Inadmissibility and Deportability on Public Charge Grounds
Federal RegisterMay 26, 1999
Ask Donna
What actually matters in this document.
Text
SUMMARY: This rule proposes to amend the Department of Justice's
(Department's) regulations to establish clear standards governing a
determination that an alien is inadmissible or ineligible to adjust
status, or has become deportable, on public charge grounds. This
proposed rule is necessary to alleviate growing public confusion over
the meaning of the currently undefined term ``public charge'' in
immigration law and its relationship to the receipt of Federal, State,
or local public benefits. By defining ``public charge,'' the Department
seeks to reduce the negative public health consequences generated by
the existing confusion and to provide aliens with better guidance as to
the types of public benefits that will and will not be considered in
public charge determinations.
DATES: Written comments must be submitted on or before July 26, 1999.
ADDRESSES: Please submit written comments, in triplicate, to the
Director, Policy Directives and Instructions Branch, Immigration and
Naturalization Service, 425 I Street, NW, Room 5307, Washington, DC
20536. To ensure proper handling, please reference INS No. 1989-99 on
your correspondence. Comments are available for public inspection at
the above address by calling (202) 514-3048 to arrange an appointment.
FOR FURTHER INFORMATION CONTACT: Sophia Cox or Kevin Cummings,
Immigration and Naturalization Service, Office of Adjudications, 425 I
Street, NW, Washington, DC 20536; telephone (202) 514-4754.
SUPPLEMENTARY INFORMATION:
Background and Necessity for Definition of ``Public Charge''
Recent immigration and welfare reform laws have generated
considerable public confusion about whether the receipt of Federal,
State, or local public benefits for which an alien may be eligible
renders him or her a ``public charge'' under the immigration statutes
governing admissibility, adjustment of status, and deportation. (See 8
U.S.C. 1182(a)(4); 8 U.S.C. 1227(a)(5).) (See also Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-
208, Div. C, Title V, 110 Stat. 3009-670 (codified as amended in
different sections of 8 U.S.C.) (1996); Personal Responsibility and
Work Opportunity Reconciliation Act of 1996 (PRWORA), Pub. L. 104-193,
Title IV, 110 Stat. 2260 (codified as amended generally at 8 U.S.C.
1601, et seq.) (1996).)
Under section 212(a)(4) of the Immigration and Nationality Act (the
Act), the determination of whether an individual alien ``is likely at
any time to become a public charge'' is made by a Department of State
consular officer at the time the alien's visa application is
adjudicated overseas, by an Immigration and Naturalization Service
(Service) officer at the time an alien seeks admission into the United
States, or by the Service at the time an alien applies for adjustment
of status if he or she is already in the United States. 8 U.S.C.
1182(a)(4). The statute further states that the decision shall be ``in
the opinion of'' the consular officer or the Attorney General, who has
delegated this authority to the Service. Id.; 8 CFR part 2.1. Under
section 237(a)(5) of the Act, an alien is also deportable if he or she
``has become a public charge'' within 5 years after his or her ``date
of entry'' into the United States for causes not shown to have arisen
since entry. 8 U.S.C. 1227(a)(5). An immigration judge will make the
determination if any of these issues arise during removal proceedings
for an alien.
On August 22, 1996, the President signed PRWORA, known as the
welfare reform law. The welfare reform law and its amendments imposed
new restrictions on the eligibility of aliens, whether present in the
United States legally or illegally, for many Federal, State, and local
public benefits. 8 U.S.C. 1601-1646 (as amended). Despite these new
restrictions, many legal aliens remain eligible for at least some forms
of public assistance, such as Medicaid, Food Stamps, Supplemental
Security Income (SSI), Temporary Assistance for Needy Families (TANF),
the Children's Health Insurance Program (CHIP), and the Special
Supplemental Nutrition Program for Women, Infants, and Children (WIC),
among other benefits. Congress also chose not to apply the alien
eligibility restrictions in the welfare reform law to emergency medical
assistance; short-term, in-kind, non-cash emergency disaster relief;
public health assistance related to immunizations and to treatment of
the symptoms of a communicable disease; certain in-kind services (e.g.,
soup kitchens, etc.) designated by the Attorney General as necessary
for the protection of life and safety; and assistance under certain
Department of Housing and Urban Development (HUD) programs. 8 U.S.C.
1611(b)(1).
Numerous states and localities also have funded public benefits,
particularly medical and nutrition benefits, for aliens who are now
ineligible for certain Federal public benefits. Congress further
authorized states to enact laws after August 22, 1996, that
affirmatively provide illegal aliens who would otherwise be ineligible
for certain State and local benefits under the welfare reform law with
such benefits. 8 U.S.C. 1621(d). A complete overview of all the public
benefits and programs that remain available to various categories of
aliens under the welfare reform law, as amended, is beyond the scope of
this discussion.
Although Congress has determined that certain aliens remain
eligible for some forms of medical, nutrition, and child care services,
and other public assistance, numerous legal immigrants and other aliens
are choosing not to apply for these benefits because they fear the
negative immigration consequences of potentially being deemed a
``public charge.'' This tension between the immigration and welfare
laws is exacerbated by the fact that ``public charge'' has never been
defined in statute or regulation. Without a clear definition of the
term, aliens have no way of knowing which benefits they may safely
access without risking deportation or inadmissibility.
Additionally, the Service has been contacted by many State and
local officials, Members of Congress, immigrant assistance
organizations, and health care providers who are unable to give
reliable guidance to their constituents and clients on this issue.
According to Federal and State benefit-granting agencies, this growing
confusion is creating significant, negative public health consequences
across the country. This situation is becoming particularly acute with
respect to the provision of emergency and other medical assistance,
children's immunizations, and basic nutrition programs, as well as the
treatment of communicable diseases. Immigrants' fears of obtaining
these necessary medical and other benefits are not only causing them
considerable harm, but are also jeopardizing the general public. For
example, infectious diseases may spread as the numbers of immigrants
who
[[Page 28677]]
decline immunization services increase. Concern over the public charge
issue is further preventing aliens from applying for available
supplemental benefits, such as child care and transportation vouchers,
that are designed to aid individuals in gaining and maintaining
employment. In short, the absence of a clear public charge definition
is undermining the Government's policies of increasing access to health
care and helping people to become self-sufficient. The Department seeks
to remedy this problem with this proposed rule.
Overview of the Proposed Rule
First, the proposed rule provides a definition for the ambiguous
statutory term ``public charge'' that will be used for purposes of both
admissibility and adjustment of status under section 212(a)(4) of the
Act and for deportation under section 237(a)(5) of the Act. Second, the
proposed rule describes the kinds of public benefits that, if received,
could result in a finding that a person is a ``public charge.'' The
proposed rule also provides examples of the types of public benefits
that will not be considered in public charge determinations. Third, the
proposed rule adopts long-standing principles developed by the case
law. As discussed below, the cases have established prerequisites and
factors to be considered in making public charge determinations. The
rule makes clear that the mere receipt of public assistance, by itself,
will not lead to a public charge finding without satisfaction of these
additional legal requirements.
The Meaning of ``Public Charge'' and Public Benefits That
Demonstrate Primary Dependence on the Government for Subsistence
Following extensive consultation with benefit-granting agencies,
the Department is proposing to define ``public charge'' to mean an
alien who has become (for deportation purposes) or who is likely to
become (for admission or adjustment purposes) ``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.''
Institutionalization for short periods of rehabilitation does not
constitute such primary dependence. This interpretation of ``public
charge'' is reasonable because it is based on the plain meaning of the
word ``charge,'' the historical context of public dependency when the
public charge immigration provisions were first enacted more than a
century ago, and the expertise of the benefit-granting agencies that
deal with subsistence issues. It is also consistent with factual
situations presented in the public charge case law.
When a word is not defined by statute and legislative history does
not provide clear guidance, courts often construe it in accordance with
its ordinary or natural meaning as contained in the dictionary. (See,
e.g., Sutton v. United Air Lines, Inc., 130 F.3d 893, 898 (10th Cir.
1997), cert. granted, 119 S. Ct. 790 (1999) (citations omitted).) The
word ``charge'' has many meanings in the dictionary, but the one that
can be applied unambiguously to a person and best clarifies the phrase
``become a public charge'' is ``a person or thing committed or
entrusted to the care, custody, management, or support of another.''
Webster's Third New International Dictionary of the English Language
377 (1986). The dictionary gives the following apt sentence as an
example of usage: ``[H]e entered the poorhouse, becoming a county
charge.'' Id. (See also 3 Oxford English Dictionary 36 (2d ed. 1989)
(definition #13 for ``charge''--``The duty or responsibility of taking
care of (a person or thing); care, custody, superintendence'').)
This language indicates that a person becomes a public charge when
he or she is committed to the care, custody, management, or support of
the public. The dictionary definition suggests a complete, or nearly
complete, dependence on the Government rather than the mere receipt of
some lesser level of financial support. Historically, individuals who
became dependent on the Government were institutionalized in asylums or
placed in ``almshouses'' for the poor long before the array of limited-
purpose public benefits now available existed. This primary dependence
model of public assistance was the backdrop against which the ``public
charge'' concept in immigration law developed in the late 1800s.
Although no case has specifically identified the types of public
benefits that can give rise to a public charge finding, a definition
based on primary dependence on the Government is consistent with the
facts found in the deportation and admissibility cases. (See, e.g.,
Matter of C-R-, 7 I. & N. Dec. 124 (BIA 1956) (deportation based on
public mental hospital institutionalization); Matter of Harutunian, 14
I. & N. Dec. 583 (R.C., Int. Dec. 1974) (receipt of old age assistance
for principal financial support was an important factor in denying
admission).)
The Service has also sought the advice and relied on the expertise
of various Federal agencies that administer a wide variety of public
benefits. The Service consulted primarily with the Department of Health
and Human Services (HHS), the Social Security Administration (SSA), and
the Department of Agriculture (USDA). The HHS, which administers TANF,
Medicaid, CHIP, and many other benefits, has advised that the best
evidence of whether an individual is relying primarily on the
Government for subsistence is either the receipt of public cash
benefits for income maintenance purposes or institutionalization for
long-term care at Government expense. (See letter to INS Commissioner
Doris Meissner from HHS Deputy Secretary Kevin Thurm, dated March 25,
1999) (hereinafter ``HHS Letter'' and appearing in an appendix to this
document.) The USDA, which administers Food Stamps, WIC, and other
nutrition assistance programs, and SSA, which administers SSI and other
programs, and other benefit-granting agencies have concurred with the
HHS advice to the Service that receipt of cash assistance for income
maintenance is the best evidence of primary dependence on the
Government. (See letter to INS Commissioner Doris Meissner from Shirley
R. Watkins, USDA Under Secretary for Food, Nutrition and Consumer
Services, dated April 15, 1999) (hereinafter ``USDA Letter'' and
appearing in an appendix to this document); letter to Robert L. Bach,
INS Executive Associate Commissioner for Policy and Planning from Susan
M. Daniels, SSA Deputy Commissioner for Disability and Income Security
Programs, dated May 14, 1999) (hereinafter ``SSA Letter'' and appearing
in an appendix to this document.)
Cash assistance for income maintenance includes (1) SSI, (2) cash
TANF (other than certain supplemental cash benefits not defined as
``assistance'' under TANF rules, as provided in Secs. 212.103 and
237.13 of this proposed rule), and (3) State or local cash benefit
programs for income maintenance (often called ``General Assistance''
programs, but which may exist under other names). Acceptance of these
forms of public cash assistance is one factor that could be considered
in determining whether a person is, or is likely to be, a public
charge, provided the additional requirements for deportation or
inadmissibility discussed later in this Supplementary Section and in
the regulation are also met.
According to HHS and other benefit-granting agencies consulted by
the Service, non-cash benefits generally provide supplementary support
in the form of vouchers or direct services to
[[Page 28678]]
support nutrition, health, and living condition needs. (See HHS
Letter.) These benefits are often provided to low-income working
families to sustain and improve their ability to remain self-
sufficient. A few examples of these non-cash benefits that do not
directly provide subsistence are Medicaid, Food Stamps, CHIP, and their
related State analogues, WIC, housing benefits, transportation
vouchers, and certain kinds of special-purpose non-cash benefits
provided under the TANF program. These forms of benefits, and others
discussed below and in the proposed regulation, will not be considered
for public charge purposes. The HHS further stated that ``* * * it is
extremely unlikely that an individual or family could subsist on a
combination of non-cash support benefits or services alone. * * * HHS
is unable to conceive of a situation where an individual, other than
someone who permanently resides in a long-term care institution, could
support himself or his family solely on non-cash benefits so as to be
primarily dependent on the [G]overnment.'' (See HHS Letter.)
The one exception identified by HHS to the principle that non-cash
benefits do not demonstrate primary dependence is the instance where
Medicaid or related programs pay for the costs of a person's
institutionalization for long-term care (other than imprisonment for
conviction of a crime). Such institutionalization costs, therefore, may
be considered in public charge determinations. However, the proposed
rule makes clear that a short period of institutionalization necessary
for rehabilitation purposes does not demonstrate that an individual is,
or is likely to become, primarily dependent on the Government for
public charge purposes.
This distinction between cash benefits that can lead to primary
dependence on the Government and non-cash benefits that do not create
such dependence is already applied by the State Department with regard
to Food Stamps, a non-cash benefit program. The Foreign Affairs Manual
(FAM) for consular officers excludes Food Stamps from public charge
admissibility consideration because it is an essentially supplementary
benefit that does not make recipients dependent on the Government for
subsistence. (See 9 FAM section 40.41, N.9.1.) The proposed definition
of ``public charge'' is consistent with this existing State Department
policy and that agency's recognition that certain supplemental forms of
public assistance should not be considered in a public charge
determination.
Receipt of Non-cash Public Benefits That do not Demonstrate Primary
Dependence on the Government for Subsistence
It has never been Service policy that the receipt of any public
service or benefit must be considered for public charge purposes. The
nature of the program is important. For instance, attending public
schools, taking advantage of school lunch or other supplemental
nutrition programs, such as WIC, obtaining immunizations, and receiving
public emergency medical care typically do not make a person
inadmissible or deportable. Non-cash benefits, such as these and
others, are by their nature supplemental and frequently support the
general welfare. By focusing on cash assistance for income maintenance,
the Service can identify those individuals who are primarily dependent
on the Government for subsistence without inhibiting access to non-cash
benefits that serve important public interests. Certain Federal, State,
and local benefits are increasingly being made available to families
with incomes far above the poverty level, reflecting broad public
policy decisions about improving general health and nutrition,
promoting education, and assisting working-poor families in the process
of becoming self-sufficient. For example, many states provide CHIP to
children in families with resources up to 200 percent of the poverty
line and sometimes higher. (See HHS Letter at p. 3.) Thus,
participation in such programs is not evidence of poverty or
dependence.
The proposed rule identifies the major forms of cash benefits that
may be considered for public charge purposes and several examples of
non-cash benefits that will not be considered. Due to the ever-changing
character of the Federal, State, and local public benefits still
available to aliens, it is not possible to name every benefit that will
or will not be considered for public charge purposes. Aliens and their
advisors should carefully consider the nature of the specific public
benefits involved. If they could be construed as cash assistance for
income maintenance, as distinguished from in-kind services, medical or
nutrition benefits, vouchers or other forms of non-cash benefits, then
a Service officer may consider their receipt in making a public charge
decision, even if the benefit is not specifically addressed by name in
the proposed rule. Again, receipt of SSI, cash TANF (except
supplemental cash-TANF excluded in the rule), and State or local cash
assistance programs for income maintenance (e.g., ``General
Assistance'') will be considered as part of the public charge analysis.
Although these benefits are the only examples of ``cash assistance for
income maintenance'' that the Service and other Federal benefit-
granting agencies have been able to identify, public comment is
requested on whether there are any other specific forms of public cash
assistance for income maintenance that should be mentioned. The Service
will also consider public benefits (including Medicaid) for supporting
aliens who reside in an institution for long-term care (e.g., a nursing
home or mental health institution).
A person's mere receipt of any of these forms of cash assistance
for income maintenance, or being institutionalized for long-term care,
does not necessarily make him or her inadmissible, ineligible to adjust
status, or deportable on public charge grounds. As discussed in detail
in the next part of this Supplementary Information section, the law
requires that a variety of other factors and prerequisites must be
considered as well. These additional requirements have been carefully
described in both the admissibility and deportation sections of this
proposed rule at Secs. 212.104, 212.106, 212.108, 212.109, 237.11,
237.15, 237.16, and 237.18. Every public charge decision will continue
to be made on a case-by-case basis. In other words, the proposed rule
does not create any blanket requirements that individuals who receive
public cash assistance or who are institutionalized for long-term care
must be removed from the United States or denied admission or
adjustment.
Some cash benefits received by aliens from the Government are not
intended for income maintenance, and thus will not be considered for
public charge purposes under this rule. Examples of such special-
purpose cash benefits that do not lead to primary dependence on the
Government include the Low Income Home Energy Assistance Program
(LIHEAP), 42 U.S.C. 8621, et seq.; the Child Care and Development Block
Grant Program (CCDBGP), 42 U.S.C. 9858 et seq.; Food Stamp benefits
issued in cash (see e.g., 7 U.S.C. 2026(b)); certain educational
assistance programs, and non-recurrent, short-term crisis benefits
funded in cash by TANF but excluded from the TANF program's definition
of ``assistance.'' (See 64 FR 17720, 17880 (April 12, 1999) (codified
at 45 CFR 260.31).) In addition, and consistent with existing Service
practice, the proposed rule states that cash payments that have been
earned, such as benefits under Title II of the Social Security Act, 42
U.S.C. 401 et seq., Government pensions, veterans'
[[Page 28679]]
benefits, among other forms of earned benefits, do not support a public
charge finding.
Other non-cash public benefits that will not be considered and that
are listed in the proposed rule include, but are not limited to:
Medicaid; CHIP; emergency medical assistance; other health insurance
and health services for the testing and treatment of symptoms of
communicable diseases; emergency disaster relief; nutrition programs,
such as Food Stamps and WIC; housing benefits; energy benefits; job
training programs; child care; and non-cash benefits funded under the
TANF program. State and local non-cash benefits of a similar nature
also will not be considered. It is the underlying nature of the
program, not the name adopted in a particular State, that will
determine whether it is relevant for public charge consideration.
Additional Requirements for Public Charge Determinations
After defining ``public charge,'' the separate admissibility and
deportation sections of the proposed rule incorporate principles
established by case law and statute for each of those public charge
determinations.
Admission and Adjustment of Status
The provisions that relate to admission and adjustment of status
incorporate the ``totality of the circumstances'' analysis that
officers must employ in making a prospective public charge decision.
(See, e.g, Matter of Perez, 15 I. & N. Dec. 136, 137 (BIA 1974).) Under
section 212(a)(4)(B) of the Act, officers are required to consider
specific minimum factors in determining whether the alien's
circumstances indicate that he or she is likely to become a public
charge. These factors include the alien's age, health, family status,
assets, resources, financial status, education, and skills. No single
factor, other than the lack of an Affidavit of Support as described
below, will determine whether an alien is likely to become a public
charge, including past or current receipt of public cash benefits.
In addition, most aliens intending to immigrate or adjust status in
family-based and certain employment-based categories after December 19,
1997, are required to file the new Form I-864, ``Affidavit of Support
Under Section 213A of the Act,'' signed by their sponsor(s). 8 U.S.C.
1182(a)(4)(C-D); 8 U.S.C. 1183a; 8 CFR part 213a.2. The new Affidavit
of Support is legally binding and requires sponsors to maintain the
sponsored alien at an annual income of not less than 125 percent of the
Federal poverty line for the relevant family size. 8 U.S.C. 1183a(a); 8
CFR part 213a.2. If an Affidavit of Support is not filed, the intending
immigrant will be denied admission or adjustment on public charge
grounds, unless he or she is exempt from the Affidavit of Support
requirement under section 212(a)(4)(C-D) of the Act. As one of the
circumstances considered in determining whether a person is likely to
become a public charge, officers may also consider any Affidavit of
Support filed by a sponsor on behalf of an alien under section 213A of
the Act and are encouraged to do so. (See 8 U.S.C. 1182(a)(4)(B)(ii).)
Certain categories of aliens seeking to become lawful permanent
residents are exempt from the Affidavit of Support requirement--
including those who qualify as widows or widowers of citizens or as
battered spouses, and their children. Id.
In one significant respect, a public charge determination for
purposes of inadmissibility differs from the context of deportability.
As the next section describes in detail, deportation on public charge
grounds requires the Service to prove that the alien or another
obligated party has failed to repay a legal demand for the public
benefits at issue. The proposed rule adopts the case-developed doctrine
that this failure-to-reimburse prerequisite for deportation does not
apply to public charge decisions for admissibility or adjustment of
status. (See Matter of Harutunian, 14 I. & N. Dec. at 589-590.)
Applicants for admission or adjustment of status, therefore, could be
found inadmissible or ineligible to adjust status on public charge
grounds even if there is no duty to reimburse the agency that provides
the cash assistance. Again, this receipt of public cash benefits will
result in such a finding only if the totality of the alien's
circumstances, including the minimum factors in section 212(a)(4)(B) of
the Act, indicate that he or she is likely to become a public charge.
The provisions on admissibility and adjustment in the proposed rule
conclude with a section that lists categories of aliens to whom the
public charge ground contained in section 212(a)(4) of the Act does not
apply. These categories include refugees, asylees, Amerasians, and
certain Nicaraguans, Central Americans, Haitians, and Cuban/Haitian
entrants. Although these statutory exemptions are codified throughout
the Act and other laws, the rule collects them in one place for the
public's ease of reference.
Deportation
The provisions on deportation in the proposed rule incorporate the
Attorney General's decision in the leading case, Matter of B-, 3 I. &
N. Dec. 323 (AG and BIA 1948), that the Service can prove public charge
deportability only if there has been a failure to comply with a legally
enforceable duty to reimburse the assistance agency for the costs of
care. In addition, the benefit agency's demand for repayment of the
specific public benefit must have been made within the alien's initial
5-year period after entry, unless it is shown that demand would have
been futile because there was no one against whom payment could be
enforced. Matter of
L-, 6 I. & N. Dec. 349 (BIA 1954). Under the proposed definition for
public charge previously discussed, only the failure to meet an
agency's demand for repayment of a cash benefit for income maintenance
or for the costs of institutionalization for long-term care will be
considered for deportation. If the alien can show that the causes for
which he or she received one of these types of public cash benefits
during his or her initial 5 years after entry arose after entry, he or
she will not be deportable on public charge grounds. (See 8 U.S.C.
1227(a)(5).) The requirements and procedures concerning the demand for
the repayment of a public benefit are governed by the specific program
rules established by law and administered by the benefit granting
agencies, or by State or local governments, not by the Service. This
rule does not alter those existing procedures. The Service does not
make determinations about which public benefits must be repaid. The
Federal, State, and local benefit-granting agencies are responsible for
those decisions. The Service may only initiate removal proceedings
based on the public charge ground after the benefit agency has chosen
to seek repayment, obtained a final judgment, taken all steps to
collect on that judgment, and been unsuccessful.
The proposed rule also provides that the Affidavit of Support is
relevant to the public charge inquiry for deportation purposes. Under
the new Affidavit of Support rules, if a sponsored alien obtains
Federal, State, or local means-tested public benefits, the sponsor is
obligated to repay those benefits if the benefit-granting agency makes
a demand for repayment. (See 8 U.S.C. 1183a(b); 8 CFR parts 213a.2,
213a.4.) Various Federal agencies have designated certain assistance
programs that they administer to be ``means-tested public benefits.''
For example, SSI, TANF, Medicaid, Food Stamps, and
[[Page 28680]]
CHIP have been designated as Federal means-tested public benefits and
could give rise to a repayment obligation under the Affidavit of
Support. If states designate means-tested public benefits in the
future, such benefits also could give rise to such an obligation.
However, only demands for the repayment of cash benefits for income
maintenance purposes, such as SSI, cash TANF and State General
Assistance programs, or the costs of institutionalization for long-term
care, will be relevant for deportation determinations under the
proposed definition of ``public charge.''
The Department has determined that the existing three-part Matter
of B- test for public charge deportations also applies to demands for
repayment of means-tested benefits under the new Affidavit of Support.
The Government entity providing the benefit must have a legal right to
seek repayment under the Affidavit of Support; the agency must have
made a demand for repayment; and the obligated party or parties must
have failed to meet this demand. The rule also requires that, before a
deportation action may be initiated, the agency seeking repayment must
have taken all steps necessary to obtain and enforce a final judgment
requiring the sponsor or other person responsible for the debt to pay.
Without such a requirement, an alien could be wrongly deported as a
public charge based on a debt that a court might later determine was
not legally enforceable. Although the demand for repayment must be made
within 5 years of the alien's admission, there is no time limit on
obtaining a final judgment as long as it is obtained prior to the
public charge proceedings.
Welfare Reform and Other Significant Factors That Limit Potential
for Aliens to Become ``Public Charges''
The proposed rule is not expected to alter substantially the number
of aliens who will be found deportable or inadmissible as public
charges. Deportations on public charge grounds have always been rare
due to the strict Matter of B- requirements that agencies first must
demand repayment, assuming they have a legal right to do so, and the
obligated party or parties must have failed to pay. This is unlikely to
change.
Several recently enacted welfare and immigration reform measures
have also contributed to reducing the possibility that aliens will be
found likely to become public charges under section 212(a)(4) of the
Act. Due to the increased restrictions of the welfare reform law, as
amended, many aliens are no longer eligible to receive some public
benefits formerly available to them. For example, one significant new
restriction prohibits legal, ``qualified aliens'' from receiving
Federal means-tested public benefits, with some exceptions, for 5 years
if they arrive after August 22, 1996. 8 U.S.C. 1613. Combined with the
5-year limitation in section 237(a)(5) of the Act, the welfare reform
restriction means fewer aliens are likely to become deportable public
charges. Under new ``deeming'' rules, some aliens who might otherwise
have been able to obtain certain Federal, State, or local means-tested
public benefits can no longer do so because their sponsors' resources
may now count as resources available to the aliens (i.e., the sponsors'
resources are ``deemed'' available to the alien), which would normally
raise the alien's income over the benefit eligibility threshold. 8
U.S.C. 1631, 1632. In addition, the requirement of a legally binding
Affidavit of Support obligating sponsors to support their immigrating
family members above the poverty level before they will be granted
admission or adjustment has significantly raised the bar for people who
might, in the past, have entered and become public charges. These new
laws work together to limit the potential for immigrants to become
dependent on the Government. The proposed rule defining ``public
charge'' will not change or negatively affect the operation of these
provisions.
Conclusion
The Department believes that this rule will provide for better
overall administration of the public charge provisions of the Act. It
will also help alleviate the increasing, negative public health and
nutrition consequences caused by the confusion over the meaning of
``public charge.'' The rule will provide rules of decision that will
apply in proceedings before the Executive Office for Immigration Review
(EOIR), as well as proceedings before the Service. The Department
anticipates, based on the Service's consultations, that the State
Department will adopt the same view and will issue guidance to consular
officers accordingly.
At a later date, the Department plans to propose additional revised
sections for part 212 concerning the other grounds of inadmissibility
under section 212 of the Act. Sections 212.100 through 212.112 of this
proposed rule are being issued in advance as Subpart G. The Department
will amend the labeling of this subpart or section numbers, if
necessary, at the time of final publication of any revised sections to
this part.
Regulatory Flexibility Act
The Attorney General has determined, in accordance with 5 U.S.C.
605(b), that this rule would not have a significant economic impact on
a substantial number of small entities. The factual basis for this
determination is that this rule will apply to individual aliens, who
are not within the definition of small entities established by 5 U.S.C.
601(6).
Unfunded Mandates Reform Act
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the Unfunded Mandates Reform Act of 1995. 2 U.S.C.
658(7)(A)(ii).
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined in 5 U.S.C. 804. This rule
will not result in an annual effect on the economy of $100 million or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Executive Order 12866
This rule is considered by the Department of Justice to be a
``significant regulatory action'' under section 3(f)(4) of E. O. 12866,
Regulatory Planning and Review. Accordingly, this proposed rule has
been submitted to the Office of Management and Budget for review.
Executive Order 12612
This rule would not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with E. O. 12612, it is
determined that this rule would not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Executive Order 12988: Civil Justice Reform
This proposed rule meets the applicable standards set forth in
subsections 3(a) and 3(b)(2) of E. O. 12988.
[[Page 28681]]
Plain Language in Government Writing
The President's June 1, 1998, Memorandum published at 63 FR 31885,
concerning Plain Language in Government Writing, applies to this
proposed rule.
Paperwork Reduction Act of 1995
This proposed rule does not specifically impose an information
collection burden on the public separate from existing provisions of
the Act or other regulations. However, the Service anticipates revising
the Form I-485, ``Application to Register Permanent Status or Adjust
Status,'' as necessary, to make it consistent with the final public
charge rule. The Department requests public comment on proposed
revisions to the I-485, or any other immigration forms, that may be
necessary as a result of this public charge rule.
List of Subjects
8 CFR Part 212
Administrative practice and procedure, Aliens, Admission,
Adjustment of status, Public charge determinations.
8 CFR Part 237
Administrative practice and procedure, Aliens, Deportation, Public
charge determinations.
Accordingly, chapter I of title 8 of the Code of Federal
Regulations, is proposed to be amended as follows:
PART 212--DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS; WAIVERS;
ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
1. The authority citation for part 212 is revised to read as
follows:
Authority: 8 U.S.C. 1101, 1102, 1103, 1182, 1183, 1183a, 1184,
1187, 1225, 1226, 1227, 1228, 1252, 8 CFR part 2, 8 CFR part 213A.
2. Sections 212.1 through 212.15 are designated as Subpart A.
3. The heading for Subpart A is added to read as follows:
Subpart A--General
4. Part 212 is amended by adding and reserving Subparts B through
F.
5. Subpart G is added to read as follows:
Subpart G--Public Charge Inadmissibility
Sec.
212.100 What issues do Secs. 212.100 through 212.112 address?
212.101 What law governs a determination of whether I am
inadmissible on public charge grounds?
212.102 What is the meaning of ``public charge'' for admissibility
and adjustment of status purposes?
212.103 What specific benefits are considered to be ``public cash
assistance for income maintenance''?
212.104 What factors will make me inadmissible or ineligible to
adjust status on public charge grounds?
212.105 Are there any forms of public assistance that I can receive
without becoming inadmissible as a public charge if I should later
apply for a visa, admission, or adjustment of status?
212.106 If I have received public cash assistance for income
maintenance, have been institutionalized for long-term care at
Government expense, or have been deemed a public charge in the past,
will I be inadmissible or ineligible to adjust status on public
charge grounds now or in the future?
212.107 Will I be required to pay back any public benefits that I
have received before an immigration officer or immigration judge
will find me admissible or eligible to adjust status?
212.108 Are there any special requirements for aliens who are
seeking to immigrate based on a family relationship or on
employment?
212.109 Will I be considered likely to become a public charge
because my spouse, parent, child, or other relative has become, or
is likely to become, a public charge or has received public cash
assistance?
212.110 Are there any individuals to whom the public charge ground
of inadmissibility does not apply?
212.111 Are there any waivers for the public charge ground of
inadmissibility?
212.112 Is it possible to provide a bond or cash deposit to ensure
that I will not become a public charge?
Subpart G--Public Charge Inadmissibility
Sec. 212.100 What issues do Secs. 212.100 through 212.112 address?
(a) Sections 212.100 through 212.112 of this part address the
public charge grounds of inadmissibility under section 212(a)(4) of the
Act. It applies to all aliens seeking admission to the United States or
adjustment of status to lawful permanent residency, except for the
categories of aliens described in Sec. 212.110 or other categories of
aliens who may be exempted by law.
(b) In Secs. 212.101 through 212.112 of this part, the terms ``I,''
``me'' and ``my'' in the section headings and ``you'' and ``your'' in
the text of each section refer to an alien who may be inadmissible or
ineligible to adjust status on public charge grounds.
Sec. 212.101 What law governs a determination of whether I am
inadmissible on public charge grounds?
The public charge grounds of inadmissibility are found under
section 212(a)(4) of the Act. A Department of State (State Department)
consular officer makes the public charge determination if you are
applying for a visa overseas. A Service officer makes the public charge
determination if you are applying for admission at a port-of-entry to
the United States or for adjustment of status to that of a lawful
permanent resident. Under section 212(a)(4) of the Act, you will be
found inadmissible or ineligible to adjust status if, ``in the opinion
of'' the consular officer or Service officer making the decision, you
are considered ``likely at any time to become a public charge.'' If you
have been placed in removal proceedings where issues of your
admissibility or eligibility to adjust status arise, an immigration
judge will decide whether you are likely to become a public charge.
Sec. 212.102 What is the meaning of ``public charge'' for
admissibility and adjustment of status purposes?
(a) (1) ``Public charge'' for purposes of admissibility and
adjustment of status means an alien who is likely to become primarily
dependent on the Government for subsistence as demonstrated by either:
(i) The receipt of public cash assistance for income maintenance
purposes, or
(ii) Institutionalization for long-term care at Government expense
(other than imprisonment for conviction of a crime).
(2) Institutionalization for short periods for rehabilitation
purposes does not demonstrate primary dependence on the Government.
(b) For purposes of Secs. 212.100 through 212.112 of this part:
(1) The term ``government'' refers to any Federal, State or local
government entity or entities.
(2) The term ``cash'' includes not only funds you receive in the
form of cash from a government agency, but also funds received from a
government agency by check, money order, wire transfer, electronic
funds transfer, direct deposit, or any other form that can be legally
converted to currency, provided that the funds are for purposes of
maintaining your income.
(c) As described in Secs. 212.103(c) and 212.105 of this part, some
forms of public assistance will not be considered for public charge
purposes because they do not result in primary dependence on the
Government. Immigration officers and immigration judges must also
consider many other factors, as described in Secs. 212.101-212.112 of
this part, before making a final public charge determination.
[[Page 28682]]
Sec. 212.103 What specific benefits are considered to be ``public cash
assistance for income maintenance''?
(a) Public benefits considered to be ``public cash assistance for
income maintenance'' include:
(1) Supplemental Security Income (SSI), 42 U.S.C. 1381, et seq.;
(2) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601,
et seq., but not including supplemental cash benefits excluded from the
term ``assistance'' under TANF program rules (see 45 CFR 260.31) or any
non-cash benefits and services provided by the TANF program; and
(3) State and local cash assistance programs for income maintenance
(often called State ``General Assistance,'' but which may exist under
other names).
(b) Due to the constantly changing nature of the numerous Federal,
State and local benefits for which you may be eligible, it is not
possible to give a complete listing of such benefits that could be
considered for public charge purposes. If you are receiving, or
contemplate receiving, any public cash assistance (as ``cash'' is
described in Sec. 212.102(b)(2)) for purposes of maintaining your
income, an immigration officer or immigration judge may consider it as
a factor in making a decision as to whether you are likely to become
primarily dependent on the Government.
(c) Some forms of cash benefits are not intended for income
maintenance and, therefore, will not be considered for public charge
purposes under Secs. 212.101 through 212.112. Examples of such cash
benefits that are supplemental in nature include the Low Income Home
Energy Assistance Program (LIHEAP), 42 U.S.C. 8621 et seq.; the Child
Care and Development Block Grant Program (CCDBGP), 42 U.S.C. 9858 et
seq.; Food Stamp benefits issued in cash (see, e.g., 7 U.S.C. 2026(b));
certain educational assistance benefits; and non-recurrent, short-term
crisis benefits, and other services funded in cash by the TANF program
that do not fall within the TANF program's definition of
``assistance,'' as described in paragraph (a)(2) of this section.
(d) Cash benefits that have been earned continue to be irrelevant
to the public charge ground of inadmissibility. A few examples of such
earned benefits that will not be considered include benefits under
Title II of the Social Security Act, 42 U.S.C. 401 et seq., government
pension benefits, and veterans' benefits.
Sec. 212.104 What factors will make me inadmissible or ineligible to
adjust status on public charge grounds?
(a) Under section 212(a)(4)(B) of the Act, the immigration officer
or consular official must consider, ``at a minimum,'' your age, health,
family status, assets, resources, financial status, education, and
skills in making a decision on whether you are likely to become a
public charge. The decision-maker may also consider any Affidavit of
Support filed by your sponsor(s) on your behalf under section 213A of
the Act and 8 CFR part 213a. The decision-maker will consider the
``totality of circumstances'' before determining whether you are likely
to become a public charge. No single factor, other than the lack of a
sufficient Affidavit of Support as required by section 212(a)(4)(C) and
(D) of the Act, will control this decision, including past or current
receipt of public cash benefits, as described in paragraph (b) of this
section.
(b) You are inadmissible or ineligible to adjust status on public
charge grounds if, after consideration of your case in light of all of
the minimum factors in section 212(a)(4)(B) of the Act, any Affidavit
of Support (Form I-864) filed on your behalf under 8 CFR part 213a, and
any other facts that may be relevant, the immigration officer, consular
officer, or immigration judge determines that it is likely that you
will become primarily dependent for your subsistence on the Government,
at any time, as demonstrated by:
(1) Receipt of public cash assistance for income maintenance,
including SSI, cash TANF (other than cash TANF benefits excluded in
Sec. 212.103(a)(2)), or State or local cash benefit programs for income
maintenance, such as ``General Assistance''; or
(2) Institutionalization for long-term care (other than
imprisonment for conviction of a crime) at Government expense.
Institutionalization for short-term rehabilitation purposes does not
demonstrate primary dependence on the Government.
Sec. 212.105 Are there any forms of public assistance that I can
receive without becoming inadmissible as a public charge if I should
later apply for a visa, admission, or adjustment of status?
(a) The only benefits that are relevant to the public charge
decision are public cash assistance for income maintenance and
institutionalization for long-term care at Government expense.
Institutionalization for short periods for rehabilitation purposes will
not be considered. Non-cash public benefits are not considered because
they are of a supplemental nature and do not demonstrate primary
dependence on the Government.
(b) Although it is not possible to list all of the non-cash public
benefits that will not be considered, you will not risk being found
inadmissible as an alien likely to become a public charge by receiving
non-cash benefits under the following programs or benefit categories:
(1) The Food Stamp program, 7 U.S.C. 2011, et seq.,
(2) The Medicaid program, 42 U.S.C. 1396, et seq. (other than
payments under the Medicaid program for long-term institutional care);
(3) The Children's Health Insurance Program (CHIP), 42 U.S.C.
1397aa, et seq.;
(4) Health insurance and health services (other than public
benefits for costs of institutionalization for long-term care),
including, but not limited to, emergency medical services, public
benefits for immunizations and for testing and treatment of symptoms of
communicable diseases, and use of health clinics;
(5) Nutrition programs, including, but not limited to, the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC),
42 U.S.C. 1786; and programs that operate under the National School
Lunch Act, 42 U.S.C. 1751 et seq.; the Child Nutrition Act, 42 U.S.C.
1771 et seq.; and the Emergency Food Assistance Act, 7 U.S.C. 7501 et
seq.;
(6) Emergency disaster relief;
(7) Housing benefits;
(8) Child care services;
(9) Energy benefits, such as LIHEAP, 42 U.S.C. 8621 et seq.;
(10) Foster care and adoption benefits;
(11) Transportation vouchers or other non-cash transportation
services;
(12) Educational benefits, including benefits under the Head Start
Act and aid for elementary, secondary, or higher education;
(13) Non-cash benefits or services funded by the TANF program;
(14) Job training programs;
(15) State and local supplemental, non-cash benefits that serve
purposes similar to those of the Federal programs listed in this
paragraph;
(16) Any other Federal, State, or local public benefit program,
under which benefits are provided in-kind, through vouchers, or any
other medium of exchange other than payment of cash assistance for
income maintenance to the eligible person.
(c) Although the non-cash public benefits described in paragraph
(b) of this section will not be considered for admissibility purposes,
you may still be inadmissible or ineligible to adjust
[[Page 28683]]
status if, in the opinion of the officer making the decision, you are
likely to become a public charge following his or her analysis of the
totality of the circumstances, as described in Sec. 212.104. This
includes consideration of all the minimum statutory factors described
in section 212(a)(4)(B) of the Act.
Sec. 212.106 If I have received public cash assistance for income
maintenance, have been institutionalized for long-term care at
Government expense, or have been deemed a public charge in the past,
will I be inadmissible or ineligible to adjust status on public charge
grounds now or in the future?
(a) Such past circumstances do not necessarily mean that you will
be found inadmissible or ineligible to adjust status on public charge
grounds based on a present application for admission or adjustment. The
immigration officer, consular officer, or immigration judge who makes
the decision must consider all of the relevant facts of your case. Past
receipt of public cash assistance or institutionalization under
circumstances that made you a public charge would support a finding
that you are inadmissible only if, in light of all the factors listed
in Sec. 212.104, it is likely that you will continue to be, or become
again, a public charge in the future.
(b) The length of time during which you previously received
benefits or were institutionalized at Government expense, as well as
the distance in time from your current application for admission or
adjustment, are significant to the decision. Public cash benefits
received in the recent past are more predictive of your likelihood to
become a public charge in the future than benefits received in the more
distant past. Similarly, public cash benefits received for longer time
periods are more predictive than benefits received in the past for
shorter periods. In addition, small amounts of public cash assistance
for income maintenance received in the past are weighed less heavily
than greater amounts under the ``totality of the circumstances''
analysis. The negative implication of your past receipt of public cash
benefits for income maintenance or institutionalization for long-term
care, however, may be overcome by positive factors in your case
demonstrating that you are unlikely to become primarily dependent on
the Government for subsistence.
Sec. 212.107 Will I be required to pay back any public benefits that I
have received before an immigration officer or immigration judge will
find me admissible or eligible to adjust status?
Immigration officers and immigration judges do not have the
authority to require that you reimburse public benefit-granting
agencies for assistance that you have received. However, they may
consider your receipt of public cash assistance for income maintenance
purposes or your institutionalization for long-term care at Government
expense as factors in deciding whether you are likely to become a
public charge in the future, regardless of whether the agency granting
the benefit has sought reimbursement from you or any other party
obligated to pay back the benefit on your behalf. If there is a final
judgment against you for failure to repay the costs of public cash
benefits or institutionalization that has not been satisfied,
immigration officers or judges may also consider this failure to repay
as one of the relevant factors in deciding whether you are likely to
become a public charge.
Sec. 212.108 Are there any special requirements for aliens who are
seeking to immigrate based on a family relationship or on employment?
Under section 212(a)(4)(C) and (D) of the Act, you must file an
``Affidavit of Support Under Section 213A of the Act'' (Form I-864)
from your sponsor(s) in accordance with section 213A of the Act and 8
CFR part 213a if you are seeking to immigrate in certain family-based
visa categories or as an employment-based immigrant who will work for a
relative or a relative's firm. If you do not file the Affidavit of
Support as required, you will be inadmissible or ineligible to adjust
status on public charge grounds. Certain widows and widowers, battered
spouses and children of U.S. citizens and lawful permanent residents
are currently exempt under section 212(a)(4)(C) of the Act from filing
an Affidavit of Support.
Sec. 212.109 Will I be considered likely to become a public charge
because my spouse, parent, child, or other relative has become, or is
likely to become, a public charge or has received public cash
assistance?
(a) The fact that one, or all, of your close relatives has become,
or is likely to become, a public charge will not make you inadmissible
as a public charge, unless the evidence shows that you, individually,
are likely to become a public charge.
(b) Public cash benefits for income maintenance received by your
relatives will not be attributed to you for admission or adjustment
purposes, unless they also represent your sole support. If such
benefits are attributed to you because they are your sole support, they
must be considered along with all of the other factors related to your
case, as described in Sec. 212.104, before you may be found
inadmissible as a public charge.
Sec. 212.110 Are there any individuals to whom the public charge
ground of inadmissibility does not apply?
(a) The Act and various other statutes contain exceptions to the
public charge ground of inadmissibility for the following categories of
aliens:
(1) Refugees and asylees at the time of admission and adjustment of
status to legal permanent residency according to sections 207(c)(3) and
209(c) of the Act;
(2) Amerasian immigrants at admission as described in the Foreign
Operations, Export Financing, and Related Programs Appropriations Act
of 1988, section 584, contained in section 101(e), Public Law 100-202,
101 Stat. 1329-183 (1987) (as amended), 8 U.S.C. 1101 note;
(3) Cuban and Haitian entrants at adjustment as described in the
Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603,
Title II, section 202, 100 Stat. 3359 (1986) (as amended), 8 U.S.C.
1255a note;
(4) Nicaraguans and other Central Americans who are adjusting
status as described in the Nicaraguan Adjustment and Central American
Relief Act (NACARA), Public Law 105-100, section 202(a), 111 Stat. 2193
(1997)(as amended), 8 U.S.C. 1255 note;
(5) Haitians who are adjusting status as described in the Haitian
Refugee Immigration Fairness Act of 1998, section 902, Title IX, Public
Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), 8 U.S.C. 1255 note;
(6) Aliens who entered the United States prior to January 1, 1972
and who meet the other conditions for being granted lawful permanent
residence under section 249 of the Act and 8 CFR part 249.
(b) Other categories of aliens may also be excepted from the public
charge provisions in section 212(a)(4) of the Act by subsequent
legislation. The list of such aliens in paragraph (a) of this section
may not include every excepted category.
(c) In addition, aliens who have been previously admitted for
lawful permanent residence (``LPRs'') and who re-enter the United
States are not applicants for admission and, therefore, are not subject
to the grounds of inadmissibility, unless they are covered by one of
the six categories described in
[[Page 28684]]
section 101(a)(13)(C) of the Act, including being absent from the
United States for over 180 days.
Sec. 212.111 Are there any waivers for the public charge ground of
inadmissibility?
There are no waivers available for the public charge grounds of
inadmissibility, except for the waiver for certain aged, blind, or
disabled applicants for adjustment of status under section 245A of the
Act. (See 8 U.S.C. 1255a(d)(2)(B)(ii)(IV).) However, various laws have
exempted certain categories of aliens from the requirements of section
212(a)(4) of the Act. Several of these categories are described in
Sec. 212.110(a).
Sec. 212.112 Is it possible to provide a bond or cash deposit to
ensure that I will not become a public charge?
The Service may accept a suitable, legally binding public charge
bond or cash deposit on your behalf that meets the conditions set forth
in 8 U.S.C. 1183 and in 8 CFR part 213. Acceptance of such a bond or
cash deposit is discretionary.
6. Part 237 is added to read as follows:
PART 237--DEPORTABLE ALIENS
Subpart A--Public Charge Deportability
Sec.
237.10 What issues do Secs. 237.10 through 237.18 address?
237.11 What law governs whether I am deportable on public charge
grounds?
237.12 What does it mean to be a ``public charge,'' for purposes of
removal as a deportable alien?
237.13 What specific benefits are considered to be ``public cash
assistance for income maintenance?''
237.14 Are there any forms of public benefits that I can receive
without becoming deportable as a public charge?
237.15 What other conditions must be met for me to be deportable as
a public charge?
237.16 Is the ``Affidavit of Support under Section 213A of the
Act'' (Form I-864) relevant to removal on public charge grounds of
deportation?
237.17 Does the 5 year period in section 237(a)(5) of the Act run
only from my first entry into the United States?
237.18 Will I be considered a public charge because my spouse,
parent, child, or other relative has accepted public benefits or has
become a public charge?
Subpart B--[Reserved]
Authority: 8 U.S.C. 1227(a)(5), 8 U.S.C. 1183a, 8 CFR part 213A.
Subpart A--Public Charge Deportability
Sec. 237.10 What issues do Secs. 237.10 through 237.18 address?
(a) Sections 237.10 through 237.18 of this part address the public
charge ground of deportation under section 237(a)(5) of the Act.
(b) In Secs. 237.10 through 237.18 of this part, the terms ``I,''
``me'' and ``my'' in the section headings and ``you'' and ``your'' in
the text of each section refer to an alien who may be deportable as a
public charge.
Sec. 237.11 What law governs whether I am deportable on public charge
grounds?
(a) Section 237(a)(5) of the Act describes which aliens are
deportable on public charge grounds. If the Service brings a removal
proceeding against you charging that you are subject to deportation on
public charge grounds, the Service must prove that you became a public
charge within 5 years of your entry to the United States.
(b) If you can prove that the causes that led to your becoming a
public charge arose after your entry to the United States, you will not
be deported.
Sec. 237.12 What does it mean to be a ``public charge'' for purposes
of removal as a deportable alien?
(a)(1) ``Public charge'' for purposes of removal as a deportable
alien means an alien who has become primarily dependent on the
Government for subsistence as demonstrated by either:
(i) The receipt of public cash assistance for income maintenance
purposes, or
(ii) Institutionalization for long-term care at Government expense
(other than imprisonment for conviction of a crime).
(2) Institutionalization for short periods for rehabilitation
purposes does not demonstrate primary dependence on the Government.
(b) For purposes of Secs. 237.10 through 237.18 of this part:
(1) The term ``government'' refers to any Federal, State or local
government entity or entities.
(2) The term ``cash'' includes not only funds you receive in the
form of cash from a government agency, but also funds received from a
government agency by check, money order, wire transfer, electronic
funds transfer, direct deposit, or any other form that can be legally
converted to currency, provided that the funds are for purposes of
maintaining your income.
(c) As described in Secs. 237.13(c) and 237.14 of this part, some
forms of public assistance will not be considered for public charge
purposes because they do not result in primary dependence on the
Government. In addition, you will not be found deportable on public
charge grounds unless the other conditions in Secs. 237.11, 237.15, and
237.16 of this part (if Sec. 237.16 applies to your case) have been
met.
Sec. 237.13 What specific benefits are considered to be ``public cash
assistance for income maintenance''?
(a) Public benefits considered to be ``public cash assistance for
income maintenance'' include:
(1) Supplemental Security Income (SSI), 42 U.S.C. 1381, et seq.;
(2) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601,
et seq., but not including supplemental cash benefits excluded from the
term ``assistance'' under TANF program rules (see 45 CFR 260.31) or any
non-cash benefits and services provided by the TANF program; and
(3) State and local cash assistance programs for income maintenance
(often called State ``General Assistance,'' but which may exist under
other names).
(b) Due to the constantly changing nature of the numerous Federal,
State and local benefits for which you may be eligible, it is not
possible to give a complete listing of such benefits that could be
considered for public charge purposes. If, within 5 years of your entry
into the United States, you have received any public benefit that is
provided in the form of cash (as that term is described in
Sec. 237.12(b)(2) of this part) for purposes of maintaining your
income, it may serve as a basis for your deportation on public charge
grounds, provided that all of the requirements of section 237(a)(5) of
the Act and the other conditions for deportation described in
Secs. 237.11, 237.15, and 237.16 of this part (if Sec. 237.16 applies
to your case) have been satisfied.
(c) Some forms of cash benefits are not intended for income
maintenance, and therefore, will not be considered for public charge
purposes under Secs. 237.10 through 237.18 of this part. Examples of
such cash benefits that are supplemental in nature include the Low
Income Home Energy Assistance Program (LIHEAP), 42 U.S.C. 8621 et seq.;
the Child Care and Development Block Grant Program (CCDBGP), 42 U.S.C.
9858 et seq.; Food Stamp benefits issued in cash (see, e.g., 7 U.S.C.
2026(b)); certain educational assistance benefits; and non-recurrent,
short-term crisis benefits, and other services funded in cash by the
TANF program that do not fall within the TANF program's definition of
``assistance,'' as described in paragraph (a)(2) of this section.
(d) Cash benefits that have been earned continue to be irrelevant
to the public charge ground of inadmissibility. A few examples of such
earned benefits that will not be considered include benefits under
Title II of the Social Security Act, 42 U.S.C. 401 et seq.,
[[Page 28685]]
government pension benefits, and veterans' benefits.
Sec. 237.14 Are there any forms of public benefits that I can receive
without becoming deportable as a public charge?
(a) The only benefits that are relevant to the public charge
decision are public cash assistance for income maintenance and
institutionalization for long-term care at Government expense.
Institutionalization for short periods for rehabilitation purposes will
not be considered. Non-cash public benefits are not considered because
they are of a supplemental nature and do not demonstrate primary
dependence on the Government for subsistence.
(b) Although it is not possible to list all of the non-cash public
benefits that will not be considered, you will not risk being found
deportable as a public charge by receiving non-cash benefits under the
following programs or benefit categories:
(1) The Food Stamp program, 7 U.S.C. 2011, et seq.,
(2) The Medicaid program, 42 U.S.C. 1396, et seq. (other than
payments under the Medicaid program for long-term institutional care);
(3) The Children's Health Insurance Program (CHIP), 42 U.S.C.
1397aa, et seq.;
(4) Health insurance and health services (other than public
benefits for costs of institutionalization for long-term care),
including, but not limited to, emergency medical services, public
benefits for immunizations and for testing and treatment of symptoms of
communicable diseases, and use of health clinics;
(5) Nutrition programs, including, but not limited to, the Special
Supplemental Nutrition Program for Women, Infants and Children (WIC),
42 U.S.C. 1786; and programs that operate under the National School
Lunch Act, 42 U.S.C. 1751 et seq.; the Child Nutrition Act, 42 U.S.C.
1771 et seq.; and the Emergency Food Assistance Act, 7 U.S.C. 7501 et
seq.;
(6) Emergency disaster relief;
(7) Housing benefits;
(8) Child care services;
(9) Energy benefits, such as LIHEAP, 42 U.S.C. 8621 et seq.;
(10) Foster care and adoption benefits;
(11) Transportation vouchers or other non-cash transportation
services;
(12) Educational benefits, including benefits under the Head Start
Act and aid for elementary, secondary, or higher education;
(13) Non-cash benefits or services funded by the TANF program;
(14) Job training programs;
(15) State and local supplemental, non-cash benefits that serve
purposes similar to those of the Federal programs listed in this
paragraph;
(16) Any other Federal, State, or local public benefit program,
under which benefits are provided in-kind, through vouchers, or any
other medium of exchange other than payment of cash benefits for income
maintenance to the eligible person.
Sec. 237.15 What other conditions must be met for me to be deportable
as a public charge?
(a) In addition to the requirements of section 237(a)(5) of the
Act, and except as provided in paragraph (b) of this section, you are
not deportable as a public charge unless the Service shows that:
(1) The Government entity that provided, or is providing, either
the public cash assistance for your income maintenance as described in
Secs. 237.12 and 237.13 of this part or the costs of
institutionalization for your long-term care as described in
Sec. 237.12, has a legal right to seek repayment of those benefits
against either you or another obligated party, such as a family member
or a sponsor; and
(2) Within 5 years of your entry to the United States, the public
entity providing the benefit demanded that you or another obligated
party repay the benefit; and
(3) You or another obligated party failed to repay the benefit
demanded;
(4) There is a final administrative or court judgment obligating
you or another party to repay the benefit. (As long as the demand for
repayment under paragraph (a)(2) of this section occurred within 5
years of your entry, the final judgment may be rendered against you or
another obligated party at any time thereafter);
(5) The benefit-granting agency, or other applicable Government
entity, has taken all actions necessary to enforce the judgment,
including all collection actions.
(b) If a legal right to seek repayment of the public benefits
described in Secs. 237.12 and 237.13 of this part is established, but
the Service proves that there was no one against whom repayment could
be enforced, thereby making a demand for repayment futile, then the
Service need not show that a demand was made and a final judgment for
repayment of the public benefits rendered.
Sec. 237.16 Is the ``Affidavit of Support Under Section 213A of the
Act'' (Form I-864) relevant to removal on public charge grounds of
deportation?
(a) The ``Affidavit of Support Under Section 213A of the Act''
(Form I-864) required under section 213A of the Act and 8 CFR part 213a
is relevant to removal on the public charge grounds for deportation in
certain circumstances. Section 213A of the Act provides that the
Affidavit of Support may support a legally enforceable claim against
your sponsor(s) for repayment of certain Federal, State, or local
means-tested public benefits provided to you. You may be found
deportable on public charge grounds if the Service proves that:
(1) An Affidavit of Support under Section 213A of the Act and 8 CFR
part 213a was filed on your behalf and is currently in effect; and
(2) Within 5 years after your admission to the United States, you
(i) Obtained SSI, cash TANF benefits, or other Federal, State, or
local public benefits that were cash assistance for income maintenance
purposes and that, at the time the Affidavit of Support was signed, had
been designated as ``means-tested public benefits'' by the Government
entity responsible for administering the benefit; or
(ii) Were institutionalized for long-term care at Government
expense (other than imprisonment for conviction of a crime); and
(3) Such benefits have not been repaid as provided in Sec. 237.15.
Sec. 237.17 Does the 5-year period in section 237(a)(5) of the Act run
only from my first entry into the United States?
(a) The 5-year period begins again each time you enter the United
States, unless you are a returning alien lawfully admitted for
permanent residency (an ``LPR'') who is not considered an applicant for
admission as described in paragraph (b) of this section.
(b) If you have been lawfully admitted for permanent residence (LPR
status), you are not considered an applicant for admission upon return
to the United States after a trip abroad unless you are covered by one
of the categories specified in section 101(a)(13)(C) of the Act,
including an absence of 180 days or more from the United States. If you
are not covered by one of the categories listed in section
101(a)(13)(C) of the Act, the 5-year period for public charge
deportation purposes would still be counted from your last entry to the
United States.
Sec. 237.18 Will I be considered a public charge because my spouse,
parent, child, or other relative has accepted public benefits or has
become a public charge?
(a) The fact that one, or all, of your close relatives has received
public cash benefits for income maintenance, or has become a public
charge, will not make you deportable as a public charge, unless the
evidence shows that you,
[[Page 28686]]
individually, have become a public charge.
(b) Public cash benefits for income maintenance received by your
relatives will not be attributed to you for deportation purposes,
unless they also represent your sole support. If such benefits are
attributed to you because they are your sole support, all of the
requirements of Secs. 237.11, 237.15, and 237.16 of this part (if
Sec. 237.16 is applicable to your case) must also be met before you may
be found deportable as a public charge.
Subpart B--[Reserved]
Dated: May 20, 1999.
Janet Reno,
Attorney General.
Appendix to Preamble
The following are the texts of letters received by Immigration
and Naturalization Service officials from officials from the
Department of Health and Human Services, the Social Security
Administration, and the Department of Agriculture.
BILLING CODE 4410-10-U
The Deputy Secretary of Health and Human Services
Washington, D.C. 20201
March 25, 1999.
Commissioner Doris Meissner,
Immigration and Naturalization Service, Department of Justice, 425
Eye Street NW., Washington, D.C. 20536
Dear Commissioner Meissner: According to my colleagues at the
U.S. Department of Health and Human Services (HHS), I understand
that the Immigration and Naturalization Service (INS) plans to issue
some form of guidance explaining the public charge ground of
inadmissibility to and deportation from the United States. The
guidance is critical to clarifying for immigrant families and
communities what the potential immigration consequences are of
receiving certain government benefits.
Over the past several years, there has been a significant
decline in the receipt of welfare, health, and nutrition benefits by
immigrant families and their citizen children, even though many of
these families (or individuals within these families) are eligible
for such benefits. HHS has received numerous reports from state and
local government officials, program administrators, and community
leaders around the country that a significant factor contributing to
this decline in participation is the confusion and fear that
immigrant families have in relation to public charge policies. There
is particularly concern that this lack of access to critical
services may lead to negative health outcomes for immigrant families
and children, as well as potentially undermining public health.
HHS supports the efforts of INS and the Department of Justice to
clarify the meaning of ``public charge'' in a way that meets the
objectives of both the immigration laws and the Administration's
health policies. The INS, as we understand it, is proposing to
define ``public charge'' to mean an alien who has, or is likely to
become, ``primarily dependent on the government for subsistence.''
An important issue that has arisen is receipt of which benefits is
evidence of this dependency. HHS agrees that in making such an
assessment about an individual, it is important to articulate a
principle that distinguishes clearly those public benefits that
should be relevant to public charge determinations from those that
should not be of any consequence. We further understand that under
immigration law, receipt of benefits is only one of many factors
that INS and Department of State officers consider in making public
charge determinations.
This letter responds to your request for advice from benefit-
granting agencies with expertise in subsistence matters about which
types of benefit receipt would demonstrate that an individual is
primarily dependent on the government for his or her support. The
best available evidence of whether someone is primarily dependent on
government assistance for subsistence is whether that individual is
receiving cash assistance for income maintenance purposes, (i.e.,
cash assistance under the Temporary Assistance to Dependent Families
program (TANF)), the Supplemental Security Income (SSI), and state
general assistance programs), or is institutionalized in a long-term
care facility at government expense.\1\
---------------------------------------------------------------------------
\1\ Note that SSI is administered by the Social Security
Administration, and general assistance programs are administered by
the several states. However, we believe these are the relevant cash
assistance programs that support the analysis in this letter.
---------------------------------------------------------------------------
The receipt of cash benefits or long-term care
institutionalization are the most effective proxies for identifying
an individual as one who is primarily dependent on government
assistance for subsistence.
First, nearly all individuals or families receiving cash
assistance for purposes of income maintenance are also receiving
other non-cash support benefits and services as well, (e.g.,
Medicaid, Food Stamps, housing assistance, child care, energy
assistance), and they are likely not to be receiving any income from
other sources. For example, virtually all of those receiving AFDC
cash assistance in 1995 were also receiving Medicaid (97 percent)
and Food Stamps (89 percent), (1998 Green Book). By the end of 1997,
82 percent of families receiving TANF reported having no earned
income. (AFDC/TANF Quality Control Data). In these cases, the
individuals or families receiving cash assistance would meet the
standard of ``primarily dependent on government assistance for
subsistence.''
Second, it is extremely unlikely that an individual or family
could subsist on a combination of non-cash support benefits or
services alone. Without cash assistance, it is extremely unlikely
that the individual or family could meet the basic subsistence
requirements related to food, clothing and shelter. These non-cash
assistance programs typically provide only supplemental and marginal
assistance, (e.g., Food Stamps, housing assistance, energy
assistance) or services, (e.g., health insurance coverage, medical
care and child care) that do not directly provide subsistence and
together are insufficient to provide primary support to an
individual or a family absent additional income. Moreover, programs
such as Child Care enable parents to work and earn income in order
to be self-sufficient. In addition, depending on eligibility rules,
some programs such as Medicaid, may or may not be available to all
family members or for all periods of time. HHS is unable to conceive
of a situation where an individual, other than someone who
permanently resides in a long-term care institution, could support
himself or his family solely on non-cash benefits so as to be
primarily dependent on the government. Thus, virtually all families
receiving non-cash support benefits, but not receiving cash
assistance, must rely on other income (usually earned income) in
order to meet their subsistence needs.
Finally, non-cash support benefits and services are generally
designed to supplement and support the diet, health, and living
conditions of recipients, many of whom are low- to middle-income
working families, and are generally provided as vouchers or direct
services.\2\ Also, these non-cash services often have a primary
objective of supporting the overall community or public health, by
making services generally available to everyone within a community,
providing infrastructure development and support, or providing
stable financing for services and systems that benefit entire
communities. Compared to cash benefit programs, non-cash support
programs generally have more generous eligibility rules so as to be
available to individuals and families with incomes well above the
poverty line. For example, states have a great deal of flexibility
to set income eligibility rules under Medicaid and the Children's
Health Insurance Program, and many states cover certain populations,
such as children and pregnant women, up to 200 percent of the
poverty line and sometimes higher. Moreover, in 1997 nearly half (49
percent) of Medicaid recipients were not receiving any cash
assistance (SSI or AFDC/TANF), and two-thirds (64 percent) of adult
recipients reported working full or part time. (March 1998 Current
Population Survey). Similarly, about one-third of Food Stamp
recipients in 1997 did not receive cash assistance and
[[Page 28687]]
reported earnings in 1997. (Characteristics of Food Stamp
Recipients, 1998). In these cases the individual or family receiving
non-cash benefits, but not receiving cash assistance, would not meet
the standard of ``primarily dependent on government assistance for
subsistence.''
---------------------------------------------------------------------------
\2\ Although most support programs provide vouchers or direct
services, it should be noted that at HHS some of these programs can
also provide cash for the reimbursement of specific costs. For
example, the Low Income Home Energy Assistance Program (LIHEAP) and
the Child Care Development Fund (CCDF) are authorized to make cash
payments, but these payments are for specific purposes other than
income maintenance. LIHEAP is authorized to provide cash payments
for energy costs, and providers do so in very limited circumstances
such as when a vendor (such as a log supplier) does not have an
agreement with the administering entity, (i.e., state, county, or
nonprofit organization). In the case of CCDF, in FY 1997 that
program gave cash payments to recipients in 7% of all cases
specifically for the reimbursement of beneficiaries' child care
costs. Under the proposal articulated here, cash payments in these
programs would not give rise to a public charge determination since
such payments are not provided for income maintenance purposes.
---------------------------------------------------------------------------
The one circumstance in which receipt of non-cash benefits would
indicate that an individual is primarily dependent on government
assistance for subsistence, and therefore potentially a public
charge, is the case of an individual permanently residing in a long-
term care institution and relying on government assistance for those
long-term care services. In this case, all of the individual's basic
subsistence needs are assumed by the institution, and the individual
has no need for cash assistance. Aside from this narrow instance,
the receipt of a non-cash support benefits and services should not
be relevant to a public charge determination under INS' proposed
definition.
Based on these considerations, HHS recommends that benefit
receipt should only be relevant to public charge determinations when
an individual receives the benefits defined below:
1. Cash-Assistance for Income Maintenance: Cash assistance under
TANF, SSE, and state/local equivalents (including state-only TANF).
2. Long-Term Institutionalized Care: The limited case of an
alien who permanently resides in a long-term care institution (e.g.,
nursing facilities) and whose subsistence is supported substantially
by public funds (e.g., Medicaid).
Thank you for your time and consideration. Please let me know if
I or HHS staff can be of any further assistance regarding this
important policy issue.
Sincerely,
Kevin Thurm,
Deputy Secretary of Health and Human Services.
Social Security
May 14, 1999.
Dr. Robert L. Bach,
Executive Associate Commissioner for Office of Policy and Planning,
Immigration and Naturalization Service, 425 I Street, Washington, DC
20536
Dear Dr. Bach: We understand that the Immigration and
Naturalization Service (INS) is planning to publish proposed
regulations on the definition of ``public charge'' for purposes of
determining who can be admitted to and who can be deported from the
United States under the provisions in sections 212(a)(4) and
237(a)(5) of the Immigration and Nationality Act (INA). More
specifically, INS plans to define ``public charge'' to mean an
individual who ``has become'' or is ``likely to be primarily
dependent on the government for subsistence.'' You have asked the
Federal agencies that administer public benefit programs whether a
noncitizen's receipt of the benefits might indicate that the
noncitizen primarily relied on these benefits for subsistence. This
letter is in response to that request.
We agree that the receipt of Supplemental Security Income (SSI)
could show primary dependence on the government for subsistence
fitting the INS definition of public charge provided that all of the
other factors and prerequisites for admission or deportation have
been considered or met. We believe, however, that many mitigating
factors discussed below, coupled with specific public charge
exemptions under immigration law, also discussed, would result in a
minimal impact of the public charge provisions on the SSI noncitizen
population.
The SSI program is a nationwide Federal means-tested income
maintenance program administered by the Social Security
Administration (SSA). SSI guarantees a minimum level of income for
needy aged, blind, and disabled individuals. The program is designed
to provide assistance for individuals' basic needs of food,
clothing, and shelter. Individuals eligible for SSI are among the
most vulnerable people in the United States. For them, SSI is truly
the program of last resort and is the safety net that protects them
from complete impoverishment.
Lawful permanent residents and noncitizens permanently residing
in the United States under color of law were eligible for SSI when
the program began in 1974. The 1996 welfare reform legislation
(Public Law 104-193) restricted SSI eligibility for qualified
noncitizens to those who were in specific, limited categories, such
as refugees and asylees, individuals who served in the U.S.
military, and lawful permanent residents who worked in the United
States for at least 40 quarters. Subsequent legislation in 1997 and
1998 expanded the categories to include individuals who had received
SSI or were in the United States prior to enactment of welfare
reform and who are disabled or blind. These later laws added other
discrete classes of noncitizens as well. Still, the categories of
noncitizens eligible for SSI are limited.
Under INS' proposed rule, the receipt of SSI could lead to a
determination that a person is or is likely to be a public charge.
As mentioned earlier, only limited, specified categories of
noncitizens are eligible for SSI. Our analysis of the proposed INS
public charge rule leads us to conclude that many of these SSI-
eligible noncitizen categories would either be exempt from the
public charge provisions by law, or would not be deemed public
charges because of the operation of other factors required under the
proposed rule. For example, aged, blind, and disabled refugees,
asylees, Amerasian immigrants, Cubans and Haitians may be eligible
for SSI benefits after they have been in the United States for 30
consecutive days. We understand that the first three categories and
certain Cuban/Haitians are exempt from the proposed public charge
policy under other provisions in immigration law. In addition, the
public charge provision for deportation under section 237(a)(5) of
the INA, applies only in cases in which a noncitizen became a
``public charge from causes not affirmatively shown to have arisen
since entry.'' Many individuals who are eligible for SSI are healthy
when they first come to the United States but become aged, blind or
disabled after they enter. If these conditions occurred after entry
giving rise to the use of the public benefits, we understand that
they would not be deportable on public charge grounds.
Another mitigating factor in the proposed public charge rule as
it applies to SSI beneficiaries involves reimbursement of SSI
benefits received. As we understand the proposed rule, in order for
a noncitizen to be determined deportable on public charge grounds,
there must in part be a legal obligation for the individual or his
or her sponsor to repay the benefits received during the first 5
years after entry into the United States. SSA has no authority to
require the individual to repay the benefits for which they are
entitled. Thus, nonsponsored noncitizens would not be required to
reimburse, and the public charge provision for deportation would not
apply to them. However, sponsors who have signed a new affidavit of
support under section 213A of the INA are required to reimburse SSA
for SSI benefits paid to the sponsored noncitizen. Only if the
sponsor refuses to repay would the SSI beneficiary potentially be
subject to deportation.
Even for those individuals who do not come under one of the
exempted categories, the draft rules state that the mere receipt of
SSI does not automatically make a noncitizen inadmissible,
ineligible to adjust status, or subject to deportation. In the
admission context, the INS plans to apply a ``totality of
circumstances'' test which includes the consideration of several
mandatory statutory factors. Examples of such factors include an
alien's age, health, family status, assets, resources, financial
status, education and skills. No single factor, other than the lack
of a sufficient affidavit of support, if required, will determine
whether a noncitizen is likely to be a public charge, including past
or current receipt of SSI. In the deportation context, mere receipt
of benefits also will not make a person deportable. There must also
have been a demand for repayment by the benefit agency, failure to
meet that demand by the alien or other obligated party, a final
judgment, and all steps taken to enforce that judgment. Without the
satisfaction of these prerequisites, the alien is not deportable.
Further, we understand that INS will take into account the
specific circumstances surrounding the past or current receipt of
SSI. For example, if a noncitizen received SSI in a past period of
unemployment, but he or she is currently working and is self-
supporting, a public charge determination may not be made. Every
admission decision is made on a case-by-case basis carefully
balancing the totality of the circumstances. We also understand that
INS will accord less significance to the receipt of SSI if a
noncitizen received SSI sometime ago or a noncitizen received or is
receiving a small amount of SSI.
INS' proposed rule concerning deportations on public charge
grounds indicates that such deportations are rare since the
standards are very strict. We believe that these strict criteria
would result in the deportation provision rarely being applied
against a noncitizen SSI beneficiary.
[[Page 28688]]
Thank you for the opportunity to comment on this important
matter.
Sincerely,
Susan M. Daniels,
Deputy Commissioner for Disability and Income Security Programs.
Department of Agriculture
Office of the Secretary, Washington, D.C. 20250
April 15, 1999.
Honorable Doris M. Meissner,
Commissioner, Immigration and Naturalization Service, 425 I Street,
NW, Room 7100, Washington, D.C. 20536
Dear Commissioner Meissner: This is in reference to a letter
that the Department of Health and Human Services recently sent you
suggesting that the receipt of public benefits should only be
relevant to a public charge determination when an individual
receives cash assistance for income maintenance or long-term
institutionalized care. We have reviewed the letter and are in
agreement with its contents.
We believe that neither the receipt of food stamps nor nutrition
assistance provided under the Special Nutrition Programs
administered by this Agency should be considered in making a public
charge determination for purposes of admission, deportation, or
adjustment of an alien's status.
Please let us know if we can be of any assistance regarding this
matter.
Sincerely,
Shirley R. Watkins,
Under Secretary, Food, Nutrition and Consumer Services.
[FR Doc. 99-13188 Filed 5-25-99; 8:45 am]
BILLING CODE 4410-10-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.