefits at the time of application (and notwithstanding the potential collateral effects of this policy on U.S. citizen children in mixed-status households and noncitizens who are not subject to the public charge ground of inadmissibility); (3) burdensome and in some instances duplicative information collection requirements; (4) designation of certain factors or sets of factual circumstances as “heavily weighted”; and (5) imposition of a “public benefit condition” for extension of stay and change of status, notwithstanding that the nonimmigrant population to whom this condition applied is largely ineligible for such benefits. As discussed at greater length below, DHS believes that, in contrast to the 2019 Final Rule, this rule would effectuate a more faithful interpretation of the statutory phrase “likely at any time to become a public charge”; avoid unnecessary burdens on applicants, officers, and benefits-granting agencies; and mitigate the possibility of widespread “chilling effects” 9 with respect to individuals disenrolling or declining to enroll themselves or family members in public benefits programs for which they are eligible, especially with respect to individuals who are not subject to the public charge ground of inadmissibility. Under this rule, similar to the 1999 Interim Field Guidance that was in place for two decades prior to the 2019 Final Rule, noncitizens 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. 9 The term “chilling effects” used throughout this rule is meant to convey the indirect effect of chilling an individual's participation in public benefit programs, regardless of whether they are subject to the public charge ground of inadmissibility, based on fear of negative immigration consequences. This final rule also makes important clarifications and changes as compared to the 1999 Interim Field Guidance. For instance, this rule clarifies DHS's approach to consideration of disability and long-term institutionalization at government expense; states a bright-line rule against considering the receipt of public benefits by an applicant's dependents (such as a U.S. citizen child in a mixed-status household); and changes the Form I-485 to collect additional information relevant to the public charge inadmissibility determination. DHS also added streamlined provisions to clarify acceptance, form, and amount of USCIS public charge bonds, as well as cancellation of public charge bonds. Finally, later in this preamble, in response to public comments, DHS further clarifies that primary dependence connotes significant reliance on the government for support, and means something more than dependence that is merely transient or supplementary. The rule also contains multiple additional provisions and definitions, some of which are consistent with aspects of the 1999 Interim Field Guidance (and the 2019 Final Rule), and some of which differ in material respects. B. Summary of Legal Authority The authority of the Secretary of Homeland Security (Secretary) for the regulatory amendments is found in section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), which governs public charge inadmissibility determinations; section 235 of the INA, 8 U.S.C. 1225, which addresses applicants for admission; and section 245 of the INA, 8 U.S.C. 1255, which addresses eligibility criteria for applications for adjustment of status. In addition, section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3), authorizes the Secretary to establish such regulations as the Secretary deems necessary for carrying out the Secretary's authority under the INA. C. Summary of the Proposed Rule On February 24, 2022, DHS published a notice of proposed rulemaking, Public Charge Ground of Inadmissibility (NPRM). 10 The NPRM proposed to prescribe how DHS would determine whether a noncitizen is inadmissible to the United States under section 212(a)(4) of the INA). Under the NPRM, 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 the NPRM, DHS proposed definitions for the terms “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.” 10 87 FR 10570 (Feb. 24, 2022). In the NPRM, DHS proposed to adopt a standard similar to the one used in the 1999 Interim Field Guidance and related 1999 NPRM, which tied public charge inadmissibility to primary dependence on the government for subsistence, as demonstrated by the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. The NPRM also identified the groups of individuals generally subject to or exempt from the public charge inadmissibility ground and provided a list of statutory and regulatory exemptions from and waivers of the public charge ground of inadmissibility. DHS continues to believe that the “primarily dependent” standard properly balances the competing policy objectives established by Congress. 11 Although the term “public charge” does not have a single clear meaning, its basic thrust is clear: significant reliance on the government for support. This has been the longstanding purpose of the public charge ground of inadmissibility; individuals who are unable or unwilling to work to support themselves, and who do not have other nongovernmental means of support such as family members, assets, or sponsors, are at the core of the term “public charge.” Individuals who are likely to primarily rely on their own resources, while secondarily relying on some government support, are less readily characterized as public charges. DHS does not believe that the term is best understood to include a person who receives benefits from the government to help to meet some needs but is not primarily dependent on the government and instead has one or more sources of independent income or resources upon which the individual primarily relies. 11 In the 2019 Final Rule, DHS canvassed a range of sources to support the proposition that the statute was ambiguous and that the new definition represented a reasonable interpretation of such ambiguity in light of the policy goals articulated in PRWORA. For example, DHS wrote that the rule “is not inconsistent with Congress' intent in enacting the public charge ground of inadmissibility in [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)], or in enacting PRWORA.” See “Inadmissibility on Public Charge Grounds,” 84 FR 41292, 41317 (Aug. 14, 2019). DHS noted that Congress enacted those two laws in the same year, that IIRIRA amended the public charge inadmissibility statute, and that PRWORA contained the statements of national policy. DHS continued by stating that the rule, “in accordance with PRWORA, disincentivizes immigrants from coming to the United States in reliance on public benefits.” Ibid. Similarly, in support of a similar definition of “public charge” in the 2018 NPRM, DHS wrote that “the term public charge is ambiguous as to how much government assistance an individual must receive or the type of assistance an individual must receive to be considered a public charge. The statute and case law do not prescribe the degree to which an alien must be receiving public benefits to be considered a public charge. Given that neither the statute nor the case law prescribes the degree to which an alien must be dependent on public benefits to be considered a public charge, DHS has determined that it is permissible and reasonable to propose a different approach.” See “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51164 (Oct. 10, 2018). DHS continues to believe that the statute is ambiguous, but for reasons discussed throughout this preamble, DHS now believes the interpretation contained in this rule reflects a reasonable and indeed the most appropriate interpretation of the statute. To evaluate a person's likelihood to become primarily dependent on the government for subsistence, DHS proposed to designate a list of public benefits that would be considered for purposes of a public charge inadmissibility determination. DHS recognized that the universe of public benefits is quite large. In seeking to provide clear notice of the effects of the rule and to limit certain undesired collateral effects that may be associated with the rule (such as indirect effects on social service providers and chilling effects), DHS proposed to designate public cash assistance for income maintenance ( i.e., Supplemental Security Income (SSI), cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF), and State, Tribal, territorial, or local cash benefit programs for income maintenance) and long-term institutionalization at government expense as the benefits that DHS would consider as part of the public charge inadmissibility determination. DHS believes that this approach—the “primarily dependent” standard and the focus on the specific benefits contained in the proposed rule—is consistent with a more faithful interpretation of the term “public charge” and has the additional benefit of being more administrable and consistent with longstanding practice than the 2019 Final Rule. 12 DHS has also determined that this approach is less likely to result in the significant chilling effects among both noncitizens who are not subject to the public charge ground of inadmissibility and U.S. citizens, along with certain effects on State and local governments and social service providers (such as increases in inquiries regarding the public charge implications of receiving certain benefits and increases in uncompensated care), that were observed following promulgation of the 2019 Final Rule. 12 The 2019 Final Rule also designated a specific list of public benefits as relevant to the public charge determination, which included benefits other than cash assistance for income maintenance and long-term institutionalization at government expense such as SNAP, most non-emergency forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher (HCV) Program, Section 8 Project-Based Rental Assistance, and public housing under the Housing Act of 1937. DHS sought comment on the proposal to consider cash assistance for income maintenance, but not non-cash benefits (apart from long-term institutionalization at government expense), in determining whether a noncitizen is likely at any time to become primarily dependent on the government for subsistence. As explained below, following receipt of a range of public comments on this topic (including proposals to narrow, expand, or maintain the proposed list of public benefits), DHS has decided to finalize this aspect of the proposed rule without change other than the inclusion of an additional provision in the final rule clarifying the continuation of this policy, which was articulated in the 1999 Interim Field Guidance and reiterated in the recent NPRM. In addition to proposing new definitions, DHS proposed the factors that DHS would consider in prospectively determining whether an applicant for admission or adjustment of status before DHS is inadmissible on the public charge ground in the totality of the circumstances. Those factors include the statutory minimum factors of age; health; family status; assets, resources, and financial status; and education and skills; as well as past receipt of designated public benefits. DHS specifically stated that the fact that an applicant has a disability, as defined by section 504 of the Rehabilitation Act (Section 504), would not alone be a sufficient basis to determine whether the noncitizen is likely at any time to become a public charge. In addition, DHS proposed to revise the existing information collection, Form I-485, Application to Register Permanent Residence or Adjust Status, to include additional questions regarding several of the statutory minimum factors: family status; assets, resources, and financial status; education and skills; as well as past receipt of the designated public benefits. As proposed, the additional questions would apply to only those applicants who are subject to the public charge ground of inadmissibility. DHS also proposed to require that all written denial decisions issued by USCIS to applicants reflect consideration of each of the statutory minimum factors, the Affidavit of Support Under Section 213A of the INA, where required, and the noncitizen's current and/or past receipt of public benefits, consistent with the standards set forth in the proposed rule, and to specifically articulate the reasons for the officer's determination. DHS also proposed to tailor its rule to limit the effects of certain regulatory provisions on discrete populations. DHS proposed not to consider public benefits received by a noncitizen during periods in which the noncitizen was present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility, or for which the noncitizen received a waiver of public charge inadmissibility, as well as not to consider any public benefits received by a noncitizen who was made eligible by Congress for resettlement assistance, entitlement programs, and other benefits available to refugees, even if the noncitizen was not admitted as a refugee under section 207 of the INA, 8 U.S.C. 1157. Finally, DHS proposed amending regulations related to T nonimmigrant status holders, clarifying that these T nonimmigrants seeking adjustment of status are not subject to the public charge ground of inadmissibility. DHS received 223 comments on the proposed rule, the majority of which expressed support or qualified support for the policy approach articulated in the proposed rule. A few of the public comments supported a return to the framework contained in the 2019 Final Rule. The preamble to this final rule includes summaries of the significant issues raised in the comments, and includes responses to those comments and explanations for policy changes. D. Summary of Changes From the NPRM to the Final Rule Following careful consideration of public comments received, DHS has made several changes to the regulatory text proposed in the NPRM. 13 As discussed in detail in the comment responses, the changes in this final rule are as follows: 13 87 FR at 10668-10671 (Feb. 24, 2022). 1. Definitions a. Definition of Household In response to public comments, DHS added a definition of “household” to be used in connection with the family status and assets, resources, and financial status factors. The noncitizen's household will include: • The noncitizen; • If physically residing with the noncitizen, the noncitizen's spouse, parents, unmarried siblings under 21 years of age, and children; • Any other individuals who are listed as dependents on the noncitizen's federal income tax return; and • Any other individuals who list the noncitizen as a dependent on their federal income tax return. DHS notes that a noncitizen's household's income includes income provided to the household from sources who are not members of the household, including but not limited to alimony or child support. b. Definition of Long-Term Institutionalization at Government Expense DHS replaced the term “alien” with the term “beneficiary” to clarify that the forward-looking nature of the public charge inquiry includes long-term institutionalization that occurs after the applicant for admission or adjustment of status is no longer an “alien,” as that term is defined in the INA. c. Definition of Receipt (of Public Benefits) DHS replaced the term “alien” with the term “individual” to clarify that the forward-looking nature of the public charge determination includes public cash assistance for income maintenance that is received after the applicant for admission or adjustment of status is no longer an “alien,” as that term is defined in the INA. 2. Statutory Minimum Factors DHS modified 8 CFR 212.22(a)(1) from the proposed version in the following ways: d. General DHS eliminated the duplicative text “at a minimum” from paragraph (a)(1). e. Health DHS added text stating that DHS will consider the noncitizen's health as evidenced by a report of an immigration medical examination performed by a civil surgeon or panel physician where such examination is required in making public charge inadmissibility determinations. DHS will generally defer to the report of the examination unless there is evidence that the report is incomplete. f. Family Status DHS added text stating that DHS will consider the noncitizen's family status as evidenced by the noncitizen's household size. “Household” is defined in 8 CFR 212.21(f). g. Assets, Resources, and Financial Status DHS added text stating that DHS will consider the noncitizen's assets, resources, and financial status as evidenced by the noncitizen's household's income, assets, and liabilities (excluding any income from public benefits listed in 8 CFR 212.21(b) and income or assets from illegal activities or sources such as proceeds from illegal gambling or drug sales). h. Education and Skills DHS added text stating that DHS will consider the noncitizen's education and skills as evidenced by the noncitizen's degrees, certifications, licenses, skills obtained through work experience or educational programs, and educational certificates. 3. Consideration of Current and/or Past Receipt of Public Benefits DHS clarified the regulatory text by stating that DHS will not consider the receipt of, or certification or approval for future receipt of, public benefits not referenced in 8 CFR 212.21(b) or (c), such as Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children's Health Insurance Program (CHIP), Medicaid (other than for long-term use of institutional services under section 1905(a) of the Social Security Act), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits. This policy was discussed at length in the proposed rule's preamble, but DHS has included a more direct statement to that effect in the final regulatory text. As further explained in the proposed rule's preamble and in response to comments below, DHS has opted for an approach in which it considers past or current receipt of the benefits most indicative of whether a person is likely to become primarily dependent on the government for subsistence while excluding from consideration a range of benefits that are less probative of primary dependence—and for which applicants for admission and adjustment of status are most often ineligible in any event. This choice, informed by on-the-record input from benefits-granting agencies, allows DHS to faithfully administer the statute without deterring eligible noncitizens and their families, including U.S. citizen children, from seeking important benefits for which they are eligible and which it is in the public interest for them to receive. 4. Public Charge Bonds a. Cancellation and Breach of Public Charge Bonds DHS is amending 8 CFR 103.6(c)(1), relating to the cancellation and breach of public charge bonds. With these amendments, DHS is: • Clarifying that a public charge bond will be cancelled upon death, permanent departure, or naturalization of the immigrant, provided that the immigrant did not breach such bond by receiving public cash assistance for income maintenance or long-term institutionalization at government expense; • Stating that a public charge bond may be cancelled by USCIS after the fifth anniversary of the immigrant's admission or adjustment of status, provided the immigrant files a Form I-356, Request for Cancellation of Public Charge Bond, requesting the cancellation, and USCIS finds that the immigrant did not receive public cash assistance for income maintenance or long-term institutionalization at government expense prior to that fifth anniversary; and • Making technical updates to clarify that bond cancellation authority lies with USCIS rather than district directors. b. Public Charge Bond Acceptance, Form, and Amount DHS is amending 8 CFR 213.1, relating to the acceptance of public charge bonds. With these amendments, DHS is: • Adding a new paragraph specifying that USCIS may invite adjustment of status applicants who are inadmissible only under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and whose applications are otherwise approvable, to submit a public charge bond in USCIS' discretion and clarifying that USCIS will set the bond amount and provide instructions for submission of the bond; • Modifying the existing regulatory language relating to acceptance of bonds from noncitizens seeking immigrant visas from DOS, clarifying that USCIS will provide instructions for the submission of the bond, USCIS is the agency that accepts the bond, and that the consular officer will set the amount of the bond; and • Revising the existing regulatory language about form and bond amount of public charge bonds by eliminating reference to a specific form number, stating that USCIS or the consular officer will set the amount of the bond of an amount no less than $1,000, and requiring USCIS to provide a receipt to the noncitizen or an interested party on a form designated by USCIS for such purpose. E. Implementation DHS will begin implementing this final rule on its effective date ( i.e., on December 23, 2022). This final rule will apply to applications for adjustment of status that are postmarked on or after the effective date. During the period between publication and the effective date, DHS will also conduct necessary public outreach to minimize the risk of confusion or chilling effects among both noncitizens and U.S. citizens. On or before this date, consistent with 8 CFR 212.22(b) DHS will issue subregulatory guidance to inform, but not dictate the outcome of, officers' totality of the circumstances determinations. F. Summary of Costs and Benefits The rule will result in new costs, benefits, and transfers. To provide a full understanding of the impacts of the rule, DHS considers the potential impacts of this final 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. As DHS suggested in the 2019 Final Rule, those effects would primarily be experienced by persons who are not subject to the public charge ground of inadmissibility and who might disenroll from public benefits or forgo enrollment in public benefits due to fear and confusion regarding the scope of the regulatory alternative. 14 Further discussion of the regulatory alternative can be found in the “Regulatory Alternative” section. 14 “Inadmissibility on Public Charge Grounds,” 84 FR 41292, 41313 (Aug. 14, 2019). Relative to the No Action Baseline, the primary source of quantified new direct costs for the final rule is the increase in the time required to complete Form I-485. DHS estimates that the rule would impose additional new direct costs of approximately $6,435,755 annually to applicants filing Form I-485. In addition, the rule will 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 will be approximately $15,359. DHS estimates that the total annual net costs will be approximately $6,420,396. 15 15 Calculations: Total annual net costs ($6,420,396) = Total annual costs ($6,435,755)—Total annual savings ($15,359). Over the first 10 years of implementation, DHS estimates the total net costs of the rule will be approximately $64,203,960 (undiscounted). In addition, DHS estimates that the 10-year discounted total net costs of this rule will be approximately $54,767,280 at a 3-percent discount rate and approximately $45,094,175 at a 7-percent discount rate. DHS expects the primary benefit of this final rule to be the non-quantified benefit of increased clarity in the rules governing public charge inadmissibility determinations. By codifying into regulations the current practice under the No Action Baseline (the 1999 Interim Field Guidance) with some changes, the final rule reduces uncertainty and confusion. The following two tables provide a more detailed summary of the provisions and their impacts relative to the No Action Baseline and Pre-Guidance Baseline, respectively. ER09SE22.000 ER09SE22.001 ER09SE22.002 ER09SE22.003 ER09SE22.004 ER09SE22.005 ER09SE22.006 ER09SE22.007 II. Background A. Legal Authority The Secretary's authority for issuing this rule is found in various sections of the INA (8 U.S.C. 1101 et seq. ) and the Homeland Security Act of 2002 (HSA). 16 16 See Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. (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. 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. 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 (typically adjudicated by DOS consular officers), for admission (typically adjudicated by U.S. Customs and Border Protection officers and U.S. Border Patrol Agents, and governed by this rule), or for adjustment of status to that of a lawful permanent resident (governed by this rule when adjudicated by U.S. Citizenship and Immigration Services officers). 17 By statute, some categories of noncitizens are exempt from the public charge ground of inadmissibility, while others may apply for a waiver of the public charge inadmissibility ground. 18 17 See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 18 See INA sec. 245(j), 8 U.S.C. 1255(j). See 8 CFR 245.11. See INA sec. 245(h)(2)(A), 8 U.S.C. 1255(h)(2)(A). See INA sec. 245(l)(2)(A), 8 U.S.C. 1255(l)(2)(A). See INA sec. 212(d)(3)(A), 8 U.S.C. 1182(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. 19 Additionally, section 212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits the consular officer or the immigration officer to consider any Affidavit of Support Under Section 213A of the INA submitted on the applicant's behalf, when determining whether the applicant is likely at any time to become a public charge. 20 19 See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). 20 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). With very limited exceptions, most noncitizens seeking family-based immigrant visas and adjustment of status, and some noncitizens seeking employment-based immigrant visas or adjustment of status, must submit a sufficient Affidavit of Support Under Section 213A of the INA in order to avoid being found inadmissible as likely at any time to become a public charge. See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D). Additionally, 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. 21 21 See INA sec. 213, 8 U.S.C. 1183. C. 2019 DHS Inadmissibility on Public Charge Ground Final Rule, Vacatur, and Litigation History In August 2019, DHS issued a final rule, Inadmissibility on Public Charge Grounds (2019 Final Rule). 22 As explained in more detail in the NPRM, 23 the 2019 Final Rule provided key definitions, including “public charge” and “public benefits,” and provided a multi-factor framework along with associated evidentiary requirements through which USCIS would determine inadmissibility on the public charge ground. The 2019 Final Rule added provisions that rendered certain nonimmigrants ineligible for extension of stay or change of status if they received public benefits for a certain period, and 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. The 2019 Final Rule did not interpret or change DHS's implementation of the public charge ground of deportability. 24 22 See “Inadmissibility on Public Charge Grounds,” 84 FR 41292 (Aug. 14, 2019), as amended by “Inadmissibility on Public Charge Grounds; Correction,” 84 FR 52357 (Oct. 2, 2019). 23 See 87 FR at 10606 (Feb. 24, 2022). 24 See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See “Inadmissibility on Public Charge Grounds,” 84 FR 41292, 41295 (Aug. 14, 2019). Also as discussed in the NPRM, 25 the 2019 Final Rule was set to take effect on October 15, 2019. Before it did, numerous Plaintiffs filed suits challenging the 2019 Final Rule in five district courts, across four circuits. 26 Following a series of preliminary injunctions and stays or reversals of those injunctions, the 2019 Final Rule was ultimately vacated nationwide by a partial final judgment entered by the U.S. District Court for the Northern District of Illinois. 27 DHS subsequently formally removed the 2019 Final Rule from the Code of Federal Regulations. 28 25 See 87 FR at 10586 (Feb. 24, 2022). 26 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.). 27 See Cook County v. Wolf, 498 F. Supp. 3d 999 (N.D. Ill. Nov. 2, 2020). 28 See “Inadmissibility on Public Charge Grounds; Implementation of Vacatur,” 86 FR 14221 (Mar. 15, 2021). The litigation concerning the 2019 Final Rule continued, with attempts by certain States to intervene in the various cases. On May 12, 2021, a collection of States filed motions to intervene in the U.S. District Court for the Northern District of Illinois for reconsideration of the grant of partial summary judgment and for other relief. 29 The motions were denied, and prospective intervenors noted their appeal to the U.S. Court of Appeals for the Seventh Circuit. 29 See Texas, et al. v. Cook County, Illinois, et al., 1:19-cv-0633419 (N.D. Ill. May 12, 2021). Separately, on March 10, 2021, a collection of prospective intervenors, led by the State of Arizona, filed an unsuccessful motion to intervene before the U.S. Court of Appeals for the Ninth Circuit. 30 The prospective intervenors then filed a motion before the Supreme Court seeking leave to intervene, which the Court ordered to be held in abeyance while the prospective intervenors filed a petition for certiorari from the Ninth Circuit intervention denial, which was filed on June 23, 2021. 31 On October 29, 2021, the Supreme Court granted certiorari on a single issue of the three presented in the petition: “Whether States with interests should be permitted to defend a rule when the United States ceases to defend.” On June 15, 2022, the Supreme Court dismissed the writ of certiorari as improvidently granted. 32 30 City and County of San Francisco, et al. v. USCIS et al., 19-17213 (9th Cir.). 31 Arizona, et al., v. City and County of San Francisco, et al., 20-1775 (U.S. Oct. 29, 2021). 32 Arizona, et al., v. City and County of San Francisco, et al., 20-1775 (U.S. June 15, 2022). On June 27, 2022, the U.S. Court of Appeals for the Seventh Circuit ruled that the U.S. District Court for the Northern District of Illinois did not abuse its discretion in denying the States' motions to intervene in the proceedings concerning the 2019 Final Rule and request for relief from judgment under Rule 60(b). 33 Other aspects of the litigation concerning the 2019 Final Rule have been stayed, with varying reporting requirements, pending the outcome of the intervention litigation. 33 Cook County, Illinois, et al. v. State of Texas, et al., 37 F. 4th 1335 (7th Cir. 2022). D. Current Public Charge Inadmissibility Guidance As discussed in the NPRM, DHS currently makes public charge inadmissibility determinations in accordance with the statute and the 1999 Interim Field Guidance. 34 The guidance explains how the agency determines if a noncitizen is likely at any time to become a public charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Under the guidance, officers can offer public charge bonds, but the guidance does not provide procedures for public charge bonds. 34 See 87 FR at 10585 (Feb. 24, 2022). E. Current Rulemaking On August 23, 2021, DHS published an Advance Notice of Proposed Rulemaking (ANPRM) to seek broad public feedback on the public charge ground of inadmissibility to inform its development of a future regulatory proposal. 35 USCIS sought input from individuals, organizations, government entities and agencies, and all other interested members of the public. USCIS held two public listening sessions and accepted written comments and related material through October 22, 2021. DHS reviewed all of the comments and considered them in developing the NPRM. 36 35 See “Public Charge Ground of Inadmissibility,” 86 FR 47025 (Aug. 23, 2021). 36 See 87 FR at 10597 (Feb. 24, 2022). On February 24, 2022, DHS published a proposed rule, Public Charge Ground of Inadmissibility. 37 The public comment period closed on April 25, 2022. Following careful consideration of public comments received in response to the NPRM, DHS has made modifications to the regulatory text proposed in the NPRM, as described above and throughout this preamble. 37 “Public Charge Ground of Inadmissibility,” 87 FR 10570 (Feb. 24, 2022). The following section of this preamble includes a detailed summary and analysis of the public comments received on the NPRM. Comments made in response to the ANPRM and the NPRM may be reviewed at the Federal Docket Management System (FDMS) at https://www.regulations.gov, docket number USCIS-2021-0013. III. Response to Public Comments on the Proposed Rule A. Summary of Public Comments DHS received a total of 223 public comment submissions in Docket USCIS-2021-0013 in response to the proposed rule. The majority of comment submissions were from advocacy groups or individual commenters. Other commenters included anonymous commenters; healthcare providers; research institutes, universities, and academic researchers; law firms, individual attorneys, and other legal services providers; Federal, State, and local elected officials; State and local government agencies; religious and community organizations; unions; Federal Government officials; professional associations; and trade and business organizations. While some commenters opposed the rule and some commenters supported the rule in its entirety, the majority of commenters expressed support for the rule with suggestions for improvement, or indicated that they believed the proposed rule was flawed in some way, but a significant improvement over the 2019 Final Rule. A few of the public comments supported a return to the framework contained in the 2019 Final Rule. B. Comments Expressing General Support for the Proposed Rule Comment: Many commenters were generally in favor of the proposed rule and expressed support for clarifying the public charge ground of inadmissibility. Some of those commenters stated that the rule ensures that the public charge ground of inadmissibility will be implemented in a clear, consistent, and fair manner. Several commenters praised the rule on the grounds that it requires less paperwork for applicants as compared to the 2019 Final Rule, and allows for administration of the public charge ground of inadmissibility without generating undue fear and confusion. Another commenter similarly stated that the rule is the best option because it respects the rights of the greatest number of stakeholders and produces the best outcome with the least harm. This commenter remarked that this rule would allow more people “who are fit to immigrate a chance to” do so, while keeping more families together. One commenter expressed support for the proposed rule, stating it is critical that DHS move quickly to finalize a more fair and equitable public charge rule that minimizes the harm to children and families, while recognizing the need to create an inclusive and anti-racist system. One commenter stated that they support the development of a rule that avoids the unequal treatment of similarly situated persons, and that a rule that is straightforward and administrable can be applied fairly and consistently. Response: DHS agrees that this rule will help ensure that public charge inadmissibility determinations are fair, consistent with law, and informed by relevant data and evidence. Additionally, DHS agrees that this rule reduces unnecessary burdens on applicants as compared to the 2019 Final Rule. Notwithstanding that the 2019 Final Rule resulted in very few adverse determinations, that rule introduced a new form and form instructions spanning over 45 pages, which was in addition to the more than 60 pages of form and form instructions associated with the Form I-485, Application to Register Permanent Residence or Adjust Status. This rule introduces a more targeted information collection that collects the necessary information under the statute and this rule without imposing an unnecessary paperwork burden on the public. Comment: Several commenters stated that immigrants fill valuable jobs that U.S. citizens may not generally favor, such as direct care work, which can be very challenging and important but poorly compensated. A commenter remarked that immigrants contribute to the United States through paying their taxes, and others stated that increased immigration would have a positive effect on the current pandemic economy. Two other commenters stated that the rule will allow more noncitizens to immigrate and access public education, which will allow them to obtain better jobs and support themselves and their families. Response: DHS appreciates commenters' support for this rule and notes that any impacts on the U.S. economy, job creation, or better access to education would be indirect effects of the rule, and the rule, designed to implement congressional directions, would be justified even in the absence of such benefits. The fundamental intent of this rule is to help ensure that public charge inadmissibility determinations will be consistent with law, fair, and informed by relevant data and evidence. DHS also expects that this rule will help alleviate the chilling effects caused by previous public charge policies. Historical evidence, both prior to the 2019 Final Rule and from the period of time during which that rule was in effect, does not suggest that this final rule is likely to meaningfully change the overall volume of immigration to the United States. Comment: One commenter commended USCIS on the overall direction of the NPRM and said that the proposed rule is a reasonable interpretation of the statutory public charge ground of inadmissibility that is generally consistent with long-time agency policy and an improvement on the 1999 Interim Field Guidance. Another commenter stated that the rule clearly seeks to avoid the barriers to immigration imposed by the 2019 Final Rule while preserving the integrity of the enforcement of the public charge ground of inadmissibility. Response: DHS agrees that this rule is generally consistent with longstanding agency policy and is a reasonable interpretation of the statutory language in section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). DHS believes this rule codifies a policy that is fully consistent with law, that reflects empirical evidence to the extent relevant and available, and that allows flexibility for officers to benefit from the emergence of new evidence as time passes. DHS believes that this rule will create clear and comprehensible adjudicative standards that will lead to fair and consistent adjudications and ensure equitable treatment of similarly situated individuals. DHS also believes that this rule will not unduly impose barriers for noncitizens or unduly interfere with the receipt of supplemental public benefits, especially by those who are not subject to the public charge ground of inadmissibility. Comment: One commenter indicated agreement with the rule and stated that a person who wants permission to enter the United States should only be allowed to do so if they demonstrate that they would not become a public charge now or sometime in the future. Further, the commenter stated that anyone entering the country illegally should be sent back to their country if they cannot show that they will not become a public charge. Response: Consistent with section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), any noncitizen who is an applicant for a visa, admission, or adjustment of status must demonstrate that they are not likely at any time to become a public charge, unless Congress has expressly exempted them from this ground. If DHS determines an applicant for admission or adjustment of status who is subject to this inadmissibility ground is likely at any time to become a public charge, the applicant is inadmissible and will not be admitted to the United States or granted adjustment of status unless they are eligible for and receive a waiver or are offered and post a public charge bond. In regard to noncitizens who are entering the United States without authorization, to the extent that such noncitizens are applicants for admission, and subject to the public charge ground of inadmissibility, if they are unable to demonstrate that they are not likely at any time to become a public charge, they would not be admitted unless they are eligible for and receive a waiver or are offered and post a public charge bond. Such individuals may also be removable on other grounds. C. Comments Expressing General Opposition to the Proposed Rule Comment: Many commenters stated that they opposed the rule because, in their opinion, the statutory public charge ground of inadmissibility and as a consequence the corresponding proposed rule are racist, xenophobic, based on white nationalism, or otherwise discriminatory. Several commenters stated that the United States should be doing more to help immigrants, and offering them aid and assistance. One commenter said that this rule is intended to prevent immigration, while another commenter stated that the proposed rule seeks to punish potential immigrants for the simple act of being born outside of the United States, and enforces a wealth test that counteracts the reason for the founding of this nation and the legacy of the American dream. A different commenter similarly said that the proposed rule went against the values of the United States. Some commenters stated that it is unfair to reject immigrants based on the public charge ground of inadmissibility because it would take away opportunities for them to have a better life. Response: DHS seeks to be faithful to the relevant statute and hence to congressional directions. For that reason, DHS disagrees with the suggestion that the rule is contrary to the laws and values of the United States, or that the rule implies that immigrants are inherently less worthy than U.S. citizens. DHS does not intend or expect that this rule will have a discriminatory effect based on race, nationality, gender, disability, or any other protected ground. Importantly, the statute does not direct DHS to consider a noncitizen's race, nationality, or gender. 38 Under this rule, DHS will not consider such characteristics when making a public charge inadmissibility determination. DHS cannot rule out the possibility of disproportionate impacts on certain groups (whether as a consequence of the policy contained in this rule, the 1999 Interim Field Guidance, or any other policy), but this rule is neutral on its face and DHS in no way intends that it will have such impacts on any protected group. DHS is committed to applying this rule neutrally and fairly to all noncitizens who are subject to it and has included a provision requiring that USCIS denials on public charge grounds be accompanied by a written explanation that specifically articulates the reasons for the officer's determination. 39 38 INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). 39 See 8 CFR 212.22(c). Additionally, this rule does not apply a “wealth test.” Consistent with the governing statute, it looks only at whether an applicant for admission or adjustment of status is likely at any time in the future to become primarily dependent on the government for subsistence after consideration of several factors, none of which alone determine the final outcome. In that analysis, the consideration of assets, resources, and financial status is one factor to be considered in the totality of the noncitizen's circumstances. In addition, as discussed in the NPRM, DHS has taken care to address the potential collateral effects of this rule on the public, including potential chilling effects, by including a range of important provisions. For instance, this rule includes a clear list of statutory exemptions from the public charge ground of inadmissibility; excludes consideration of a noncitizen's past receipt of public benefits while in a status exempt from the public charge ground of inadmissibility; makes clear that a noncitizen's receipt of public benefits solely on behalf of another person (such as a U.S. citizen child) will not work to the noncitizen's disadvantage; and excludes consideration of most non-cash benefits (for which most noncitizens subject to the public charge ground of inadmissibility are ineligible), except in the limited circumstance of long-term institutionalization at government expense. DHS has concluded that this rule is generally consistent with longstanding agency policy and is a reasonable interpretation of the statutory language. DHS further intends that this rule will lead to fair and consistent adjudications, will avoid unequal treatment of similarly situated individuals, and will not otherwise unduly impose barriers for noncitizens seeking admission to or adjustment of status in the United States. 40 Congress requires DHS to consider an applicant's age; health; family status; assets, resources, and financial status; and education and skills as part of the public charge inadmissibility determination. In the NPRM, DHS proposed to include an objective, data-informed consideration in the totality of the circumstances analysis and is retaining this consideration in this final rule. Namely, when DHS issues guidance to officers that informs the totality of the circumstances assessment, such guidance will consider how these factors affect the likelihood that a noncitizen will become a public charge at any time, and will be based on an empirical analysis of the best-available data as appropriate. The nature of the public charge inadmissibility determination under this rule—a prospective determination made in the totality of the circumstances “in the opinion” of the immigration officer—renders it amenable to sub-regulatory guidance that identifies a range of nonbinding considerations and can be updated to account for advancements in the best-available data. DHS acknowledges that it cannot eliminate the possibility of officer bias, but USCIS adjudicators are trained professionals and as with other immigration determinations, adjudicators will specifically articulate the reasons for a proposed adverse determination and will provide an opportunity to respond. 41 40 See Executive Order (E.O.) 14012, “Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans,” 86 FR 8277 (Feb. 5, 2021). 41 See 8 CFR 212.22(c). Comment: Several commenters stated that it is immoral for immigration policy to impoverish vulnerable individuals and their family members who are otherwise eligible for cash assistance, physical and mental health care, nutrition, or housing benefits. One commenter remarked that targeting social programs intended to help the general public is a waste of resources, and appears to suggest that the government should instead focus on people who are violating other laws. Response: This rule is designed to adhere to, and to implement, congressional instructions. It is not designed to impoverish individuals or require individuals to prove their particular utility to the U.S. economy. Consistent with the statutory directive to determine whether a noncitizen is likely at any time to become a public charge, this rule directs DHS to consider the past or current receipt of public cash assistance for income maintenance and long-term institutionalization at government expense. DHS will be doing so in the totality of the noncitizen's circumstances, and will also take into account the amount, duration, and recency of such receipt. Nothing in this rule directs noncitizens to stop receiving any public benefit considered in this rule, and past or current receipt of public benefits is not alone dispositive of whether or not a noncitizen will be determined to be inadmissible on the public charge ground. While the commenter did not explain why they thought this rule targets social programs or in which way, DHS disagrees with the statement that the NPRM or this final rule “targets” social programs. Nothing in this rule affects eligibility for any one or more public benefits. Instead, DHS is simply establishing which public benefits it will consider in public charge inadmissibility determinations. The benefits that DHS is considering in this rule are the benefits it believes are more indicative of whether a noncitizen is likely to become primarily dependent on the government for subsistence. DHS is also seeking to ensure that to the extent consistent with law, the rule will not unduly interfere with the receipt of public benefits, especially by those who are not subject to the public charge ground of inadmissibility. DHS has given consideration to the potential chilling effects of promulgating regulations governing the public charge inadmissibility determination. In considering such effects, DHS has taken 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 (as well as the minimal number of denials of applications for adjustment of status based on the public charge ground of inadmissibility, 42 ) and public comments on chilling effects received in response to the August 2021 ANPRM and the NPRM. To this end, DHS has determined that public charge inadmissibility determinations will be limited to the specified statutory factors; the Affidavit of Support Under Section 213A of the INA where required; and current and/or past receipt of TANF; SSI; State, Tribal, territorial, or local cash benefit programs for income maintenance and long-term institutionalization at government expense. 42 In the NPRM, DHS acknowledged that notwithstanding “widespread indirect effects [of the 2019 Final Rule], 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).” 87 FR at 10571 (Feb. 24, 2022). Comment: A commenter stated that noncitizens who enter the United States on nonimmigrant visas for certain periods of time have already shown that they can provide for themselves and these noncitizens also do not usually have the right to obtain public benefits. That commenter stated that the likelihood those individuals would become a public charge is extremely low because they have no choice but to support themselves or rely on their families. The commenter also stated that immigrants contribute to our society economically and to limit immigration is to limit economic growth, citing a 2019 report by the Center on Budget and Policy Priorities. 43 Another commenter stated that DHS should do more to reduce barriers to obtaining lawful immigration status because doing so also creates positive externalities, including improved efficiency in the labor market, the creation of new business by immigrants, the filling of less desirable labor positions and economic gains from growth, earnings, tax revenues and jobs. 43 See Arloc Sherman et al., “Immigrants Contribute Greatly to U.S. Economy, Despite Administration's `Public Charge' Rule Rationale,” Center on Budget and Policy Priorities (Aug. 15, 2019), https://www.cbpp.org/research/poverty-and-inequality/immigrants-contribute-greatly-to-us-economy-despite-administrations (last visited July 7, 2022). Response: DHS agrees with the commenter who pointed out that many noncitizens, including those present in the United States in nonimmigrant status, are not eligible for certain public benefits. PRWORA, which was passed in 1996, significantly restricted noncitizens' eligibility for many Federal, State, and local public benefits. 44 In the NPRM, DHS included a table listing 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. 45 DHS presents the table again here, for background purposes only. The table should not be used to determine benefits eligibility. 46 44 Public Law 104-193, tit. IV, 8 U.S.C. 1601 through 1646. 45 87 FR 10570, 10583 (Feb. 24, 2022). 46 DHS included this table in the NPRM and welcomed proposed clarifications or corrections, but received no substantive comments. ER09SE22.008 ER09SE22.009 DHS notes that while the commenter focused on nonimmigrants, this rule will apply only to noncitizens applying for admission or adjustment of status. As discussed elsewhere in this preamble, including sections III.D.3.b. and III.F., unlike the 2019 Final Rule, this rule does not apply to nonimmigrants seeking extension of stay or change of status in the United States. DHS has concluded that this rule will faithfully administer the public charge ground of inadmissibility. As compared to the 1999 Interim Field Guidance, the rule does not necessarily reduce burdens for applicants, but will provide important clarity and predictability as part of DHS's overall efforts to reduce barriers for applicants for admission and adjustment of status. As compared to the 2019 Final Rule, this rule does reduce burdens, including the direct paperwork burden imposed on applicants. Under this rule, DHS will not require a separate information collection form regarding the public charge ground of inadmissibility but will instead incorporate a more manageable set of questions in Form I-485, Application to Register Permanent Residence or Adjust Status, that will collect public charge-related information from applicants who are subject to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). DHS also notes that while the public charge ground of inadmissibility and this final rule include the consideration of an applicant's education and skills when assessing the likelihood at any time of becoming a public charge, DHS is not engaging in an analysis of the utility of a noncitizen to the U.S. labor market nor assessing the impact of an applicant for admission or adjustment of status on the broader U.S. economy. DHS addresses the economic impacts of this rule later in this preamble. Comment: One commenter stated that the rule places a disproportionate burden on noncitizens to avoid assistance, where U.S. citizens can use cash assistance and long-term institutionalization, such as a nursing home, without penalty, and also stated that using cash assistance and institutionalization does not automatically disqualify a person from being a productive member of society. Another commenter stated that the rule imposes undue immigration restrictions. Response: As a matter of law, the public charge ground of inadmissibility applies to noncitizens and not to citizens. It is therefore not inconsistent with law that a rule implementing the public charge ground of inadmissibility would affect noncitizens most directly. In developing this rule, DHS has taken into account the chilling effects historically associated with the public charge ground of inadmissibility 47 and has created a rule that remains faithful to the statutory text and the underlying Congressional purpose, while remaining cognizant of the provisions of PRWORA restricting the use of certain public benefits by certain groups of noncitizens. In this final rule, DHS specifically indicates that public charge inadmissibility determinations must be based on the totality of the individual's circumstances and no one factor, other than the lack of a sufficient Affidavit of Support Under Section 213A of the INA, if required, should be the sole criterion for determining an applicant is likely at any time to become a public charge. 48 47 See, e.g., 87 FR at 10587-10592 (Feb. 24, 2022). 48 See 8 CFR 212.22(b). Comment: One commenter stated that this rule will effectively criminalize poverty and correspond to an increased number of noncitizens who reside in the United States without lawful status because those more likely to become public charges in the future are not likely to be able to afford the cost of departing the United States. Response: DHS disagrees that this rule will effectively criminalize poverty. The public charge ground of inadmissibility is not a criminal statute, and only applies to individuals when they apply for visas, admission, or adjustment of status. DHS is under an obligation to faithfully administer section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), regardless of whether DHS issues implementing regulations. 49 This rule is intended to apply the public charge ground of inadmissibility in a manner that is consistent with the law, is clear, fair, and comprehensible, and takes into account the chilling effects resulting from previous policies on both noncitizens and U.S. citizens. DHS notes that this rule does not create a new ground of inadmissibility to which noncitizens are subject. 49 In fact, the vast majority of the grounds of inadmissibility at section 212 of the INA, 8 U.S.C. 1182, have not been implemented by regulation at all, but are administered and enforced by DHS based on the statute. It is unclear why the above commenter believes that a rule implementing the public charge ground of inadmissibility would increase the number of noncitizens who reside in the United States unlawfully. The comment implies a connection between the rule discouraging public benefit use by noncitizens and those noncitizens being unable to afford the travel costs to depart the United States. DHS notes that the great majority of noncitizens are either ineligible for the public benefits covered by this rule prior to admission or adjustment of status or are eligible for those benefits but are exempt from a public charge inadmissibility determination under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Given this, DHS believes it is unlikely that noncitizens would remain in the United States unlawfully as a result of the rule rendering them unable to afford travel costs as the commenter suggests. Comment: Some commenters stated that the rule is “ineffective” and will encourage the use of public benefits by noncitizens while rendering the public charge ground of inadmissibility “useless.” Commenters wrote that, if finalized, the rule will be an incentive for more immigration to the United States by noncitizens who will rely on public benefits without fear of repercussions as they build their lives in the United States and eventually seek to obtain lawful status. They further stated that any changes to the proposed rule that create the appearance of facilitating access to public benefits will only attract more immigration during a time when many noncitizens are entering unlawfully at the southern border. Another commenter stated that immigrant families may include many family members, which can lead to higher taxes at the State and local level to support education if the children are non-English speaking. Commenters stated that the rule is more concerned with chilling effects but should be concerned with the national value of self-sufficiency established by Congress in more than a century of statutes, a concern also addressed elsewhere in this preamble. Response: DHS disagrees that the rule is ineffective or will encourage the use of public benefits by noncitizens who are subject to the public charge ground of inadmissibility. The rule establishes appropriate definitions and regulatory standards, and is accompanied by form changes that will allow DHS to collect information from applicants to make determinations under the public charge ground of inadmissibility. Under this rule, DHS will determine whether any noncitizen who Congress has decided is subject to the public charge ground of inadmissibility is 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 making this determination, DHS considers the statutory factors, an Affidavit of Support Under Section 213A of the INA if required, and the applicant's current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense, in the totality of the circumstances. 50 It is apparent from DHS's approach in this rule, which considers public benefits receipt both as part of the definition for likely at any time to become a public charge as well as when making the public charge inadmissibility determination in the totality of the circumstances, that commenters' concern that this rule will render the public charge ground of inadmissibility “ineffective” or “useless” is unfounded. 50 See 8 CFR 212.22(a). DHS notes that the commenters' preferred approach—the 2019 Final Rule or something similar—ultimately did not result in a single denial of adjustment of status on public charge grounds, although that rule apparently resulted in widespread disenrollment effects among those who were not covered by that rule to begin with. 51 To the extent that commenters suggest that the effectiveness of this rule should be measured by disenrollment effects among those who are not subject to the public charge ground of inadmissibility, or that DHS must pursue public charge rulemaking for the sake of, or without regard to, disenrollment effects among that population, DHS respectfully disagrees. Reducing costs by causing confusion among those who are not covered by the rule, leading them to forgo benefits for which they are eligible, would not be a desirable effect even if the rule were found to have that effect. 51 See, e.g., 87 FR at 10589 (Feb. 24, 2022). As discussed in the NPRM, 52 noncitizens who are subject to the public charge ground of inadmissibility are generally not eligible for public benefits. PRWORA significantly restricted noncitizens' eligibility for many Federal, State, and local public benefits. 53 PRWORA defines the term “Federal public benefit” 54 and provides that an “alien” who is not a “qualified alien” is ineligible for such benefits, 55 subject to certain exceptions. 56 Among the exceptions established by Congress are eligibility among all noncitizens for 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. 57 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, DOJ published a notice of final order, “Final Specification of Community Programs Necessary for Protection of Life or Safety Under Welfare Reform Legislation,” 58 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. 52 See 87 FR at 10580 (Feb. 24, 2022). 53 Public Law 104-193, tit. IV, 8 U.S.C. 1601 through 1646. 54 Public Law 104-193, sec. 401(c), 8 U.S.C. 1611(c). 55 Public Law 104-193, sec. 401(a), 8 U.S.C. 1611(a). 56 Public Law 104-193, sec. 401(b), 8 U.S.C. 1611(b). 57 See Public Law 104-193, sec. 401(b)(1), 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). 58 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). Under this rule, DHS will determine if a noncitizen is 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. This rule does not change eligibility for public benefits. Rather, officers will consider a noncitizen's past or current receipt of public cash assistance for income maintenance or long-term institutionalization at government expense when making public charge inadmissibility determinations. DHS also disagrees that the rule is likely to meaningfully change the overall volume of immigration, including unlawful migration. This rule certainly does not create any greater incentive for unlawful migration than PRWORA (which noted congressional concern with such incentives, and also created benefits eligibility rules for noncitizens to address them, at least in part) or the various subsequent statutory exceptions to PRWORA's general framework. The commenters provided no objective evidence that any of the above policies resulted in a significant increase in immigration, let alone objective evidence that this rule will have that effect. Even if this rule had a minor effect on immigration, due to the misperception that it alters the impact of the receipt of benefits by noncitizens residing in the United States unlawfully, DHS would still issue it because the rule is generally consistent with longstanding agency policy and is a faithful interpretation of the statutory phrase “likely at any time to become a public charge”; avoids unnecessary burdens on applicants, officers, and benefits-granting agencies; and mitigates 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 with respect to individuals who are not subject to the public charge ground of inadmissibility. As previously noted, this rule has no effect on the limited eligibility of noncitizens for public benefits under PRWORA or any other statute, and for this reason does not have an impact on the availability of public benefits to noncitizens in the United States. Nor should it create an incentive for immigration to the United States. DHS acknowledges that some non-cash benefits programs involve significant expenditures of government funds, but has concluded that the term “public charge” is best interpreted by reference to the degree of an individual's dependence on the government for support, rather than the scale of overall government expenditures for particular programs. DHS further discusses the impact of this rule on States' social welfare budgets later in this preamble. Finally, DHS notes that the commenter provided no data or sources for their statement that immigrants have larger families, which can lead to higher State and local taxes based on education costs. Under this rule, DHS will consider family status and household size as consistent with the standards in the proposed rule to determine whether an individual is likely at any time to become a public charge; it will not rely on generalizations about the relative size of immigrant households when considering family status. D. Comments Regarding Legal Authority and Statutory Provisions 1. Statutory Text, Congressional Intent, and the Proposed Rule Comment: Some commenters said that DHS should be focused on self-sufficiency, with some stating that the rule contradicts Congress' intent, as set forth in 8 U.S.C. 1601, 59 that noncitizens be self-sufficient, and not rely on public resources to meet their needs, but instead rely on their own skills and the resources of their families, their sponsors, and private organizations. These commenters further stated that the rule is inconsistent with 8 U.S.C. 1601 because it incentivizes immigration through the availability of public benefits rather than addressing “the government's interest in ensuring noncitizens are self-reliant in accordance with national immigration policy.” Another commenter stated that current eligibility rules for public assistance and unenforceable financial support agreements have not lived up to the intent of the laws to prevent individual noncitizens burdening the public benefits system. A commenter also stated that the role of the Executive Branch is to enforce the laws written by Congress, and suggested that this rule is not enforcing section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and is suspending and dispensing with the ground. A commenter stated that the rule's interpretation of public charge violates the statute's text, intent, and legislative history. A commenter stated that the proposed rule “fails to address the compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that noncitizens be self-reliant in accordance with national immigration policy.” The commenter also requested DHS remove the “incentives” of the proposed rule and instead provide enforceable consequences to prevent further abuse of already strained public resources. 59 Public Law 104-193, sec. 400, 8 U.S.C. 1601. Response: USCIS agrees that self-sufficiency is a principle discussed in 8 U.S.C. 1601, 60 and that subsection (2) of this provision states that “it continues to be the immigration policy of the United States that aliens within the Nation's borders not depend on public resources to meet their needs.” 61 DHS disagrees that this rule contradicts Congress' intent with respect to those principles. The principles of self-sufficiency articulated in 8 U.S.C. 1601(2) are reflected in a range of statutory measures including, most directly, those measures specifically referenced in 8 U.S.C. 1601 itself. In that section, immediately after articulating the above policy, Congress— 60 8 U.S.C. 1601(1). 61 8 U.S.C. 1601(2)(A). • expressed concern that “[d]espite the principle of self-sufficiency, aliens have been applying for and receiving public benefits from Federal, State, and local governments at increasing rates”; 62 62 8 U.S.C. 1601(3) (emphasis added). • concluded that “[c]urrent eligibility rules for public assistance and unenforceable financial support agreements have proved wholly incapable of assuring that individual aliens not burden the public benefits system”; 63 63 8 U.S.C. 1601(4) (emphasis added). • identified “a compelling government interest to enact new rules for eligibility and sponsorship agreements in order to assure that aliens be self-reliant in accordance with national immigration policy,” and “to remove the incentive for illegal immigration provided by the availability of public benefits”; 64 and 64 8 U.S.C. 1601(5)-(6) (emphases added). • stated that “[w]ith respect to the State authority to make determinations concerning the eligibility of qualified aliens for public benefits in this chapter, a State that chooses to follow the Federal classification in determining the eligibility of such aliens for public assistance shall be considered to have chosen the least restrictive means available for achieving the compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy.” 65 65 8 U.S.C. 1601(7) (emphasis added). In short, Congress tied the statement of national policy most closely to two types of actions that have already been taken by Congress itself: further restrictions on noncitizen eligibility for public benefits and enhanced enforceability of the Affidavit of Support Under Section 213A of the INA. Neither of those actions is changed at all by this rule, nor does this rule interfere in any respect with a State's ability to follow the Federal classification in determining the eligibility of noncitizens for public assistance. DHS acknowledges a relationship between the statement of national policy and the public charge ground of inadmissibility. The two statutes relate to a similar subject matter; Congress has tied the Affidavit of Support Under Section 213A of the INA to the public charge ground of inadmissibility; and Congress enacted the statement of national policy close in time with revisions to the public charge ground of inadmissibility. But Congress left it to DHS (and other agencies administering the public charge ground of inadmissibility) to specify how best to account for this statement of national policy in the context of a public charge inadmissibility determination generally. DHS notes that while the policy goals articulated in 8 U.S.C. 1601(2) with respect to self-sufficiency and the receipt of public benefits inform DHS's administrative implementation of the public charge ground of inadmissibility, DHS believes it is permitted to consider other important goals in implementing this ground of inadmissibility, such as clarity, fairness, national resilience, and administrability. Moreover, DHS believes that this rule is consistent with the goals set forth in 8 U.S.C. 1601. 66 Indeed, the rule's consideration of receipt of public cash assistance for income maintenance or long-term institutionalization at government expense helps ensure that DHS focuses its public charge inadmissibility determinations on applicants who are likely to become primarily dependent on the government for subsistence. As with all grounds of inadmissibility, DHS is bound to administer and enforce the public charge ground of inadmissibility, but DHS is not bound to issue regulations with respect to each and every ground. In fact, such regulations are exceedingly rare. To whatever extent 8 U.S.C. 1601(2) calls for a more systematic implementation of the public charge ground of inadmissibility, DHS has accomplished that goal through this rulemaking. 66 87 FR at 10611 (Feb. 24, 2022). DHS also disagrees that, in publishing this rule, it is declining to enforce section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and is suspending and dispensing with the ground of inadmissibility. Contrary to this commenter's assertion, and as noted in the NPRM, 67 this rule reflects DHS's faithful administration of the public charge ground of inadmissibility without making it needlessly difficult for individuals to apply for adjustment of status or obtain supplemental services for which they are eligible. This rule is wholly consistent with section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and 8 U.S.C. 1601, as well as longstanding case law (as discussed at length below), mirrors the approach the Executive Branch used in enforcing the provision for two decades, and provides a rule that is clear and fair to administer. 67 87 FR at 10611 (Feb. 24, 2022). In addition, while commenters state that DHS has failed to adequately account for government interests and the costs of noncitizens receiving public benefits, commenters critical of the proposed policy have not provided data that illustrate how and to what extent noncitizens subject to the public charge ground of inadmissibility are drawing on limited government resources that fund the public benefit programs DHS is excluding from consideration in public charge inadmissibility determinations. Furthermore, as DHS explained in the NPRM, even during the period when the 2019 Final Rule was in effect, when DHS took into consideration a broader list of public benefits, that approach ultimately did not result in any denials of applications for adjustment of status based on the public charge ground of inadmissibility. With respect to public comments that stated that current sponsorship agreements are “unenforceable” and that DHS has failed to propose or enact new rules for eligibility and sponsorship agreements to assure that noncitizens be self-reliant in accordance with national immigration policy, such comments are largely outside the scope of the proposed rule, which (like the 2019 Final Rule) did not include any changes on those topics. In addition, DHS notes that an Affidavit of Support Under Section 213A of the INA is enforceable by statute. 68 Although DHS may issue regulations governing the Affidavit of Support process, Congress has not tasked DHS with the enforcement of the Affidavit of Support Under Section 213A of the INA; such enforcement may be sought by the sponsored immigrant or by “the appropriate nongovernmental entity which provided such benefit or the appropriate entity of the Federal Government, a State, or any political subdivision of a State.” 69 68 INA sec. 213A, 8 U.S.C. 1183a. 69 INA sec. 213A(a)(1)(B), (b)(1)(A); 8 U.S.C. 1183a(a)(1)(B), (b)(1)(A). The commenters who opposed the proposed rule on this basis also did not provide data showing how many sponsored immigrants 70 actually receive public benefits, and how often benefits-granting agencies have enforced sponsorship obligations. 71 70 See 8 CFR 213a.1 (“Sponsored immigrant means any alien who was an intending immigrant, once that person has been lawfully admitted for permanent residence, so that the affidavit of support filed for that person under this part has entered into force.”). 71 DHS notes that in a proposed rule, “Affidavit of Support on Behalf of Immigrants,” 85 FR 62432 (Oct. 2, 2020), which was withdrawn on March 22, 2021, see “Affidavit of Support on Behalf of Immigrant s,” 86 FR 15140 (Mar. 22, 2021), DHS acknowledged that it did “not have data on reimbursement efforts or successful recoveries by benefits granting agencies. USCIS receives limited information from benefit granting agencies or other parties enforcing the Affidavit [Of Support Under Section 213A of the INA or Contract [Between Sponsor and Household Member], despite the information sharing provisions in the statute and regulations and thus is unable to determine whether the proposed rule's benefits are likely to exceed its costs.” See “85 FR at 62453 (Oct. 2, 2020). While DHS agrees that it did not propose in the NPRM to enact new rules related to the Affidavit of Support Under Section 213A of the INA, and notwithstanding that, changes to the Affidavit of Support regulations at 8 CFR part 213a would be outside the scope of this rulemaking, DHS observes that such changes would not be necessary to ensure that applicants for admission or adjustment of status will not become primarily dependent on the government for subsistence. This is because determining whether an applicant is likely at any time to become a public charge based on a review of the statutory minimum factors is separate and distinct from both determining the sufficiency of an Affidavit of Support Under section 213A of the INA and enforcing the sponsorship obligation and related reimbursement requirements that attach once the intending immigrant is admitted as a lawful permanent resident (although, as noted throughout this rule, there is a relationship between the two statutes, and the lack of a sufficient Affidavit of Support Under Section 213A of the INA, if required, renders a noncitizen inadmissible under the public charge ground of inadmissibility). Furthermore, the obligations and requirements related to the affidavit do not go into effect until after the public charge inadmissibility determination has already been made and the intending immigrant has been admitted as an immigrant or granted adjustment of status. Even if changes to such regulations had been contemplated in the proposed rule, DHS would decline to include any provisions regarding enforcement of the support obligation as part of the public charge inadmissibility determination, in part because they would be unduly cumbersome to incorporate into the predictive public charge inadmissibility determination. Comment: One commenter expressed support for the rule, noting that diminishing chilling effects among groups of immigrants who are eligible for public benefits and not subject to the public charge ground of inadmissibility serves both the public welfare and Congressional intent, as stated in 7 U.S.C. 2011 and the United States Housing Act of 1937. The commenter cited 7 U.S.C. 2011, quoting the statute stating that “[i]t is declared to be the policy of Congress, in order to promote the general welfare, to safeguard the health and well-being of the Nation's population by raising levels of nutrition among low-income households.” The commenter also cited and quoted the United States Housing Act of 1937 stating that assistance under the Housing Act advances “the national policy of the United States to promote the general welfare” to help States and localities “remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in rural or urban communities, that are injurious to the health, safety, and morals of the citizens of the Nation.” 72 72 Public Law 75-412, sec. 1, 50 Stat. 888, 888 (Sept. 1, 1937). Response: In promulgating this final rule, DHS is implementing the public charge ground of inadmissibility in a way that is consistent with the statutory text of and Congressional intent underlying section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), while also ensuring that the implementing regulations are clear, fair, and understandable for the public and officers. As discussed in the NPRM, when deciding which public benefits to consider when looking at past or current receipt of public benefits for the purpose of making public charge inadmissibility determinations, DHS determined that it should not consider special purpose and supplemental programs such as SNAP and affordable housing programs. DHS agrees with the commenter that programs such as SNAP and housing assistance contribute to the well-being of both low-income individuals and communities at large and assist individuals in ultimately depending on themselves and their families and sponsors rather than the government for subsistence. While DHS notes that very few categories of noncitizens who are subject to the public charge ground of inadmissibility are eligible for SNAP and housing benefits, DHS notes that the exclusion of SNAP and housing benefits from public charge inadmissibility determinations may also reduce the chilling effects among individuals who are not subject to the public charge ground of inadmissibility but who were deterred from enrolling or continuing to receive those benefits due to confusion about the 2019 Final Rule. Comment: Several commenters stated that the rule ignores Congressional intent dating back to the late nineteenth century, relies on interim guidance that was never meant to be the equivalent of a final rule, and seeks to narrowly define critical concepts including “public charge” and the types of public benefits used in a public charge inadmissibility determination. Response: First, DHS disagrees with the commenters who argued that the NPRM's definition of “public charge” conflicts with longstanding Congressional intent. Further discussion of how the NPRM's and this rule's standard aligns with long-standing congressional intent is discussed below in this same section in response to other comments. In addition, DHS disagrees with how these commenters characterized the government's longstanding policy with respect to the public charge ground of inadmissibility. While DHS acknowledges that the 1999 Interim Field Guidance was interim guidance and not a final rule, the Government has interpreted the public charge ground of inadmissibility consistent with that guidance for over 20 years, with the exception of the short period of time during which the 2019 Final Rule was in effect. Accordingly, it is reasonable that DHS reviewed and considered the guidance's provisions when developing the NPRM and this rule. At the same time, DHS disagrees with any insinuation by commenters that DHS did not independently consider the merits of the guidance when developing this rule. Although this rule ultimately adopts portions of the guidance as regulations, DHS did not simply adopt the guidance wholesale without further analysis, and, in fact, there are a number of differences between the guidance and this rule. 73 Ultimately, as explained in the NPRM, DHS believes that the approach taken by the 1999 Interim Field Guidance, as further refined in the NPRM and this final rule, reflects a reasonable interpretation of the public charge ground of inadmissibility and is consistent with the statutory text and with Congressional intent, and longstanding caselaw. 73 See, e.g., 8 CFR 212.22(a)(4) (providing specific guidance that was not in the 1999 guidance regarding the treatment of disabilities in the context of public charge adjudications); 8 CFR 212.21 (providing definitions for key terms, including “receipt (of public benefits)”and “household.”). DHS has determined that not all public benefits should be considered in public charge inadmissibility determinations because, among other things, not all benefits are equally indicative of primary dependence on the government for subsistence. For one thing, as discussed in more detail later in the preamble, many modern public benefit programs take the form of payments or in-kind benefits to help individuals meet particular needs and are not limited to individuals without a separate primary means of support. For another, as both the 1999 Interim Field Guidance and the NPRM explained, under PRWORA, most noncitizens are not eligible for most types of public benefits. Moreover, most categories of noncitizens eligible for public benefits under PRWORA are also statutorily exempt from the public charge ground of inadmissibility. 74 In addition, and as discussed in more detail elsewhere in this rule, some public benefits like public housing and SNAP assist individuals and families to remain employed and support themselves and their families but are on their own insufficient to meet all or even a substantial portion of their needs. This point is illustrated in the case of SNAP; as USDA informed DHS in its on-the-record letter, SNAP is supplemental in nature; SNAP benefits are relatively modest; and most SNAP supports work. 75 In short, the benefits excluded from consideration under this rule are less probative of primary dependence than the benefits that are considered; their consideration would add scant value for officers while—as detailed elsewhere—deterring noncitizens and their families (including U.S. citizens and those not subject to the public charge ground of inadmissibility) from seeking benefits for which they are eligible. Nothing in the statute dictates that receipt of such supplemental or special-purpose benefits must be considered for public charge inadmissibility determinations. 74 See, e.g., Cook County v. Wolf, 962 F.3d 208, 236-37 (7th Cir. 2020) (Barrett, J., dissenting) (“The upshot is that the [2019 Final Rule] will rarely apply to a noncitizen who has received benefits in the past . . . . Notwithstanding all of this, many lawful permanent residents, refugees, asylees, and even naturalized citizens have disenrolled from government-benefit programs since the public charge rule was announced. Given the complexity of immigration law, it is unsurprising that many are fearful about how the rule might apply to them. Still, the pattern of disenrollment does not reflect the rule's actual scope.”). 75 See Letter from USDA Deputy Under Secretary on Public Charge (Feb. 15, 2022), https://www.regulations.gov/document/USCIS-2021-0013-0199 (last visited July 12, 2022). Comment: One commenter stated concern that the proposed rule mentioned that “Congress has sought to exclude noncitizens who pose a threat to the safety or general welfare of the country,” and expressed concern that such exclusion may be based on a range of acts, conditions, or conduct that would cause a noncitizen to be excluded during a public charge inadmissibility determination. Response: This comment quotes the NPRM, which in turn quotes Fiallo v. Bell, 76 for the encapsulation of the government's general authority over inadmissibility and exclusion of noncitizens from the United States. While this statement is contained in the NPRM, it was not intended to suggest that public charge inadmissibility determinations would be based on an unspecified range of acts, conditions, and conduct. Rather the NPRM, and the regulatory text in particular, included relevant definitions and factors that would be considered were the proposal contained therein to be finalized in a final rule. Such definitions and factors are also in this final rule. USCIS intends to issue additional guidance for officers and the public to further clarify how these definitions and factors should be applied in individual public charge inadmissibility determinations. 76 430 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.' ”). Comment: One commenter stated that the rule's definition of “likely at any time to become a public charge” is in line with Congressional intent and that the public charge test was never designed to prevent immigration of low- and moderate-income families who may at some point need access to public programs to overcome temporary setbacks. In addition, twenty-six members of Congress submitted a joint comment from the House Judiciary Committee indicating that the rule is consistent with the intent of Congress to apply the public charge ground of inadmissibility to those who are primarily dependent on the government for subsistence, and urged DHS to finalize the rule as it will provide certainty to applicants and petitioners navigating our immigration system. Another commenter stated that DHS should reject any assertion that the definitions of “public charge” in the 1933 and 1951 editions of Black's Law Dictionary, and a 1929 immigration treatise, Arthur Cook et al., Immigration Laws of the United States § 285 (1929)), show that receipt of “any” amount of public benefits historically rendered the recipient a public charge. The commenter stated that all three of these sources mistakenly rely on a single case, Ex Parte Kichmiriantz (involving a noncitizen who had been institutionalized and was “unable to care for himself in any way.”). 77 The commenter stated that contrary to what the three sources indicate, Kichmiriantz reflects the consistent historical focus of the term on those unable to care for themselves and without other support. 77 283 F. 697 (N.D. Cal. 1922). Response: DHS generally agrees with these commenters. As an initial matter, DHS acknowledges that Congress has never, in enacting or reenacting the public charge ground of inadmissibility, defined “public charge,” “likely to become a public charge,” or “likely at any time to become a public charge.” In the 1996 amendments, Congress specified which factors, at a minimum, the relevant government agencies must consider when making public charge inadmissibility determinations; Congress did not provide a specific definition of the term “public charge” or the phrase “likely at any time to become a public charge.” In addition, Congress has long made clear that DHS has broad discretion to administer and interpret the statute. The statute itself uses the words “in the opinion of,” which emphasizes the discretionary nature of the determination. 78 The INA also authorizes the Secretary of Homeland Security to promulgate rules to guide public charge inadmissibility determinations. 79 78 INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A). 79 INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3). In the 2018 proposed rule, DHS indicated that its understanding of the term “public charge” is consistent with various dictionary definitions of that term. 80 DHS stated that the [then] current edition of the Merriam-Webster Dictionary defines public charge simply as “one that is supported at public expense.” 81 DHS further relied on Black's Law Dictionary (6th ed.) that further defines public charge as “an indigent; a person whom it is necessary to support at public expense by reason of poverty alone or illness and poverty.” 82 In addition, DHS indicated that the term “charge” is defined in Merriam-Webster Dictionary as “a person or thing committed into the care of another” 83 and Black's Law Dictionary defines charge as “a person or thing entrusted to another's care,” e.g., “a charge of the estate.” 84 DHS concluded that the definitions generally suggest that an impoverished or ill individual who receives public benefits for a substantial component of their support and care can be reasonably viewed as being a public charge. DHS also concluded that the then-proposed definition of public charge was also consistent with the concept of an indigent, which is defined as “one who is needy and poor . . . and ordinarily indicates one who is destitute of means of comfortable subsistence so as to be in want.” 85 In the 2019 Final Rule, DHS rejected commenters' assertions that its reliance on dictionary definitions referenced in the proposed rule was flawed because DHS failed to consider the definition of the term “support,” which Merriam-Webster defined as “pay[ing] the cost of” or “provid[ing] a basis for the existence or subsistence of.” 86 DHS indicated that the dictionary definitions did not specify the degree of assistance, noting that the Merriam-Webster's dictionary also defines “support” as “assist, help.” 87 80 “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51158 (Oct. 10, 2018) (“DHS believes that a person should be considered a public charge based on the receipt of financial support from the general public through government funding ( i.e., public benefits). This is consistent with various dictionary definitions of public charge and `charge' also support a definition that involves the receipt of public benefits.”). 81 “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51158 (Oct. 10, 2018) (citing Merriam-Webster Online Dictionary, Definition of Public Charge, https://www.merriamwebster.com/dictionary/public%20charge ). 82 “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51158 (Oct. 10, 2018) (citing Black's Law Dictionary 233 (6th ed. 1990), http://www.republicsg.info/dictionaries/1990_black's-law-dictionary-edition6.pdf ). 83 “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51158 (Oct. 10, 2018) (citing Merriam-Webster Online Dictionary, Definition of Charge, https://www.merriamwebster.com/dictionary/charge ). 84 “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51158 (Oct. 10, 2018) (citing Black's Law Dictionary, Charge (10th ed. 2014)). 85 “Inadmissibility on Public Charge Grounds,” 83 FR 51114, 51158 (Oct. 10, 2018) (citing Black's Law Dictionary 773 (6th ed. 1990), http://www.republicsg.info/dictionaries/1990_black's-law-dictionary-edition6.pdf ). 86 “Inadmissibility and Deportability on Public Charge Grounds,” 84 FR 41292, 41354 (Aug. 14, 2019) (citing Webster's Dictionary 1828 Online Edition, definition of “charge,” http://webstersdictionary1828.com/Dictionary/charge ). 87 “Inadmissibility and Deportability on Public Charge Grounds,” 84 FR 41292, 41354 (Aug. 14, 2019) (citing Merriam-Webster Online Dictionary, Definition of Support, https://www.merriamwebster.com/dictionary/support ). DHS continues to conclude that dictionary definitions of the relevant terms do not dictate a specific meaning of the term “public charge” nor clearly prescribe the level of dependence on the government necessary to render a person a public charge. Although many dictionary definitions suggest primary or total dependence on the government for subsistence, others may be read to suggest a lesser level of dependence. 88 88 See also, e.g., Cook County v. Wolf, 962 F.3d 208, 223 (7th Cir. 2020) (“Enter the dueling dictionaries. In Cook County's corner, we have the Century Dictionary, defining a `charge' as a person who is ` committed to another's custody, care, concern or management,' Century Dictionary 929 (William Dwight Whitney, ed., 1889) (emphasis added); and Webster's Dictionary, likewise defining a `charge' as a `person or thing committed to the care or management of another,' Webster's Condensed Dictionary of the English Language 84 (Dorsey Gardner, ed., 1884). These suggest primary, long-term dependence. In DHS's corner, we have dictionaries defining a `charge' as `an obligation or liability,' as in a `pauper being chargeable to the parish or town,' Dictionary of Am. and English Law 196 (Stewart Rapalje & Robert Lawrence, eds., 1888); and as a `burden, incumbrance, or lien,' Glossary of the Common Law 56 (Frederic Jesup Stimson, ed., 1881). These definitions can be read to indicate that a lesser reliance on public benefits is enough. Finding no clarity here, we move on.”). The legislative history at the time of the first introduction of a public charge ground of inadmissibility also does not establish a specific definition of the term “public charge.” Congress first included a public charge ground of inadmissibility in the Immigration Act of 1882, which prohibited the entry, inter alia, of “any person unable to take care of himself or herself without becoming a public charge.” 89 Debate in the House of Representatives at the time of enactment indicates that Congress was concerned about preventing the future immigration to the United States of people who would depend on or would be “committed to” the country's “poor-houses and alms-houses.” 90 The record—which relates to a broader list of grounds of inadmissibility, of which public charge was only one—contains references to people committed to poor-houses and almshouses, paupers, and people who had no earnings in recent years and were wholly destitute, all of whom would likely be covered by the definition adopted in this final rule. 89 22 Stat. 214. 90 13 Cong. Rec. 5109 (1882). Over the years, judicial decisions interpreting the public charge ground generally did not focus exclusively on whether noncitizens seeking admission or adjustment of status had low earnings or were impoverished at the time of the inadmissibility determination. Rather, officers focused on whether, notwithstanding the current condition of poverty, noncitizens could prospectively support themselves. For example, in In re Feinknopf, a federal district court suggested that evidence regarding an individual's age, profession, presence of family members, assets, and future employability are relevant to determining whether an immigrant is likely to become a public charge. 91 91 47 F. 447, 447, 451 (E.D.N.Y. 1891). The court held that “there must be a determination by the inspection officer of the fact that the immigrant is likely to become a public charge, made upon competent evidence tending to show such to be the fact . . . .” In Gegiow v. Uhl, the Supreme Court concluded that a noncitizen could not “be declared likely to become a public charge on the ground that the labor market in the city of his immediate destination is overstocked.” 92 The court found that “[t]he persons enumerated, in short, are to be excluded on the ground of permanent personal objections accompanying them irrespective of local conditions.” 93 In the 2019 Final Rule, DHS concluded that Gegiow did not conclusively establish the contours of the public charge ground of inadmissibility. 94 DHS continues to hold that view, but believes that the Supreme Court's statements there about the public charge ground are nevertheless supportive of the interpretation adopted in this final rule. 92 239 U.S. 3, 9-10 (1915). 93 239 U.S. at 10 (1915). 94 84 FR 41292, 41350 n.317 (Aug. 14, 2019). In 1917, Congress amended the public charge provision by moving it to the end of a list of factors rendering an “alien” inadmissible. 95 The revised statute rendered inadmissible, among others, “persons . . . who are . . . mentally or physically defective, such physical defect being of a nature which may affect the ability of such alien to earn a living; persons who have been convicted of or admit having committed a felony or other crime or misdemeanor involving moral turpitude; polygamists, or . . . persons likely to become a public charge.” 96 Legislative history suggests that Congress may have done so “in order to indicate the intention . . . that aliens shall be excluded upon [the public charge] ground for economic as well as other reasons” and did so, specifically, “to overcom[e] the decision of the Supreme Court in [ Gegiow ].” 97 Even assuming that Congress moved the placement of the public charge provision to respond to Gegiow, it still did not define “public charge” or “likely to become a public charge,” leaving the application of the provision in the hands of immigration officials and the executive branch. 95 In addition, Congress amended the immigration laws three other times between the introduction of the public charge ground in 1882 and 1917, but none of the amendments provided a definition of “public charge.” See Act of Mar. 3, 1903, ch. 1012, 32 Stat. 1213; Act of Feb. 20, 1907, ch. 1134, 34 Stat. 898; Act of Mar. 26, 1910, ch. 128, 36 Stat. 263. 96 Act of Fe [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%3A2022-18867. Public record. Not legal advice.