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1 DHS also applies section 212(a)(4) of the INA, 

8 U.S.C. 1182(a)(4), to noncitizens seeking 

admission to the United States at or between ports 

of entry, or in reviewing applications for adjustment 

of status. Additionally, the Department of Justice 

(‘‘DOJ’’) applies this statute with respect to 

noncitizens in immigration court proceedings 

before the Executive Office for Immigration Review, 

a DOJ agency. This final rule does not apply to the 

public charge inadmissibility standards applied by 

DHS or DOJ. This final rule will use the terms 

inadmissible to the United States and ineligible for 

a visa interchangeably. 

2 84 FR 54996 (Oct. 11, 2019). 

3See id. at 55002 (‘‘The Department notes that 

this approach deviates somewhat from the [2019 

DHS Final Rule], in that the Department’s approach 

focuses on the alien’s intended household in the 

United States, rather than any members of his 

foreign household he or she will leave behind. This 

difference in effect aligns the two Departments’ 

approaches.’’). 

4 Interim Field Guidance on Deportability and 

Inadmissibility on Public Charge Grounds, 64 FR 

28689 (May 26, 1999). 

5 84 FR 54996, 55014. 

6 Id. 

7 Make the Road N.Y. v. Pompeo, 475 F. Supp. 

3d 232, 262 (S.D.N.Y. 2020). 

8 Make the Road N.Y. v. Pompeo, No. 20–3214 

(S.D.N.Y. July 6, 2021), ECF No. 118. 

DEPARTMENT OF STATE 

22 CFR Part 40 

[Public Notice: 11921] 

RIN 1400–AE87 

Visas: Ineligibility Based on Public 

Charge 

AGENCY: Department of State. 

ACTION: Final rule. 

SUMMARY: The Department of State 

(‘‘Department’’) has decided not to 

finalize the regulatory amendments 

made by the 2019 interim final rule 

entitled ‘‘Visas: Ineligibility Based on 

Public Charge Grounds’’ published in 

the Federal Register on October 11, 

2019 (‘‘2019 IFR’’). The 2019 IFR 

implemented such amendments based 

on an intention to more closely align 

with the standards then applied by the 

U.S. Department of Homeland Security 

(‘‘DHS’’) to determine inadmissibility on 

public charge grounds. In 2022, DHS 

published a new Final Rule (‘‘2022 DHS 

Final Rule’’). As such, the 2019 IFR no 

longer meets the policy aim of 

consistency with DHS standards. In 

declining to finalize the regulatory 

amendments made by the 2019 IFR, the 

Department will instead revert to 

regulatory text that was in place prior to 

the publication of the 2019 IFR and will 

continue to apply the guidance set out 

in the Foreign Affairs Manual (‘‘FAM’’). 

This regulatory text, together with the 

existing FAM guidance, more closely 

aligns with the current DHS standards, 

and the Department anticipates that it 

will subsequently initiate new noticeand-comment rulemaking in light of the 

2022 DHS Final Rule. 

DATES: This final rule is effective 

October 5, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Andrea Lage, Acting Senior Regulatory 

Coordinator, Visa Services, Bureau of 

Consular Affairs, Department of State; 

telephone: (202) 485–7586; email: 

VisaRegs@state.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. Legal Authority 

Under section 212(a)(4) of the 

Immigration and Nationality Act 

(‘‘INA’’), 8 U.S.C. 1182(a)(4), a 

noncitizen is inadmissible to the United 

States, and therefore ineligible for a 

visa, if, in the opinion of the consular 

officer at the time of the application for 

a visa, the applicant is likely at any time 

to become a ‘‘public charge.’’ 1 The 

Department implements the public 

charge ground of inadmissibility with 

respect to visa ineligibility through 

regulations at 22 CFR 40.41. 

B. The Department’s 2019 Interim Final 

Rule 

On August 14, 2019, DHS issued a 

final rule amending standards in its 

regulations for determining 

inadmissibility under public charge 

grounds. See Inadmissibility on Public 

Charge Grounds, 84 FR 41292, as 

amended on October 2, 2019, 84 FR 

52357 (‘‘2019 DHS Final Rule’’). Among 

other changes to these regulations, the 

2019 DHS Final Rule expanded DHS’s 

definition of ‘‘public charge’’ and 

designated certain factors or factual 

circumstances that could be weighted 

positively or negatively, and some that 

would be ‘‘heavily’’ weighted, either 

positively or negatively, to consider 

whether an applicant was likely at any 

time to become a public charge. 

On October 11, 2019, the Department 

issued the 2019 IFR, which amended 

Department regulations at 22 CFR 40.41 

to modify its standards for when a 

consular officer would determine that a 

noncitizen is ineligible for a visa under 

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

1182(a)(4), because they are likely at any 

time to become a public charge.2 The 

Department issued the 2019 IFR largely 

to avoid situations when a consular 

officer would evaluate an applicant’s 

circumstances and conclude that the 

applicant is not likely to become a 

public charge, only for DHS to evaluate 

the same applicant when seeking 

admission to the United States on a visa 

issued by the Department, and find that 

the applicant is inadmissible on public 

charge grounds under the same facts. 

Though the 2019 IFR included minor 

deviations from the 2019 DHS Final 

Rule, its purpose was to align the 

Department’s approach with that of 

DHS’s.3

While the term ‘‘public charge’’ is not 

defined in the INA, the definition set 

forth in the 2019 IFR and the 2019 DHS 

Final Rule differed significantly from 

the definition applied for decades 

previously, and most notably from the 

1999 Field Guidance on Deportability 

and Inadmissibility on Public Charge 

Grounds (‘‘1999 Interim Field 

Guidance’’) 4 issued by the former 

Immigration and Naturalization Service 

and related FAM guidance issued by the 

Department, as further described below. 

Similar to the 2019 DHS Final Rule, the 

2019 IFR defined public charge to mean 

a noncitizen who receives one or more 

public benefits, as defined in the 2019 

IFR, for more than 12 months in the 

aggregate within any 36-month period. 

Receipt of two benefits in one month 

would count as two months’ worth of 

benefits.5 Public benefits under the 2019 

IFR included any Federal, State, local, 

or Tribal cash assistance for income 

maintenance (other than tax credits), the 

Supplemental Nutrition Assistance 

Program, 7 U.S.C. 2011 et seq., the 

Housing Choice Voucher Program, as 

authorized under section 8(o) of the 

United States Housing Act of 1937 (42 

U.S.C. 1437f), Project-Based Rental 

Assistance (including Moderate 

Rehabilitation) authorized under section 

8 of the United States Housing Act of 

1937, Medicaid (with enumerated 

exclusions), and Public Housing under 

section 9 of the U.S. Housing Act of 

1937 (42 U.S.C. 1437g).6 Further, the 

2019 IFR included certain factors and 

factual circumstances that weighed 

heavily in determining whether a visa 

applicant was likely to become a public 

charge, including negative and positive 

factors. 

On July 29, 2020, the U.S. District 

Court for the Southern District of New 

York granted a preliminary injunction 

against implementation of the 2019 IFR, 

holding that the plaintiffs were likely to 

succeed in their claim that the 2019 IFR 

did not comply with the requirements of 

the Administrative Procedure Act.7 The 

government filed a notice of appeal from 

this preliminary injunction, but the 

appeal was later dismissed at the 

government’s request.8

Following the preliminary injunction 

against enforcement of the 2019 IFR, the 

Department issued FAM guidance to 


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9See 9 FAM 302.8—PUBLIC CHARGE—INA 

212(A)(4), https://fam.state.gov/FAM/09FAM/ 

09FAM030208.html (last visited June 14, 2023). 

10Executive Order 14012, 86 FR 8277 (Feb. 5, 

2021). 

11See Exec. Order No. 14012, sec. 4, 86 FR 8277, 

8278 (Feb. 5, 2021). 

12 Id. § 4(a). 

13See Visas: Ineligibility Based on Public Charge 

Grounds, 86 FR 64070 (Nov. 17, 2021). 

14 Visas: Public Charge, 62 FR 67563 (Dec. 29, 

1997). 

15See Immigrant Visas; Change in the Schedule 

of Fees for Consular Services, 65 FR 78094 (Dec. 14, 

2000); Nomenclature Changes Reflecting Creation of 

Department of Homeland Security, 71 FR 34519 

(Jun. 15, 2006). 

16See Public Charge Ground of Inadmissibility, 

87 FR 55472 (Sept. 9, 2022). 

consular officers 9 regarding compliance 

with the court order. The FAM guidance 

generally instructed consular officers 

adjudicating visas to apply the 

standards that had been in place prior 

to the 2019 IFR, standards which were 

based on the 1999 Interim Field 

Guidance. 

C. Purpose of Not Finalizing the 

Regulatory Standards in the 2019 IFR 

There have been significant 

developments related to the public 

charge ground of inadmissibility since 

the publication of the 2019 IFR. On 

February 2, 2021, President Biden 

issued Executive Order 14012, Restoring 

Faith in Our Legal Immigration System 

and Strengthening Integration and 

Inclusion Efforts for New Americans 

(‘‘E.O. 14012’’).10 E.O. 14012 directed 

the Secretary, along with the Attorney 

General, the Secretary of Homeland 

Security, and other relevant agency 

heads, to ’’review all agency actions 

related to implementation of the public 

charge ground of inadmissibility . . . 

and the related ground of 

deportability.’’ 11 The President ordered 

each of the agencies to submit a report 

‘‘identify[ing] appropriate agency 

actions, if any, to address concerns 

about the current public charge policies’ 

effect on the integrity of the Nation’s 

immigration system and public health’’ 

and ‘‘recommend[ing] steps that 

relevant agencies should take to clearly 

communicate current public charge 

policies and proposed changes, if any, 

to reduce fear and confusion among 

impacted communities.’’ 12

On November 17, 2021, the 

Department published a notice in the 

Federal Register, 86 FR 64070 (‘‘Public 

Comment Reopening’’), soliciting public 

comment on the 2019 IFR for an 

additional 60-day period, noting 

significant changes in circumstances 

since publication of the 2019 IFR.13 As 

described in the Public Comment 

Reopening, the changes in intervening 

circumstances included public health 

and economic conditions arising from 

the COVID–19 pandemic; a court’s 

vacatur of the 2019 DHS Final Rule on 

a nationwide basis; and DHS’s 

publication on August 23, 2021, of an 

Advance Notice of Proposed 

Rulemaking, soliciting public feedback 

on the DHS interpretation of the public 

charge ground of inadmissibility to 

inform a future rulemaking on the issue. 

In light of those developments, in the 

Public Comment Reopening, the 

Department specifically sought public 

feedback on whether: (1) the 2019 IFR 

should be rescinded or revised; and (2) 

if so, what final rule should be adopted 

regarding visa ineligibility on public 

charge grounds. 

As detailed below, following receipt 

of a range of public comments in 

response to the 2019 IFR and the 2021 

Public Comment Reopening, the 

Department has decided not to finalize 

the regulatory amendments made by the 

2019 IFR. Instead, the Department is 

removing from 22 CFR 40.41 the 

regulations promulgated in the 2019 IFR 

and restoring the regulatory text as it 

appeared prior to the issuance of the 

2019 IFR (‘‘Prior Rule’’).14 The Prior 

Rule was published in 1997, and, with 

non-substantive changes,15 remained in 

place until the publication of the 2019 

IFR. The subsequently published 1999 

Interim Field Guidance set forth a 

public charge rule substantially similar 

to the Prior Rule. The majority of public 

comments opposed the 2019 IFR or 

recommended substantial revisions, 

noting an array of public harms that 

they attributed to the overall public 

charge policy reflected in the 2019 IFR, 

including a measurable decline in 

enrollment in assistance programs by 

children in families with noncitizen 

members, far more than the decline of 

enrollment in assistance programs by 

children in families with no noncitizen 

members. 

In 2022, DHS promulgated the 2022 

DHS Final Rule in which it explained 

why it believed its 2019 Final Rule did 

not represent the best interpretation of 

the public charge statute.16 The 2022 

DHS Final Rule adopts a significantly 

different standard for determining 

whether an individual is likely at any 

time to become a public charge than the 

standard reflected in DHS’s 2019 Final 

Rule and the Department’s 2019 IFR. 

The 2022 DHS Final Rule promulgated 

a rule governing the public charge 

grounds of inadmissibility, which, 

while not identical, is substantially 

similar to the 1999 Interim Field 

Guidance. 

Accordingly, the 2019 IFR no longer 

meets the policy aim of consistency 

with DHS standards, which was the 

Department’s principal reason for 

adopting the 2019 IFR. The Department 

therefore will not finalize the provisions 

in the 2019 IFR, which have been 

subject to a preliminary injunction since 

July 2020, and will instead return to the 

Prior Rule pending further rulemaking. 

The standards contained in the Prior 

Rule, together with the associated FAM 

guidance, align better with the 2022 

DHS Final Rule than the 2019 IFR. After 

the instant rule is finalized, the 

Department anticipates that it will 

initiate new notice-and-comment 

rulemaking in light of the 2022 DHS 

Final Rule to pursue any further 

amendments to the Department’s 

regulatory text on public charge 

ineligibility, as appropriate. 

D. Alternatives Considered 

The Department considered 

alternatives to this final rule. For 

example, the Department considered 

promulgating a final rule, following the 

2019 IFR, but taking into account 

comments received, that would amend 

significantly the standards of the 2019 

IFR to more closely align with the 2022 

DHS Final Rule. The Department 

declined to pursue this alternative, 

because, despite the two periods of 

public comment on the 2019 IFR, it 

would not provide the public an 

opportunity to provide comment on the 

new standards, in the context of the 

Department’s rulemaking. For that 

reason, the Department believes it is 

appropriate not to finalize the 2019 IFR 

with revised standards and instead to 

undertake new notice-and-comment 

rulemaking in light of the 2022 DHS 

Final Rule. 

The Department also considered 

publishing a proposed rule with new 

standards for visa ineligibility based on 

the public charge ground of 

inadmissibility, without first removing 

changes to the regulations promulgated 

under the 2019 IFR. The Department 

determined that this alternative would 

not best achieve the Department’s policy 

objective of consistency in 

administration of the public charge 

grounds of inadmissibility with DHS, 

because amendments from the 2019 IFR 

would remain in Department 

regulations while the new standards 

underwent public notice and comment. 

Because the 2019 IFR was principally 

designed to align with the standards of 

the 2019 DHS Final Rule, the 2019 IFR, 

if applied now, would create a 

pronounced inconsistency with the 

standards in the 2022 DHS Final Rule, 

and the Department determined that 


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17There were 33 total comments submitted, but 

one was an identical comment submitted by the 

same commenter. As the substance of the comments 

was identical, the Department considers both 

comments as one comment. 

neither retaining nor finalizing the 

regulatory amendments made by the 

2019 IFR while it undertook further 

rulemaking was appropriate. 

The Department also considered 

whether there might be policy 

alternatives to amending the 2019 IFR or 

removing changes to regulations from 

the 2019 IFR. The Department 

determined that there are no such viable 

alternatives because the standards 

promulgated under the 2019 IFR are 

entirely inconsistent with the standards 

implemented by DHS in the 2022 DHS 

Final Rule with respect to 

inadmissibility under the public charge 

grounds. 

E. Consideration of Reliance Interests 

In preparing this final rule, the 

Department also considered whether 

there were any serious reliance interests 

that would be harmed by removing the 

2019 IFR and returning to the Prior 

Rule. 

While no comments submitted in 

response to the 2019 IFR or Public 

Comment Reopening directly or 

indirectly identified reliance interests of 

any individuals or public or private 

entities that have relied on the policy 

articulated in the 2019 IFR, the 

Department’s regulations, which can 

affect the interests of individuals and 

entities in the United States, could have 

potentially engendered degrees of 

reliance. The 2019 IFR may have 

engendered such an interest, for 

example, by individuals or public or 

private entities. For instance, public 

entities such as state or local 

governments may assert reliance on the 

enjoined rule given potential effects on 

noncitizens obtaining public benefits in 

the United States. The Department has 

considered those potential interests and 

taken them into consideration in 

formulating this final rule. 

The Department concludes that the 

reasons not to finalize the regulatory 

amendments made by the 2019 IFR 

outweigh any such reliance interests, 

which appear minimal, in light of a 

number of factors, including: (1) the 

limited period in which this policy was 

in effect prior to the preliminary 

injunction, as any reliance interests 

have been significantly reduced as 

compared to a longstanding rule or 

agency policy; (2) the significant time 

during which the Department has been 

enjoined from implementing the policy; 

(3) the Department’s notice to the public 

in the Public Comment Reopening that 

it was considering removing the 

regulations promulgated under the 2019 

IFR, and solicitation of public 

comments on whether to adopt, revise, 

or rescind it; (4) the explicitly ‘‘interim’’ 

nature of the 2019 IFR itself; and (5) the 

significant policy interests articulated in 

this rule that support removal of the 

regulations, specifically the interest in 

ensuring that the Department and DHS 

do not apply significantly different 

public charge standards to determine a 

given individual’s visa eligibility and 

eligibility for admission to the United 

States. 

In reverting to the Prior Rule and in 

continuing to apply the FAM guidance, 

consular officers will continue to apply 

the Department’s policy of 

implementing the public charge ground 

of inadmissibility consistently with 

current DHS standards and the 

Department’s FAM guidance. As the 

nationwide preliminary injunction has 

been in place since July 2020, the 

Department has in practice reverted to 

the Prior Rule since that time. 

Compared with the standards set forth 

in the 2019 IFR, the Prior Rule more 

closely aligns with the standards 

articulated by DHS in the 2022 DHS 

Final Rule. 

F. Comments Received in Response to 

2019 IFR and 2021 Public Comment 

Reopening 

1. Summary of Comments 

In the 2019 IFR, the Department 

solicited public comments on the rule 

for a 30-day period following 

publication on October 11, 2019. During 

that period, the Department received 

199 comments from individuals, local 

and state governments, public officials, 

and non-governmental organizations. 

The Department reviewed these 

comments, of which 4 expressed 

support for the 2019 IFR; 19 were nonresponsive to the 2019 IFR; and 34 did 

not clearly reflect support or opposition 

to the 2019 IFR. The remaining 142 

comments expressed opposition to the 

2019 IFR. 

The Public Comment Reopening 

solicited public comments on the IFR 

for an additional 60-day period 

following publication of the notice on 

November 17, 2021. In response, the 

Department received 32 comments 17

from individuals, local and state 

governments, public officials, and nongovernmental organizations. The 

Department reviewed these comments, 

of which 3 expressed support for the 

2019 IFR and 29 opposed the 2019 IFR 

and suggested rescission or substantial 

revision of the 2019 IFR on a variety of 

bases, discussed below. 

The below table provides a summary 

of the total comments received: 

TABLE 1—TOTAL COMMENTS

RECEIVED

Support for the 2019 IFR .................................. 7 

Opposition to 2019 IFR ..................................... 171 

Neither Clearly Supporting nor Opposing ......... 34 

Nonresponsive .................................................. 19 

Total ........................................................... 231 

The summary and discussion of 

comments below reflects the comments 

received in response to the 2019 IFR, 

including those received in response to 

the Public Comment Reopening. Of 

those comments expressing opposition 

to the 2019 IFR, the most common 

reasons expressed were opposition to 

policies first articulated in the 2019 

DHS Final Rule; harmful effects of the 

overall public charge policy reflected in 

the 2019 IFR on immigrant families; that 

the interpretation of the public charge 

ground of inadmissibility in the 2019 

IFR was unlawful; that the 2019 DHS 

Final Rule was enjoined; and that the 

overall public charge policy reflected in 

the 2019 IFR had a chilling effect that 

deterred families from receiving public 

benefits to which they were eligible. As 

detailed in Table 3, other comments in 

opposition to the 2019 IFR included 

objections to the rule’s circumstantial 

eligibility factors and concerns that 

calculations related to the statutory 

factors were arbitrary. Several 

commenters opined that the 2019 IFR 

was discriminatory against immigrants 

from particular regions or that it would 

unduly burden the U.S. national 

economy. The two tables below describe 

the categories of comments submitted 

by the public both in favor of and in 

opposition to the 2019 IFR, noting that 

some comments expressed more than 

one basis for support or opposition to 

the rule. 

TABLE 2—COMMENTS IN SUPPORT OF

2019 IFR, BY CATEGORY

Reduce Overall Immigration .............................. 3 

Immigrants Should be Self-Sufficient ................ 2 

Immigrants Should Not Go on Welfare ............. 1 

Immigrant Communities are Already Self-Sufficient ............................................................... 1 

Total ........................................................... 7 

TABLE 3—COMMENTS IN OPPOSITION

TO 2019 IFR, BY CATEGORY 18

Oppose 2019 DHS Public Charge Rule ........... 105 

IFR is Unlawful .................................................. 80 

2019 Harmful to Immigrant Families ................. 86 

DHS Rule and IFR were under Injunction ........ 65 


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18Several commenters expressed multiple 

reasons for opposition; each reason listed in this 

table shows the primary reasons for opposition to 

the IFR. Additionally, there may be some overlap 

between arguments raised by some commenters. 

19Several classifications of nonimmigrant and 

immigrant visa applicants are expressly exempted 

from the public charge grounds of visa ineligibility. 

Such visa classifications include, without 

limitation, Special Immigrant Visa applicants who 

were Afghan or Iraqi nationals employed by or on 

behalf of the U.S. Government, and applicants for 

A–1, A–2, C–2, C–3, G–1, G–2, G–3, G–4, NATO– 

1, NATO–2, NATO–3, NATO–4, NATO–6, T, and 

U (with a limited exception) nonimmigrant visas. 

Applicants for S nonimmigrant visas may also 

obtain a waiver of the public charge grounds of visa 

ineligibility. A full list of exemptions and waivers 

from the public charge grounds of inadmissibility 

is contained in the 2022 DHS Final Rule, 87 FR 

55472, 55637–39 (Sept. 9, 2022). 

20 Department of State, Annual Report of the Visa 

Office 2020, Table XIX, https://travel.state.gov/ 

content/dam/visas/Statistics/AnnualReports/ 

FY2020AnnualReport/FY20AnnualReportTable%20XIX.pdf. 21See 9 FAM 302.8—PUBLIC CHARGE—INA 

212(A)(4), https://fam.state.gov/FAM/09FAM/ 

09FAM030208.html (last visited June 14, 2023). 22 8 U.S.C. 1183. 23Public Law 104–193 tit. IV, 8 U.S.C. 1601 et 

seq. 

TABLE 3—COMMENTS IN OPPOSITION

TO 2019 IFR, BY CATEGORY 18— 

Continued 

Chilling Effect to Deter Receipt of Public Benefits .................................................................. 65 

IFR is Discriminatory or Racist ......................... 41 

Oppose Circumstantial Eligibility Factors .......... 39 

Economically Burdensome on Families ............ 39 

Unfair Calculations under IFR ........................... 34 

Oppose Definition of Public Charge in IFR ....... 31 

Private Health Insurance Concern .................... 19 

Other ................................................................. 40 

2. Comments Expressing Support for 

Finalizing the 2019 IFR 

Comment: Three commenters 

expressed support for the 2019 IFR, 

because, in the commenters’ opinion, 

levels of immigration to the United 

States are too high and finalizing the 

2019 IFR would have the effect of 

restricting or lowering immigration 

levels overall. 

Response: The INA governs the 

standards regarding a noncitizen’s 

admissibility to the United States, and 

the Department seeks to faithfully 

implement the statutory public charge 

ground of inadmissibility. The 

Department will continue to apply the 

public charge ground of inadmissibility 

to nonimmigrant and immigrant visa 

applicants in classifications that are 

subject to this ground, noting that, by 

statute, the ground does not apply to 

certain nonimmigrant visa 

classifications.19 The INA sets out 

worldwide levels of immigration for 

each fiscal year for certain familysponsored, employment-based, and 

diversity immigrants, while excluding 

certain immigrants (notably the 

immediately relatives of U.S. citizens) 

from numerical limitations. Most 

nonimmigrant visa classifications are 

not subject to numerical limitations. 

Between FY 2016 and 2019, DOS issued 

approximately 543,000 immigrant visas 

and 9,458,000 nonimmigrant visas 

annually (on average). Considering the 

overall demand for visas and prepandemic trends in visa issuance, the 

Department does not expect that the 

2019 IFR or this final rule would change 

the overall level of immigration. 

This conclusion is supported by the 

immigrant and nonimmigrant visa 

statistics available for fiscal year 2020, 

which covers the time period when the 

2019 IFR was in effect.20 In fiscal year 

2020, consular officers made 6,541 

inadmissibility findings based on public 

charge grounds when adjudicating 

immigrant visas, and 6,175 were 

overcome. For nonimmigrants, the 

Department made 343 inadmissibility 

findings based on public charge 

grounds, and 193 were overcome. When 

compared to the overall volume of 

immigrant and nonimmigrant visa 

issuances, the number of noncitizens 

found inadmissible who did not 

overcome that finding while the 2019 

IFR was in effect was negligible. 

Consequently, the Department does not 

believe that reversion to the prior 

regulatory text will affect worldwide 

levels of immigration. 

Comment: Two commenters 

expressed support for the 2019 IFR, 

stating that immigrants should be selfsufficient, and that visas should not be 

issued to individuals who will not be 

able to support themselves. 

Response: Even after the publication 

of this final rule, consular officers will 

continue to apply the public charge 

ground of inadmissibility to applicants 

for nonimmigrant and immigrant visas 

in classifications that are subject to this 

ground of inadmissibility. A consular 

officer who finds that an applicant for 

a visa is likely at any time to become a 

public charge is required to refuse the 

applicant’s application on that basis.21

However, this refusal may be overcome 

by presenting additional evidence to the 

consular officer that the inadmissibility 

no longer applies, or by posting a 

‘‘suitable and proper bond or 

undertaking.’’ 22

Additionally, federal law generally 

prevents noncitizens who are subject to 

the public charge ground of 

inadmissibility from taking advantage of 

means-tested benefits programs by 

generally excluding them from 

participation for the five years after 

admission to the United States or 

adjustment of status.23

Consular officers shall apply the 

grounds in accordance with the 

regulatory text that was in place prior to 

the publication of the 2019 IFR. 

Additionally, they will be advised to 

continue applying FAM guidance that 

implements the public charge ground of 

inadmissibility, which generally is 

aligned with the current DHS standards. 

After the instant Final Rule takes effect, 

the Department anticipates that it will 

undertake new notice-and-comment 

rulemaking in light of the 2022 DHS 

Final Rule. 

Comment: One commenter expressed 

support for the 2019 IFR, stating that 

visa applicants should be vetted to 

ensure they will not overstay their visas, 

have children in the United States, and 

then apply for welfare. 

Response: All visa applicants undergo 

a thorough screening and vetting 

process, and must establish to the 

satisfaction of the consular officer that 

they are eligible to receive a visa in 

accordance with U.S. law. Just as the 

Department will continue to faithfully 

administer the public charge ground of 

inadmissibility, it will also continue to 

administer the other wide-ranging 

grounds of inadmissibility in section 

212(a) of the INA, 8 U.S.C. 1182(a), that 

apply to nonimmigrant and immigrant 

visa applicants. However, whether an 

applicant is likely to overstay their visa 

within the United States or have 

children is outside the scope of a review 

of an applicant’s admissibility on public 

charge grounds. 

Comment: One commenter expressed 

support for the 2019 IFR because, in the 

commenter’s view, it would reduce 

levels of unauthorized presence of 

noncitizens in the United States. The 

commenter expressed their belief that 

many immigrants in the United States 

‘‘refuse to assimilate.’’ 

Response: Levels of unauthorized 

presence and ‘‘assimilation’’ are outside 

the scope of this rule. Consular officers 

apply the public charge ground of visa 

ineligibility with respect to visa 

applicants, and specifically those who 

are likely to become a public charge. 

This rule and policy have no direct 

bearing on whether noncitizens remain 

in lawful status in the United States. 

Comment: One commenter expressed 

support for the 2019 IFR, stating that 

according to some statistics, immigrants 

to the United States are more highly 

educated and seek public benefits less 

often than citizens born in the United 

States. For that reason, the commenter 

stated that finalizing the 2019 IFR 

would not harm immigrant 

communities. 

Response: The Department’s policy 

goal of consistency with DHS standards 


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24See, e.g., 87 FR 55472, 55504 (Sept. 9, 2022). 

25See 86 FR 64070. 

26See 84 FR 54996. 

27See 86 FR 64070. 

28See 9 FAM 302.8—PUBLIC CHARGE—INA 

212(A)(4), https://fam.state.gov/FAM/09FAM/ 

09FAM030208.html (last visited June 14, 2023). 

in applying the public charge ground of 

inadmissibility weighs against finalizing 

on a permanent basis amendments to 

regulations that were implemented as a 

result of the 2019 IFR. 

3. Comments in Opposition to 2019 IFR 

(a) Oppose 2019 DHS Final Rule 

Comment: 105 commenters expressed 

opposition to the Department’s 2019 IFR 

citing their opposition to the 2019 DHS 

Final Rule. The stated reasons for 

opposing the 2019 DHS Final Rule were 

varied and included many of the other 

reasons listed in Table 3 above. 

Response: The Department 

acknowledges the opposition expressed 

towards the 2019 DHS Final Rule. The 

Department issued the 2019 IFR in part 

to avoid situations when a consular 

officer would evaluate an applicant’s 

circumstances and conclude that the 

applicant is not likely to become a 

public charge, only for DHS to reach a 

different conclusion under the 2019 

DHS Final Rule when the applicant 

sought admission to the United States. 

In light of DHS’s removal of the 

regulatory text promulgated in the 2019 

DHS Final Rule, as well as DHS’s 

subsequent issuance of the 2022 DHS 

Final Rule in which DHS explained its 

decision to not again pursue the policies 

contained in the 2019 DHS Final Rule,24

the Department’s policy interest in 

ensuring that noncitizen travelers to the 

United States in similarly situated 

circumstances are subject to fair and 

consistent adjudications under U.S. law 

when applying for a visa and when 

seeking admission to the United States 

on that visa is not advanced by 

finalizing the regulatory amendments 

made by the 2019 IFR. Rather, reverting 

to the Prior Rule will better ensure that 

the Department maintains consistency 

with the 2022 DHS Final Rule because 

the Prior Rule aligns with the standards 

contemplated by the 1999 Interim Field 

Guidance, which influenced the policy 

reflected in the 2022 DHS Final Rule. 

Additionally, following reversion to the 

Prior Rule, consular officers will apply 

the FAM guidance currently in place, 

which generally is aligned with the 

current DHS standards, and avoids 

treating visa applicants differently from 

similarly situated applications for 

admission or adjustment of status under 

the 2022 DHS Final Rule. 

(b) 2019 IFR Is Unlawful 

Comment: Many commenters 

suggested that the 2019 IFR should be 

rescinded because it was contrary to the 

statute and was unlawful. Many 

commenters had submitted their 

comments stating that the 2019 IFR was 

unlawful before it was preliminarily 

enjoined by a federal district court, but 

after the 2019 DHS Final Rule had been 

found unlawful and preliminarily 

enjoined or vacated by federal courts. 

Some commenters in 2019 noted that 

federal district courts had issued 

injunctions against the 2019 DHS Final 

Rule. Some commenters in response to 

the Public Comment Reopening noted 

that on March 9, 2021, a federal district 

court order vacating the 2019 DHS Final 

Rule went into effect. 

Response: The judicial decision 

regarding the 2019 IFR that enjoined its 

application, and the judicial decisions 

enjoining or vacating the 2019 DHS 

Final Rule were considered in the 

Department’s decision to reopen the 

public comment period on the 2019 

IFR.25 In the 2019 IFR, the Department 

noted that, as a policy matter, 

coordination of the Department’s and 

DHS’s implementation of the public 

charge inadmissibility ground is critical 

to the Department’s interest in 

preventing inconsistent adjudication 

standards and different outcomes 

between determinations of visa 

eligibility and determinations of 

admissibility at or between a port of 

entry or in an application for adjustment 

of status.26 Given DHS’s adoption of the 

2022 DHS Final Rule, the Department’s 

interest in coordinating adjudication 

standards no longer favors retention of 

the regulatory amendments made by the 

2019 IFR and instead favors a return to 

the Prior Rule. 

(c) 2019 IFR Is Harmful to Immigrant 

Families 

Comment: Some commenters 

expressed opposition to the overall 

public charge policy reflected in the 

2019 IFR because of what they alleged 

to be its detrimental public health effect 

on immigrant families. 

Response: The Department 

understands these commenters’ 

concerns about the relationship between 

public charge inadmissibility 

determinations under the standards set 

forth in the 2019 DHS Final Rule and 

the 2019 IFR and the willingness of 

immigrant families, including U.S. 

citizen children in immigrant families, 

to receive public benefits for which they 

were eligible. Following the reversion of 

regulations to those in place prior to the 

2019 IFR, the public charge grounds of 

visa ineligibility have been and will be 

applied in a way that should ameliorate 

the concern of these commenters. This 

final rule will be accompanied by public 

outreach by the Department to ensure 

that immigrant communities understand 

this rule, including how it differs from 

the 2019 IFR. 

(d) 2019 DHS Final Rule and 2019 IFR 

Were Enjoined 

Comment: A large number of 

commenters argued that the 2019 IFR 

should be rescinded because the 2019 

DHS Final Rule, which was consistent 

in substance with the 2019 IFR, was 

vacated by a federal district court, and 

preliminarily enjoined by that court and 

multiple other federal district courts. In 

response to the Public Charge 

Reopening, several commenters also 

noted that the 2019 IFR itself was 

preliminarily enjoined by a federal 

district court. 

Response: As stated above, the 

judicial orders enjoining or vacating the 

2019 DHS Final Rule were considered 

in the Department’s decision to reopen 

the public comment period on the 2019 

IFR.27 For the reasons stated above, the 

Department is not finalizing that 

regulatory text, and is instead reverting 

to the Prior Rule and continuing to 

apply current FAM guidance,28 while 

considering new rulemaking in light of 

the 2022 DHS Final Rule. 

(e) 2019 IFR Is Discriminatory or 

Racially Biased 

Comment: 41 comments stated that 

the 2019 IFR was either racially biased 

or discriminatory in how it applied the 

public charge ground of inadmissibility. 

Commenters claimed that the 2019 IFR 

rendered certain visa applicants 

inadmissible on public charge grounds 

due to conditions in their countries of 

origin. 

Response: The 2019 IFR explained the 

Department’s reasons for adopting the 

IFR, in particular as a means to ensure 

consistency with the 2019 DHS Final 

Rule. As noted, the Department will not 

finalize the regulatory amendments 

made by the 2019 IFR for the reasons 

stated previously and anticipates that it 

will undertake further rulemaking in 

light of the 2022 DHS Final Rule. In the 

development of any future rulemaking 

regarding the public charge ground of 

inadmissibility, the Department will 

continue to be faithful to the relevant 

statute and congressional directions, 

including developing a rule that can be 

applied fairly and consistently to 

applicants worldwide in a manner 

consistent with the laws and values of 

the United States. 


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29See 9 FAM 302.8–2(B)(1)—Definition of Public 

Charge https://fam.state.gov/FAM/09FAM/09FAM

030208.html (last visited June 14, 2023). 

30 9 FAM 302.8–2(B)(2)—Public Charge— 

Applying INA 212(a)(4) to Immigrants, https://

fam.state.gov/FAM/09FAM/09FAM030208.html 

(last visited June 14, 2023). 

31New American Economy, The New ‘‘Public 

Charge Rule and its Negative Impact on the U.S. 

Economy, Feb. 2, 2021, https://

research.newamericaneconomy.org/report/ 

economic-impact-of-public-charge-rule/. 

32See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 

1182(a)(4)(B)(ii). 

(f) Opposition to Circumstantial 

Eligibility Factors in 2019 IFR 

Comment: 39 commenters expressed 

opposition to the 2019 IFR due to what 

were described as circumstantial 

eligibility factors to be considered in the 

totality of the circumstances analysis. 

The 2019 IFR listed a number of factors 

that an adjudicator would consider in 

the totality of the circumstances when 

determining whether a visa applicant is 

inadmissible on public charge grounds 

and listed a number of different benefits 

the receipt of which over a certain 

period of time could lead to a finding 

of inadmissibility. Some commenters 

argued that these factors were designed 

to increase the percentage of applicants 

who would be found inadmissible. 

Others argued that the factors were so 

complicated that public benefit 

administrators had difficulty advising 

potential recipients on a course of 

action they could take that would be 

consistent with the public charge policy 

set forth in the 2019 IFR. 

Response: The Department’s consular 

officers will continue to apply a totality 

of the circumstances framework for the 

analysis of the public charge ground of 

inadmissibility consistent with the 

statute, the Prior Rule, and guidance 

published in the FAM. Under the FAM 

guidance, in making public charge 

inadmissibility determinations, consular 

officers will look at ‘‘many factors . . . 

including age, health, family status, 

assets, resources, financial status, 

education, and skills. No single factor, 

other than the lack of a qualifying 

affidavit of support, in accordance with 

INA 213A, if required, will determine 

whether an individual is a public 

charge.’’ 29 Under this FAM guidance, 

these factors make up the ‘‘totality of the 

circumstances’’ framework that was in 

place prior to the publication of the 

2019 IFR. This framework aligns more 

closely with the current DHS standards 

than the 2019 IFR.30 The FAM guidance 

clearly notes for adjudicators and the 

public that the application of the public 

charge ground of inadmissibility differs 

significantly from the heavily weighted 

positive and negative factors set forth in 

the 2019 IFR. The FAM guidance is also 

consistent with the Prior Rule, which 

along with the statute will govern 

adjudications. 

(g) 2019 IFR Is Economically 

Burdensome on Families 

Comment: 39 commenters stated that 

the overall public charge policy 

reflected in the 2019 IFR imposed 

economic burdens on immigrant 

families and other vulnerable 

populations within the United States, 

increasing healthcare costs on an 

aggregate basis and increasing food 

insecurity. 

Response: Neither the 2019 IFR nor 

this final rule address eligibility 

standards for the receipt of public 

benefits. However, the Department 

acknowledges the data provided by 

public commenters showing a 

measurable drop in receipt of public 

benefits by individuals who were 

eligible to receive such benefits during 

the time period after the publication of 

the 2019 DHS Final Rule and the 2019 

IFR.31 Following the effective date of 

this Final Rule, the public charge 

inadmissibility ground will be applied 

as interpreted by the Prior Rule and 

FAM guidance, which generally are 

aligned more closely with the current 

DHS standards than the 2019 IFR. 

Reverting to the Prior Rule will reduce 

any unintended economic burdens 

among immigrant populations not 

subject to the public charge ground of 

inadmissibility, while not imposing 

undue burdens on the public. 

(h) Methods of Calculation in 2019 IFR 

Are Unfairly Derived 

Comment: Distinct from the 

opposition to the ‘‘totality of the 

circumstances’’ framework set forth in 

the 2019 IFR, a number of commenters 

argued that its methods of calculation of 

factors in public charge inadmissibility 

determinations, both positively and 

negatively weighted, with certain factors 

being heavily weighted in either 

direction, were themselves unfairly 

derived and applied. Specifically, 

commenters argued that the way in 

which factors were heavily weighted, 

either positively or negatively, would 

result in inconsistent adjudicatory 

results in applying the public charge 

grounds of inadmissibility. 

Response: Under section 212(a)(4) of 

the INA, 8 U.S.C. 1182(a)(4), consular 

officers are required to consider specific 

factors, at a minimum, in determining 

whether an applicant for a 

nonimmigrant or immigrant visa is 

inadmissible because they are likely at 

any time to become a public charge. 

These factors are the applicant’s age; 

health; family status; assets, resources, 

and financial status; and education and 

skills. Furthermore, a consular officer 

may also consider an Affidavit of 

Support Under Section 213A of the INA 

submitted on the noncitizen’s behalf 

when such is required.32 The 2019 IFR 

sought to ensure the Department was 

consistent with the policy set forth in 

the 2019 DHS Final Rule in how the 

Department considered such factors 

when applying the public charge 

ground. DHS promulgated a new rule in 

2022 that departs from the 2019 DHS 

Final Rule and the 2019 IFR’s approach 

to consideration of such factors. 

Accordingly, as explained, the 

Department will not finalize the 

regulatory amendments made by the 

2019 IFR, including its approach to 

consideration of such factors, because 

doing so would create rather than avoid 

inconsistency with DHS. The 

Department is also inclined to agree 

with DHS’s analysis regarding the issues 

posed by the weighing of factors in the 

2019 DHS Final Rule. The Department 

anticipates that it will engage in further 

rulemaking in light of DHS’s 2022 rule. 

As the Department is not finalizing 

the regulatory amendments made by the 

2019 IFR, the inadmissibility of 

applicants for nonimmigrant and 

immigrant visas subject to the public 

charge ground shall be reviewed on the 

basis of the totality of their 

circumstances, consistent with 

Department regulations and guidance in 

place prior to the promulgation of the 

2019 IFR. 

(i) Breadth of Definition of ‘‘Public 

Charge’’ in 2019 IFR 

Comment: 31 commenters opposed 

the definition of ‘‘public charge’’ set 

forth in the 2019 IFR. Commenters 

stated that the definition was too broad; 

asserted that it was inconsistent with 

congressional intent, historical practice, 

judicial decisions, and administrative 

guidance; and raised other objections to 

the definition listed therein. 

Response: While the term ‘‘public 

charge’’ is not defined in the text of the 

INA and the statute vests the 

Department with discretion in its 

administration, the Department 

acknowledges that the definition set 

forth in the 2019 IFR and the 2019 DHS 

Final Rule differed significantly from 

the definition applied for decades 

previously, most notably in the 1999 

Interim Field Guidance and related 

FAM guidance issued by the 

Department. The 2019 IFR had 


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33 Department of Health and Human Services, 

‘‘Health Insurance Coverage and Access to Care for 

Immigrants: Key Challenges and Policy Options’’ 

(Dec. 17, 2021), https://aspe.hhs.gov/sites/default/ 

files/documents/96cf770b168dfd

45784cdcefd533d53e/immigrant-health-equitybrief.pdf. 

34Executive Order 14012, 86 FR 8277 (Feb. 5, 

2021). 

35See 9 FAM 302.8—PUBLIC CHARGE—INA 

212(A)(4), https://fam.state.gov/FAM/09FAM/ 

09FAM030208.html (last visited June 14, 2023). 

implemented this definition out of a 

desire to more closely align with the 

standards then applied by DHS in 

determining inadmissibility on public 

charge grounds. In 2022, DHS published 

a new Final Rule, implementing 

different standards. In the 2022 DHS 

Final Rule, DHS discussed in depth the 

definition that it used in the 2019 DHS 

Final Rule, and how it will not be 

applied in implementing the 2022 DHS 

Final Rule. As such, the 2019 IFR no 

longer meets the policy aim of 

consistency with DHS standards. The 

Department will instead restore the 

Prior Rule, and after the instant rule is 

finalized, anticipates that it will initiate 

new rulemaking in light of the 2022 

DHS Final Rule. 

(j) Private Health Insurance Concerns 

Comment: Some commenters, 

particularly those focused on 

healthcare, asserted that the overall 

public charge policy reflected in the 

2019 IFR had an adverse effect on the 

private health insurance industry. In 

particular, commenters stated that the 

increased numbers of immigrants not 

accepting public health benefits to 

which they would normally be eligible 

caused overall healthcare costs to 

increase, leading to an aggregate 

increase in private health insurance 

premiums for the public. 

Response: The Department 

appreciates these commenters’ concerns 

about the relationship between public 

charge inadmissibility determinations 

and private health insurance. We 

acknowledge evidence provided by 

many commenters suggesting that 

perceptions about the overall public 

charge policy reflected in the 2019 IFR 

had unintended effects on the 

willingness of individuals outside the 

scope of the IFR, such as U.S. citizens 

with noncitizen family members, to 

enroll in health insurance programs for 

which they are eligible.33 The reversion 

to the Prior Rule will provide applicants 

with a clearer understanding of the 

application of the public charge grounds 

of inadmissibility, which should 

mitigate unintended consequences such 

as disenrollment in health insurance 

programs by U.S. citizens with noncitizen family members. 

(k) Inconsistent With Executive Order 

14012 

Comment: Three commenters 

suggested that the 2019 IFR should be 

rescinded because it contradicts E.O. 

14012,34 which called on government 

departments and agencies to review 

public charge policies and other current 

immigration policies, in order to 

consider their effect on the integrity of 

the national immigration system. E.O. 

14012 also called upon government 

departments to consider better methods 

of communicating its public charge 

policies and proposed changes, if any, 

with the public. 

Response: Through the instant 

rulemaking, the Department is declining 

to make permanent the regulatory 

amendments made by the 2019 IFR. The 

Department anticipates that it will 

engage in rulemaking in light of the 

2022 DHS Final Rule, pursuant to the 

Executive Branch’s policy as articulated 

in section 1 of E.O. 14012. Until a 

subsequent rule is developed and 

published, the Department will 

continue to instruct its consular officers 

to apply the public charge ground of 

inadmissibility consistent with the 

statute, Prior Rule, and guidance 

contained in the FAM.35

(l) Excessive Burden on State, Local, 

and Territorial Governments 

Comment: Some localities and states 

submitted comments, arguing that the 

overall public charge policy reflected in 

the 2019 IFR constituted a burden on 

state, local and territorial governments’ 

ability to administer their own public 

health services and other benefits. 

Response: The Department 

acknowledges the uncertainty many 

state, local, Tribal, and territorial 

governments experienced due to the 

administrative changes caused by the 

overall public charge policy reflected in 

the 2019 IFR. According to a joint 

public comment by attorneys general 

from twenty states and the District of 

Columbia, immigrant parents of school 

aged children, whether citizens, LPRs, 

or noncitizens, were hesitant to 

participate in distance learning, accept 

loaned technology, or participate in 

food distribution programs such as the 

National School Lunch Program, School 

Breakfast Program, and the Summer 

Food Service Meal Program provided by 

state and local governments due to 

confusion regarding the overall public 

charge policy. Other public commenters 

have expressed concern that the 2019 

IFR dissuaded individuals in several 

communities, such as U.S. citizen 

family members of noncitizens overseas 

applying for visas, from applying for, 

collecting or retaining public benefits 

for which they would have been 

eligible. And some commenters 

representing local and state 

governments stated that they found a 

decline in enrollment in public benefit 

programs relating to the overall change 

in public charge policy, which resulted 

in unexpected changes to program 

usage. Following the reversion of 

regulations to those in place prior to the 

2019 IFR, the public charge ground of 

visa ineligibility has been and will be 

applied in a way that should ameliorate 

the concern of these commenters. This 

final rule will be accompanied by public 

outreach by the Department and other 

stakeholders to ensure that immigrant 

communities understand this rule, 

including how it differs from the 2019 

IFR. 

G. Contents of This Final Rule 

In continuing to apply the 

interpretation of the public charge 

ground of inadmissibility that existed 

prior to the 2019 IFR, this final rule 

removes the amendments to the 

regulation made by the 2019 IFR and 

restores the regulatory text of the Prior 

Rule. The Department finds, following 

its review of the public comments and 

the changes in circumstances following 

publication of the 2019 IFR, that the 

Department’s policy of ensuring 

consistency with DHS no longer 

supports the 2019 IFR and that the 

Department should conduct further 

notice-and-comment rulemaking in light 

of the 2022 DHS Final Rule. 

The Public Comment Reopening 

solicited comments on (1) whether the 

2019 IFR should be rescinded or 

revised, and (2) what final rule should 

be adopted, if any. In reviewing the 

public comments submitted in response 

to it, along with public comments 

provided in response to the 2019 IFR, 

together with E.O. 14012 and the 

standards set forth in the 2022 DHS 

Final Rule, the Department has 

concluded that reverting to the Prior 

Rule is the most appropriate path 

forward. 

The Department is therefore not 

finalizing the regulatory amendments 

made by the 2019 IFR and is instead 

reverting to the Prior Rule. This does 

not represent any change from the 

policies the Department has applied 

since 2020, when the preliminary 

injunction of the 2019 IFR took effect. 

This final rule restores the Prior Rule, 

with the exception of a technical change 


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36The Department also notes that the 2019 IFR 

found that the description of a procedure relating 

to the posting of a bond or undertaking was 

obsolete. See 84 FR 54996, 55010. While some of 

the specific steps to posting a bond, as described 

in 22 CFR 40.41(d), have changed since the original 

publication of the Prior Rule, the posting of a bond 

by a visa applicant is still authorized by sections 

213 and 221(g) of the INA, 8 U.S.C. 1183, 1201. 

Revisions to this rule to update the bond procedure 

and other provisions would be considered in the 

development of any future rule governing the 

public charge ground of inadmissibility but are not 

addressed by this final rule. 

37 2 U.S.C. 1532(a). 

38See OMB, ‘‘Circular A–4’’ (Sept. 17, 2003), 

https://www.whitehouse.gov/wp-content/uploads/ 

legacy_drupal_files/omb/circulars/A4/a-4.pdf. 

39 84 FR 54996 (Oct. 11, 2019). 40See Make the Road N.Y v. Pompeo, 475 

F.Supp. 3d 232 (S.D.N.Y. 2020). 41 Department of State, Suspension of Routine 

Visa Services (Mar. 20, 2020), https://

travel.state.gov/content/travel/en/News/visas-news/ 

suspension-of-routine-visa-services.html. 

42 Department of State, Phased Resumption of 

Visa Services, (July 15, 2020), https://

travel.state.gov/content/travel/en/News/visas-news/ 

visa-services-operating-status-update.html. 

made to remove an outdated reference 

to a particular portion of the Schedule 

of Fees for Consular Services.36

The interpretation of the public 

charge ground of inadmissibility in the 

Prior Rule more closely aligns with the 

standards articulated in the 2022 DHS 

Final Rule. There is a significant policy 

interest in ensuring that similarly 

situated noncitizen travelers to the 

United States are subject to fair and 

consistent adjudications under U.S. law 

when applying for a visa and when 

seeking admission to the United States 

on that visa. While the Prior Rule differs 

in some respects from the 2022 DHS 

Final Rule (for example, while the 2022 

DHS Final Rule amends an existing 

information collection, the Department 

is not implementing any changes to its 

information collections in reverting to 

the Prior Rule), the change will greatly 

decrease the potential for unequal 

treatment and undue barriers for 

noncitizens applying for visas. 

Following publication of this final 

rule, the Department intends to 

commence new rulemaking, which will 

have the goal of publishing and 

implementing a more comprehensive 

public charge regulation. For the 

reasons discussed in this rule, the 

Department has removed the regulations 

promulgated under the 2019 IFR and 

reverted to the prior text of 22 CFR 

40.41. 

II. Regulatory Findings 

A. Unfunded Mandates Reform Act of 

1995 

The Unfunded Mandates Reform Act 

of 1995, 2 U.S.C. 1532 (‘‘UMRA’’), 

generally requires agencies to prepare a 

statement before proposing any rule that 

may result in an annual expenditure of 

$100 million or more (adjusted for 

inflation) by State, local, territorial, or 

Tribal governments, or by the private 

sector. This rule will generally continue 

consular practices that had been in 

place prior to 2019, and that have been 

applied since the 2019 IFR was 

preliminarily enjoined by a District 

Court in 2020. This rule does not 

require the Department to prepare a 

statement because it is not anticipated 

that it will result in an annual 

expenditure of $100 million or more 

(adjusted for inflation) by State, local, 

territorial, or Tribal governments, or by 

the private sector.37 Additionally, this 

rule does not contain any Federal 

mandate (as defined in UMRA) because 

it does not impose any enforceable duty 

upon any level of government or private 

sector entity. 

B. Executive Order 12866—Regulatory 

Planning and Review 

The Department has reviewed this 

rule to ensure its consistency with the 

regulatory philosophy and principles set 

forth in Executive Order 12866. The 

Office of Management and Budget 

(OMB) has determined that this is a 

significant regulatory action under 

Executive Order 12866. As such, OMB 

has reviewed this regulation 

accordingly. 

In comparison to the 2019 IFR, which 

was previously published and put into 

effect, this rule may result in new costs, 

benefits, and transfers. The Department 

does not believe there are any 

quantifiable new direct costs for this 

final rule, as the Department is not 

proposing to add additional information 

collection burdens on visa applicants. 

As such, visa applicants will see no 

increase in the time it takes to complete 

either the immigrant visa application or 

the nonimmigrant visa application or 

associated opportunity costs. 

The Department believes that this 

final rule may have indirect effects on 

State, local, territorial, and/or Tribal 

governments, primarily in the form of 

increased transfer payments from 

federal, state, territorial and Tribal 

governments to individuals. According 

to OMB Circular A–4, transfer payments 

are payments of money from one group 

to another for which no goods or 

services are exchanged, and do not 

affect the total resources available to 

society.38 Changes in transfer payments 

are considered neither costs nor benefits 

of a rule. While acknowledging the 

potential chilling effects caused by the 

2019 IFR, the Department emphasizes 

that neither the public charge statute 

nor this final rule directly regulates 

eligibility for public benefits for any 

population. While the removal of the 

2019 IFR from the regulations may 

result in increased transfer payments, 

the Department is unable to concretely 

quantify these effects. This final rule is 

being published after DHS published 

the 2022 DHS Final Rule, which may 

have a more significant impact on the 

willingness of noncitizens to accept 

transfer payments than the removal of 

the 2019 IFR. 

Further, the 2019 IFR was only in 

effect between October 15, 2019, when 

it was published in the Federal 

Register,39 and July 29, 2020, when the 

United States District Court for the 

Southern District of New York issued a 

preliminary injunction enjoining the 

Department from its application.40 In 

addition, on March 20, 2020, in 

response to the worldwide COVID–19 

pandemic the Department temporarily 

suspended routine visa services at all 

U.S. Embassies and Consulates.41 A 

phased resumption of services began on 

July 15, 2020, just two weeks before the 

preliminary injunction was issued.42

Consistent with E.O. 12866, the 

Department considered the costs and 

benefits of available regulatory 

alternatives. One alternative that the 

Department considered was finalizing 

the regulatory amendments made by the 

2019 IFR. However, as noted above, the 

Department adopted the 2019 IFR 

largely to conform with the 2019 DHS 

Final Rule, which has been supplanted 

by the 2022 DHS Final Rule. In 

publishing this final rule, the public 

charge grounds of inadmissibility will 

be applied using the Prior Rule and 

FAM Guidance, as they were applied 

prior to 2019. The Department believes 

that, to the extent practicable, standards 

for the enforcement of the public charge 

ground of inadmissibility should be 

consistent in order to ensure consistent 

application among similarly situated 

noncitizens. As such, the Department 

does not believe that finalizing the 

regulatory amendments made by the 

2019 IFR would be the best course of 

action. 

C. Executive Orders 13563 and 14094— 

Improving and Modernizing Regulation 

and Regulatory Review 

Along with Executive Order 12866, 

Executive Order 13563 directs agencies 

to assess costs and benefits of available 

regulatory alternatives and, if regulation 

is necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributed impacts, and equity). 


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43Notice of OMB Emergency Approval of 

Information Collection: Public Charge 

Questionnaire, 85 FR 13694 (Mar. 9, 2020). 

44Update on Public Charge, https://

travel.state.gov/content/travel/en/News/visas-news/ 

update-on-public-charge.html (Mar. 26, 2021). 

The Department has reviewed the final 

rule under Executive Order 13563 and 

has determined that this rulemaking is 

consistent with the principles therein. 

Additionally, the Department has 

reviewed this rule to ensure its 

consistency with the regulatory 

philosophy and principles set forth in 

Executive Order 14094 and confirms 

this rulemaking is consistent with the 

principles therein. 

D. Executive Orders 12372 and 13132— 

Federalism 

This final rule will 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. Nor will the final 

rule have federalism implications 

warranting the application of Executive 

Orders 12372 and 13132. 

E. Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

The Department has determined that 

this rulemaking will not have Tribal 

implications, will not impose 

substantial direct compliance costs on 

Indian Tribal governments, and will not 

preempt Tribal law. Accordingly, the 

requirements of Section 5 of Executive 

Order 13175 do not apply to this 

rulemaking. 

F. Executive Order 12988—Civil Justice 

Reform 

The Department has reviewed the rule 

considering sections 3(a) and 3(b)(2) of 

Executive Order 12988 to eliminate 

ambiguity, minimize litigation, establish 

clear legal standards, and reduce 

burden. 

G. Paperwork Reduction Act 

This final rule does not impose any 

new reporting or recordkeeping 

requirements subject to the Paperwork 

Reduction Act, 44 U.S.C. 3501–3520. 

The 2019 IFR imposed a new 

information collection requirement. 

OMB subsequently granted an 

emergency approval for the use of a new 

form by the Department, DS–5540, 

Public Charge Questionnaire (‘‘DS– 

5540’’).43 The emergency approval was 

granted only until August 31, 2020, and 

expired after that date. OMB has not 

approved the information collection 

under the DS–5540 since that time, and 

on March 26, 2021, the Department 

published a notice stating that visa 

applicants are not required to complete 

and should not present a DS–5540.44

H. Regulatory Flexibility Act/Executive 

Order 13272: Small Businesses 

The Regulatory Flexibility Act, 5 

U.S.C. 601 et seq., requires agencies to 

perform an analysis of the potential 

impact of regulations on small 

businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

‘‘Small entities’’ comprises small 

business, not-for-profit organizations 

that are independently owned and 

operated and not dominant within their 

fields, or governmental jurisdictions 

with populations under 50,000. This 

final rule would not regulate ‘‘small 

entities’’ as that term is defined in 5 

U.S.C. 601(6) and as such does not have 

a significant economic impact on a 

substantial number of small entities. 

This final rule only applies to 

individual visa applicants, which are 

not defined as a ‘‘small entity’’ by the 

RFA. 

I. Congressional Review Act 

The Office of Information and 

Regulatory Affairs has determined that 

this final rule is not a ‘‘major rule’’ as 

defined by Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, also known as the 

Congressional Review Act, 5 U.S.C. 

804(2). This final 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 foreignbased companies in domestic and 

import markets. The Department will 

send this final rule to Congress and to 

the Comptroller General pursuant to the 

Congressional Review Act, 5 U.S.C. 801. 

List of Subjects in 22 CFR Part 40 

Administrative practice and 

procedure, Aliens, Foreign relations, 

Passports and visas. 

For the reasons stated in the 

preamble, the Department amends 22 

CFR part 40 as follows: 

PART 40—REGULATIONS 

PERTAINING TO BOTH 

NONIMMIGRANTS AND IMMIGRANTS 

UNDER THE IMMIGRATION AND 

NATIONALITY ACT, AS AMENDED 

■ 1. The authority citation for part 40 

continues to read as follows: 

Authority: 8 U.S.C. 1104, 1182, 1183a, 

1641. 

■ 2. Section 40.41 is revised to read as 

follows: 

§ 40.41 Public charge. 

(a) Basis for determination of 

ineligibility. Any determination that an 

alien is ineligible under INA 212(a)(4) 

must be predicated upon circumstances 

indicating that, notwithstanding any 

affidavit of support that may have been 

filed on the alien’s behalf, the alien is 

likely to become a public charge after 

admission, or, if applicable, that the 

alien has failed to fulfill the affidavit of 

support requirement of INA 

212(a)(4)(C). 

(b) Affidavit of support. Any alien 

seeking an immigrant visa under INA 

201(b)(2), 203(a), or 203(b), based upon 

a petition filed by a relative of the alien 

(or in the case of a petition filed under 

INA 203(b) by an entity in which a 

relative has a significant ownership 

interest), shall be required to present to 

the consular officer an affidavit of 

support (AOS) on a form that complies 

with terms and conditions established 

by the Secretary of Homeland Security. 

Petitioners for applicants at a post 

designated by the Deputy Assistant 

Secretary for Visa Services for initial 

review of and assistance with such an 

AOS will be charged a fee for such 

review and assistance pursuant to the 

Schedule of Fees for Consular Services 

(22 CFR 22.1). 

(c) Joint sponsors. Submission of one 

or more additional affidavits of support 

by a joint sponsor/sponsors is required 

whenever the relative sponsor’s 

household income and significant 

assets, and the immigrant’s assets, do 

not meet the Federal poverty line 

requirements of INA 213A. 

(d) Posting of bond. A consular officer 

may issue a visa to an alien who is 

within the purview of INA 212(a)(4) 

(subject to the affidavit of support 

requirement and attribution of sponsor’s 

income and resources under section 

213A), upon receipt of a notice from 

DHS of the giving of a bond or 

undertaking in accordance with INA 

213 and INA 221(g), and provided 

further that the officer is satisfied that 

the giving of such bond or undertaking 

removes the likelihood that the alien 

will become a public charge within the 

meaning of this section of the law and 

that the alien is otherwise eligible in all 

respects. 

(e) Prearranged employment. An 

immigrant visa applicant relying on an 

offer of prearranged employment to 

establish eligibility under INA 212(a)(4), 

other than an offer of employment 

certified by the Department of Labor 


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Federal Register / Vol. 88, No. 170 / Tuesday, September 5, 2023 / Rules and Regulations 60583 

pursuant to INA 212(a)(5)(A), must 

provide written confirmation of the 

relevant information sworn and 

subscribed to before a notary public by 

the employer or an authorized employee 

or agent of the employer. The signer’s 

printed name and position or other 

relationship with the employer must 

accompany the signature. 

(f) Use of Federal poverty line Where 

INA 213A not applicable. An immigrant 

visa applicant, not subject to the 

requirements of INA 213A, and relying 

solely on personal income to establish 

eligibility under INA 212(a)(4), who 

does not demonstrate an annual income 

above the Federal poverty line, as 

defined in INA 213A(h), and who is 

without other adequate financial 

resources, shall be presumed ineligible 

under INA 212(a)(4). 

Hugo Rodriguez, 

Principal Deputy Assistant Secretary, Bureau 

of Consular Affairs, Department of State. 

[FR Doc. 2023–19047 Filed 9–1–23; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF JUSTICE 

28 CFR Part 16 

[CPCLO Order No. 004–2023] 

Privacy Act of 1974; Implementation 

AGENCY: Office of Privacy and Civil 

Liberties, United States Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: The Office of Privacy and 

Civil Liberties (OPCL), a component 

within the United States Department of 

Justice (DOJ or Department), is 

finalizing without changes its Privacy 

Act exemption regulations for the 

system of records titled, Data Protection 

Review Court Records System, 

JUSTICE/OPCL–001, which were 

published as a notice of proposed 

rulemaking (NPRM) on May 23, 2023. 

The notice for this new system of 

records, Data Protection Review Court 

Records System, JUSTICE/OPCL–001, 

was also published in the Federal 

Register on May 23, 2023. Specifically, 

the Department’s regulations will 

exempt this system of records from 

certain provisions of the Privacy Act to 

protect national security and law 

enforcement sensitive information, 

preserve judicial independence, and 

ensure the integrity of adjudicatory 

records in cases before the Data 

Protection Review Court (DPRC). The 

Department received no comments on 

the NPRM. 

DATES: This final rule is effective 

October 5, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Katherine Harman-Stokes, Director 

(Acting), Office of Privacy and Civil 

Liberties, U.S. Department of Justice, 

Two Constitution Square, 145 N St. NE, 

Suite 8W–300, Washington, DC 20530; 

email: privacy.compliance@usdoj.gov; 

telephone: (202) 514–0208; facsimile: 

(202) 307–0693. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In accordance with the Privacy Act of 

1974, OPCL is establishing a new 

system of records, Data Protection 

Review Court Records System, 

JUSTICE/OPCL–001, to maintain an 

accurate record of the DPRC review of 

determinations made by the Civil 

Liberties Protection Officer of the Office 

of the Director of National Intelligence 

(ODNI CLPO) in response to complaints 

alleging violations of United States law 

in the conduct of United States signals 

intelligence activities, under the EU– 

U.S. Data Protection Framework 

established on October 7, 2022, 

pursuant to Executive Order (E.O.) 

14086, Enhancing Safeguards for United 

States Signals Intelligence Activities, 87 

FR 62283 (Oct. 14, 2022). 

E.O. 14086 directed the Attorney 

General to issue a regulation 

establishing the DPRC as the second 

level of a two-level redress mechanism 

for alleged violations of law regarding 

signals intelligence activities. The 

Attorney General issued the regulation 

on October 7, 2022, ‘‘Data Protection 

Review Court.’’ 87 FR 628303 (Oct. 14, 

2022) (codified at 28 CFR part 201). 

The first level of the new redress 

mechanism established by E.O. 14086 is 

the investigation, review, and 

determination by the ODNI CLPO of 

whether a covered violation occurred 

and, where necessary, the appropriate 

remediation in response to a complaint. 

The complainant or an element of the 

Intelligence Community may seek 

review by the DPRC of the ODNI CLPO’s 

determination. 

Exercising the Attorney General’s 

authority under 28 U.S.C. 511 and 512 

to provide his advice and opinion on 

questions of law and the authority 

delegated to the Attorney General under 

E.O. 14086, the DPRC will review 

whether the ODNI CLPO’s 

determination regarding the occurrence 

of a covered violation was legally 

correct and supported by substantial 

evidence and whether, in the event of a 

covered violation, the ODNI CLPO’s 

determination as to the appropriate 

remediation was consistent with E.O. 

14086. 

The regulations require the DPRC, and 

OPCL in support of the DPRC, to 

maintain all records relating to the 

DPRC’s review. For each application for 

review, OPCL shall maintain records of 

the information reviewed or created by 

the DPRC and the decision of the DPRC 

panel, which records shall be made 

available for consideration as nonbinding precedent to future DPRC 

panels considering applications for 

review. 28 CFR 201.9(j), see also 28 CFR 

201.5 through 201.15. Records of the 

DPRC’s review will include material 

created by the complainant, the public 

authority of a designated state, ODNI 

CLPO, elements of the Intelligence 

Community, DPRC Judges and Special 

Advocates, and Department of Justice 

personnel. Most of the information in 

this system consists of records that are 

classified, including the record of 

review received from the ODNI CLPO. 

Pursuant to 28 CFR 201.9(i), 

information in the system indicating a 

violation of any authority subject to the 

oversight of the Foreign Intelligence 

Surveillance Court (FISC) will be shared 

with the Assistant Attorney General for 

National Security, who shall report 

violations to the FISC as required by law 

and in accordance with its rules of 

procedure. Similarly, information in the 

system will be provided to the Privacy 

and Civil Liberties Oversight Board 

(PCLOB) as necessary for the PCLOB to 

conduct the annual review of the 

redress process described in section 3(e) 

of E.O. 14086, consistent with the 

protection of intelligence sources and 

methods. 

II. Privacy Act Exemption 

The Privacy Act allows Federal 

agencies to exempt eligible records in a 

system of records from certain 

provisions of the Act, including those 

that provide individuals with a right to 

request access to and amendment of 

records about the individual. If an 

agency intends to exempt a particular 

system of records, it must first issue a 

rulemaking pursuant to 5 U.S.C. 

553(b)(1)–(3), (c), and (e). 

The Department modifies 28 CFR part 

16 to add a new Privacy Act exemption 

for the new system of records, Data 

Protection Review Court Records 

System, JUSTICE/OPCL–001. The 

Department adds this exemption 

because most of the records in this 

system will contain classified national 

security information. As such, notice, 

access, amendment, and disclosure (to 

include accounting for those records) to 

an individual, as well as certain recordkeeping requirements, may cause 

damage to national security. The 

Privacy Act, pursuant to 5 U.S.C. 


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