10570 Federal Register / Vol. 87, No. 37 / Thursday, February 24, 2022 / Proposed Rules 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 212 and 245 

[CIS No. 2715–22; DHS Docket No. USCIS– 

2021–0013] 

RIN 1615–AC74 

Public Charge Ground of 

Inadmissibility 

AGENCY: U.S. Citizenship and 

Immigration Services, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Department of 

Homeland Security (DHS) proposes to 

prescribe how it determines whether a 

noncitizen is inadmissible to the United 

States under section 212(a)(4) of the 

Immigration and Nationality Act (INA) 

because they are likely at any time to 

become a public charge. Noncitizens 

who seek adjustment of status or a visa, 

or who are applicants for admission, 

must establish that they are not likely at 

any time to become a public charge, 

unless Congress has expressly exempted 

them from this ground of 

inadmissibility or has otherwise 

permitted them to seek a waiver of 

inadmissibility. Under this proposed 

rule, a noncitizen would be considered 

likely at any time to become a public 

charge if they are likely at any time to 

become primarily dependent on the 

government for subsistence, as 

demonstrated by either the receipt of 

public cash assistance for income 

maintenance or long-term 

institutionalization at government 

expense. In August of 2019, DHS issued 

a different rule on this topic, which is 

no longer in effect. This proposed rule, 

if finalized, would implement a 

different policy than the August 2019 

Final Rule. 

DATES: Written comments and related 

material must be submitted on or before 

April 25, 2022. 

ADDRESSES: You may submit comments 

on this NPRM, identified by DHS 

Docket No. USCIS–2021–0013, through 

the Federal eRulemaking Portal: https:// 

www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

Comments submitted in a manner 

other than the one listed above, 

including emails or letters sent to the 

Department of Homeland Security 

(DHS) or U.S. Citizenship and 

Immigration Services (USCIS) officials, 

will not be considered comments on the 

NPRM and may not be considered by 

DHS. Please note that DHS and USCIS 

cannot accept any comments that are 

hand-delivered or couriered. In 

addition, USCIS cannot accept 

comments contained on any form of 

digital media storage devices, such as 

CDs/DVDs and USB drives. USCIS is not 

accepting mailed comments. If you 

cannot submit your comment by using 

https://www.regulations.gov, please 

contact Samantha Deshommes, Chief, 

Regulatory Coordination Division, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

Department of Homeland Security, by 

telephone at (240) 721–3000 for 

alternate instructions. 

FOR FURTHER INFORMATION CONTACT: 

Andrew Parker, Branch Chief, 

Residence and Admissibility Branch, 

Residence and Naturalization Division, 

Office of Policy and Strategy, U.S. 

Citizenship and Immigration Services, 

DHS, 5900 Capital Gateway Drive, Camp 

Springs, MD 20746; telephone (240) 

721–3000 (this is not a toll-free 

number). 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Public Participation 

II. Executive Summary 

A. Major Provisions of the Regulatory 

Action 

B. Summary of Legal Authority 

C. Summary of Costs and Benefits 

III. Background 

A. Legal Authority 

B. Grounds of Inadmissibility Generally 

C. The Public Charge Ground of 

Inadmissibility 

1. Public Charge Statutes and Case Law, 

Pre-IIRIRA 

2. Public Benefits Under PRWORA 

3. Changes Under IIRIRA 

4. INS 1999 Notice of Proposed 

Rulemaking and Interim Field Guidance 

5. DHS Inadmissibility on Public Charge 

Grounds Notice of Proposed Rulemaking 

and 2019 Final Rule 

6. Litigation History and Vacatur of DHS 

2019 Final Rule 

7. Consideration of Chilling Effects 

8. Other Burdens of the 2019 Final Rule 

9. The COVID–19 Pandemic 

D. Public Charge Bonds 

IV. DHS 2021 Inadmissibility on Public 

Charge ANPRM and Listening Sessions 

V. Discussion of Proposed Rule 

A. Introduction 

B. Applicability 

1. Applicants for Admission 

2. Adjustment of Status Applicants 

3. Rule Does Not Cover Extension of Stay/ 

Change of Status 

4. Summary Tables 

C. Definitions 

1. Likely at Any Time To Become a Public 

Charge 

2. Public Benefits 

3. Public Cash Assistance for Income 

Maintenance 

4. Long-Term Institutionalization at 

Government Expense 

5. Receipt (of Public Benefits) 

6. Government 

7. Additional Definitions 

D. Public Charge Inadmissibility 

Determination 

1. Factors 

2. Totality of the Circumstances 

3. Denial Decision 

4. Exclusion From Consideration of Receipt 

of Certain Public Benefits 

E. Exemptions and Waivers 

1. Exemptions 

2. Limited Exemption 

3. Waivers 

F. Public Charge Bonds 

VI. Statutory and Regulatory Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

B. Regulatory Flexibility Act 

C. Unfunded Mandates Reform Act 

D. Executive Order 13132 (Federalism) 

E. Executive Order 12988 (Civil Justice 

Reform) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. Family Assessment 

H. National Environmental Policy Act 

I. Paperwork Reduction Act 

VII. List of Subjects and Regulatory 

Amendments 

Table of Abbreviations 

ADA—Americans with Disabilities Act 

ANPRM—Advance Notice of Proposed 

Rulemaking 

ASC—Application Support Center 

BIA—Board of Immigration Appeals 

BLS—Bureau of Labor Statistics 

CBP—Customs and Border Protection 

CDC—Centers for Disease Control and 

Prevention 

CFR—Code of Federal Regulations 

CHIP—Children’s Health Insurance Program 

COS—Change of Status 

COVID–19—Coronavirus Disease 2019 

DACA—Deferred Action for Childhood 

Arrivals 

DHS—U.S. Department of Homeland 

Security 

DOS—U.S. Department of State 

DOJ—Department of Justice 

EOS—Extension of Stay 

FAM—Department of State Foreign Affairs 

Manual 

FBR—Federal Benefit Rate 

FDA—Food and Drug Administration 

HCBS—Home and Community Based 

Services 

HCV—Housing Choice Voucher 

HHS—U.S. Department of Health and Human 

Services 

HSA—Homeland Security Act 

HUD—U.S. Department of Housing and 

Urban Development 

IIRIRA—Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

INA—Immigration and Nationality Act 

INS—Immigration and Naturalization Service 

IRCA—Immigration Reform and Control Act 

LPR—Lawful Permanent Resident 

LRIF—Liberian Refugee Immigration Fairness 

Act 

NACARA—Nicaraguan Adjustment and 

Central American Relief Act 

NATO—North Atlantic Treaty Organization 


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1For purposes of this discussion, USCIS uses the 

term ‘‘noncitizen’’ colloquially to be synonymous 

with the term ‘‘alien.’’ 2See 84 FR 41292 (Aug. 14, 2019), as amended 

by Inadmissibility on Public Charge Grounds; 

Correction, 84 FR 52357 (Oct. 2, 2019). 

NEPA—National Environmental Policy Act 

NOID—Notice of Intent to Deny 

NPRM—Notice of Proposed Rulemaking 

OAW—Operation Allies Welcome 

OMB—Office of Management and Budget 

PHA—Public Housing Agency 

PHE—Public Health Emergency 

PRA—Paperwork Reduction Act 

PRWORA—Personal Responsibility and 

Work Opportunity Reconciliation Act of 

1996 

RFA—Regulatory Flexibility Act of 1980 

RFE—Request for Additional Evidence 

RIA—Regulatory Impact Analysis 

SIPP—Survey of Income and Program 

Participation 

SNAP—Supplemental Nutrition Assistance 

Program 

SSA—Social Security Administration 

SSI—Supplemental Security Income 

TANF—Temporary Assistance for Needy 

Families 

TPS—Temporary Protected Status 

UMRA—Unfunded Mandates Reform Act of 

1995 

USCIS—U.S. Citizenship and Immigration 

Services 

USDA—U.S. Department of Agriculture 

VAWA—Violence Against Women Act 

WIC—Special Supplemental Nutrition 

Program for Women, Infants, and Children 

I. Public Participation 

DHS invites all interested parties to 

submit written data, views, comments, 

and arguments on all aspects of this 

NPRM. Comments must be submitted in 

English, or an English translation must 

be provided. 

Instructions for comments: All 

submissions may be posted, without 

change, to the Federal eRulemaking 

Portal at https://www.regulations.gov, 

and may include any personal 

information you provide. Therefore, 

submitting this information makes it 

public. You may wish to consider 

limiting the amount of personal 

information that you provide in any 

voluntary public comment submission 

you make to DHS. DHS may withhold 

information provided in comments from 

public viewing that it determines may 

impact the privacy of an individual or 

is offensive. For additional information, 

please read the Privacy and Security 

Notice available at https://

www.regulations.gov. 

Docket: For access to the docket and 

to read background documents or 

comments received, go to https://

www.regulations.gov, referencing DHS 

Docket No. USCIS–2021–0013. You may 

also sign up for email alerts on the 

online docket to be notified when 

comments are posted, or a final rule is 

published. 

II. Executive Summary 

DHS seeks to administer section 

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

in a manner that will be clear and 

comprehensible for officers as well as 

for noncitizens 1 and their families and 

will lead to fair and consistent 

adjudications, thereby mitigating the 

risk of unequal treatment of similarly 

situated individuals. DHS proposes to 

define the term ‘‘likely at any time to 

become a public charge’’ in regulation 

and to identify the types of public 

benefits that would be considered as 

part of the public charge inadmissibility 

determination. DHS also proposes to 

establish general principles regarding 

consideration of current and past receipt 

of public benefits in public charge 

inadmissibility determinations. 

Additionally, DHS proposes the 

factors that DHS would consider in 

prospectively determining, under the 

totality of the circumstances framework, 

whether an applicant for admission or 

adjustment of status before DHS is 

inadmissible under the public charge 

ground. DHS proposes to amend 

existing information collections 

submitted with applications for 

adjustment of status to that of a lawful 

permanent resident to include questions 

relevant to the statutory minimum 

factors. DHS also proposes to require 

that all written denial decisions issued 

by USCIS to applicants reflect 

consideration of each of the statutory 

minimum factors, as well as the 

Affidavit of Support Under Section 

213A of the INA where required, 

consistent with the standards set forth 

in the proposed rule, and specifically 

articulate the reasons for the officer’s 

determination. 

On August 14, 2019, DHS issued a 

different rule on the public charge 

ground of inadmissibility, which is no 

longer in effect.2 The 2019 Final Rule 

expanded DHS’s definition of ‘‘public 

charge,’’ and was associated with a 

heavy direct paperwork burden on 

applicants and adjudicators. The 2019 

Final Rule was also associated with 

widespread indirect effects, primarily 

with respect to those who were not even 

subject to the public charge ground of 

inadmissibility, such as U.S. citizen 

children in mixed-status households. 

Notwithstanding these widespread 

indirect effects, during the time that the 

2019 Final Rule was in place, of the 

47,555 applications for adjustment of 

status to which the rule was applied, 

DHS issued only 3 denials (which were 

subsequently reopened and approved) 

and 2 Notices of Intent to Deny (which 

were ultimately rescinded, and the 

applications were approved) based on 

the totality of the circumstances public 

charge inadmissibility determination 

under section 212(a)(4)(A)–(B) of the 

INA, 8 U.S.C. 1182(a)(4)(A)–(B). 

This proposed rule, if finalized, 

would implement a different policy 

than the 2019 Final Rule. As discussed 

at greater length below, DHS believes 

that, in contrast to the 2019 Final Rule, 

this proposed rule would effectuate a 

more faithful interpretation of the 

statutory concept of ‘‘likely at any time 

to become a public charge’’; avoid 

unnecessary burdens on applicants, 

adjudicators, and benefits-granting 

agencies; and mitigate the possibility of 

widespread ‘‘chilling effects’’ with 

respect to individuals disenrolling or 

declining to enroll themselves or family 

members in public benefits programs for 

which they are eligible, especially by 

individuals who are not subject to the 

public charge ground of inadmissibility. 

A. Major Provisions of the Regulatory 

Action 

DHS proposes to include the 

following major changes: 

• Amending 8 CFR 212.18, 

Application for waivers of 

inadmissibility in connection with an 

application for adjustment of status by 

T nonimmigrant status holders. This 

section clarifies that T nonimmigrants 

seeking adjustment of status are not 

subject to the public charge ground of 

inadmissibility. 

• Adding 8 CFR 212.20, Applicability 

of public charge inadmissibility. This 

section identifies the categories of 

noncitizens who are subject to the 

public charge ground of inadmissibility. 

• Adding 8 CFR 212.21, Definitions. 

This section establishes key regulatory 

definitions: Likely at any time to 

become a public charge, public cash 

assistance for income maintenance, 

long-term institutionalization at 

government expense, receipt (of public 

benefits), and government. 

• Adding 8 CFR 212.22, Public charge 

inadmissibility determination. This 

section clarifies that evaluating the 

likelihood at any time of becoming a 

public charge is a prospective 

determination based on the totality of 

the circumstances. This section 

provides details on how the statutory 

minimum factors, as well as an Affidavit 

of Support Under Section 213A of the 

INA, if required, and current or past 

receipt of public benefits would be 

considered when making a public 

charge inadmissibility determination. 

This section also states that the fact that 

an applicant has a disability, as defined 

by section 504 of the Rehabilitation Act 

(Section 504), will not alone be a 


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3Calculations: Total annual net costs 

($12,856,152) = Total annual costs ($12,871,511) ¥ 

Total annual savings ($15,359) 

sufficient basis to determine whether 

the noncitizen is likely at any time to 

become a public charge. This section 

also includes categories of noncitizens 

whose past or current receipt of public 

benefits will not be considered in a 

public charge inadmissibility 

determination. 

• Adding 8 CFR 212.23, Exemptions 

and waivers for public charge ground of 

inadmissibility. This section provides a 

list of statutory and regulatory 

exemptions from and waivers of the 

public charge ground of inadmissibility. 

• Amending 8 CFR 245.23, 

Adjustment of aliens in T nonimmigrant 

classification. This section clarifies that 

T nonimmigrants seeking adjustment of 

status are not subject to the public 

charge ground of inadmissibility. 

B. Summary of Legal Authority 

The Secretary of Homeland Security’s 

(Secretary) authority for the proposed 

regulatory amendments is found in 

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

1182(a)(4), which governs public charge 

inadmissibility determinations; section 

235 of the INA, 8 U.S.C. 1225, which 

addresses applicants for admission; and 

section 245 of the INA, 8 U.S.C. 1255, 

which addresses eligibility criteria for 

applications for adjustment of status. In 

addition, section 103(a)(3) of the INA, 8 

U.S.C. 1103(a)(3), authorizes the 

Secretary to establish such regulations 

as the Secretary deems necessary for 

carrying out the Secretary’s authority 

under the INA. 

C. Summary of Costs and Benefits 

The proposed rule would result in 

new costs, benefits, and transfers. To 

provide a full understanding of the 

impacts of the proposed rule, DHS 

considers the potential impacts of this 

proposed rule relative to two baselines. 

The No Action Baseline represents a 

state of the world under the 1999 

Interim Field Guidance, which is the 

policy currently in effect. The second 

baseline is the Pre-Guidance Baseline, 

which represents a state of the world 

before the issuance of the 1999 Interim 

Field Guidance (i.e., a state of the world 

in which the 1999 Interim Field 

Guidance did not exist). DHS also 

considers the potential effects of a 

regulatory alternative that is a 

rulemaking similar to the 2018 NPRM 

and the 2019 Final Rule (that is no 

longer in effect). As DHS noted in the 

2019 Final Rule, those effects would 

primarily be experienced by persons 

who are not subject to the public charge 

ground of inadmissibility who might be 

disenrolled from public benefits or forgo 

enrollment in public benefits due to fear 

and confusion regarding the scope of the 

regulatory alternative. Further 

discussion of the regulatory alternative 

can be found in the ‘‘Regulatory 

Alternative’’ section. 

Relative to the No Action Baseline, 

the primary source of quantified new 

direct costs for the proposed rule is the 

increase in the time required to 

complete Form I–485. DHS estimates 

that the proposed rule would impose 

additional new direct costs of 

approximately $12,871,511 annually to 

applicants filing Form I–485. In 

addition, the proposed rule would result 

in an annual savings for a 

subpopulation of affected individuals; T 

nonimmigrants applying for adjustment 

of status would no longer need to 

submit Form I–601 to seek a waiver of 

the public charge ground of 

inadmissibility. DHS estimates the total 

annual savings for this population 

would be $15,359. DHS estimates that 

the total annual net costs would be 

$12,856,152.3

Over the first 10 years of 

implementation, DHS estimates the total 

net costs of the proposed rule would be 

approximately $128,561,520 

(undiscounted). In addition, DHS 

estimates that the 10-year discounted 

total net costs of this proposed rule 

would be about $109,665,584 at a 3- 

percent discount rate and about 

$90,296,232 at a 7-percent discount rate. 

DHS expects the primary benefit of 

this proposed rule to be the qualitative 

benefit of establishing clear standards 

governing a determination that a 

noncitizen is inadmissible based on the 

public charge ground. 

Tables 1 and 2 provide a more 

detailed summary of the proposed 

provisions and their impacts relative to 

the No Action Baseline and PreGuidance Baseline, respectively. 

BILLING CODE 9111–97–P 


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4See Public Law 107–296, 116 Stat. 2135, 6 

U.S.C. 101 et seq. (Nov. 25, 2002). 

BILLING CODE 9111–97–C 

III. Background 

A. Legal Authority 

The Secretary’s authority for issuing 

this proposed rule is found in various 

sections of the Immigration and 

Nationality Act (INA, 8 U.S.C. 1101 et 

seq.), and the Homeland Security Act of 

2002 (HSA).4

Section 102 of the HSA, 6 U.S.C. 112, 

and section 103 of the INA, 8 U.S.C. 

1103, charge the Secretary with the 

administration and enforcement of the 

immigration laws of the United States. 

Section 101 of the HSA, 6 U.S.C. 111, 

establishes that part of DHS’s primary 

mission is to ensure that efforts, 

activities, and programs aimed at 

securing the homeland do not diminish 

either the overall economic security of 

the United States or the civil rights and 

civil liberties of persons. 

In addition to establishing the 

Secretary’s general authority for the 

administration and enforcement of 

immigration laws, section 103 of the 

INA, 8 U.S.C. 1103, enumerates various 

related authorities, including the 

Secretary’s authority to establish such 

regulations, prescribe such forms of 

bond, issue such instructions, and 

perform such other acts as the Secretary 

deems necessary for carrying out such 

authority. 

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

1182(a)(4), provides that an applicant 

for a visa, admission, or adjustment of 

status is inadmissible if they are likely 

at any time to become a public charge. 

In general, under section 213 of the 

INA, 8 U.S.C. 1183, the Secretary has 

the discretion to admit into the United 


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5See INA sec. 213, 8 U.S.C. 1183. 

6See Fiallo v. Bell, 430 U.S. 787, 787 (1977) (The 

Supreme Court has ‘‘long recognized [that] the 

power to expel or exclude aliens [i]s a fundamental 

sovereign attribute exercised by the Government’s 

political departments largely immune from judicial 

control’’). 

7Admission is defined as ‘‘the lawful entry of the 

alien into the United States after inspection and 

authorization by an immigration officer.’’ See INA 

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

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

9 Ibid. 

10For example, adjustment of status. See INA sec. 

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

11See, e.g., INA sec. 212(a)(9)(B)(v), 8 U.S.C. 

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

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

212(a)(9)(A)(iii), 8 U.S.C. 1182(a)(9)(A)(iii); see also 

USCIS Policy Manual, Volume 9—Waivers, https:// 

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

12See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 

13See INA sec. 245(j). See 8 CFR 245.11. See INA 

sec. 245(d)(2)(B). See INA sec. 212(d)(3)(A). 

14See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 

1182(a)(4)(B)(i). 

15See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 

1182(a)(4)(B)(ii). When required, the applicant must 

submit an Affidavit of Support Under Section 213A 

of the INA (Form I–864 or Form I–864EZ). 

16See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 

1182(a)(4)(C) and (D). 

17See INA sec. 213, 8 U.S.C. 1183. 

18See Immigration Act of 1882, ch. 376, secs. 

1–2, 22 Stat. 214, 214. Section 11 of the Act also 

provided that a noncitizen who became a public 

charge within 1 year of arrival in the United States 

from causes that existed prior to their landing was 

deemed to be in violation of law and was to be 

returned at the expense of the person or persons, 

vessel, transportation, company, or corporation who 

brought the noncitizen into the United States. See 

also, e.g., Immigration Act of 1891, ch. 551, 26 Stat. 

1084, 1084; Immigration Act of 1907, ch. 1134, 34 

Stat. 898, 899; Immigration Act of 1917, ch. 29, sec. 

3, 39 Stat. 874, 876; INA of 1952, ch. 477, sec. 

212(a)(15), 66 Stat. 163, 183; Illegal Immigration 

Reform and Immigrant Responsibility Act, Public 

Law 104–208, sec. 531(a), 110 Stat. 3009–546, 

3009–674–75 (1996); Violence Against Women 

Reauthorization Act of 2013, Public Law 113–4, 127 

Stat. 54. 

19See INA of 1952, ch. 477, sec. 212(a)(15), 66 

Stat. 163, 183. 

20See Matter of Harutunian, 14 I&N Dec. 583, 588 

(Reg’l Cmm’r 1974) (‘‘[T]he determination of 

whether an alien falls into that category [as likely 

to become a public charge] rests within the 

discretion of the consular officers or the 

Commissioner . . . Congress inserted the words ‘in 

the opinion of’ (the consul or the Attorney General) 

with the manifest intention of putting borderline 

adverse determinations beyond the reach of judicial 

review.’’ (citation omitted)); see also Matter of 

Martinez-Lopez, 10 I&N Dec. 409, 421 (Att’y Gen. 

1962) (‘‘[U]nder the statutory language the question 

for visa purposes seems to depend entirely on the 

consular officer’s subjective opinion.’’). 

States a noncitizen who is determined 

to be inadmissible based only on the 

public charge ground upon the giving of 

a suitable and proper bond or 

undertaking approved by the Secretary.5

Section 235 of the INA, 8 U.S.C. 1225, 

addresses the inspection of applicants 

for admission, including inadmissibility 

determinations of such applicants. 

Section 245 of the INA, 8 U.S.C. 1255, 

generally establishes eligibility criteria 

for adjustment of status to that of a 

lawful permanent resident. 

B. Grounds of Inadmissibility Generally 

The United States has a long history 

of permitting noncitizens to enter the 

United States, whether permanently or 

on a temporary basis. At the same time, 

Congress has sought to exclude 

noncitizens who pose a threat to the 

safety or general welfare of the country 

or who seek to violate immigration 

laws.6

Congress has exercised this authority 

in part by establishing the concepts of 

admission 7 and inadmissibility in the 

INA.8 Noncitizens may be inadmissible 

due to a range of acts, conditions, and 

conduct.9 If a noncitizen is inadmissible 

as described in section 212(a) of the 

INA, 8 U.S.C. 1182(a), that noncitizen is 

ineligible to be admitted to the United 

States and ineligible to receive a visa. 

Congress has extended the applicability 

of the inadmissibility grounds beyond 

the context of applications for 

admission and visas by making 

admissibility an eligibility requirement 

for certain immigration benefits.10 If a 

noncitizen is inadmissible, that 

noncitizen is also ineligible for those 

benefits unless the noncitizen is eligible 

to apply for and is granted a 

discretionary waiver of inadmissibility 

or other form of relief to overcome the 

inadmissibility, where available and 

appropriate.11

C. The Public Charge Ground of 

Inadmissibility 

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

1182(a)(4), provides that an applicant 

for a visa, admission, or adjustment of 

status is inadmissible if they are likely 

at any time to become a public charge. 

The public charge ground of 

inadmissibility, therefore, applies to 

individuals applying for a visa to come 

to the United States temporarily or 

permanently, for admission, or for 

adjustment of status to that of a lawful 

permanent resident.12 By statute, some 

categories of noncitizens are exempt 

from the public charge inadmissibility 

ground, while others may apply for a 

waiver of the public charge 

inadmissibility ground.13

The INA does not define the term 

‘‘public charge.’’ It does, however, 

specify that when determining whether 

a noncitizen is likely at any time to 

become a public charge, consular 

officers and immigration officers must, 

at a minimum, consider the noncitizen’s 

age; health; family status; assets, 

resources, and financial status; and 

education and skills.14 Additionally, 

section 212(a)(4)(B)(ii) of the INA, 8 

U.S.C. 1182(a)(4)(B)(ii), permits the 

consular officer or the immigration 

officer to consider any Affidavit of 

Support Under Section 213A of the INA, 

8 U.S.C. 1183a, submitted on the 

applicant’s behalf, when determining 

whether the applicant is likely at any 

time to become a public charge.15 In 

fact, with very limited exceptions, most 

noncitizens seeking family-based 

immigrant visas and adjustment of 

status, and some noncitizens seeking 

employment-based immigrant visas or 

adjustment of status, must submit a 

sufficient Affidavit of Support Under 

Section 213A of the INA in order to 

avoid being found inadmissible as likely 

at any time to become a public charge.16

In general, under section 213 of the 

INA, 8 U.S.C. 1183, the Secretary has 

the discretion to admit into the United 

States a noncitizen who is determined 

to be inadmissible based only on the 

public charge ground upon the giving of 

a suitable and proper bond or 

undertaking approved by the 

Secretary.17

1. Public Charge Statutes and Case Law, 

Pre-IIRIRA 

Since at least 1882, the United States 

has denied admission to noncitizens on 

public charge grounds.18 The INA of 

1952 excluded noncitizens who, in the 

opinion of the consular officer at the 

time of application for a visa, or in the 

opinion of the government at the time 

of application for admission, were likely 

at any time to become public charges.19

The government has long interpreted 

the words ‘‘in the opinion of’’ as 

evincing the subjective nature of the 

determination.20 The determination is 

also necessarily subjective to some 

degree due to its prospective nature. 

A series of administrative decisions 

after the passage of the INA of 1952 

clarified that a totality of the 

circumstances review was the proper 

framework for making public charge 

determinations and that receipt of 

public benefits would not, alone, lead to 

a finding of likelihood of becoming a 

public charge. In Matter of MartinezLopez, the Attorney General opined that 

the statute ‘‘require[d] more than a 

showing of a possibility that the alien 

will require public support. Some 

specific circumstance, such as mental or 

physical disability, advanced age, or 

other fact showing that the burden of 

supporting the alien is likely to be cast 

on the public, must be present. A 

healthy person in the prime of life 

cannot ordinarily be considered likely 

to become a public charge, especially 

where he has friends or relatives in the 


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21 10 I&N Dec. 409, 421–23 (BIA 1962; Att’y Gen. 

1964) (emphasis added). DHS discusses Matter of 

Martinez-Lopez, and consideration of disability, at 

greater length elsewhere in this preamble. 22 15 I&N Dec. 136, 137 (BIA 1974). 

23 14 I&N Dec. 583, 589 (Reg’l Comm’r 1974). 

24See IRCA of 1986, Public Law 99–603, sec. 201, 

100 Stat. 3359, 3394. 

25See INA sec. 245A(d)(2)(B)(ii)(IV), 8 U.S.C. 

1255a(d)(2)(B)(ii)(IV). 

26See INA sec. 245A(d)(2)(B)(iii), 8 U.S.C. 

1255a(d)(2)(B)(iii). 

27See INA sec. 245A(d)(2)(B)(ii), 8 U.S.C. 

1255a(d)(2)(B)(ii); see also 42 U.S.C. 1382c(a)(1). 

This discretionary waiver applies only to IRCA 

legalization and not to adjustment of status under 

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

28See Adjustment of Status for Certain Aliens, 54 

FR 29442 (Jul. 12, 1989). This regulation does not 

apply to adjustment of status under section 245(a) 

of the INA, 8 U.S.C. 1255, or to applications for 

admission with CBP. It is limited to adjustment 

from temporary to permanent resident status under 

the legalization provisions of IRCA. DHS does not 

propose amending 8 CFR 245a.3. 

29See 8 CFR 245a.3(g)(4)(i). 

30 Ibid. 

31 Ibid. 

32See 8 CFR 245a.3(g)(4)(iii). 

33 Ibid. 

34 19 I&N Dec. 867 (Comm’r 1988). 

35 Ibid. 

36See 19 I&N Dec. 867, 869 (Comm’r 1988). 

37See Immigration Act of 1990, Public Law 101– 

649, sec. 601(a), 104 Stat. 4978, 5072. In 1990, 

Congress reorganized INA sec. 212(a), redesignating 

the public charge provision as INA sec. 212(a)(4). 

38Public Law 104–208, div. C, 110 Stat 3009–546. 

39Public Law 104–208, div. C, 110 Stat 3009–546. 

40See Public Law 104–193, section 400, 110 Stat. 

2105, 2260 (codified at 8 U.S.C. 1601). 

41 8 U.S.C. 1601–1646. 

42 8 U.S.C. 1601(2). 

43 Ibid. 

44 8 U.S.C. 1611(c). 

45 8 U.S.C. 1611(a). 

46 8 U.S.C. 1611(b). 

United States who have indicated their 

ability and willingness to come to his 

assistance in case of emergency.’’ 21 In 

Matter of Perez, the Board of 

Immigration Appeals (BIA) held that 

[t]he determination of whether an alien is 

likely to become a public charge . . . is a 

prediction based upon the totality of the 

alien’s circumstances at the time he or she 

applies for an immigrant visa or admission to 

the United States. The fact that an alien has 

been on welfare does not, by itself, establish 

that he or she is likely to become a public 

charge.22

As stated in Matter of Harutunian, 

public charge determinations should 

take into consideration factors such as a 

noncitizen’s age, incapability of earning 

a livelihood, a lack of sufficient funds 

for self-support, and a lack of persons in 

this country willing and able to assure 

that the noncitizen will not need public 

support.23

The totality of the circumstances 

framework for public charge 

inadmissibility determinations was 

codified in relation to one specific class 

of noncitizens in the 1980s. In 1986, 

Congress passed the Immigration 

Reform and Control Act (IRCA), 

providing eligibility for adjustment of 

status to that of a lawful permanent 

resident to certain noncitizens who had 

resided in the United States 

continuously prior to January 1, 1982.24

No changes were made to the language 

of the public charge exclusion ground 

under former section 212(a)(15) of the 

INA, 8 U.S.C. 1182(a)(15), but IRCA 

contained special public charge rules for 

noncitizens seeking legalization under 

section 245A of the INA, 8 U.S.C. 1255a. 

Although IRCA provided otherwise 

eligible noncitizens an exemption or 

waiver for some grounds of 

excludability, the noncitizens generally 

remained subject to the public charge 

ground of exclusion.25 Under IRCA, 

however, if an applicant demonstrated a 

history of self-support through 

employment and without receiving 

public cash assistance, they would not 

be ineligible for adjustment of status 

based on being inadmissible on the 

public charge ground.26 In addition, 

IRCA contained a discretionary waiver 

of public charge inadmissibility for 

noncitizens who were ‘‘aged, blind or 

disabled’’ as defined in section 

1614(a)(1) of the Social Security Act 

who applied for lawful permanent 

resident status under IRCA and were 

determined to be inadmissible based on 

the public charge ground.27

The former Immigration and 

Naturalization Service (INS) 

promulgated 8 CFR 245a.3,28 which 

established that immigration officers 

would make public charge 

inadmissibility determinations by 

examining the ‘‘totality of the alien’s 

circumstances at the time of his or her 

application for legalization.’’ 29

According to the regulation, the 

existence or absence of a particular 

factor could never be the sole criterion 

for determining whether a person is 

likely to become a public charge.30

Further, the regulation provided that the 

determination is a ‘‘prospective 

evaluation based on the alien’s age, 

health, income, and vocation.’’ 31

A special provision in the rule stated 

that noncitizens with incomes below the 

poverty level are not excludable if they 

are consistently employed and show the 

ability to support themselves.32 Finally, 

a noncitizen’s past receipt of public 

cash assistance would be a significant 

factor in a context that also considers 

the noncitizen’s consistent past 

employment.33 In Matter of A-, INS 

again pursued a totality of the 

circumstances approach in public 

charge determinations for applicants for 

legalization.34 ‘‘Even though the test is 

prospective,’’ INS ‘‘considered evidence 

of receipt of prior public assistance as 

a factor in making public charge 

determinations.’’ 35 INS also considered 

a noncitizen’s work history, age, 

capacity to earn a living, health, family 

situation, affidavits of support, and 

other relevant factors in their totality.36

The administrative practices 

surrounding public charge 

inadmissibility determinations began to 

crystalize into legislative changes in the 

1990s. The Immigration Act of 1990 

reorganized section 212(a) of the INA, 8 

U.S.C. 1182(a), and redesignated the 

public charge provision as section 

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

1182(a)(4).37 In 1996, the Illegal 

Immigration Reform and Immigrant 

Responsibility Act of 1996 (IIRIRA) 38

added to section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4), the mandatory 

statutory factors and the enforceable 

affidavit of support.39 Also in 1996, in 

the Personal Responsibility and Work 

Opportunity Reconciliation Act of 1996 

(PRWORA), which is commonly known 

as the 1996 welfare reform law, 

Congress stated that noncitizens 

generally should not depend on public 

resources and that the availability of 

public benefits should not constitute an 

incentive for immigration to the United 

States.40

2. Public Benefits Under PRWORA 

PRWORA significantly restricted 

noncitizens’ eligibility for many 

Federal, State, and local public 

benefits.41 When Congress enacted 

PRWORA, it set forth a self-sufficiency 

policy statement that noncitizens 

should be able to financially support 

themselves with their own resources or 

by relying on the aid of family members, 

sponsors, and private organizations, 

without depending on government 

assistance.42 Although not defined in 

PRWORA, in context, self-sufficiency is 

tied to a noncitizen’s ability to meet 

their needs without depending on 

public resources.43

PRWORA defines the term ‘‘Federal 

public benefit’’ 44 and provides that an 

‘‘alien’’ who is not a ‘‘qualified alien’’ is 

ineligible for any such benefits,45

subject to certain exceptions.46 Among 

the exceptions established by Congress 

allowing for eligibility for all 

noncitizens, are provision of medical 

assistance for the treatment of an 

emergency medical condition; short 

term, in-kind, non-cash emergency 

disaster relief; and public health 

assistance related to immunizations and 

treatment of the symptoms of a 


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47See 8 U.S.C. 1611(b)(1). See Final Specification 

of Community Programs Necessary for Protection of 

Life or Safety Under Welfare Reform Legislation, 66 

FR 3613 (Jan. 16, 2001); see also Interim Guidance 

on Verification of Citizenship, Qualified Alien 

Status and Eligibility Under Title IV of the Personal 

Responsibility and Work Opportunity 

Reconciliation Act of 1996, 62 FR 61344 (Nov. 17, 

1997). 

48See Final Specification of Community 

Programs Necessary for Protection of Life or Safety 

Under Welfare Reform Legislation, 66 FR 3613 (Jan. 

16, 2001); see also Specification of Community 

Programs Necessary for Protection of Life or Safety 

Under Welfare Reform Legislation, 61 FR 45985 

(Aug. 30, 1996). 

49 8 U.S.C. 1612(a). 

50 8 U.S.C. 1613(a). 

51 8 U.S.C. 1612(b). 

52 8 U.S.C. 1641(b)(1). 

53 8 U.S.C. 1641(b)(2). 

54 8 U.S.C. 1641(b)(3). 

55 8 U.S.C. 1641(b)(4). Noncitizens who have been 

paroled have not been admitted. See INA sec. 

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

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

56As in effect immediately before the effective 

date of section 307 of division C of Public Law 104– 

208, 110 Stat. 3009–546. 

57 8 U.S.C. 1641(b)(5). 

58 8 U.S.C. 1641(b)(6). 

59 8 U.S.C. 1641(b)(7). 

60 8 U.S.C. 1641(b)(8). 

61 8 U.S.C. 1641(c)(1). 

62 8 U.S.C. 1641(c)(2). 

63 8 U.S.C. 1641(c)(3). 

64 8 U.S.C. 1641(c)(4). 

communicable disease.47 The 

exceptions were further clarified by the 

Department of Justice (DOJ) and some of 

the agencies that administer these 

public benefits. On January 16, 2001, 

the DOJ published a notice of final 

order, ‘‘Final Specification of 

Community Programs Necessary for 

Protection of Life or Safety Under 

Welfare Reform Legislation,’’ 48 which 

indicated that PRWORA does not 

preclude noncitizens from receiving 

certain other widely available programs, 

services, or assistance as well as certain 

benefits and services for the protection 

of life and safety. 

PRWORA further identified three 

types of benefits and related eligibility 

rules. First, there are ‘‘specified Federal 

programs,’’ for which even ‘‘qualified 

aliens’’ are generally not eligible.49

Second, there are ‘‘Federal means-tested 

public benefits,’’ for which ‘‘qualified 

aliens’’ are generally eligible after a 5- 

year waiting period.50 And finally, there 

are ‘‘designated federal programs,’’ for 

which States are allowed to determine 

whether and when a ‘‘qualified alien’’ is 

eligible, subject to certain restrictions.51

Subsequent legislation has added 

additional categories of noncitizens, 

many with humanitarian statuses, to 

PRWORA’s various exceptions and 

special provisions in order to meet the 

needs of those vulnerable populations. 

DHS also discusses these statuses and 

modifications to PRWORA in the 

section below. 

The following is a list of immigration 

categories that are ‘‘qualified aliens’’ 

under PRWORA. As noted above, 

subject to certain exceptions, ‘‘qualified 

aliens’’ are generally eligible for Federal 

public benefits after 5 years. As 

indicated in the section of this preamble 

on ‘‘Exemptions and Waivers’’ below, 

most categories of ‘‘qualified aliens’’ are 

not subject to the public charge ground 

of inadmissibility. 

• An alien who is lawfully admitted 

for permanent residence under the 

INA.52

• An alien who is granted asylum 

under section 208 of the INA.53

• A refugee who is admitted to the 

United States under section 207 of the 

INA.54

• An alien who is paroled into the 

United States under section 212(d)(5) of 

the INA for a period of at least 1 year.55

• An alien whose deportation is being 

withheld under section 243(h) 56 of the 

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

amended.57

• An alien who is granted conditional 

entry under section 203(a)(7) of the INA 

as in effect before April 1, 1980.58

• An alien who is a Cuban and 

Haitian entrant as defined in section 

501(e) of the Refugee Education 

Assistance Act of 1980.59

• An individual who lawfully resides 

in the United States in accordance with 

the Compacts of Free Association 

between the Government of the United 

States and the Governments of the 

Federated States of Micronesia, the 

Republic of the Marshall Islands, and 

the Republic of Palau referred to in 8 

U.S.C. 1612(b)(2)(G) (but only with 

respect to Medicaid).60

• An alien who has been battered or 

subjected to extreme cruelty in the 

United States by a spouse or a parent or 

by a member of the spouse or parent’s 

family residing in the same household 

as the alien and the spouse or parent 

consented to, or acquiesced in, such 

battery or cruelty but only if (in the 

opinion of the agency providing such 

benefits) there is a substantial 

connection between such battery or 

cruelty and the need for the benefits to 

be provided, and the alien has been 

approved or has a petition pending that 

sets forth a prima facie case for status 

under section 204(a)(1)(A)(i)–(iv), or 

classification pursuant to section 

204(a)(1)(B)(i)–(iii) of the INA, or 

suspension of deportation under section 

244(a)(3) of the INA, or cancellation of 

removal pursuant to INA sec. 

240A(b)(2).61

• An alien whose child has been 

battered or subjected to extreme cruelty 

in the United States by a spouse or a 

parent of the alien (without active 

participation by the alien in such 

battery or cruelty), or by a member of 

the spouse or parent’s family residing in 

the same household as the alien and the 

spouse or parent consented to, or 

acquiesced to such battery or cruelty 

(and the alien did not actively 

participate in such battery or cruelty), 

but only if (in the opinion of the agency 

providing such benefits) there is a 

substantial connection between such 

battery or cruelty and the need for the 

benefits to be provided, and the alien 

has been approved or has a petition 

pending which sets forth a prima facie 

case for status under section 

204(a)(1)(A)(i)–(iv), or classification 

pursuant to section 204(a)(1)(B)(i)–(iii) 

of the INA, or suspension of deportation 

under section 244(a)(3) of the INA, or 

cancellation of removal pursuant to INA 

section 240A(b)(2).62

• An alien child who resides in the 

same household as a parent who has 

been battered or subjected to extreme 

cruelty in the United States by that 

parent’s spouse or by a member of the 

spouse’s family residing in the same 

household as the parent, and the spouse 

consented to, or acquiesced to such 

battery or cruelty, but only if (in the 

opinion of the agency providing such 

benefits) there is a substantial 

connection between such battery or 

cruelty and the need for the benefits to 

be provided, and the alien has been 

approved or has a petition pending 

which sets forth a prima facie case for 

status under section 204(a)(1)(A)(i)–(iv), 

or classification pursuant to section 

204(a)(1)(B)(i)–(iii) of the INA, or 

suspension of deportation under section 

244(a)(3) of the INA, or cancellation of 

removal pursuant to INA section 

240A(b)(2).63

• An alien who has been granted 

nonimmigrant status under section 

101(a)(15)(T) of the INA or who has a 

pending application that sets forth a 

prima facie case for eligibility for such 

nonimmigrant status.64

There are additional categories of 

noncitizens who may be eligible for 

certain benefits notwithstanding 

limitations set under PRWORA. For 

instance, the following noncitizens are 

treated as though they are refugees for 

benefits eligibility purposes, under 

other provisions of law: 

• An alien who is a victim of a severe 

form of trafficking in persons, or an 


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65 22 U.S.C. 7105(b)(1)(A). 66Public Law 111–118, Div. A., Tit. VIII., sec. 

8120, 123 Stat. 3409, 3457 (2009). 67Public Law 117–43, sec. 2502(b) (Sept. 30, 

2021). 68See sections 1903(v)(4) of the Social Security 

Act (42 U.S.C. 1396b(v)(4)). 

69See 8 U.S.C. 1621(d). 

70See, e.g., U.S. Dep’t of Health & Human Servs. 

(HHS), Office of the Assistant Sec’y for Planning & 

Evaluation, Overview of Immigrants Eligible for 

SNAP, TANF, Medicaid and CHIP (Mar. 27, 2012), 

available at http://aspe.hhs.gov/hsp/11/ 

ImmigrantAccess/Eligibility/ib.shtml. 

71See 8 U.S.C. 1611(b)(1)(A). 

72See INA sec. 212(s), 8 U.S.C. 1182(s). 

73A list of statutory exemptions to the public 

charge ground of inadmissibility can be found in 

the Applicability section of this preamble and in 

proposed 8 CFR 212.23. 

alien classified as a nonimmigrant 

under 8 U.S.C. 1101(a)(15)(T)(ii).65

• An Iraqi or Afghan alien granted 

special immigrant status under section 8 

U.S.C. 101(a)(27).66

• A citizen or national of Afghanistan 

(or a person with no nationality who 

last habitually resided in Afghanistan) 

paroled into the United States after July 

31, 2021, who meets certain 

requirements, until March 31, 2023, or 

the term of parole granted, whichever is 

later.67

In addition, in the Medicaid context, 

States may also elect to provide medical 

assistance under Title XIX of the Social 

Security Act to cover all lawfully 

residing children under age 21 or 

pregnant individuals.68

Under PRWORA, States may enact 

their own legislation to provide State 

and local public benefits to certain 

noncitizens not lawfully present in the 

United States.69 Some States and 

localities have funded public benefits 

for some noncitizens who may not be 

eligible for Federal public benefits.70

While PRWORA allows certain 

noncitizens to receive certain public 

benefits (e.g., Medicaid limited to 

treatment of an emergency medical 

condition (all noncitizens); 71

Supplemental Nutrition Assistance 

Program (SNAP) (‘‘qualified alien’’ 

children under 18)), Congress, except in 

very limited circumstances,72 did not 

prohibit DHS from considering the 

receipt of such benefits in a public 

charge inadmissibility determination 

under section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4), or direct DHS to do 

so. 

The following table presents a list of 

the major categories of noncitizens 

eligible for SSI, TANF, or Medicaid who 

would be subject to a public charge 

inadmissibility determination were they 

later to apply for adjustment of status or 

admission to the United States, unless 

another statutory exemption applies that 

is particular to their individual 

circumstances.73 The table is provided 

for background purposes only and 

should not be used to determine 

benefits eligibility. 

BILLING CODE 9111–97–P 


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74Public Law 104–208, div. C, 110 Stat 3009–546 

(1996). 

75See Public Law 104–208, div. C, sec. 531, 110 

Stat. 3009–546, 3009–674 (1996) (amending INA 

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

76See INA sec. 212(a)(4)(B), 8 U.S.C. 

1182(a)(4)(B). 

77Section 551 of IIRIRA created INA sec. 213A, 

8 U.S.C. 1183a, and specified the requirements for 

a sponsor’s affidavit, including making it 

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

551 of IIRIRA, Public Law 104–208, 110 Stat. 3009 

(1996). 

78See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 

1182(a)(4)(C) and (D). See INA sec. 213A, 8 U.S.C. 

1183a. 79See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 

1182(a)(4)(C) and (D). 80See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 

1182(a)(4)(B)(ii). 81See H.R. Rep. No. 104–828, at 240–41 (1996) 

(Conf. Rep.); see also H.R. Rep. No. 104–469(I), at 

143–45 (1996). 

BILLING CODE 9111–97–C 

DHS welcomes comments on the 

table, including proposed clarifications 

or corrections, and may update the table 

as appropriate in the preamble to a final 

rule. 

3. Changes Under IIRIRA 

Congress, in IIRIRA,74 codified in the 

public charge inadmissibility statute the 

following minimum factors that must be 

considered when making public charge 

inadmissibility determinations: 75

• Age; 

• Health; 

• Family status; 

• Assets, resources, and financial 

status; and 

• Education and skills.76

Section 531(a) of IIRIRA amended 

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

1182(a)(4), to require an enforceable 

affidavit of support under newly added 

section 213A of the INA, 8 U.S.C. 

1183a,77 for certain noncitizens to avoid 

a finding of inadmissibility under that 

section.78 The law required submission 

of an Affidavit of Support Under 

Section 213A of the INA for most 

family-based immigrants and certain 

employment-based immigrants and 

provided that these noncitizens are 

inadmissible under section 212(a)(4) of 

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

sufficient affidavit is filed on their 

behalf.79 Congress also permitted, but 

did not require, consular and 

immigration officers to consider the 

Affidavit of Support Under Section 

213A of the INA as a factor in the public 

charge inadmissibility determination.80

In the House Conference Report on 

IIRIRA, the committee indicated that the 

amendments to section 212(a)(4) of the 

INA, 8 U.S.C. 1182(a)(4), were designed 

to ‘‘expand’’ the public charge ground of 

inadmissibility by requiring DHS to find 

inadmissible those who lack a sponsor 

willing to support them.81

DHS may appropriately consider the 

policy goals articulated in PRWORA 

and IIRIRA when administratively 

implementing the public charge ground 

of inadmissibility, and may also 

consider other important goals 

including, but not limited to, clarity, 

fairness, and administrability. DHS 

acknowledges the potential tension 

between the availability of public 

benefits to some noncitizens as set forth 

in PRWORA and statutory provisions 

that deny visa issuance, admission, and 

adjustment of status to noncitizens who 

are likely to become a public charge. 

Congress, in enacting PRWORA and 

IIRIRA very close in time, made certain 

public benefits available to a small 

number of noncitizens who are also 

subject to the public charge ground of 

inadmissibility, even though receipt of 

some such benefits could influence a 

determination of whether the noncitizen 

is inadmissible as likely at any time to 

become a public charge. 

Under the statute crafted by Congress, 

noncitizens generally would not be 

issued visas, admitted to the United 

States, or permitted to adjust status if 

they are likely at any time to become a 

public charge. Congress nonetheless 

recognized that certain noncitizens 

present in the United States who are 

subject to the public charge ground of 

inadmissibility might reasonably find 

themselves in need of public benefits 

that, if obtained, could influence a 

determination of whether they are 

inadmissible as likely at any time to 

become a public charge. Consequently, 

in PRWORA, Congress allowed certain 

noncitizens to be eligible for some 


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82See INA sec. 212(s), 8 U.S.C. 1182(s). 83 64 FR 28676 (May 26, 1999). 84 64 FR 28689 (May 26, 1999). Due to a printing 

error, the Federal Register version of the 1999 

Interim Field Guidance appears to be dated ‘‘March 

26, 1999,’’ even though the guidance was actually 

signed May 20, 1999; became effective May 21, 

1999; and was published in the Federal Register on 

May 26, 1999, along with the NPRM. 

85See 64 FR 28676, 28676 (May 26, 1999). 

86See 64 FR 28676, 28676–77 (May 26, 1999). 

87See 64 FR 28676, 28676 (May 26, 1999). 

88See 64 FR 28676, 28686–87 (May 26, 1999). 89See 64 FR 28676, 28687 (May 26, 1999). 90See 64 FR 28676, 28688 (May 26, 1999). 91Former INS defined ‘‘primarily dependent’’ as 

‘‘the majority’’ or ‘‘more than 50 percent.’’ 92See 64 FR 28676, 28681 (May 26, 1999); 64 FR 

28689 (May 26, 1999). The proposed rule also 

defined public charge to mean, ‘‘for purposes of 

removal as a deportable alien means an alien who 

has become primarily dependent on the 

Government for subsistence as demonstrated by 

either: (i) The receipt of public cash assistance for 

income maintenance purposes, or (ii) 

Institutionalization for long-term care at 

Government expense (other than imprisonment for 

conviction of a crime).’’ 64 FR 28676, 28684 (May 

26, 1999). 

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

94See 64 FR 28689, 28689 (May 26, 1999). 

95See 64 FR 28689, 28692–93 (May 26, 1999). 

96See 64 FR 28689 (May 26, 1999). 

97See 64 FR 28676, 28680 (May 26, 1999). 

98See 9 FAM 302.8, https://fam.state.gov/fam/ 

09fam/09fam030208.html (accessed Dec. 12, 2021). 

99See 84 FR 41292 (Aug. 14, 2019), as amended 

by Inadmissibility on Public Charge Grounds; 

Correction, 84 FR 52357 (Oct. 2, 2019). 

public benefits even though they may 

later seek a visa, admission, or 

adjustment of status and thereby be 

subject to the public charge ground of 

inadmissibility. However, Congress, 

except in very limited circumstances,82

did not prohibit DHS from considering 

the receipt of such benefits in a public 

charge inadmissibility determination 

under section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4). In other words, 

although a noncitizen may obtain public 

benefits for which they are eligible, the 

receipt of those benefits may be 

considered for public charge 

inadmissibility determination purposes. 

4. INS 1999 Notice of Proposed 

Rulemaking and Interim Field Guidance 

On May 26, 1999, INS issued a 

proposed rule, Inadmissibility and 

Deportability on Public Charge 

Grounds 83 (1999 NPRM), and on that 

same day issued interim Field Guidance 

on Deportability and Inadmissibility on 

Public Charge Grounds (1999 Interim 

Field Guidance).84

In the 1999 proposed rule, INS 

proposed to ‘‘alleviate growing public 

confusion over the meaning of the 

currently undefined term ‘public charge’ 

in immigration law and its relationship 

to the receipt of Federal, State, or local 

public benefits.’’ 85 INS sought to reduce 

negative public health and nutrition 

consequences generated by that 

confusion and to provide noncitizens, 

their sponsors, health care and 

immigrant assistance organizations, and 

the public with better guidance as to the 

types of public benefits that INS 

considered relevant to the public charge 

determination.86 INS also sought to 

address the public’s concerns about 

immigrants’ fears of accepting public 

benefits for which they remained 

eligible, specifically in regards to 

medical care, children’s immunizations, 

basic nutrition, and treatment of 

medical conditions that may jeopardize 

public health.87

When developing the proposed rule, 

INS consulted with Federal benefitgranting agencies such as the U.S. 

Department of Health and Human 

Services (HHS), the Social Security 

Administration (SSA), and the 

Department of Agriculture (USDA). The 

Deputy Secretary of HHS, whose 

Department administers Temporary 

Assistance for Needy Families (TANF), 

Medicaid, the Children’s Health 

Insurance Program (CHIP), and other 

benefits, advised that the best evidence 

of whether an individual is relying 

primarily on the government for 

subsistence is either the receipt of 

public cash benefits for income 

maintenance purposes or 

institutionalization for long-term care at 

government expense.88 The Deputy 

Commissioner for Disability and Income 

Security Programs at SSA agreed that 

the receipt of Supplemental Security 

Income (SSI) ‘‘could show primary 

dependence on the government for 

subsistence fitting the INS definition of 

public charge.’’ 89 Furthermore, the 

USDA’s Under Secretary for Food, 

Nutrition and Consumer Services 

advised that ‘‘neither the receipt of food 

stamps nor nutrition assistance 

provided under the Special Nutrition 

Programs administered by USDA should 

be considered in making a public charge 

determination.’’ 90 While these letters 

supported the approach taken in the 

1999 proposed rule and Interim Field 

Guidance, the letters specifically 

focused on the reasonableness of a given 

INS interpretation (i.e., primary 

dependence on the government for 

subsistence). The letters did not 

foreclose the agency from adopting a 

different definition consistent with 

statutory authority. 

INS defined public charge in the 1999 

proposed rule, as well as in the 1999 

Interim Field Guidance, to mean, for 

purposes of admission and adjustment 

of status, ‘‘an alien who is likely to 

become . . . primarily dependent 91 on 

the government for subsistence, as 

demonstrated by either (i) the receipt of 

public cash assistance for income 

maintenance or (ii) institutionalization 

for long-term care at government 

expense.’’ 92 The 1999 proposed rule 

provided that non-cash benefits, as well 

as ‘‘supplemental, special-purpose cash 

benefits should not be considered’’ for 

public charge purposes, in light of INS’s 

decision to define public charge by 

reference to primary dependence on 

public benefits.93 Ultimately, however, 

INS did not publish a final rule 

conclusively addressing these issues. 

The 1999 Interim Field Guidance was 

issued as an attachment to the 1999 

proposed rule in order to ‘‘provide 

additional information to the public on 

the Service’s implementation of the 

public charge provisions of the 

immigration laws . . . in light of the 

recent changes in law.’’ 94 The 1999 

Interim Field Guidance explained how 

the agency would determine if a person 

is likely to become a public charge 

under section 212(a)(4) of the INA, 8 

U.S.C. 1182(a), for admission and 

adjustment of status purposes, and 

whether a person is deportable as a 

public charge under section 237(a)(5) of 

the INA, 8 U.S.C. 1227(a)(5).95 The 1999 

Interim Field Guidance also was 

intended to stem the fears that were 

causing noncitizens to refuse certain 

supplemental public benefits, such as 

transportation vouchers and childcare 

assistance, that were intended to help 

recipients become better able to obtain 

and retain employment and establish 

self-sufficiency.96

The Department of State (DOS) also 

issued a cable to its consular officers at 

that time implementing similar 

guidance for visa adjudications, and its 

Foreign Affairs Manual (FAM) was 

similarly updated.97 Until both agencies 

published new regulations and policy 

guidance, including changes to the 

FAM, in 2018 and 2019, USCIS had 

continued to follow the 1999 Interim 

Field Guidance in its adjudications, and 

DOS had continued following the public 

charge guidance set forth in the FAM in 

1999.98

5. DHS Inadmissibility on Public Charge 

Grounds Notice of Proposed 

Rulemaking and 2019 Final Rule 

In August 2019, DHS issued a final 

rule, Inadmissibility on Public Charge 

Grounds (2019 Final Rule). The 2019 

Final Rule (that is no longer in effect), 

changed DHS’s public charge standards 

and procedures.99 The 2019 Final Rule 

redefined the term public charge to 

mean ‘‘an alien who receives one or 

more public benefits, as defined in [the 

2019 Final Rule], for more than 12 


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100See 84 FR 41292 (Aug. 14, 2019). 

101 Ibid. 

102See 84 FR 41292 (Aug. 14, 2019). For example, 

under that rule, public benefits did not include 

public benefits received by those who, at the time 

of receipt, filing the application for admission or 

adjustment of status, or adjudication, is enlisted in 

the U.S. Armed Forces, serving in active duty or in 

the Ready Reserve component of the U.S. Armed 

Forces, or the spouse of children of such service 

members. Also under that rule, public benefits did 

not include benefits received by children of U.S. 

citizens whose lawful admission for permanent 

residence would result in automatic acquisition of 

U.S. citizenship. 

103See INA sec. 212(a)(4)(A), 8 U.S.C. 

1182(a)(4)(A). 

104The Declaration of Self-Sufficiency 

requirement only applied to adjustment applicants 

and not applicants for admission at a port of entry. 

105See 84 FR 41292 (Aug. 14, 2019). 

106 Ibid. 

107 Ibid. 

108See 84 FR 41292 (Aug. 14, 2019). 

109 Ibid. 

110 Ibid. 

111See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 

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

112CASA de Maryland, Inc., et al., v. Trump, 19– 

cv–2715 (D. Md.); City and County of San 

Francisco, et al., v. DHS, et al., 19–cv–04717 (N.D. 

Ca.); City of Gaithersburg, et al. v. Trump, et al., 19– 

cv–02851 (D. Md.); Cook County et al. v. 

McAleenan et al., 19–cv–06334 (N.D. Ill.); La 

Clinica De La Raza, et al., v. Trump, et al.,19–cv– 

4980 (N.D. Ca.); Make the Road New York, et al. v. 

Cuccinelli, et al., 19–cv–07993 (S.D.N.Y.); New 

York, et al. v. DHS, et al., 19–cv–07777 (S.D.N.Y.); 

State of California, et al., v. DHS, et al., 19–cv– 

04975 (N.D. Cal.); State of Washington, et al. v. 

DHS, et al., 19–cv–05210 (E.D. Wa.). 

113Cook County. v. Wolf, 962 F.3d 208, 228 (7th 

Cir. 2020). 

114See, City and County of San Francisco, et al. 

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

and County of San Francisco, et al. v. DHS, No. 19– 

17213 (9th Cir. Jan. 20, 2021); CASA de Maryland, 

Inc. et al. v. Trump, No. 19–2222 (4th Cir. Dec 9, 

2019). 

115See DHS v. New York, 140 S. Ct. 599 (2020); 

Wolf v. Cook County, 140 S. Ct. 681 (2020). 

116See Cook County v. Wolf, 962 F.3d 208 (7th 

Cir. 2020) (then-Judge Barrett dissenting). 

117See New York v. DHS, 475 F. Supp. 3d 208 

(S.D.N.Y. 2020). 

118See New York v. DHS, 974 F.3d 210 (2d Cir. 

2020). 

119See New York v. Department of Homeland 

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

120See CASA de Maryland v. Trump, 971 F.3d 

220 (4th Cir. 2020). 

months in the aggregate within any 36- 

month period (such that, for instance, 

receipt of two benefits in one month 

counts as two months).’’ 100 It also 

defined the term public benefit to 

include cash assistance for income 

maintenance (other than tax credits), 

SNAP, most forms of Medicaid, Section 

8 Housing Assistance under the Housing 

Choice Voucher (HCV) Program, Section 

8 Project-Based Rental Assistance, and 

certain other forms of subsidized 

housing.101 DHS tailored the 2019 Final 

Rule to limit the rule’s effects in certain 

ways, such as with respect to the 

consideration of public benefits 

received by active duty military 

members and their spouses and 

children, and consideration of public 

benefits received by children in certain 

contexts.102

The 2019 Final Rule also provided an 

evidentiary framework under which 

USCIS would determine public charge 

inadmissibility and explained how DHS 

would interpret the statutory minimum 

factors for determining whether ‘‘in the 

opinion of’’ 103 the officer, a noncitizen 

is likely at any time to become a public 

charge. Specifically, for adjustment of 

status applications before USCIS, DHS 

created a new Declaration of SelfSufficiency, Form I–944, which 

collected information from applicants 

relevant to the 2019 Final Rule’s 

approach to the statutory factors and 

other factors identified in the rule that 

would be considered in the totality of 

the circumstances.104

The 2019 Final Rule also contained a 

list of negative and positive factors that 

DHS would consider as part of this 

inadmissibility determination, and 

directed officers to consider these 

factors ‘‘in the totality of the 

circumstances.’’ 105 These positive or 

negative factors, as well as the ‘‘heavily 

weighted’’ positive and negative factors, 

operated as guidelines to help the 

officer determine whether the 

noncitizen was likely at any time to 

become a public charge.106 In the 2019 

Final Rule, DHS indicated that apart 

from a lack of an Affidavit of Support 

Under Section 213A of the INA, where 

required, the presence of a single 

positive or negative factor, or heavily 

weighted negative or positive factor, 

would never, on its own, create a 

presumption that an applicant was 

inadmissible as likely at any time to 

become a public charge or determine the 

outcome of the public charge 

inadmissibility determination.107

Rather, a public charge inadmissibility 

determination would be based on the 

totality of the circumstances presented 

in an applicant’s case.108

Additionally, the 2019 Final Rule 

added provisions that rendered certain 

nonimmigrants ineligible for extension 

of stay or change of status if they 

received one or more public benefits, as 

defined in the rule, for more than 12 

months in the aggregate within any 36- 

month period since obtaining the 

nonimmigrant status they wished to 

extend or change.109

The 2019 Final Rule also revised DHS 

regulations governing the Secretary’s 

discretion to accept a public charge 

bond under section 213 of the INA, 8 

U.S.C. 1183, for those seeking 

adjustment of status.110

The 2019 Final Rule did not interpret 

or change DHS’s implementation of the 

public charge ground of 

deportability.111

6. Litigation History and Vacatur of DHS 

2019 Final Rule 

The 2019 Final Rule was set to take 

effect on October 15, 2019, but, before 

it did, numerous Plaintiffs filed suits 

challenging the 2019 Final Rule in five 

district courts, across four circuits.112

All five district courts preliminarily 

enjoined the 2019 Final Rule. Although 

differing in some particulars, all five 

concluded that the 2019 Final Rule’s 

definition was contrary to the INA 

because the term ‘‘public charge’’ had a 

long-settled definition with which the 

2019 Final Rule conflicted. Some courts 

also concluded that the 2019 Final Rule 

was likely arbitrary and capricious, and 

that the 2019 Final Rule likely violated 

the Rehabilitation Act.113

The cases took differing paths through 

the courts of appeals. The Ninth and 

Fourth Circuits granted the 

government’s requests for stays pending 

appeal.114 The Second and Seventh 

Circuits declined to grant stays; 

however, the Supreme Court 

subsequently granted stays in those 

cases, pending final resolution by the 

Court of the government’s appeals.115

The 2019 Final Rule was ultimately 

implemented on February 24, 2020. 

On June 10, 2020, the Seventh Circuit 

affirmed the lower court’s preliminary 

injunction.116

On July 29, 2020, the United States 

District Court for the Southern District 

of New York entered a second 

preliminary injunction prohibiting 

enforcement of the 2019 Final Rule 

nationwide during the pendency of the 

COVID–19 public-health emergency.117

On August 12, 2020, the Second Circuit 

issued an order staying the second 

preliminary injunction outside of the 

States within the Second Circuit. Then, 

on September 11, 2020, the Second 

Circuit stayed the second preliminary 

injunction in its entirety.118

Meanwhile, on August 4, 2020, the 

Second Circuit issued a decision 

affirming the original Fall 2019 

injunctions on appeal before that 

court.119

One day later, on August 5, 2020, the 

Fourth Circuit reversed the Maryland 

district court’s injunction.120 Plaintiffs 

filed a timely motion for en banc 

rehearing, and on December 3, 2020, the 

Fourth Circuit granted that motion. By 

ordering en banc rehearing, the Fourth 

Circuit vacated the prior panel decision. 

On October 7, 2020, the government 

filed petitions for writ of certiorari in 


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121See Department of Homeland Security v. New 

York, No. 20–449 (S. Ct.); Wolf v. Cook County, No. 

20–450 (S. Ct.). 

122See Cook County v. Wolf, 2020 WL 6393005 

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

123See City & County of San Francisco v. USCIS, 

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

124See USCIS v. City & County of San Francisco, 

No. 20–962 (S. Ct.). The petition was submitted on 

January 19, 2021, and docketed on January 21, 

2021. 

125See Exec. Order No. 14012, sec. 4, 86 FR 8277, 

8278. 

126 Ibid. 

127See Inadmissibility on Public Charge Grounds; 

Implementation of Vacatur, 86 FR 14221, 14221 

(Mar. 15, 2021). 

128See Texas, et al. v. Cook County, Illinois, et 

al., 20A150. 

129See City and County of San Francisco, et al., 

v. USCIS, et al., 19–17213. 

130See Arizona, et al. v. City and County of San 

Francisco, et al., 20M81. 

131See Arizona, et al. v. City and County of San 

Francisco, et al., 20–1775. The questions presented 

were: (1) Whether States with interests should be 

permitted to intervene to defend a rule when the 

United States ceases to defend; (2) whether the rule 

is contrary to law or arbitrary and capricious; and 

(3) alternatively, whether the decision below as to 

the rule should be vacated as moot under 

Munsingwear. 132See 64 FR 28676 (May 26, 1999); 64 FR 28689 

(May 26, 1999). 133 64 FR 28676 (May 26,1999). 

the Second and Seventh Circuit 

cases.121 The government urged the 

Court to grant certiorari in the Second 

Circuit case, and to hold the Seventh 

Circuit case pending its resolution of the 

Second Circuit case. 

On November 2, 2020, the United 

States District Court for the Northern 

District of Illinois entered a partial final 

judgment in favor of Plaintiffs in the 

Cook County case and vacated the 2019 

Final Rule nationwide.122 The Seventh 

Circuit stayed the judgment pending the 

Supreme Court’s resolution of the 

government’s certiorari petition in the 

preliminary injunction appeal. 

On December 2, 2020, the Ninth 

Circuit affirmed preliminary injunctions 

entered by the U.S. district courts in 

California and Washington.123

On January 19, 2021, the government 

submitted a petition for writ of certiorari 

in the Ninth Circuit case, which asked 

the Court to hold the petition until it 

decided the New York case.124

On February 2, 2021, President Biden 

directed the Secretary, along with the 

Attorney General, the Secretary of State, 

and other relevant agency heads, to 

‘‘review all agency actions related to 

implementation of the public charge 

ground of inadmissibility . . . and the 

related ground of deportability.’’ 125 The 

President ordered the agencies to 

complete that review within 60 days.126

On February 22, 2021, the Supreme 

Court granted the government’s petition 

for writ of certiorari in DHS v. New 

York, No. 20–449, in order to review the 

preliminary injunctions issued in 

October 2019 by the United States 

District Court for the Southern District 

of New York. 

Approximately 2 weeks later, DHS 

announced its determination that 

continuing to defend the 2019 Final 

Rule before the Supreme Court and in 

the lower courts would not be in the 

public interest or an efficient use of 

government resources. Consistent with 

that determination, the government filed 

stipulations with the Supreme Court 

dismissing DHS v. New York, No. 20– 

449; Mayorkas v. Cook County, No. 20– 

450; and USCIS v. City & County of San 

Francisco, No. 20–962. 

The government likewise filed 

motions to dismiss public charge related 

appeals in the lower courts. The 

Seventh Circuit granted the 

government’s motion and dismissed the 

appeal. As a consequence, the vacatur 

ordered by the United States District 

Court for the Northern District of Illinois 

became effective. The government 

subsequently published a notice in the 

Federal Register formally removing the 

2019 Final Rule from the Code of 

Federal Regulations.127

On March 11, 2021, the United States 

Court of Appeals for the Fourth Circuit 

granted DHS’s unopposed motion to 

dismiss the appeal and issued a 

mandate making the order dismissing 

the appeal effective. On the same day, 

a group of States filed motions in the 

Fourth and Seventh Circuits to 

intervene and recall the respective 

mandates. On March 15, 2021, the 

Seventh Circuit motion was denied. On 

March 18, 2021, the Fourth Circuit 

motion was denied. 

On March 19, 2021, the same 

collection of States filed with the 

Supreme Court an application to 

intervene and to stay the vacatur 

judgment of the United States District 

Court for the Northern District of 

Illinois.128 That application was denied 

on April 26, 2021. 

On March 10, 2021, a different 

collection of States filed a motion to 

intervene in the Ninth Circuit case.129

On April 8, 2021, that motion was 

denied. 

On April 30, 2021, the same 

collection of States filed a motion for 

leave to intervene in the Supreme Court 

in order to pursue further review of the 

Ninth Circuit’s judgment.130 On June 1, 

2021, the Court ordered that the matter 

be held in abeyance to permit the 

prospective intervenors an opportunity 

to file a petition for writ of certiorari 

from the denial of their motion to 

intervene in the United States Court of 

Appeals for the Ninth Circuit. 

On June 18, 2021, the same collection 

of States filed a petition for writ of 

certiorari with the Supreme Court, in 

which the States presented three 

questions.131

On October 29, 2021, the Supreme 

Court granted the petition limited to the 

question of whether the States should be 

permitted to intervene. 

7. Consideration of Chilling Effects 

In this proposed rule, DHS gives more 

thorough consideration to the potential 

chilling effects of promulgating 

regulations governing the public charge 

inadmissibility determination. In 

considering such effects, DHS took into 

account the former INS’s approach to 

chilling effects in the 1999 Interim Field 

Guidance and 1999 NPRM, the 2019 

Final Rule’s discussion of chilling 

effects, judicial opinions on the role of 

chilling effects, evidence of chilling 

effects following the 2019 Final Rule, 

and public comments on chilling effects 

following the August 2021 Advance 

Notice of Proposed Rulemaking 

(ANPRM). 

a. Discussion of Chilling Effects in the 

1999 NPRM and 1999 Interim Field 

Guidance 

The 1999 NPRM and accompanying 

1999 Interim Field Guidance 

specifically cited public confusion 

regarding the meaning of the statutorily 

undefined term ‘‘public charge,’’ and 

the potential negative public health 

consequences, as creating a need for 

urgent action to provide ‘‘better 

guidance as to the types of public 

benefits that will and will not be 

considered in public charge 

determinations.’’ 132 The 1999 NPRM 

explained that, following the enactment 

of PRWORA and its restrictions on the 

eligibility of certain noncitizens for 

many Federal, State, and local public 

benefits, 

numerous legal immigrants and other aliens 

are choosing not to apply for . . . benefits 

[for which Congress expressly made them 

eligible] because they fear the negative 

immigration consequences of potentially 

being deemed a ‘public charge.’ This tension 

between the immigration and welfare laws is 

exacerbated by the fact that ‘public charge’ 

has never been defined in statute or 

regulation. Without a clear definition of the 

term, noncitizens have no way of knowing 

which benefits they may safely access 

without risking deportation or 

inadmissibility.133

The INS went on to note that, 

according to Federal and State benefitgranting agencies, 

this growing confusion is creating significant, 

negative public health consequences across 


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134 64 FR 28676, 28677 (May 26, 1999). 

135See 64 FR 28677, 28678–28686 (May 26, 

1999). 

136See, e.g., 84 FR 41292, 41310 et seq. (Aug. 14, 

2019). 

137See, e.g., 84 FR 41292, 41310 (Aug. 14, 2019) 

(‘‘Commenters said that the rule’s disenrollment 

effect would have lasting impacts on the health and 

safety of our communities and that immigrant 

families are experiencing significant levels of fear 

and uncertainty that has a direct impact on the 

health and well-being of children. Citing studies 

and research, many commenters asserted that the 

chilling effect will increase hunger, food insecurity, 

homelessness and poverty. They added that the 

chilling effect will also decrease educational 

attainment and undermine workers’ ability to 

acquire new skills for in-demand occupations. 

Many commenters stated that negative public 

health, social, and economic outcomes (e.g., hunger, 

food insecurity, decreased nutrition, unmet 

physical and mental health needs, unimmunized 

individuals, disease, decreased school attendance 

and performance, lack of education, poverty, 

homelessness) collectively damage the prosperity 

and health of our communities, schools, and 

country. Several commenters said that the rule 

would drive up uncompensated care costs, increase 

use of medical emergency departments, increase 

healthcare costs, endanger maternal and infant 

health, and heighten the risk of infectious disease 

epidemics. One commenter indicated that the rule 

would make child poverty worse and harm 

communities as well as infrastructure that serves all 

of us.’’). 138See Public Law 104–193, title IV, 110 Stat. 

2260 (1996). 139One commenter wrote that ‘‘[a] U.S. 

Department of Agriculture analysis found that 

welfare reform’s restrictions on legal immigrants’ 

ability to receive food stamps appears to have 

deterred participation by their children, many of 

whom retained their eligibility.’’ Another wrote that 

‘‘[r]esearch shows that following PRWORA, 

enrollment declined both in programs whose 

eligibility PRWORA did not change and among 

individuals and families that remained eligible (that 

is, who were unaffected by the eligibility changes 

but were fearful of receiving benefits).’’ (emphasis 

in original.) 

140A commenter reported that ‘‘just months after 

the first leaks of the executive order, a Los Angelesbased health care provider serving a largely Latino 

community reported a 20 percent drop in SNAP 

enrollment and a 54 percent drop in Medicaid 

enrollment among children, as well as an overall 40 

percent decline in program re-enrollments.’’ 

Another reported that ‘‘community providers have 

already reported changes in healthcare use, 

including decreased participation in Medicaid and 

WIC in the wake of the release of the draft 

proposal.’’ 

141A commenter stated that ‘‘[a]s the Intake 

Coordinator, I have spoken with several families 

whose children are in dire need of mental health 

services (experiencing depression, anxiety, grief, 

trauma, disruptive behaviors), but the caregivers are 

afraid to utilize their child’s Medi-Cal insurance. As 

a result, these children are not receiving the 

services they need.’’). Another stated that ‘‘[l]ast 

year when there were early press accounts about a 

change in the public charge test, the health center’s 

WIC program experienced a sudden drop off in 

attendance based on rumors in the immigrant 

community that it was no longer safe to participate 

in WIC.’’ 

142See 84 FR 41292, 41312 (Aug. 14, 2019). 

143 Ibid. 

144 84 FR 41292, 41312 (Aug. 14, 2019). 

145 Ibid. 

146 84 FR 41292, 41312 (Aug. 14, 2019). The Final 

Regulatory Impact Analysis (RIA) did not contain 

any estimates that took into account the regulated 

population’s actual eligibility for the covered 

benefits. 

147 DHS also wrote that the difficulty in 

producing an estimate ‘‘is compounded by the fact 

that most applicants subject to the public charge 

ground of inadmissibility and therefore this rule are 

generally unlikely to suffer negative consequences 

resulting from past receipt of public benefits 

because they will have been residing outside of the 

United States and therefore, ineligible to have ever 

received public benefits.’’ 84 FR at 41292, 41313 

(Aug. 14, 2019). 

148 84 FR 41292, 41313 (Aug. 14, 2019). 

149 84 FR 41292, 41313 (Aug. 14, 2019). 

the country. This situation is becoming 

particularly acute with respect to the 

provision of emergency and other medical 

assistance, children’s immunizations, and 

basic nutrition programs, as well as the 

treatment of communicable diseases. 

Immigrants’ fears of obtaining these 

necessary medical and other benefits are not 

only causing them considerable harm, but are 

also jeopardizing the general public. For 

example, infectious diseases may spread as 

the numbers of immigrants who decline 

immunization services increase.134

For these reasons, and following onthe-record consultation with HHS, 

USDA, and SSA, as well as 

consideration of the historical 

understandings of the term ‘‘public 

charge,’’ the INS proposed (and in the 

1999 Interim Field Guidance, 

implemented) a clear definition of 

‘‘public charge’’ that excluded from 

consideration non-cash benefits (other 

than institutionalization for long-term 

care at government expense).135

b. Discussion of Chilling Effects in the 

2019 Final Rule 

In the 2019 Final Rule, DHS adopted 

a markedly different approach to 

chilling effects as compared to the 

former INS’s approach in the 1999 

NPRM and 1999 Interim Field 

Guidance. In the 2019 Final Rule, DHS 

acknowledged that the rule could result 

in a chilling effect with respect to the 

use of public benefits by noncitizens, 

even among individuals who were not 

subject to the rule, and with respect to 

public benefits that are not covered by 

the rule.136 DHS received a significant 

number of detailed public comments 

regarding the chilling effects of that 

rule.137 Commenters pointed to past 

studies regarding the effects of 

PRWORA 138 on public benefits 

eligibility for noncitizens.139 Some 

commenters discussed chilling effects 

that resulted from confusion and fear 

regarding the 2018 NPRM that preceded 

that 2019 Final Rule.140 Some 

commenters reported direct knowledge 

of such effects.141 In response to the 

comments, although DHS did not 

dispute the studies cited by 

commenters, DHS made three 

arguments regarding its approach in the 

2019 Final Rule. 

First, DHS emphasized that the 

government’s interest, as stated in 8 

U.S.C. 1601, in reducing noncitizens’ 

incentive to immigrate to or adjust 

status in the United States due to the 

availability of public benefits, and in 

promoting the self-sufficiency of 

noncitizens within the United States, 

was ‘‘a sufficient basis to move 

forward.’’ 142 DHS also cited its 

‘‘authority to take past, current, and 

likely future receipt of public benefits 

into account, even where it may 

ultimately result in discouraging aliens 

from receiving public benefits.’’ 143

Accordingly, DHS stated that it 

expected noncitizens seeking lawful 

permanent resident status or 

nonimmigrant status in the United 

States to ‘‘make purposeful and wellinformed decisions commensurate with 

the immigration status they are 

seeking.’’ 144 Although DHS 

acknowledged that individuals subject 

to the 2019 Final Rule may decline to 

enroll in, or choose to disenroll from, 

public benefits for which they are 

eligible under PRWORA to avoid the 

2019 Final Rule’s negative 

consequences, DHS stated that it would 

not ‘‘limit the effect of the rulemaking 

to avoid the possibility that individuals 

subject to this rule may disenroll or 

choose not to enroll, as self-sufficiency 

is the rule’s ultimate aim.’’ 145

Second, DHS stated that it was 

‘‘difficult to predict the rule’s 

disenrollment impacts with respect to 

the regulated population, although DHS 

has attempted to do so in the . . . Final 

Regulatory Impact Analysis’’ that 

accompanied the 2019 Final Rule.146

DHS stated that ‘‘data limitations [have 

impeded DHS from developing] a 

precise count [or a] reasonable estimate 

of the number of aliens who are both 

subject to the public charge ground of 

inadmissibility and are eligible for 

public benefits in the United States.’’ 147

But DHS also acknowledged that there 

is little overlap between the population 

regulated by the 2019 Final Rule and the 

public benefits considered in public 

charge inadmissibility determinations 

under the 2019 Final Rule: 

• ‘‘Aliens who are unlawfully present 

and nonimmigrants physically present 

in the United States . . . are generally 

barred from receiving federal public 

benefits other than emergency 

assistance’’; 148

• ‘‘[A]pplicants for admission and 

adjustment of status . . . are generally 

ineligible for SNAP benefits and 

therefore, would not need to disenroll 

from SNAP to avoid negative 

consequences’’; 149 and 


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150 84 FR 41292, 41313 (Aug. 14, 2019). 

151 84 FR 41292, 41313 (Aug. 14, 2019). 

152 84 FR 41292, 41313 (Aug. 14, 2019). 

153 84 FR 41292, 41313 (Aug. 14, 2019). 

154See Cook County Ill. v. Wolf, 962 F.3d 208, 

230–31 (7th Cir. 2020). 

155See Cook County Ill., 962 F.3d at 230–31. 

156See Cook County Ill., 962 F.3d at 230–31. 

157See City & Co. of San Francisco v. USCIS et 

al., 944 F.3d 773, 804 (9th Cir. 2019). 

158See City & Co. of San Francisco v. USCIS et 

al., 981 F.3d 742, 759 (9th Cir. 2020). 

159See City & Co. of San Francisco v. USCIS et 

al., 981 F.3d 742, 759 (9th Cir. 2020). 

160See City & Co. of San Francisco v. USCIS et 

al., 981 F.3d 742, 759 (9th Cir. 2020). 

161See City & Co. of San Francisco v. USCIS et 

al., 981 F.3d 742, 759 (9th Cir. 2020). 

162See New York v. DHS, 969 F.3d 42, 59–61 

(2020). 

163A few days prior to the panel’s decision, a 

court in the Southern District of New York had 

issued a second preliminary injunction against the 

2019 Final Rule, based primarily on a range of 

alleged harms associated with the rule’s chilling 

effects during the COVID–19 pandemic. See New 

York v. DHS, 475 F. Supp. 3d 208, 226–30 (S.D.N.Y 

2020). The Second Circuit later stayed that second 

preliminary injunction, ‘‘based primarily on the 

district court’s apparent lack of jurisdiction to issue 

the preliminary injunction during the appeal of its 

prior, virtually identical injunction (coupled with 

DHS’s showing of irreparable harm resulting from 

its inability to enforce its regulation).’’ See New 

York v. DHS, 974 F.3d 210 (2d Cir. 2020). 

164See Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman (2021), Immigrant 

Families Continued Avoiding the Safety Net during 

the COVID–19 Crisis 1 (The Urban Institute), 

available at https://www.urban.org/research/ 

publication/immigrant-families-continuedavoiding-safety-net-during-covid-19-crisis (accessed 

Feb. 13, 2021). 

• ‘‘[C]ertain lawfully present children 

and pregnant women in certain states 

and the District of Columbia [are eligible 

for Medicaid, but] this final rule 

exempts receipt of Medicaid by such 

persons.’’ 150

Third, DHS wrote that it was 

‘‘difficult to predict the rule’s 

disenrollment impacts with respect to 

people who are not regulated by this 

rule, such as people who erroneously 

believe themselves to be affected.’’ 151

DHS wrote that 

because DHS will not consider the receipt of 

public benefits by U.S. citizens and aliens 

not subject to public charge inadmissibility 

. . . it would be unwarranted for U.S. 

citizens and aliens exempt from public 

charge inadmissibility to disenroll from a 

public benefit program or forgo enrollment in 

response to this rule when such individuals 

are not subject to this rule. DHS will not alter 

this rule to account for such unwarranted 

choices.152

Instead, DHS committed itself to 

‘‘issue clear guidance that identifies the 

groups of individuals who are not 

subject to this rule,’’ 153 and noted that 

DHS had excluded multiple public 

benefits from consideration. 

c. Judicial Opinions Regarding Chilling 

Effects 

Several courts have considered the 

appropriate role of chilling effects in 

public charge inadmissibility 

determinations. All the cases 

challenging the 2019 Final Rule 

involved allegations that DHS failed to 

adequately consider the potential 

chilling effects of the 2019 Final Rule. 

In a June 2020 opinion, the Seventh 

Circuit reasoned that the rule’s chilling 

effects were foreseeable and, in some 

respects, represented a rational response 

by immigrants to the 2019 Final Rule, 

insofar as the 2019 Final Rule did not 

create a predictable framework for 

weighing past receipt of designated 

public benefits, and did not foreclose 

DHS from designating additional public 

benefits for consideration in the 

future.154 The court held that DHS 

failed to adequately grapple with ‘‘the 

collateral consequences of . . . 

disenrollments’’ resulting from the rule, 

including ‘‘reduce[d] access to vaccines 

and other medical care, resulting in an 

increased risk of an outbreak of 

infectious disease among the general 

public.’’ 155 The court also held that 

DHS failed to adequately consider ‘‘the 

added burden on states and local 

governments, which must disentangle 

their purely state-funded programs from 

covered federal programs,’’ and noted 

that notwithstanding the rule’s potential 

effects on State and local governments, 

DHS had also concluded that the rule 

would not have ‘‘substantial direct 

effects on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government.’’ 156

In a December 2019 opinion that 

stayed multiple preliminary injunctions 

against the 2019 Final Rule, a panel of 

the Ninth Circuit Court of Appeals 

reasoned that DHS’s ‘‘only mandate is to 

regulate immigration and naturalization, 

not to secure transfer payments to state 

governments or ensure the stability of 

the health care industry. Any effects on 

those entities are indirect and well 

beyond DHS’s charge and expertise.’’ 157

But a later decision by the Ninth Circuit 

took an opposing view. The later panel 

emphasized the substantial evidence in 

the record regarding chilling effects and 

characterized the 2019 Final Rule’s 

response to comments regarding chilling 

effects as ‘‘a generality coupled with an 

expression of uncertainty.’’ 158 The court 

found that, although ‘‘[t]he record before 

DHS was replete with detailed 

information about, and projections of, 

disenrollment and associated financial 

costs to state and local governments 

. . . . DHS made no attempt to quantify 

the financial costs of the Rule or critique 

the projections offered.’’ 159 The court 

concluded that DHS likely failed to 

satisfy its duty to ‘‘examine the relevant 

data.’’ 160 Similarly, with respect to the 

financial impacts of the 2019 Final 

Rule’s public health consequences, the 

court found that ‘‘DHS itself repeatedly 

acknowledged that hospitals might face 

financial harms as a result of the Rule, 

but DHS repeatedly declined to 

quantify, assess, or otherwise deal with 

the problem in any meaningful way.’’ 

The court also observed that 

DHS insisted that vaccines would ‘‘still be 

available’’ to Medicaid-disenrolled 

individuals because ‘‘local health centers and 

state health departments’’ would pick up the 

slack . . . despite objections voiced by such 

local health centers and state health 

departments themselves showing that the 

Rule will put the populations they serve— 

citizens and non-citizens alike—in danger.161

Finally, in the Second Circuit, a panel 

that upheld a preliminary injunction 

against the rule cited the plaintiffs’ 

allegations of chilling effects as being 

sufficient to establish standing.162

However, the panel did not cite such 

chilling effects in its evaluation of the 

merits of the policy.163

d. Evidence of Chilling Effects Related 

to the 2019 Final Rule 

DHS is aware of evidence that the 

2019 Final Rule, and the rulemaking 

process that preceded it, resulted in 

significant disenrollment effects among 

noncitizens and U.S. citizens in 

immigrant families. For instance, in 

February 2021, the Urban Institute 

published a report describing the 

following survey findings: 

• ‘‘In 2020, almost one in seven 

adults in immigrant families (13.6 

percent) reported that they or a family 

member avoided a noncash government 

benefit program, such as Medicaid, the 

Children’s Health Insurance Program, 

the Supplemental Nutrition Assistance 

Program, or housing assistance, because 

of concerns about future green card 

applications. This ‘chilling effect’ was 

most significant in families more likely 

to be directly affected by the rule, those 

in which one or more members do not 

have a green card (27.7 percent).’’ 164

• ‘‘In 2020, more than one in six 

adults in immigrant families (17.8 

percent) reported avoiding a noncash 

government benefit program or other 

help with basic needs because of green 

card concerns or other worries about 

immigration status or enforcement. 

More than one in three adults in 

families in which one or more members 

do not have a green card (36.1 percent) 


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165 Ibid. 

166 Ibid. 

167See Bernstein, H., Dulce Gonzalez, Michael 

Karpman, and Stephen Zuckerman (2020), Amid 

Confusion over the Public Charge Rule, Immigrant 

Families Continued Avoiding Public Benefits in 

2019 (Urban Institute) (accessed Jan. 26, 2022); 

Bernstein, H., Dulce Gonzalez, Michael Karpman, & 

Stephen Zuckerman (2019), One in Seven Adults in 

Immigrant Families Reported Avoiding Public 

Benefit Programs in 2018 (Urban Institute).). 

168See Randy Capps et al., Migration Policy 

Institute, Anticipated ‘‘Chilling Effects’’ of the 

Public-Charge Rule Are Real: Data Reflect Steep 

Decline in Benefits Use by Immigrant Families (Dec. 

2020), https://www.migrationpolicy.org/news/ 

anticipated-chilling-effects-public-charge-rule-arereal (accessed Jan. 26, 2022). 

169See Randy Capps et al., Migration Policy 

Institute, Anticipated ‘‘Chilling Effects’’ of the 

Public-Charge Rule Are Real: Data Reflect Steep 

Decline in Benefits Use by Immigrant Families (Dec. 

2020), https://www.migrationpolicy.org/news/ 

anticipated-chilling-effects-public-charge-rule-arereal (accessed Jan. 26, 2022). 

170See Samantha Artiga et al., Kaiser Family 

Foundation, Issue Brief: Addressing Health and 

Social Needs of Immigrant Families: Lessons from 

Local Communities at 7 (Oct. 28, 2019), available 

at https://www.kff.org/report-section/addressinghealth-and-social-needs-of-immigrant-familieslessons-from-local-communities-issue-brief/ 

(accessed Jan. 26, 2022). 

171See Samantha Artiga et al., Kaiser Family 

Foundation, Issue Brief: Addressing Health and 

Social Needs of Immigrant Families: Lessons from 

Local Communities at 7 (Oct. 28, 2019), available 

at https://www.kff.org/report-section/addressinghealth-and-social-needs-of-immigrant-familieslessons-from-local-communities-issue-brief/ 

(accessed Jan. 26, 2022). 

172See Samantha Artiga et al., Kaiser Family 

Foundation, Issue Brief: Addressing Health and 

Social Needs of Immigrant Families: Lessons from 

Local Communities at 8 (Oct. 28, 2019), available 

at https://www.kff.org/report-section/addressinghealth-and-social-needs-of-immigrant-familieslessons-from-local-communities-issue-brief/ 

(accessed Feb. 12, 2021). 

173 Jennifer Tolbert et al., Kaiser Family 

Foundation, Issue Brief: Impact of Shifting 

Immigration Policy on Medicaid Enrollment and 

Utilization of Care among Health Center Patients at 

2 (Oct. 15, 2019), available at https://www.kff.org/ 

medicaid/issue-brief/impact-of-shiftingimmigration-policy-on-medicaid-enrollment-andutilization-of-care-among-health-center-patients/ 

(accessed Feb. 14, 2021). 

174 Id. at 2–3. 

175 Id. at 3. 

176 Ibid. 

177 Id. at 5. 

reported these broader chilling 

effects.’’ 165

• ‘‘Immigrant families avoided public 

benefits and supports not only because 

of perceived risks of how the public 

charge rule might affect their ability to 

secure a green card but because of 

broader immigration concerns, such as 

the risk of information being shared 

with immigration enforcement 

authorities or the deportation of family 

members.’’ 166

These findings were generally 

consistent with the findings described 

in prior reports, which documented 

similar chilling effects and confusion in 

the aftermath of the 2018 NPRM on 

public charge inadmissibility and after 

implementation of the 2019 Final 

Rule.167

Similarly, in December 2020, the 

Migration Policy Institute published an 

analysis showing that from 2017 to 

2019, 

participation in [Temporary Assistance for 

Needy Families (TANF)], SNAP, and 

Medicaid declined twice as fast among 

noncitizens as citizens . . . . Between 2016 

and 2019, the number of low-income 

noncitizens participating in SNAP fell by 37 

percent, as did the number using TANF or 

similar cash assistance programs . . . . At 

the same time, Medicaid participation by 

low-income noncitizens fell by 20 percent. 

Across all the programs, the decline in 

participation for U.S.-born citizens was far 

smaller, decreasing only about half as much 

as for noncitizens and with even smaller 

drops for naturalized citizens.168

The analysis also showed notable 

declines ‘‘among low-income U.S.- 

citizen children under age 18 with 

noncitizens in the household, as their 

program participation dropped almost 

as rapidly as that of noncitizens 

themselves . . . . Participation in 

[SNAP, TANF, and Medicaid] fell about 

twice as fast over the 2016 to 2019 

period for U.S.-citizen children with 

noncitizens in the household as for 

those with only citizens in the 

household.’’ 169

Similar outcomes were described in 

an October 2019 report regarding 

immigrant communities in San Diego 

and San Francisco issued by the Kaiser 

Family Foundation. That report relayed 

qualitative assertions from various 

social and legal services providers that 

‘‘an increasing number of families are 

disenrolling themselves and their 

children from programs, including 

Medi-Cal (California’s Medicaid 

program), and not renewing or not 

enrolling in programs even though they 

or their children are eligible and are not 

directly affected by the policy 

changes.’’ 170 For instance, a family 

services provider is quoted as saying, 

‘‘they’re scared to apply for certain 

much needed funding whether it’s 

Calfresh [food assistance] or it’s MediCal, to get them the health 

insurance.’’ 171 A health provider is 

quoted as stating that ‘‘we had a patient 

who had a breast mass. Our physician 

had told her to go see a specialist. And 

because she had heard about public 

charge, she did not want to go see the 

specialist.’’ 172

An October 2019 Kaiser Family 

Foundation report described similar 

results, as follows: 

• ‘‘Based on findings from the health 

center survey, nearly half (47%) of 

health centers reported that many or 

some immigrant patients declined to 

enroll themselves in Medicaid in the 

past year . . . . In addition, nearly onethird (32%) said that many or some 

immigrant patients disenrolled from or 

declined to renew Medicaid 

coverage.’’ 173

• ‘‘Health centers also report 

enrollment declines among children in 

immigrant families. More than a third of 

(38%) health centers reported that many 

or some immigrant patients were 

declining to enroll their children in 

Medicaid over the past year, while 

nearly three in ten (28%) reported many 

or some immigrant patients were 

disenrolling or deciding not to renew 

Medicaid coverage for their 

children.’’ 174

• ‘‘Follow-up interviews with health 

center staff are consistent with these 

survey findings of declining Medicaid 

enrollment among immigrant patients 

and their families . . . . In addition, 

enrollment staff who assist patients in 

applying for Medicaid and other 

coverage have access to this information 

as part of the application process. At 

some health centers interviewed, these 

changes were widespread with many 

patients dropping Medicaid while at 

others, the changes were occurring 

among only a small number of 

patients.’’ 175

• ‘‘Health center respondents 

reported that immigrant patients are 

increasingly afraid to disclose personal 

information. Interview respondents 

across all health centers reported that 

some immigrant patients have become 

reluctant to disclose any personal 

information out of fear that the health 

center would share that information 

with authorities.’’ 176

• ‘‘Health center interview 

respondents reported that the patients 

disenrolling or declining to enroll in 

Medicaid are a broader group of 

immigrants than those targeted by the 

public charge rule . . . . Respondents 

also reported that patients have 

expressed concerns that enrolling their 

children in these programs, even if their 

children were born in the United States, 

may jeopardize their status or the status 

of family members. In addition, 

although pregnant women are 

categorically eligible for Medicaid and 

would be unaffected by public charge if 

they enroll in Medicaid, health center 

respondents reported that pregnant 

women are declining to enroll in 

Medicaid or disenrolling, in some cases 

out of fear of risking future 

opportunities for residency or 

citizenship.’’ 177


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178 Ibid. 179Public Charge Ground of Inadmissibility; 

Advance Notice of Proposed Rulemaking and 

Notice of Virtual Public Listening Sessions, 86 FR 

47025 (Aug. 23, 2021). 

180Alma Guerrero, M.D., M.P.H, et al., Forgoing 

Healthcare in a Global Pandemic: The Chilling 

Effects of the Public Charge Rule on Health Access 

Among Children in California, UCLA Latino Policy 

& Politics Initiative (Apr. 07, 2021), https://

latino.ucla.edu/research/public-charge-ca-children/ 

; Leslie Berestein Rojas, Thousands Of LA 

Immigrant Families Are No Longer Enrolled In 

Public Benefits. A Pending Trump Rule Could Be 

Why, LAist (Aug. 02, 2019), https://laist.com/news/ 

thousands-of-la-immigrant-families-are-no-longerenrolled-in-public-benefits-a-pending-trump-ruleco. 

181Bernstein, H., Dulce Gonzalez, Michael 

Karpman, and Stephen Zuckerman (2020), Amid 

Confusion over the Public Charge Rule, Immigrant 

Families Continued Avoiding Public Benefits in 

2019 (Urban Institute). https://www.urban.org/sites/ 

default/files/publication/102221/amid-confusionover-the-public-charge-rule-immigrant-familiescontinued-avoiding-public-benefits-in-2019_2.pdf 

(accessed Jan 26, 2022). 

182Shaw, April. The Public Charge Rule and 

Public Health (Apr. 6, 202), Network for Public 

Health Law, https://www.networkforphl.org/ 

resources/the-public-charge-rule-and-public-health/ 

(accessed Jan. 18, 2022). 

183Barofsky, Jeremy et al. Spreading Fear: The 

Announcement of The Public Charge Rule Reduced 

Enrollment in Child Safety-Net Programs (Oct. 

2020); Health Affairs Vol. 39, No.10: Children’s 

Health https://www.healthaffairs.org/doi/10.1377/ 

hlthaff.2020.00763 (accessed Jan. 18, 2022). 

184Touw, Sharon, McCormack, Grace, 

Himmelstein, David, Woolhandler, Steffie, and 

Zallman, Leah. ‘‘Immigrant Essential Workers 

Likely Avoided Medicaid And SNAP Because Of A 

Change To The Public Charge Rule,’’ (Jul. 2021) 

Health Affairs, https://www.healthaffairs.org/doi/ 

pdf/10.1377/hlthaff.2021.00059 (accessed Jan. 18, 

2022). 

185Bernstein, H., Dulce Gonzalez, Michael 

Karpman, and Stephen Zuckerman (2021), Adults 

in Low-Income Immigrant Families Were Deeply 

Affected by the COVID–19 Crisis yet Avoided 

Safety Net Programs in 2020, (The Urban Institute), 

available at https://www.urban.org/research/ 

publication/adults-low-income-immigrant-familieswere-deeply-affected-covid-19-crisis-yet-avoidedsafety-net-programs-2020 (accessed Jan. 26, 2022). 

186Protecting Immigrant Families (PIF), Research 

Documents Harm of Public Charge Policy During 

the COVID–19 Pandemic, (Aug. 2021), https://

protectingimmigrantfamilies.org/wp-content/ 

uploads/2022/01/PIF-Research-Document_PublicCharge_COVID-19_Jan2022.pdf. 

• ‘‘Fear of public charge implications 

extends beyond Medicaid to other 

health and social service programs, 

including some that are not included in 

the public charge rule . . . . Several 

respondents noted that their WIC 

caseloads are down and attributed the 

trend to public charge fears. 

Respondents in California and Missouri 

also noted that immigrant patients are 

declining to enroll in or accept referrals 

for state and local food assistance 

programs, even though these programs 

are not subject to public charge. A 

health center serving New York City 

reported that patients with HIV or AIDS 

are hesitating to enroll in or are 

disenrolling from the city-run HIV/AIDS 

Services Administration (HASA) 

program out of fear that the program’s 

services fall under the public charge 

rule.’’ 178

The Kaiser Family Foundation report, 

like the other reports described in this 

section, raises critical questions about 

the chilling effects of the 2019 Final 

Rule on noncitizens and citizens alike, 

including pregnant women and 

children. 

e. Comments on Chilling Effects in 

Response to the 2021 ANPRM 

On August 23, 2021, DHS issued an 

ANPRM on the public charge ground of 

inadmissibility.179 In the ANPRM, DHS 

asked the public how it should address 

the possibility that individuals who are 

eligible for public benefits, including 

U.S. citizen relatives of noncitizens, 

would forgo the receipt of those benefits 

as a result of DHS’s consideration of 

certain public benefits in the public 

charge inadmissibility determination. 

DHS asked for any data and information 

it should consider about the direct and 

indirect effects of past public charge 

policies in this regard. In addition, DHS 

asked about data that it could use to 

estimate any potential direct and 

indirect effects, economic or otherwise, 

of the public charge ground of 

inadmissibility related to the 2019 Final 

Rule. DHS also specifically sought 

information from State, territorial, local, 

and Tribal benefit granting agencies 

regarding impacts of the 2019 Final Rule 

on the application for or disenrollment 

from public benefit programs, including 

how DHS could reduce the likelihood 

that individuals would forgo public 

benefits out of concern over 

immigration consequences of such 

receipt. Commenters overwhelmingly 

confirmed the existence of chilling 

effects and cited to studies and data 

regarding the same. 

For example, a group of 21 Attorneys 

General urged DHS to weigh and avoid 

chilling effects when crafting future 

public charge policies. These 

commenters stated that, as a 

consequence of the 2019 Final Rule, 

increasing numbers of immigrants 

disenrolled from or declined to enroll in 

public benefits programs, including 

programs not covered by the rule. This 

may have led, for instance, to a 

‘‘nationwide decrease of approximately 

260,000 enrollees in child Medicaid and 

21,000 enrollees’’ in the Special 

Supplemental Nutrition Program for 

Women, Infants, and Children (WIC), 

neither of which would have been 

considered under the 2019 Final Rule in 

any event.180 The commenters stated 

that, according to State benefit granting 

agencies, because the public charge 

inadmissibility formula in the 2019 

Final Rule was so complex and layered, 

it was extraordinarily difficult for 

immigrants and service providers to 

understand whether or how it applied to 

them. Those commenters said that many 

immigrants avoided benefits out of fear 

and confusion. To underscore the 

severity of the impact, commenters 

noted that these immigrants even 

avoided important benefits like medical 

care during a pandemic. 

With respect to health effects, in 

particular, the American Medical 

Association (AMA) commented that the 

potential wide-reaching effect of the 

2019 Final Rule was anticipated and 

acknowledged in the 2019 Final Rule 

and that those predictions were proven 

to be true, stating that half of the 

immigrant families surveyed said they 

had avoided using Medicaid, CHIP, or 

SNAP.181 But the commenter 

acknowledged that most of the 

individuals who chose not to access 

non-cash benefits were not subject to 

the 2019 Final Rule.182 Like other 

commenters, the AMA highlighted the 

amplified chilling effects during the 

pandemic, stating that ‘‘the lead up to, 

and short-term change of, the public 

charge rule had a far-reaching chilling 

effect on the immigrant population and 

caused eligible individuals to not access 

benefits during a time when they were 

most needed, the COVID–19 public 

health emergency.’’ 183 The AMA stated 

that researchers using Census Bureau 

data have found that, during the public 

health emergency, ‘‘the public charge 

policy likely caused 2.1 million 

essential workers and household 

members to forgo Medicaid and 1.3 

million to forgo SNAP’’ 184 during a time 

when 41.4 percent of low-income 

immigrant families were experiencing 

food insecurity and 52.1 percent were 

worried about being able to pay for 

medical costs.185

Similarly, another commenter noted 

that while chilling effects would have 

been damaging under any 

circumstances, they were particularly 

devastating when the COVID–19 

pandemic struck in the United States. 

The commenter cited to recent evidence 

that the chilling effect is still impacting 

many immigrant communities, even 

though DHS stopped applying the 2019 

Final Rule in March 2021.186

A Latino civil rights and advocacy 

group cited to a Kaiser Family 

Foundation study, which found that 35 

percent of Latino respondents, and 63 

percent in the case of potentially 

undocumented Latino adults, cited 


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187Hamel, Liz et al., KFF COVID–19 Vaccine 

Monitor: COVID–19 Vaccine Access, Information, 

and Experiences Among Hispanic Adults in the 

U.S., Kaiser Family Foundation (May 13, 2021), 

https://www.kff.org/coronavirus-covid-19/pollfinding/kff-covid-19-vaccine-monitor-accessinformation-experiences-hispanic-adults/. 

188UnidosUS, ‘‘National Survey of Latino 

Parents: Economic Concerns and Vaccine Access for 

Children,’’ (Washington DC: UnidosUS, September 

14, 2021), https://www.unidosus.org/publications/ 

national-survey-of-latino-parents-economicconcerns-and-vaccine-access-for-children/ 

concerns that receiving the COVID–19 

vaccine would negatively affect either 

their own or a family member’s 

immigration status, or both.187

Similarly, a poll conducted by the 

commenter found that 14 percent of 

parents are concerned that getting their 

child vaccinated against COVID–19 

might cause immigration problems for 

themselves or their family.188

A State agency wrote that, following 

issuance of the 2019 Final Rule, the 

agency 

spoke to numerous noncitizens who were 

afraid to apply for public benefits for their 

U.S. citizen children. This was particularly 

apparent when [the agency] began its 

Pandemic-Electronic Benefit Transfer (EBT) 

program for children. The [agency] program 

automatically provided food assistance in the 

form of an EBT card to families in Chicago 

with children enrolled in the Chicago Public 

Schools and provided ready to go meals at 

schools during the height of the pandemic. 

Many parents did not utilize the assistance 

for fear of being deemed a public charge in 

the future. 

The same agency expressed concern 

that ‘‘if [medical or nutrition benefits] 

are included in a new public charge rule 

or if the new final rule is as 

cumbersome and untenable’’ as was the 

2019 Final Rule, the rule would ‘‘likely 

increase demand for other state-funded 

social services, such as non-Medicaid 

behavioral health services, emergency 

food assistance, and other safety net 

resources.’’ 

When addressing how DHS could 

reduce or minimize chilling effects 

when issuing rules addressing public 

charge inadmissibility, commenters had 

a number of suggestions, including: 

• Consider only the use of cash 

assistance from TANF and SSI in public 

charge determinations, not the use of 

Medicaid, SNAP, or public housing 

benefits, including Medicaid 

institutional care benefits. 

• Exclude consideration of other 

public benefits, such as the Children’s 

Health Insurance Program, the health 

insurance marketplaces, WIC, or 

National School Lunch or Breakfast 

programs, or receipt of the Earned 

Income or Child Tax Credit. 

• Exclude dependents’ and family 

members’ use of benefits, especially use 

of benefits by children, as well as by 

those who use benefits due to reasons 

such as domestic violence. 

• Exclude past, current, or future 

receipt of public benefits from public 

charge inadmissibility determinations, 

and instead only find noncitizens 

inadmissible if they are determined to 

be likely in the future to rely on the 

Federal Government to such an extent 

that the reliance is permanent, primary, 

and total, meaning the use of the 

benefits is necessary to avoid 

destitution. 

• Limit public charge consideration 

to only two Federal cash-assistance 

programs (TANF and SSI), and 

excluding all State, local, and Tribal 

benefits from consideration, to make the 

guidelines simple to communicate and 

understand. 

• Clearly define which public 

benefits would not be considered in a 

public charge inadmissibility 

determination (e.g., SNAP, CHIP, 

Medicaid, and Affordable Care Act 

premium subsidies for health coverage 

through an exchange). 

In addition, commenters emphasized 

the importance of simple, streamlined, 

and easy to communicate rules, and 

encouraged DHS and other Federal 

agencies to provide outreach to 

immigrant communities about the relief 

afforded by any revised rules. 

DHS appreciates that the 

consideration of past and current benefit 

receipt has resulted and may continue 

to result in chilling effects, 

notwithstanding that few categories of 

noncitizens are actually subject to the 

public charge ground of inadmissibility, 

and these categories of noncitizens 

would likely not have received such 

benefits to begin with. As discussed 

elsewhere in this preamble, however, 

DHS nonetheless believes that it is 

important to consider a noncitizen’s 

past or current receipt of certain 

benefits, to the extent that such receipt 

occurs, as part of the public charge 

inadmissibility determination. 

DHS remains interested in public 

comment regarding ways to shape 

public communications around the final 

rule to mitigate chilling effects among 

U.S. citizens and among the great 

majority of noncitizens who are either 

ineligible for the public benefits covered 

by this rule prior to admission or 

adjustment of status or are exempt from 

a public charge determination under 

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

1182(a)(4). Although such 

communications materials are not part 

of the rulemaking, DHS is keenly aware 

of the established effects of its actions 

in this policy area and wishes to ensure 

that the final rule faithfully applies the 

public charge statute without causing 

undue confusion among the public. 

8. Other Burdens of the 2019 Final Rule 

The 2019 Final Rule imposed a range 

of burdens separate and apart from the 

chilling effects described above. 

Commenters responding to the ANPRM, 

as well as those participating in the 

listening sessions, expressed concerns 

regarding those burdens. These 

comments echoed concerns raised in 

response to the 2018 NPRM. DHS briefly 

describes the most recent public input 

here. 

Some commenters focused on the 

information collection and evidentiary 

burdens associated with the rule. Many 

commenters objected to the burden of 

collecting documentation for and 

completing the Form I–944. The Form I– 

944, together with its instructions, 

spanned 30 pages and requested a wide 

range of information on the statutory 

minimum factors, some of which was 

duplicative of other filings. Information 

and supporting documentation 

included, for instance, an accounting of 

all liabilities and debts; a list of all 

assets that can be converted into cash 

within 12 months; account statements, 

evidence of real estate value, and other 

evidence of the value of assets; credit 

report, if available (or documentation 

showing that no such report is 

available); proof of health insurance; 

and copies of W–2s and income tax 

returns. 

One commenter, a professional 

association, noted that the scope and 

burden of the Form I–944 

created a variety of practical problems. The 

first is one of simple adjudicative 

inefficiency. Instead of an adjustment of 

status application consisting of completed 

forms and a reasonable number of supporting 

documents, filings would include hundreds 

or even thousands of pages of supporting 

financial documents. USCIS was then 

charged with maintaining and organizing this 

voluminous documentation simply to reach 

the obvious conclusion that an employmentbased immigrant, many of whom are offered 

employment at high salaries well above the 

poverty line, [is] unlikely to become a public 

charge. 

The commenter also noted that the 

form’s scope and burden forced 

applicants to choose between seeking 

adjustment of status and collecting and 

then transmitting, first to an attorney 

and then to USCIS, a wide range of 

sensitive financial documents. The 

commenter encouraged USCIS to limit 

information collection regarding 

financial status from employment-based 

immigrants who have an approved 

immigrant visa petition containing a 

valid labor certification or (for an 


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189See Wang, Chen et al., Comment: A Novel 

Coronavirus Outbreak of Global Health Concern, 

The Lancet (Jan. 24, 2020), available at https://

www.thelancet.com/journals/lancet/article/ 

PIIS0140-6736(20)30185-9/fulltext. 

190See WHO, Statement on the second meeting of 

the International Health Regulations (2005) 

Emergency Committee regarding the outbreak of 

novel coronavirus (2019–nCoV) (Jan. 30, 2020), 

available at https://www.who.int/news/item/30-01- 

2020-statement-on-the-second-meeting-of-theinternational-health-regulations-(2005)-emergencycommittee-regarding-the-outbreak-of-novelcoronavirus-(2019-ncov) and WHO, Listing of 

WHO’s Response to COVID–19, https://

www.who.int/news/item/29-06-2020-covidtimeline. 

191 Determination of Public Health Emergency, 85 

FR 7316 (Feb. 7, 2020). See also HHS Renewal of 

Determination That A Public Health Emergency 

Exists, https://aspr.hhs.gov/legal/PHE/Pages/ 

COVID19-14Jan2022.aspx (Jan. 14, 2022). The 

determination that a public health emergency exists 

due to COVID–19 has subsequently been renewed 

seven times: On April 21, 2020, on July 23, 2020, 

on October 2, 2020, on January 7, 2021, on April 

15, 2021, on July 19, 2021, on October 15, 2021, and 

most recently on January 14, 2022, effective January 

16, 2022. 

192Proclamation 9994 of Mar. 13, 2020, Declaring 

a National Emergency Concerning the Coronavirus 

Disease (COVID–19) Outbreak, 85 FR 15337 (Mar. 

18, 2020). 

193See Centers for Disease Control & Prevention 

(CDC), How COVID–19 Spreads (updated July 14, 

2021), https://www.cdc.gov/coronavirus/2019-ncov/ 

prevent-getting-sick/how-covid-spreads.html 

(accessed Jan. 25, 2022); and Centers for Disease 

Control & Prevention (CDC), How COVID–19 

Spreads (updated July 14, 2021), https://

www.cdc.gov/coronavirus/2019-ncov/preventgetting-sick/how-covid-spreads.html (accessed Jan. 

25, 2022). 

194See Centers for Disease Control & Prevention 

(CDC), People with Certain Medical Conditions 

(updated Dec. 14, 2021), https://www.cdc.gov/ 

coronavirus/2019-ncov/need-extra-precautions/ 

people-with-medical-conditions.html (accessed Jan. 

27, 2022). 

195See Centers for Disease Control & Prevention 

(CDC), How COVID–19 Spreads (updated July 14, 

2021), https://www.cdc.gov/coronavirus/2019-ncov/ 

prevent-getting-sick/how-covid-spreads.html 

(accessed Jan. 25, 2022). 

immigrant category for which a labor 

certification is not required) a valid U.S. 

job offer. 

Other commenters focused on the 

2019 Final Rule’s burdens on public 

benefit agencies, healthcare providers, 

and others who interacted with the 

public in connection with public 

benefits and therefore expended 

resources to familiarize themselves with 

the 2019 Final Rule and to communicate 

with the public about the rule’s terms. 

Commenters stated that this kind of 

research and outreach went well beyond 

the staff’s skills and typical 

responsibilities. 

One State agency wrote that it 

‘‘incurred significant costs to support 

the needs of immigrant-serving 

community organizations and in 

responding to the fear and confusion 

caused by the 2019 public charge rule 

(published as an NPRM in October 2018 

but broadly leaked and reported on in 

spring 2018).’’ The agency issued 

multiple grants to address 

misinformation and fear in communities 

and fund family counseling related to 

the 2018 NPRM and 2019 Final Rule. 

The commenter wrote that ‘‘staff 

dedicated hundreds of hours planning 

and implementing State help for 

immigrants completing the [Form I–944, 

including] dozens of meetings with both 

internal staff members and cross-agency 

staff members, as well as external 

partners who work with immigrant 

communities to understand the 

extensive requirements of the [Form I– 

944].’’ The commenter wrote that the 

resource burden centered on the Form 

I–944’s questions related to the type, 

amount, and dates of all benefits ever 

applied for or received, which in the 

commenter’s view were so detailed as to 

‘‘[make] it highly unlikely that any 

noncitizen subject to the 2019 rule 

would have been able to complete the 

form without intensive consultation 

with IDHS caseworkers, potentially 

even caseworkers in multiple states, 

and/or administering agencies.’’ 

Following issuance of the 2019 Final 

Rule, the commenter observed ‘‘a 

significant increase in the number of 

customers to our offices. The amount of 

work needed to prepare for and meet 

this demand was overwhelming.’’ The 

commenter wrote that ‘‘[t]he expense of 

training caseworkers alone cost more 

than 2,700 person hours and $91,000. 

Caseworkers were needed to provide 

information and services to individuals 

seeking to disenroll from benefits. The 

estimated administrative cost ranges 

from 61,500 to 143,500 person hours 

and over $3 million.’’ 

Similarly, another commenter on the 

ANPRM stated their belief that the 2019 

Final Rule ‘‘used administrative 

burdens as a tool to keep people from 

adjusting their status with the creation 

of the I–944’’ which, in their view, 

imposed a huge paperwork burden on 

applicants, legal services providers, and 

attorneys. This commenter went on to 

state that ‘‘[a]dministrative burdens 

have a disproportionately harmful effect 

on people with fewer resources’’ and 

that such administrative burdens ‘‘like 

onerous paperwork, complex 

requirements, and opaque guidelines are 

barriers to equity in federal policies and 

programs.’’ 

9. The COVID–19 Pandemic 

Although DHS believes that the 

approach contained in this proposed 

rule would be warranted, on both legal 

and policy grounds, regardless of the 

effects of the COVID–19 pandemic, DHS 

includes brief background on the 

pandemic’s effects for three reasons. 

First, the onset of the COVID–19 

pandemic coincided with the 

implementation of the 2019 Final Rule 

and had widespread effects on the same 

population that adjusted their behavior 

in response to the 2019 Final Rule. As 

a result, the COVID–19 pandemic’s 

effects necessarily serve as relevant 

historical context when considering the 

effects of the 2019 Final Rule. Second, 

although DHS recognizes that the 

COVID–19 pandemic has evolved, the 

pandemic’s effects continue, in a variety 

of ways, to this day. Third, the current 

COVID–19 pandemic provides certain 

evidence that another pandemic is not 

a hypothetical concern and illustrates 

the importance that this rule account for 

similar occurrences in the future. The 

following description is thus a relevant 

context for this proposed rule as well. 

a. The COVID–19 Pandemic and Its 

Effects on Public Health and the 

Economy 

Beginning as early as December 2019, 

just a few months after publication of 

the 2019 Final Rule, there was an 

outbreak of a novel coronavirus, now 

known as severe acute respiratory 

syndrome coronavirus 2 (SARS–CoV–2), 

and the disease it causes, now known as 

coronavirus disease 2019 (COVID– 

19).189 On January 30, 2020, the 

Director-General of the World Health 

Organization (WHO) declared the 

outbreak a ‘‘public health emergency of 

international concern’’ under the 

International Health Regulations (2005) 

and on March 11, 2020, the WHO 

announced that the COVID–19 outbreak 

can be characterized as a pandemic.190

On January 31, 2020, the Secretary of 

HHS declared a public health 

emergency dating back to January 27, 

2020, under section 319 of the Public 

Health Service Act (42 U.S.C. 247d), in 

response to COVID–19.191 On March 13, 

2020, President Trump declared a 

National Emergency concerning the 

COVID–19 outbreak to control the 

spread of the virus in the United 

States.192

The virus that causes COVID–19 is 

characterized by easy airborne 

transmission among individuals in close 

physical proximity (within about 6 feet), 

and it can be spread by both 

symptomatic and certain asymptomatic 

carriers.193 Among adults, the risk for 

severe illness from COVID–19 (e.g., 

illness requiring hospitalization, 

intensive care, and ventilator use) 194

increases with age, with older adults at 

highest risk, as well as people of any age 

with underlying medical conditions.195

The COVID–19 pandemic’s effects 

have been vast, including within the 

United States, and they are ongoing. As 


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196See CDC, United States COVID–19 Cases, 

Deaths, and Laboratory Testing (NAATs) by State, 

Territory, and Jurisdiction, https://covid.cdc.gov/ 

covid-data-tracker/#cases_casesper100klast7days 

(accessed Feb. 8, 2022). 

197See CDC, Daily Trends in Number of COVID– 

19 Deaths in The United States Reported to CDC, 

available at https://covid.cdc.gov/covid-datatracker/#trends_dailydeaths (accessed Feb. 10, 

2022). 

198See CDC, Prevalent Hospitalizations of Patents 

with Confirmed COVID–19, United States, available 

at https://covid.cdc.gov/covid-data-tracker/ 

#hospitalizations (accessed Feb. 10, 2022). 

199See U.S. Bureau of Labor Statistics, Graphics 

for Economic News Releases: Civilian 

Unemployment Rate, available at https://

www.bls.gov/charts/employment-situation/civilianunemployment-rate.htm (accessed Feb. 9, 2022). 

200 Id. 

201 Id. 

202The BLS Job Openings and Labor Turnover 

Survey (JOLTS) reports 11 million job openings in 

October 2021 (compared to 6.8 million job openings 

in October 2020). See Bureau of Labor Statistics, Job 

Openings and Labor Turnover Survey released on 

December 8, 2021, at https://www.bls.gov/ 

news.release/archives/jolts_12082021.htm. 

203See CNN, Three key numbers that explain 

America’s labor shortage (Dec. 25, 2021), https://

www.cnn.com/2021/12/25/economy/labor-shortageearly-retirement-charts/index.html (accessed Jan. 

18, 2021). 

204See Annika Kim Constantino, Omicron 

detected in Florida and Texas as it takes root in 25 

U.S. states, CNBC, https://www.cnbc.com/2021/12/ 

10/omicron-detected-in-florida-texas-and-otherstates-as-it-takes-root-across-the-us-.html (accessed 

Dec. 10, 2021). 

205On December 10, 2021, BLS reported that the 

CPI–U increased 0.8 percent in November on a 

seasonally adjusted basis after rising 0.9 percent in 

October. Over the previous 12 months, the all items 

index increased 6.8 percent before seasonal 

adjustment. See BLS, Economic News Release, 

Consumer Price Index Summary (Dec. 20, 2021), 

https://www.bls.gov/news.release/cpi.nr0.htm. 

206See, e.g., Mitchell Hartman, Omicron’s impact 

on inflation and supply chains is uncertain, 

Marketplace, https://www.marketplace.org/2021/ 

12/01/omicrons-impact-on-inflation-and-supplychains-is-uncertain/ (Dec. 1, 2021) (‘‘People have 

trouble getting to work through lockdowns and 

what have you, and labor gets scarcer—particularly 

for those jobs where being present at work matters. 

Supply goes down and has an upward pressure on 

pricing . . .’’); Alyssa Fowers & Rachel Siegel, Five 

charts explaining why inflation is at a near 40-year 

high, Wash. Post, https://www.washingtonpost.com/ 

business/2021/10/14/inflation-prices-supply-chain/ 

(Oct. 14, 2021, last updated Dec. 10, 2021) (‘‘Prices 

for meat, poultry, fish and eggs have surged in 

particular above other grocery categories. The White 

House has pointed to broad consolidation in the 

meat industry, saying that large companies bear 

some of the responsibility for pushing prices higher 

. . . Meat industry groups disagree, arguing that the 

same supply-side issues rampant in the rest of the 

economy apply to proteins because it costs more to 

transport and package materials, while tight labor 

market has held back meat production.’’). 

207U.S. Census Bureau, Week 1 Household Pulse 

Survey: April 23–May 5, Food Table 2a. Food 

Sufficiency for Households, Prior to COVID–19 

Pandemic, by Select Characteristics: United States, 

available at https://www.census.gov/data/tables/ 

2020/demo/hhp/hhp1.html#setables (accessed Jan. 

27, 2022). 

208U.S. Census Bureau, Week 21 Household 

Pulse Survey: December 9 to December 21, Food 

Table 2b. Food Sufficiency for Households, In the 

Last Seven Days, by Select Characteristics: United 

States, available at https://www.census.gov/data/ 

tables/2020/demo/hhp/hhp21.html#setables 

(accessed Jan. 23, 2021). 

209See Food and Nutrition Service, National and/ 

or State Level Monthly and/or Annual Data, FY16 

through FY20 National View Summary (Latest 

Available Month: September 2020), available at 

https://www.fns.usda.gov/pd/supplementalnutrition-assistance-program-snap (accessed Feb. 

11, 2021). 

210See Food and Nutrition Service, Supplemental 

Nutrition Assistance Program (Data as of Jan. 7, 

2022), Monthly Data FY 2019 through FY 2022, 

https://fns-prod.azureedge.net/sites/default/files/ 

resource-files/34SNAPmonthly-1.pdf (accessed Jan. 

18, 2022). 

211See Food and Nutrition Service, Pandemic 

EBT Program Participation and Benefits—FY 20, 

available at https://www.fns.usda.gov/pd/ 

supplemental-nutrition-assistance-program-snap 

(accessed Feb. 11, 2021). 

212See Food and Nutrition Service, Pandemic 

EBT (P–EBT) Program (data as of Jan. 7, 2022), 

https://fns-prod.azureedge.net/sites/default/files/ 

resource-files/40PEBTPart%24-1.pdf (accessed Jan. 

18, 2022). 

213See Cong. Res. Serv., General State and Local 

Fiscal Assistance and COVID–19: Eligible Purposes, 

Allocations, and Use Data, R46990 (Dec. 16, 2021). 

214 Ibid. 

215 Ibid. 

216See Sharac, Jessica et al., Geiger Gibson/RCHN 

Community Health Foundation Research 

Collaborative, Data Note: Key Updates from the 

Health Center COVID–19 Survey (Week #36): The 

Status of Community Health Centers in the Midst 

of the Worst Phase of the COVID–19 Pandemic, at 

7–9, available at https://www.rchnfoundation.org/ 

?p=9394 (accessed Feb. 12, 2021). 

of February 8, 2022, a total of 903,038 

COVID–19 deaths have been reported in 

the United States.196 As of February 8, 

2022, the 7-day moving average of daily 

deaths in the United States was 2,303 197

and the 7-day moving average of 

hospitalizations was 102,695.198 Effects 

on the U.S. economy as a result of the 

COVID–19 pandemic have been 

dramatic. Soon after the COVID–19 

pandemic began, the United States 

witnessed widespread job losses and 

food insecurity. In March 2020, the U.S. 

Bureau of Labor Statistics estimated that 

the seasonally adjusted domestic 

unemployment rate was 4.4 percent.199

That number spiked to 14.8 percent in 

April, and it gradually fell to 6.3 percent 

by January 2021.200 The unemployment 

rate for January 2022 was 4.0 percent.201

While the high unemployment rate has 

declined significantly, the United States 

is now experiencing high demand for 

labor as compared to the available 

supply of workers.202 As of November 

2021, the labor force participation rate 

was at 61.8 percent, having recovered 

about half of what was lost at height of 

the COVID–19 pandemic compared with 

the February 2020 rate of 63.3 

percent.203 In addition, the full scope of 

implications of the emergence of the 

Omicron variant, and the potential 

effects of future variants, for public 

health,204 inflation,205 and supply 

chains 206 remains uncertain. 

The COVID–19 pandemic’s effects on 

food insecurity have at times also been 

severe. Prior to March 13, 2020, of 250 

million persons surveyed, 20 million 

reported that they ‘‘often’’ or 

‘‘sometimes’’ did not have enough to 

eat.207 By December 9, 2020, that figure 

had increased by 50 percent to 30 

million people.208 From March to 

September 2020, the number of people 

participating in SNAP increased from 

around 37.2 million to 42.9 million, and 

the number of participating households 

increased from around 19 million to 

22.6 million.209 That number has since 

decreased but has not returned to prepandemic levels. As of October 2021, 

the number of people participating in 

SNAP decreased to 41.1 million, and the 

number of households to 21.3 

million.210 In addition, multiple States 

are administering Pandemic Electronic 

Benefit Transfer (P–EBT) programs for 

school-age children. As of September 

2020, over 10.9 million people and 7.3 

million households were participating 

in this program.211 As of October 2021, 

this number only marginally decreased 

to 10.0 million people but increased to 

8.8 million households.212

The COVID–19 pandemic has also 

had major impacts on State, Tribal, 

territorial, and local governments, 

which have played a critical role in 

responding to the pandemic.213

Projections indicated that use of State 

and local spending programs is likely to 

increase, particularly for public welfare 

programs and hospital and health 

expenses.214 Congress has appropriated 

significant funding to support these 

governments through the Coronavirus 

Relief Fund.215

Finally, the COVID–19 pandemic has 

created significant pressures on health 

care providers. For instance, community 

health centers have experienced a 

decline in patient visits, staffing, and 

revenue. By one estimate, as of 

December 2020, the decline in patient 

visits may have translated into over $4 

billion in revenue losses nationwide, 

‘‘an amount that represents 12.7 percent 

of total revenue reported nationally in 

2019.’’ 216 In September 2021, prior to 

the emergence of the Omicron variant, 

one analysis projected that hospitals 

nationwide would lose an estimated $92 

billion in net income over the course of 


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217See Kaufman Hall, Financial Effects of 

COVID–19: Hospital Outlook for the Remainder of 

2021 at 7 (Sept. 2021), https://www.aha.org/ 

guidesreports/2021-09-21-financial-effects-covid19-hospital-outlook-remainder-2021 (accessed Jan. 

26, 2022). 

218See, U.S. Department of Health and Human 

Services, COVID–19 Vaccines; Timeline https://

www.hhs.gov/coronavirus/covid-19-vaccines/ 

index.html (accessed Feb. 10, 2022). 

219See CDC, COVID–19 Vaccinations in the 

United States, https://covid.cdc.gov/covid-datatracker/#vaccinations_vacc-total-admin-rate-total 

(accessed Feb. 9, 2022). 

220See CDC, CDC Recommends Pfizer Booster at 

5 Months, Additional Primary Dose for Certain 

Immunocompromised Children | CDC Online 

Newsroom (Jan. 4, 2022), https://www.cdc.gov/ 

media/releases/2022/s0104-Pfizer-Booster.html 

(accessed Jan. 18, 2022). 

221See CDC, CDC Recommends Moderna Booster 

at 5 Months (Jan. 7, 2022), https://www.cdc.gov/ 

media/releases/2022/s0107-moderna-booster.html 

(accessed Jan. 18, 2022). 

222See CDC, COVID–19 Vaccinations in the 

United States (Jan. 15, 2022), https://covid.cdc.gov/ 

covid-data-tracker/#vaccinations_vacc-total-adminrate-total (accessed Feb. 9, 2022). 

223See CDC, Trends in COVID–19 Cases and 

Deaths in the United States, by County-level 

Population Factors, available at https://

covid.cdc.gov/covid-data-tracker/#pop-factors_

totalcases (sorted by United States/Percent of 

Population in Poverty/Cases/Cumulative) (accessed 

Jan. 27, 2022). 

224See CDC, Trends in COVID–19 Cases and 

Deaths in the United States, by County-level 

Population Factors, available at https://

covid.cdc.gov/covid-data-tracker/#pop-factors_

totaldeaths (sorted by United States/Percent of 

Population in Poverty/Deaths/Cumulative) 

(accessed Jan. 27, 2022). 

225See CDC, Trends in COVID–19 Cases and 

Deaths in the United States, by County-level 

Population Factors, available at https://

covid.cdc.gov/covid-data-tracker/#pop-factors_

totalcases (sorted by United States/Percent of 

Population Uninsured/Cases/Cumulative) (accessed 

Jan. 27, 2022). 

226See CDC, Trends in COVID–19 Cases and 

Deaths in the United States, by County-level 

Population Factors, available at https://

covid.cdc.gov/covid-data-tracker/#pop-factors_

totaldeaths (sorted by United States/Percent of 

Population Uninsured/Deaths/Cumulative) 

(accessed Jan. 27, 2022). 

227See Kaiser Family Foundation, Health 

Coverage of Immigrations (Mar. 18, 2020), available 

at https://www.kff.org/racial-equity-and-healthpolicy/fact-sheet/health-coverage-of-immigrants/ 

(accessed Jan. 27, 2022). 

228See CDC, Deaths by Race/Ethnicity—All Age 

Groups, available at https://covid.cdc.gov/coviddata-tracker/#demographics (accessed Feb. 1, 

2022). 

229 Ibid. 

230See Indiana University Public Policy Institute, 

Immigration Policy and COVID–19: Implications of 

the Public Charge Rule (June 2020), available at 

https://policyinstitute.iu.edu/doc/covid-19-publiccharge-immigration-brief.pdf (accessed Jan. 27, 

2022) (citing Elise Gould et al., Economic Policy 

Institute, Not Everybody Can Work from Home: 

Black and Hispanic Workers are Much Less Likely 

to be Able to Telework (Mar. 19, 2020), available 

at https://www.epi.org/blog/black-and-hispanicworkers-are-much-less-likely-to-be-able-to-workfrom-home/ (accessed Jan. 27, 2022)). 

231With respect to immigrants specifically, 

unemployment data from August 2019 to August 

2020 indicate that ‘‘the observed increase in 

unemployment in the United States was twice as 

large among immigrants with at most a high-school 

Continued 

that year, or $54 billion taking into 

account certain Federal funding.217

b. Nationwide Vaccination Effort 

The COVID–19 vaccination effort in 

the United States began in midDecember 2020, after the U.S. Food and 

Drug Administration granted the first 

vaccine emergency use authorization.218

As of February 9, 2022, 213.2 million 

(64.2 percent) of the U.S. population 

was fully vaccinated, and 251.5 million 

(75.7 percent) had received at least one 

shot.219

On January 4, 2022, Centers for 

Disease Control and Prevention (CDC) 

recommended the use of the Pfizer 

booster 5 months after becoming fully 

vaccinated.220 On January 7, 2022, CDC 

recommended the use of the Moderna 

booster 5 months after becoming fully 

vaccinated.221 As of February 9, 2022, 

90.5 million people (42.5 percent) have 

received a booster dose.222

c. The COVID–19 Pandemic’s Effects on 

Vulnerable Communities 

From the outset, many of the COVID– 

19 pandemic’s effects have been felt 

most acutely in more vulnerable 

communities, including localities with 

high poverty rates and among certain 

racial and ethnic populations. For 

instance, the cumulative COVID–19 case 

rate on a per capita basis has 

consistently been higher in counties 

with a higher percentage of their 

population in poverty. As of January 27, 

2022, counties with ‘‘Low’’ such 

percentages (0 percent to 12.3 percent) 

had experienced a cumulative case rate 

of approximately 20,426 cases per 

100,000 persons. By contrast, counties 

with Moderate (12.3 percent to 17.3 

percent) and High (>17.3 percent) 

percentages experienced case rates of 

approximately 22,555 and 23,720 per 

100,000 persons, respectively.223 The 

relative disparities are greater with 

respect to COVID–19 deaths. As of 

January 27, 2022, cumulative COVID–19 

deaths ranged from 216 per 100,000 in 

counties falling within the ‘‘Low’’ 

classification, to 275 and 339 for 

‘‘Moderate’’ and ‘‘High,’’ 

respectively.224

Similarly, the cumulative case rate on 

a per capita basis has consistently been 

higher in counties with a higher 

percentage of uninsured individuals. As 

of January 27, 2022, counties with 

‘‘Low’’ percentages of uninsured 

individuals (0 percent to 7.1 percent) 

had experienced a cumulative case rate 

of approximately 20,822 cases per 

100,000 persons. By contrast, counties 

with Moderate (7.1 percent to 11.4 

percent) and High (>11.4 percent) 

percentages of uninsured persons 

experienced rates of approximately 

22,719 and 23,022 per 100,000 persons, 

respectively.225 The pattern is similar 

with respect to COVID–19 deaths. As of 

January 27, cumulative COVID–19 

deaths ranged from 235 per 100,000 in 

counties falling within the ‘‘Low’’ 

classification, to 268 and 305 for 

‘‘Moderate’’ and ‘‘High,’’ 

respectively.226 Although most of the 

uninsured are citizens, noncitizens are 

significantly more likely than citizens to 

be uninsured. In 2018, among the 

nonelderly population, 23 percent of 

lawfully present noncitizens and more 

than 4 in 10 (45 percent) undocumented 

noncitizens were uninsured compared 

to less than 1 in 10 (9 percent) citizens. 

Moreover, among citizen children, those 

with at least one noncitizen parent are 

more likely to be uninsured compared 

to those with citizen parents (8 percent 

vs. 4 percent).227

Similarly, some racial and ethnic 

groups have experienced higher rates of 

COVID–19 cases and deaths as 

compared to the general population. 

Through January 31, 2022, the CDC data 

on race and ethnicity for 85 percent of 

the people who have died from COVID– 

19 reveal that the percent of nonHispanic American Indian/Alaska 

Native, non-Hispanic Black, and nonHispanic Native Hawaiian/Other Pacific 

Islander people who have died from 

COVID–19 is higher than the percent of 

these racial and ethnic groups in the 

total U.S. population.228 Through 

January 31, 2022, the CDC data on race 

and ethnicity for 65 percent of the 

people who have been infected by 

COVID–19 show that the percent of 

Hispanic/Latino, non-Hispanic 

American Indian/Alaska Native, and 

non-Hispanic Native Hawaiian/Other 

Pacific Islander people who have had 

COVID–19 cases is higher than the 

percent of these racial and ethnic groups 

in the total U.S. population.229

These disparities likely trace to a 

range of factors, including disparities in 

access to telework in certain 

communities. Research shows that 

[r]acial minorities and low-income workers, 

including immigrants, have fewer 

opportunities to work from home because 

more of them tend to work in service 

industries. As a result, immigrants working 

in factories, supermarkets, delivery, 

sanitation, and poultry and meat processing 

sectors are more likely to be exposed to 

COVID–19.230

Immigrants are also more likely to feel 

pressure to continue to go to work due 

to the disproportionate job losses 

experienced in such industries.231 DHS 


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degree than for their peers with higher degrees. In 

addition, differences by education level were less 

pronounced for the native-born.’’ See Organisation 

for Economic Co-operation and Development, What 

is the impact of the COVID–19 pandemic on 

immigrants and their children? (Oct. 19, 2020), 

available at http://www.oecd.org/coronavirus/ 

policy-responses/what-is-the-impact-of-the-covid19-pandemic-on-immigrants-and-their-childrene7cbb7de/ (accessed Feb. 11, 2021). 

232See generally Cybersecurity and Infrastructure 

Security Agency, Guidance on the Essential Critical 

Infrastructure Workforce: Ensuring Community and 

National Resilience in COVID–19 Response (Aug. 

10, 2021), available at https://www.cisa.gov/ 

publication/guidance-essential-criticalinfrastructure-workforce (accessed Jan. 27, 2022). 

233See, e.g., 85 FR 82291 (Dec. 18, 2020) 

(extension of temporary rule creating flexibilities 

with respect to certain H–2A temporary agricultural 

workers); 85 FR 51304 (Aug. 20, 2020) (first 

extension of temporary rule); 85 FR 21739 (Apr. 20, 

2020) (initial temporary rule); see also, e.g., 87 FR 

4722 (Jan. 28, 2022) (similar flexibilities with 

respect to certain H–2B temporary non-agricultural 

workers); 86 FR 28198 (May 25, 2021) (same); 85 

FR 28843 (May 14, 2020) (same). 

234See CDC, Percent of People Receiving COVID– 

19 Vaccine by Race/Ethnicity and Date 

Administered, United States, available at https://

covid.cdc.gov/covid-data-tracker/#vaccinationdemographics-trends (accessed Feb. 10, 2022). 

235See Kaiser Family Foundation, Latest Data on 

COVID–19 Vaccinations by Race/Ethnicity (Jan. 12, 

2022), https://www.kff.org/coronavirus-covid-19/ 

issue-brief/latest-data-on-covid-19-vaccinations-byrace-ethnicity/# (accessed Jan. 27, 2022). See also 

CDC, Race/Ethnicity of People Fully Vaccinated, 

available at https://covid.cdc.gov/covid-datatracker/#vaccination-demographic (accessed Feb. 

10, 2022). 

236See 84 FR 41292, 41384 (Aug. 14, 2019). 

237 Ibid. 

238 84 FR 41292, 41501 (Aug. 14, 2019). 

239See 84 FR 41292, 41385 (Aug. 14, 2019). 

240See USCIS Policy Manual, Part G—Public 

Charge Ground of Inadmissibility (accessed Jan. 31, 

2022). To find historical guidance, click on the 

‘‘Appendices’’ tab. 

241USCIS Policy Manual Volume 8, Part G— 

Public Charge Ground of Inadmissibility, Chapter 

10—Public Benefits, available at https://

www.uscis.gov/policy-manual/volume-8-part-gchapter-10. 

242 Ibid. 

243 Ibid. 

244See USCIS, Public Charge; Alert, available at 

https://www.uscis.gov/archive/public-charge (last 

Reviewed/updated Sep. 22, 2020). 

245Cf., e.g., 84 FR at 41380 (‘‘DHS recognizes that 

Medicaid and CHIP benefits for children also 

provide for other services or funding for in school 

health services and serve as an important way to 

ensure that children receive the vaccines needed to 

protect public health and welfare.’’). 

is aware that a significant portion of 

service industry work also is essential 

critical infrastructure work,232 some of 

which DHS has previously prioritized 

for additional immigration 

flexibilities.233 Participation in this kind 

of work frequently benefits the country, 

but also places such workers at greater 

risk for infection than those who work 

from home or in more socially distanced 

settings. 

Finally, although DHS is unaware of 

vaccination data specific to citizenship 

and immigration status, there were 

disparities across racial and ethnic lines 

with respect to vaccination rates during 

the initial rollout of the nationwide 

vaccination campaign. For example, the 

percentage of fully vaccinated nonHispanic Asians did not reach parity 

with non-Hispanic Whites until May 2, 

2021, and the percentage of fully 

vaccinated Hispanics/Latinos did not 

reach parity with non-Hispanic Whites 

until September 23, 2021.234 On January 

12, 2022, the Kaiser Family Foundation 

reported that ‘‘Over the course of the 

vaccination rollout, Black and Hispanic 

people have been less likely than their 

White counterparts to receive a vaccine, 

but these disparities have narrowed over 

time, particularly for Hispanic people.’’ 

DHS emphasizes, however, that existing 

data contain limitations and may have 

been influenced by restrictions on 

vaccine eligibility related to age and 

other factors during the initial 

rollout.235

d. USCIS Response to COVID–19 and 

Public Charge 

Commenters on the 2018 NPRM 

expressed concerns that the proposed 

rule would ‘‘make immigrant families 

afraid to seek healthcare, including 

vaccinations against communicable 

diseases, and therefore, endanger the 

U.S. population.’’ A commenter 

specifically provided the example of ‘‘a 

novel influenza outbreak’’ for which the 

‘‘critical first step’’ of the government’s 

response would ‘‘be to get individuals 

access to healthcare’’ and stated that 

even if such services qualified for a 

narrow exception, ‘‘it would have a 

significant impact on the country’s 

ability to protect and promote the public 

health.’’ 236

DHS responded to those concerns by 

noting that with the rule it did ‘‘not 

intend to restrict the access of vaccines 

. . . or intend to discourage individuals 

from obtaining the necessary 

vaccines.’’ 237 DHS also stated that many 

sources of vaccines through public 

benefits programs are not considered 

public benefits under (the now vacated) 

8 CFR 212.21(b) 238 or would otherwise 

not be a negative factor in the totality of 

the circumstances determination.239 In 

the 2019 Final Rule, DHS did not 

directly address the commenters’ 

concerns that a loss of trust in 

government healthcare services might 

hamper the government’s ability to 

respond to a novel disease outbreak. 

However, USCIS did address such 

concerns in a limited way with the 

publication of USCIS Policy Manual 

(PM) content relating to the public 

charge ground of inadmissibility.240 In 

PM Volume 8, Part G, Chapter 10— 

Public Benefits, USCIS provided a nonexhaustive list of benefits that are ‘‘not 

considered public benefits in the public 

charge inadmissibility 

determination.’’ 241 This list included 

‘‘public health assistance for 

immunizations with respect to 

immunizable diseases and for testing 

and treatment of symptoms of 

communicable diseases whether or not 

such symptoms are caused by a 

communicable disease.’’ 242 The PM also 

noted that USCIS does not consider 

certain Medicaid benefits for purposes 

of the public charge inadmissibility 

determination, including ‘‘benefits paid 

for an emergency medical 

condition.’’ 243 USCIS published this 

guidance to its website on February 5, 

2020. 

On March 13, 2020, USCIS posted an 

alert box on its website regarding the 

2019 Final Rule and COVID–19. The 

alert stated that 

USCIS will neither consider testing, 

treatment, nor preventative care (including 

vaccines, if a vaccine becomes available) 

related to COVID–19 as part of a public 

charge inadmissibility determination, nor as 

related to the public benefit condition 

applicable to certain nonimmigrants seeking 

an extension of stay or change of status, even 

if such treatment is provided or paid for by 

one or more public benefits, as defined in the 

rule (e.g. federally funded Medicaid).244

The alert did not explain how a 

person could enroll in Medicaid for the 

sole purpose of COVID–19-related 

care,245 or cite a provision of the 2019 

Final Rule specifically authorizing the 

exemptions described in the alert or the 

PM. 

With respect to receipt of other public 

benefits covered by the 2019 Final Rule 

(such as non-COVID–19-related 

federally funded Medicaid, SNAP, and 

public housing benefits), the PM and 

alert did not offer flexibility beyond that 

implicit in the ‘‘totality of the 

circumstances’’ analysis. The alert 

stated that 

if an alien subject to the public charge 

ground of inadmissibility lives and works in 

a jurisdiction where disease prevention 

methods such as social distancing or 

quarantine are in place, or where the alien’s 

employer, school, or university voluntarily 

shuts down operations to prevent the spread 

of COVID–19, the alien may submit a 

statement with his or her application for 

adjustment of status to explain how such 

methods or policies have affected the alien as 

relevant to the factors USCIS must consider 

in a public charge inadmissibility 

determination. For instance, if the alien is 

prevented from working or attending school 

and must rely on public benefits for the 

duration of the COVID–19 outbreak and 

recovery phase, the alien can provide an 


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246See INA sec. 213, 8 U.S.C. 1183. See 8 CFR 

103.6; see also 8 CFR 213.1. 

247See INA sec. 213, 8 U.S.C. 1183; Matter of 

Viado, 19 I&N Dec. 252, 253 (BIA 1985). 

248See, e.g., Mayor, Aldermen & Commonalty of 

City of N.Y. v. Miln, 36 U.S. 102 (1837) (upholding 

a New York statute that required vessel captains to 

provide certain biographical information about 

every passenger on the ship and further permitting 

the mayor to require the captain to provide a surety 

of not more than $300 for each noncitizen passenger 

to indemnify and hold harmless the government 

from all expenses incurred to financially support 

the person and the person’s children); see also H.D. 

Johnson & W.C. Reddall, History of Immigration 

(Washington, 1856). 

249See Immigration Act of 1903, ch. 1012, 32 Stat. 

1213 (repealed by Act of Feb. 20, 1907, ch. 1134, 

34 Stat. 898, and Immigration Act of 1917, ch. 29, 

39 Stat. 874). 

250See Immigration Act of 1891, ch. 551, 26 Stat. 

1084, which created the Office of the 

Superintendent of Immigration within the Treasury 

Department. The Superintendent oversaw a new 

corps of U.S. Immigrant Inspectors stationed at the 

country’s principal ports of entry. See USCIS 

History and Genealogy, Origins of Federal 

Immigration Service, https://www.uscis.gov/historyand-genealogy/our-history/agency-history/originsfederal-immigration-service (accessed June 4, 2021). 

251See USCIS History and Genealogy, Origins of 

Federal Immigration Service, available at https://

www.uscis.gov/history-and-genealogy/our-history/ 

agency-history/origins-federal-immigration-service 

(accessed June 4, 2021). 

252See Act of February 20, 1907, ch. 1134, sec. 

26, 34 Stat. 898, 907. 

253See Public Law 91–313, 84 Stat. 413, 413 

(1970); see also 116 Cong. Rec. S9957 (daily ed. 

June 26, 1970). 

254See Public Law 91–313, 84 Stat. 413, 413 

(1970). 

255See Public Law 104–208, div. C, sec. 564(f), 

110 Stat. 3009–546, 3009–684. Under 8 U.S.C. 1631, 

the sponsor’s income and resources, as well as the 

income and resources of the sponsor’s spouse, is 

counted as the sponsored alien’s income for the 

purposes of determining eligibility for any Federal 

means-tested public benefits. 

256See Miscellaneous Amendments to Chapter, 

29 FR 10579 (July 30, 1964); see also Miscellaneous 

Edits to Chapter, 31 FR 11713 (Sept. 7, 1966). 

257See 64 FR 28689 (May 26, 1999). 

258See 84 FR 41292, 41595 (Aug. 14, 2019). 

259See 84 FR 41292, 41299 (Aug. 14, 2019). 

explanation and relevant supporting 

documentation. To the extent relevant and 

credible, USCIS will take all such evidence 

into consideration in the totality of the 

alien’s circumstances. 

The alert did not provide any further 

detail regarding the weight that USCIS 

would afford the COVID–19-related 

mitigating circumstances in its public 

charge inadmissibility determinations or 

explain whether the existence of a 

general economic downturn might 

warrant similar special consideration. 

D. Public Charge Bonds 

If a noncitizen is determined to be 

inadmissible under section 212(a)(4) of 

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

be admitted in the discretion of the 

Secretary, if otherwise admissible, upon 

the giving of a suitable and proper 

bond.246 Public charge bonds are 

intended to ensure ‘‘that the alien will 

not in the future become a public 

charge.’’ 247

Historically, bond provisions started 

with States requiring certain amounts to 

assure a noncitizen would not become 

a public charge.248 Bond provisions 

were codified in Federal immigration 

laws in 1903.249 Notwithstanding 

codification in 1903, the acceptance of 

a bond posting in consideration of a 

noncitizen’s admission and to assure 

that they will not become a public 

charge apparently had its origin in 

Federal administrative practice earlier 

than this date. Beginning in 1893, 

immigration inspectors served on 

Boards of Special Inquiry that reviewed 

exclusion cases of noncitizens who were 

likely to become public charges because 

the noncitizens lacked funds or relatives 

or friends who could provide 

support.250 In these cases, the Boards of 

Special Inquiry usually admitted the 

noncitizen if someone could post bond 

or one of the immigrant aid societies 

would accept responsibility for the 

noncitizen.251

The present language of section 213 of 

the INA, 8 U.S.C. 1183, has been in the 

law without essential variation since 

1907.252 Under section 21 of the 

Immigration Act of 1917, an 

immigration officer could admit a 

noncitizen if a suitable bond was 

posted. In 1970, Congress amended 

section 213 of the INA, 8 U.S.C. 1183, 

to permit the posting of cash received by 

the U.S. Department of the Treasury and 

to eliminate specific references to 

communicable diseases of public health 

significance.253 At that time, Congress 

also added, without further explanation 

or consideration, the phrase that any 

sums or other security held to secure 

performance of the bond shall be 

returned ‘‘except to the extent forfeited 

for violation of the terms thereof’’ upon 

termination of the bond.254

Subsequently, IIRIRA amended the 

provision when adding a parenthetical 

that clarified that a bond is provided in 

addition to, and not in lieu of, the 

Affidavit of Support Under Section 

213A of the INA and the income 

deeming requirements under section 

213A of the INA, 8 U.S.C. 1183a.255

Regulations implementing the public 

charge bond were promulgated in 1964 

and 1966,256 and are currently found at 

8 CFR 103.6 and 8 CFR 213.1. 

The 1999 Interim Field Guidance 

explained the IIRIRA changes to the 

public charge bond statute and noted 

that officers can offer public charge 

bonds as they had done in the past, but 

did not detail procedures for public 

charge bonds.257 In the 2019 Final Rule, 

DHS promulgated a detailed public 

charge bond framework that included 

provisions that USCIS, consistent with 

sections 103 and 213 of the INA, 8 

U.S.C. 1103 and 1183, would offer a 

public charge bond to certain applicants 

for adjustment of status who are 

inadmissible only due to the likelihood 

of becoming a public charge and when 

a favorable exercise of discretion is 

warranted, based upon the totality of the 

applicant’s facts and circumstances.258

The 2019 Final Rule also included 

provisions regarding the minimum 

public charge bond amount, the 

circumstances under which a public 

charge bond would be cancelled, as well 

as established specific conditions under 

which a public charge bond would be 

breached.259

IV. DHS 2021 Inadmissibility on Public 

Charge ANPRM and Listening Sessions 

On August 23, 2021, DHS published 

an ANPRM to seek broad public 

feedback on the public charge ground of 

inadmissibility to inform its 

development of a future regulatory 

proposal. The goal of the ANPRM was 

to help ensure that a future regulatory 

proposal would be fair, consistent with 

law, and informed by relevant data and 

evidence. The ANPRM identified key 

considerations associated with the 

public charge ground of inadmissibility. 

These considerations include how DHS 

should define the term ‘‘public charge,’’ 

which public benefits DHS should 

consider relevant to the public charge 

inadmissibility determination, and how 

DHS should assess the statutory 

minimum factors when determining 

whether a noncitizen is likely to become 

a public charge. 

DHS welcomed input from 

individuals, organizations, government 

entities and agencies, and all other 

interested members of the public. DHS 

also provided notice of public virtual 

listening sessions on the public charge 

ground of inadmissibility and the 

ANPRM. USCIS held two public 

listening sessions, one specifically for 

the general public on September 14, 

2021, and one for State, territorial, local, 

and Tribal benefits-granting agencies 

and nonprofit organization on October 

5, 2021. DHS accepted written 

comments and related material through 

October 22, 2021. 

DHS received a total of 195 public 

comments in response to the ANPRM. 

Of these, 181 were unique and 

applicable to the ANPRM. DHS received 

comments from advocacy groups, 

individuals, State and local 

governments, legal services providers, 

professional associations, and a variety 


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of other groups. The slight majority of 

all unique submissions were provided 

by organizations. Commenter types 

included: 

While commenters provided 

thoughtful responses relating to most 

topics raised by DHS in the ANPRM, the 

10 topics with the most comments were: 


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260See Listening Session I Transcript. 

261See Listening Session II Transcript. 

262See Executive Order 14012 (Restoring Faith in 

Our Legal Immigration System and Strengthening 

Integration and Inclusion Efforts for New 

Americans), 86 FR 8277 (published Feb. 5, 2021). 

263See proposed 8 CFR 212.20 through 212.23. 

264 DOS reopened the comment period for 60 days 

on their preliminarily enjoined interim final rule 

addressing ineligibility on public charge grounds. 

The comment period closed on January 18, 2022. 

See, Visas: Ineligibility Based on Public Charge 

Grounds, interim final rule; reopening of public 

comment period, 86 FR 64070 (Nov. 17, 2021). 

265Certain nonimmigrant classifications are 

subject to petition requirements, and in such cases 

a petition generally must be approved on a 

noncitizen’s behalf by USCIS prior to application 

for a visa. See, e.g., INA sec. 214(c), 8 U.S.C. 

1184(c). In addition, certain noncitizens are not 

subject to a visa requirement in order to seek 

admission as a nonimmigrant. See, e.g., INA sec. 

217, 8 U.S.C. 1187; see also 8 CFR 212.1. 

266See INA secs. 221 and 222, 8 U.S.C. 1201 and 

1202; 8 CFR 204. 

267See INA secs. 221 and 222, 8 U.S.C. 1201 and 

1202; 8 CFR 204; 22 CFR part 42. 

268 22 CFR 40.41; 9 FAM 302.8. 

Approximately 250 individuals or 

groups participated in the September 

14, 2021,260 listening session and 

approximately 210 participated in the 

October 5, 2021, session.261 Among the 

topics raised by participants were the 

following: 

• Disenrollment effects associated 

with the 2019 Final Rule and how to 

reduce potential disenrollment effects in 

future rulemaking through policy 

choices and communication strategy; 

• The definition of public charge and 

which public benefits, if any, are 

relevant to that definition; 

• How DHS should apply the health 

factor, particularly for noncitizens who 

may have disabilities; 

• Better communication concerning 

which populations of noncitizens are 

subject to the public charge ground of 

inadmissibility; 

• Consistency between DOS and DHS 

approaches to public charge 

inadmissibility; 

• The totality of the circumstances 

approach to public charge 

inadmissibility determinations; 

• Concerns relating to the heavy 

burden of information collection and 

required evidence associated with the 

2019 Final Rule; and 

• Consideration of a sufficient 

Affidavit of Support Under Section 

213A of the INA in a public charge 

inadmissibility determination. 

Many individuals and organizations 

who provided feedback during the 

listening sessions stated that they also 

provided written comments with more 

detailed and comprehensive suggestions 

for DHS’s consideration. 

DHS thanks all of those individuals 

and organizations who participated in 

the listening sessions or provided public 

comments. DHS has reviewed all of the 

comments and considered them in 

developing this proposed rule. Where 

relevant, DHS has referenced comments 

received in response to the ANPRM in 

the preamble to this proposed rule. 

V. Discussion of Proposed Rule 

A. Introduction 

In drafting this proposed rule, DHS 

seeks to articulate a policy that would 

be fully consistent with law; that would 

reflect empirical evidence to the extent 

relevant and available, and allow 

flexibility for adjudicators to benefit 

from the emergence of new evidence as 

time passes; that would carefully 

consider public comments; that would 

be clear, fair, and comprehensible for 

officers as well as for noncitizens and 

their families; that would lead to fair 

and consistent adjudications and, thus, 

avoid unequal treatment of similarly 

situated individuals; and would not 

otherwise unduly impose barriers for 

noncitizens seeking admission or 

adjustment of status in the United 

States.262 DHS also seeks to ensure that 

its regulatory proposal would not 

unduly interfere with the receipt of 

public benefits, in particular by those 

who are not subject to the public charge 

ground of inadmissibility. 

B. Applicability 

This proposed rule interprets the 

public charge inadmissibility ground 

under section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4), and only with respect 

to public charge inadmissibility 

determinations made by DHS. This 

proposed rule would apply to any 

noncitizen subject to section 212(a)(4) of 

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

applying for adjustment of status to that 

of a lawful permanent resident before 

USCIS or is applying for admission 

before U.S. Customs and Border 

Protection (CBP) at a port of entry as 

part of the inspection process.263

However, this proposed rule does not 

propose to address public charge 

inadmissibility determinations under 

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

1182(a)(4), or public charge 

deportability determinations under 

section 237(a)(5) of the INA, 8 U.S.C. 

1227(a)(5), made by DOJ in the course 

of removal proceedings under section 

240 of the INA, 8 U.S.C. 1229a. 

Furthermore, this proposed rule does 

not address public charge 

inadmissibility determinations made by 

DOS when noncitizens apply for visas 

with DOS.264

1. Applicants for Admission 

Applicants for admission are 

inspected at, or when encountered 

between, ports of entry. They are 

inspected by immigration officers to 

assess, among other things, whether 

they are inadmissible under section 

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

including section 212(a)(4) of the INA, 

8 U.S.C. 1182(a)(4). 

a. Nonimmigrants 

Under section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4), any noncitizen who is 

applying for a visa or for admission to 

the United States as a nonimmigrant is 

inadmissible if they are likely at any 

time to become a public charge. A 

noncitizen applies directly to a U.S. 

consulate or embassy abroad for a 

nonimmigrant visa to travel to the 

United States temporarily for a limited 

purpose, such as to visit for business or 

tourism.265 As noted above, this 

proposed rule does not address public 

charge ineligibility determinations made 

by DOS. Instead, DOS consular officers 

assess whether the noncitizen is 

ineligible for a visa, including under 

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

1182(a)(4), as applicable. 

Once DOS issues the nonimmigrant 

visa, the noncitizen generally may travel 

to the United States using that visa and 

apply for admission at a port of entry. 

CBP determines whether the applicant 

for admission is inadmissible under any 

ground, including section 212(a)(4) of 

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

proposed rule applies to CBP’s public 

charge inadmissibility 

determinations.266

b. Immigrants 

A noncitizen who is the beneficiary of 

an immigrant visa petition approved by 

USCIS may apply to a DOS consulate or 

embassy abroad for an immigrant visa to 

allow them to seek admission to the 

United States as an immigrant.267 As 

part of the immigrant visa process, DOS 

determines whether the applicant is 

eligible for the visa, which includes a 

determination of whether the noncitizen 

has demonstrated that they are 

admissible to the United States and that 

no inadmissibility grounds in section 

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

apply. In determining whether the 

applicant has demonstrated that they 

are not inadmissible on the public 

charge ground, DOS reviews all of the 

mandatory factors, including any 

required Affidavit of Support Under 

Section 213A of the INA as set forth in 

their regulations and guidance.268 This 


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269On October 11, 2019, DOS published an 

interim final rule (‘‘IFR’’) regarding visa ineligibility 

on public charge grounds and accepted public 

comments on the rule through November 19, 2019. 

Given the changed circumstances since publication 

of that IFR, on November 17, 2021, DOS reopened 

the public comment period for an additional 60 

days to seek additional comments regarding 

whether the IFR should be rescinded or revised, 

and what final rule should ultimately be adopted, 

if any, regarding the public charge ground of 

inadmissibility. Therefore, it is possible that DOS 

will amend its regulations and guidance. 

270 Individuals who have been lawfully admitted 

for permanent residence are regarded as applicants 

for admission in the following circumstances: (1) 

The individual has abandoned or relinquished that 

status; (2) the individual has been outside the 

United States for a continuous period in excess of 

180 days; (3) the individual has engaged in illegal 

activity after departing the United States; (4) the 

individual has departed the United States while 

under legal process seeking removal of the 

noncitizen from the United States, including 

removal proceedings and extradition proceedings; 

(5) the individual has committed an offense 

identified in section 212(a)(2) of the INA, 8 U.S.C. 

1182(a)(2), unless granted a waiver of 

inadmissibility for such offense or cancellation of 

removal; and (6) the individual has attempted to 

enter at a time or place other than as designated by 

immigration officers or has not been admitted to the 

United States after inspection and authorization by 

an immigration officer. See INA sec. 101(a)(13)(C), 

8 U.S.C. 1101(a)(13)(C). 

271See INA sec. 245, 8 U.S.C. 1255. Noncitizens 

in removal proceedings before an immigration judge 

may also apply for adjustment of status pursuant to 

8 CFR 1245. 

272See INA sec. 291, 8 U.S.C. 1361. 

273See 8 CFR 214.1(a)(3)(i). 

274See 8 CFR 214.1(c)(5). 

275See generally INA sec. 214(a)(1), 8 U.S.C. 

1184(a)(1); 8 CFR 214.1(a)(3)(i). 

276See INA sec. 248(a), 8 U.S.C. 1258(a); 8 CFR 

248.1(a). 

277See INA sec. 248(a), 8 U.S.C. 1258(a). 

278See 84 FR 41292 (Aug. 14, 2019). 

279See 84 FR 41292, 41330 (Aug. 14, 2019); 83 

FR 51114, 51135–36 (Oct. 10, 2018). 

280See 84 FR 41292, 41329 (Aug. 14, 2019). 

281See 83 FR 51114, 51135 (Oct. 10, 2018). 

proposed rule will not address public 

charge inadmissibility determinations 

made by DOS.269

Once DOS issues the immigrant visa, 

the noncitizen typically can travel to the 

United States and apply for admission 

as an immigrant at a port of entry. CBP 

determines whether the applicant for 

admission as an immigrant is 

inadmissible under any ground, 

including section 212(a)(4) of the INA, 

8 U.S.C. 1182(a)(4). This proposed rule 

applies to these public charge 

inadmissibility determinations made by 

CBP. 

c. Certain Lawful Permanent Residents 

Returning to the United States 

Lawful permanent residents generally 

are not considered to be applicants for 

admission, and therefore are not subject 

to inadmissibility determinations upon 

their return from a trip abroad. 

However, in certain limited 

circumstances, a lawful permanent 

resident will be considered an applicant 

for admission and, therefore, subject to 

an inadmissibility determination upon 

the lawful permanent resident’s return 

to the United States.270 This 

inadmissibility determination includes 

whether the noncitizen is inadmissible 

as likely at any time to become a public 

charge. 

2. Adjustment of Status Applicants 

In general, a noncitizen who is 

physically present in the United States 

may be eligible to apply for adjustment 

of status before USCIS to that of a lawful 

permanent resident if the applicant was 

inspected and admitted or paroled, is 

eligible to receive an immigrant visa, is 

admissible to the United States, and has 

an immigrant visa immediately 

available at the time of filing the 

adjustment of status application.271 As 

part of the adjustment of status process, 

USCIS is responsible for determining 

whether the applicant has met their 

burden of proof to establish eligibility 

for the benefit,272 which includes a 

determination of whether the applicant 

has demonstrated that no 

inadmissibility grounds in section 

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

apply (or, if they do apply, that the 

noncitizen is eligible for a waiver of the 

inadmissibility ground or other form of 

relief). In determining whether the 

adjustment of status applicant has 

demonstrated that they are not 

inadmissible on the public charge 

ground, DHS proposes to review the 

mandatory statutory factors together 

with any required Affidavit of Support 

Under Section 213A of the INA and 

other relevant information, in the 

totality of the circumstances. 

3. Rule Does Not Address Extension of 

Stay/Change of Status 

DHS permits certain nonimmigrants 

to remain in the United States beyond 

their authorized period of stay to 

continue engaging in activities 

permitted under their current 

nonimmigrant status. 

The extension of stay (EOS) 

regulations require that the individual 

filing the application or petition for EOS 

demonstrate that the nonimmigrant is 

admissible to the United States (i.e., 

generally, is not inadmissible under any 

ground under section 212(a) of the INA, 

8 U.S.C. 1182(a)), or that any applicable 

inadmissibility ground has been 

waived.273 Although many of the 

inadmissibility grounds in section 

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

apply to applications and petitions for 

EOS, section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4), does not apply 

because it only applies to applicants for 

visas, admission, and adjustment of 

status. An applicant for or beneficiary of 

an application or petition for EOS is 

neither an applicant for a visa, 

admission, or adjustment of status. The 

decision to grant an EOS application, 

with certain limited exceptions, is 

discretionary,274 however, and DHS has 

the authority to set conditions in 

determining whether to grant the EOS 

application or petition.275

Additionally, under section 248 of the 

INA, 8 U.S.C. 1258, DHS may permit 

change of status (COS) from one 

nonimmigrant classification to another 

classification, with certain exceptions, 

as long as the nonimmigrant is 

continuing to maintain their current 

nonimmigrant status and is not 

inadmissible under section 

212(a)(9)(B)(i) of the INA, 8 U.S.C. 

1182(a)(9)(B)(i).276 Like EOS, COS 

applications and petitions are not 

subject to the public charge ground of 

inadmissibility and therefore, public 

charge inadmissibility will not render 

an individual ineligible for COS under 

the statute. Additionally, as with EOS, 

COS is a discretionary determination, 

and DHS has the authority to set 

conditions that apply for a 

nonimmigrant to change their status.277

Neither the 1999 Interim Field 

Guidance nor the 1999 NPRM addressed 

EOS or COS. However, in the 2019 Final 

Rule (that is no longer in effect), DHS 

required individuals who sought EOS 

and COS to establish that they had not 

received one or more public benefits for 

more than 12 months in the aggregate 

within any 36-month period since 

obtaining the nonimmigrant status they 

sought to extend or from which they 

sought to change and through 

adjudication.278 In that rule, DHS wrote 

that its policy of imposing public 

benefit conditions on EOS and COS 

applications and petitions was within 

DHS’s authority pursuant to sections 

214 and 248 of the INA, 8 U.S.C. 1184 

and 1258, to regulate conditions and 

periods of admission of nonimmigrants 

and conditions for COS, respectively, 

and consistent with the PRWORA 

policy statement described above.279 In 

setting the public charge condition in 

the 2019 Final Rule, DHS noted that it 

was reasonable to require, as a condition 

of obtaining EOS or COS, evidence that 

nonimmigrants inside the United States 

have not received public benefits during 

their nonimmigrant stay ‘‘given DHS’s 

authority to set conditions [on EOS and 

COS]’’ 280 and the government’s 

‘‘interest in ensuring that aliens present 

in the United States do not depend on 

public benefits to meet their needs.’’ 281


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282See, e.g., H, L, O, P nonimmigrant 

classifications, Special requirements for admission, 

extension, and maintenance of status, 8 CFR 

214.2(h), (l), (o), (p). 

283See 8 CFR 214.2(f)(1)(B), 22 CFR 

41.61(b)(1)(ii). See also USCIS; Students and 

Employment, https://www.uscis.gov/working-in-theunited-states/students-and-exchange-visitors/ 

students-and-employment (accessed Feb. 10, 2022). 

284See 84 FR 41292 (Aug. 14, 2019). 

285See 84 FR 41292, 41330–41331 (Aug. 14, 

2019). 

Although DHS indeed has the 

authority to set conditions on both EOS 

and COS applications and petitions, for 

the purposes of this NPRM, DHS does 

not propose any conditions on such 

applications and petitions based on 

receipt of public benefits. DHS no 

longer believes that it needs an 

additional condition to ensure that 

nonimmigrants present in the United 

States do not depend on public benefits, 

in part because nonimmigrants are 

generally barred from receiving many of 

the public benefits considered in this 

proposed rule, e.g., SSI and TANF, and 

Medicaid for long-term 

institutionalization. In addition, a 

number of nonimmigrant classifications 

are employment-based and entail 

nonimmigrants being paid to perform 

services or labor in the United States.282

Others nonimmigrants, such as F 

nonimmigrant students, must have 

sufficient funds available for selfsupport during the entire proposed 

course of study.283 Additionally, DHS 

agrees with commenters during the 

2018–2019 public charge rulemaking 

that the public charge inadmissibility 

determination that nonimmigrants 

undergo at the time of visa issuance and 

when applying for admission as 

nonimmigrants at the port of entry,284 as 

mandated by Congress, sufficiently 

addresses the assessment of whether 

such nonimmigrants are likely to 

receive public benefits. DHS also 

believes that imposing the public 

benefit condition on EOS and COS 

would impose unnecessary burdens on 

applicants, petitioners, and 

adjudicators. Finally, consistent with 

statements made by commenters in 

response to the 2018 NPRM, DHS 

believes it appropriate to refrain from 

adding a public benefit condition to 

applications and petitions for EOS and 

COS, as this will avoid discouraging 

international students and scholars from 

applying for post-secondary education 

in the United States.285 Accordingly, 

DHS is not proposing to consider receipt 

of any public benefits in adjudicating 

applications and petitions for EOS and 

COS. 

4. Summary Tables 

Tables 6 through 10 below provide a 

summary of immigrant categories for 

adjustment of status and the 

applicability of the public charge 

inadmissibility determination to such 

categories. 


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TABLE 6—APPLICABILITY OF INA SEC. 212(a)(4) TO FAMILY-BASED ADJUSTMENT OF STATUS APPLICATIONS 286

Category Subject to INA sec. 212(a)(4)? INA sec. 213A and Affidavit of Support under section 213A 

of the INA (Form I–864)—required or exempt? 287

Immediate Relatives of U.S. citizens, including spouses, children, and parents 288.

Yes, per INA sec. 212(a)(4)(A) .............. Required, per INA sec. 212(a)(4)(C). 

Unmarried sons and daughters of U.S. citizens and their 

children (family-sponsored 1st preference) 289.

Yes, per INA sec. 212(a)(4)(A) .............. Required, per INA sec. 212(a)(4)(C). 

Spouses, children, and unmarried sons and daughters of 

noncitizen residents (family-sponsored 2nd preference) 290.

Yes, per INA sec. 212(a)(4)(A) .............. Required, per INA sec. 212(a)(4)(C). 

Married sons and daughters of U.S. citizens and their 

spouses and children (family-sponsored 3rd preference) 291.

Yes, per INA sec. 212(a)(4)(A) .............. Required, per INA sec. 212(a)(4)(C). 

Brothers and sisters of U.S. citizens (at least 21 years of 

age) and their spouses and children (family-sponsored 4th 

preference) 292.

Yes, per INA sec. 212(a)(4)(A) .............. Required, per INA sec. 212(a)(4)(C). 

Fiance ́s of U.S. citizens (admitted as a K–1 or K–2 nonimmigrant) 293.

Yes, per INA sec. 212(a)(4)(A) .............. Required, per INA sec. 212(a)(4)(C). 

Amerasians based on preference category, born between 

December 31, 1950, and October 22, 1982 294.

Yes, per INA sec. 212(a)(4)(A) .............. Exempt, per Amerasian Act, Public Law 97–359 (Oct. 22, 

1982). 

Amerasians, born in Vietnam between January 1, 1962, and 

January 1, 1976.

Immediate Relative: AM–6, AR–6 Children ............................

Amerasians under Amerasian Homecoming Act, Public Law 

100–202 (Dec. 22, 1987) 295 born between January 1, 

1962, and January 1, 1976.

No. (Form I–360 and adjustment of status) Section 584 of the Foreign Operations, Export Financing, and Related 

Programs Appropriations Act of 1988, 

Public Law 100–202.

Exempt, per section 584 of the Foreign Operations, Export 

Financing, and Related Programs Appropriations Act of 

1988, Public Law 100–202. 

Spouses, widows, or widowers of U.S. citizens (IW–6) ......... Yes, per INA sec. 212(a)(4) ................... Exempt, per 8 CFR 204.2 and 71 FR 35732 (June 21, 

2006). 

Immediate relative VAWA applicants, including spouses and 

children 296.

No, per INA sec. 212(a)(4)(E) and INA 

sec. 212(a)(4)(C)(i).

Exempt, per INA sec. 212(a)(4)(E). 

1st preference VAWA applicants, including B–16 Unmarried 

sons/daughters of U.S. citizens, self-petitioning B–17 Children of B–16.

No, per INA sec. 212(a)(4)(C)(i) ............ Exempt, per INA sec. 212(a)(4)(C)(i). 

2nd preference VAWA applicants, including spouses and 

children 297.

No, per INA sec. 212(a)(4)(C)(i) ............ Exempt, per INA sec. 212(a)(4)(C)(i). 

3rd Preference VAWA Married son/daughters of U.S. citizen, 

including spouses and children 298.

No, per INA sec. 212(a)(4)(C)(i) ............ Exempt, per INA sec. 212(a)(4)(C)(i). 

TABLE 7—APPLICABILITY OF INA SEC. 212(a)(4) TO EMPLOYMENT-BASED ADJUSTMENT OF STATUS APPLICATIONS

Category Subject to INA sec. 212(a)(4)? INA sec. 213A, and Form I–864, Affidavit of Support under 

section 213A of the INA, required or exempt? 

First Preference: Priority workers 299 ...................................... Yes, in general,300 per INA sec. 

212(a)(4).

Exempt, unless qualifying relative or entity in which such 

relative has a significant ownership interest (5 percent or 

more) 301 in filed Form I–140, per INA sec. 212(a)(4)(D) 

and 8 CFR 213a. 

Second Preference: Professionals with advanced degrees or 

noncitizens of exceptional ability.

Yes, in general,302 per INA sec. 

212(a)(4).

Exempt, unless qualifying relative or entity in which such 

relative has a significant ownership interest (5 percent or 

more) in filed Form I–140, per INA sec. 212(a)(4)(D) and 

8 CFR 213a. 

Third preference: Skilled workers, professionals, and other 

workers 303.

Yes, in general,304 per INA sec. 

212(a)(4).

Exempt, unless qualifying relative or entity in which such 

relative has a significant ownership interest (5 percent or 

more) in filed Form I–140, per INA sec. 212(a)(4)(D) and 

8 CFR 213a. 

Fifth preference: Investors 305 ................................................. Yes, per INA sec. 212(a)(4) ................... Not applicable.306

TABLE 8—APPLICABILITY OF INA SEC. 212(A)(4) TO SPECIAL IMMIGRANT ADJUSTMENT OF STATUS APPLICATIONS

Category Subject to INA sec. 212(a)(4)? INA sec. 213A, and Form I–864, Affidavit of Support under 

section 213A of the INA, required or exempt? 

Religious Workers 307 .............................................................. Yes, per INA sec. 212(a)(4) ................... Not applicable.308

International employees of U.S. government abroad 309 ........ Yes, per INA sec. 212(a)(4) ................... Not applicable.310

Employees of Panama Canal 311 ............................................ Yes, per INA sec. 212(a)(4) ................... Not applicable.312

Foreign Medical School Graduates 313 ................................... Yes, per INA sec. 212(a)(4) ................... Not applicable.314

Retired employees of International Organizations, including 

G–4 International Organization Officer 315.

International Organizations (G–4s international organization 

officer/Retired G–4 Employee) 316.

Yes, per INA sec. 212(a)(4) ................... Not applicable.317

SL–6 Juvenile court dependents ............................................. No, per INA sec. 245(h) ......................... Not applicable, per INA sec. 245(h) 

U.S. Armed Forces Personnel 318 ........................................... Yes, per INA sec. 212(a)(4) ................... Not Applicable.319

International Broadcasters 320 ................................................. Yes, per INA sec. 212(a)(4) ................... Not Applicable.321


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TABLE 8—APPLICABILITY OF INA SEC. 212(A)(4) TO SPECIAL IMMIGRANT ADJUSTMENT OF STATUS APPLICATIONS— 

Continued 

Category Subject to INA sec. 212(a)(4)? INA sec. 213A, and Form I–864, Affidavit of Support under 

section 213A of the INA, required or exempt? 

Special immigrant interpreters who are nationals of Iraq or 

Afghanistan 322.

No, per section 1059(a)(2) of the National Defense Authorization Act for 

Fiscal Year 2006, as amended, Public Law 109–162 (Jan. 6, 2005), section 1244(a)(3) of the National Defense Authorization Act for Fiscal 

Year 2008, as amended, Public Law 

110–181 (Jan. 28, 2008), section 

602(b) of the Afghan Allies Protection 

Act of 2009, as amended, Public Law 

111–8 (Mar. 11, 2009).

Exempt, per section 602(b)(9) of the Afghan Allies Protection Act of 2009, title VI of Public Law 111–8, 123 Stat. 

807, 809 (Mar. 11, 2009).323

TABLE 9—APPLICABILITY OF INA SEC. 212(a)(4) TO REFUGEE, ASYLEE, AND PAROLEE ADJUSTMENT OF STATUS

APPLICATIONS

Category Subject to INA sec. 212(a)(4)? INA sec. 213A, and Form I–864, Affidavit of Support under 

section 213A of the INA, required or exempt? 

Asylees 324 ............................................................................... No, per INA sec. 209(c) ......................... Exempt, per INA sec. 209(c). 

Indochinese Parolees from Vietnam, Cambodia, and Laos ...

IC–6 Indochinese refugees (Pub. L. 95–145 of 1977) ...........

No, per section 586 of Public Law 106– 

429 (Nov. 6, 2000).

Exempt, per section 586 of Public Law 106–429 (Nov. 6, 

2000). 

IC–7 Spouses or children of Indochinese refugees not qualified as refugees on their own.

Polish and Hungarian Parolees (Nationals of Poland or Hungary who were paroled into the United States from November 1, 1989, to December 31, 1991) 325.

No, per title VI, subtitle D, section 

646(b), Public Law 104–208 (Sept. 

30, 1996); 8 CFR 245.12.

Exempt, per title VI, subtitle D, section 646(b), Public Law 

104–208 (Sept. 30, 1996); 8 CFR 245.12. 

Refugees 326 ............................................................................ No, per INA sec. 207(c)(3) and INA sec. 

209(c).

Exempt, per INA sec. 207 and INA sec. 209(c). 

Cuban-Haitian Entrant under IRCA327 ................................... No, per section 202 of Public Law 99– 

603, 100 Stat. 3359 (Nov. 6, 1986) 

(as amended), 8 U.S.C. 1255a.

Exempt, per section 202 of Public Law 99–603, 100 Stat. 

3359 (Nov. 6, 1986) (as amended), 8 U.S.C. 1255a. 

HRIFA: Principal HRIFA Applicant who applied for asylum 

before December 31, 1995 328.

No, per section 902 of Public Law 105– 

277, 112 Stat. 2681 (Oct. 21, 1998), 

8 U.S.C. 1255.

Exempt, per section 902 of Public Law 105–277, 112 Stat. 

2681 (Oct. 21, 1998), 8 U.S.C. 1255. 

TABLE 10—APPLICABILITY OF INA SEC. 212(a)(4) TO OTHER APPLICANTS

Category Subject to INA sec. 212(a)(4)? INA sec. 213A, and Form I–864, Affidavit of Support under 

section 213A of the INA, required or exempt? 

Diplomats Section 13 .............................................................. Yes, per Section 13 of Public Law 85– 

316 (Sept. 11, 1957), as amended by 

Public Law 97–116 (Dec. 29, 1981); 8 

CFR 245.3.

Exempt, by statute, as they are not listed in INA sec. 

212(a)(4) as a category that requires Form I–864. 

Persons Born in the United States under Diplomatic Status 

(NA–3), as described in 8 CFR 101.3.

Yes, per INA sec. 212(a)(4) ................... Exempt, per 8 CFR 101.3. 

Diversity immigrant, spouse, and child 329 .............................. Yes, per INA sec. 212(a)(4) ................... Exempt, by statute, as they are not listed in INA sec. 

212(a)(4) as a category that requires Form I–864.330

Certain entrants before January 1, 1982 331 ........................... Yes, per INA sec. 212(a)(4), INA sec. 

245A(b)(1)(C)(i), and INA sec. 

245A(a)(4)(A) 332.

Exempt, by statute, as they are not listed in INA sec. 

212(a)(4) as a category that requires Form I–864. 

T-nonimmigrants ...................................................................... No, per INA sec. 212(a)(4)(E) ................ Exempt, by statute, as they are not listed in INA sec. 

212(a)(4) as a category that requires Form I–864.333

Certain American Indians born in Canada .............................. No, per INA sec. 289 ............................. Exempt, per INA sec. 289. 

Certain Syrian asylees adjusting under Public Law 106–378 No, per former 8 CFR 245.20(c) 

(2011) 334.

Exempt, by statute, as they are not listed in INA sec. 

212(a)(4) as a category that requires Form I–864. 

Texas Band of Kickapoo Indians of the Kickapoo Tribe of 

Oklahoma, Public Law 97–429 (Jan. 8, 1983).

No, per Public Law 97–429 (Jan. 8, 

1983).

Exempt, per Public Law 97–429 (Jan. 8, 1983). 

S (noncitizen witness or informant) ......................................... Yes, per INA sec. 212(a)(4) 335 ............. Exempt, per INA sec. 245(j); INA sec. 101(a)(15)(S); 8 CFR 

214.2(t)(2); 8 CFR 1245.11. 

Private Immigration Bill providing for noncitizen’s adjustment 

of status.

Dependent on the text of the Private Bill Dependent on the text of the Private Bill. 

Nicaraguan Adjustment and Central American Relief Act 

(NACARA) sec. 202 336.

No, per section 202(a) of Public Law 

105–100, 111 Stat. 2193 (Nov. 19, 

1997), as amended, 8 U.S.C. 1255.

Exempt, per section 202(a) of Public Law 105–100, 111 

Stat. 2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255. 

NACARA sec. 203 337 ............................................................. No, per section 203 of Public Law 105– 

11, 111 Stat. 2193 (Nov. 19, 1997), 

as amended, 8 U.S.C. 1255.

Exempt, per section 203 of Public Law 105–11, 111 Stat. 

2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255. 

Lautenberg, LA–6 338 .............................................................. No, per section 599E of Public Law 

101–167, 103 Stat. 1195 (Nov. 21, 

1989), 8 U.S.C.A. 1255.

Exempt, per section 599E of Public Law 101–167, 103 Stat. 

1195 (Nov. 21, 1989), 8 U.S.C.A. 1255. 

Registry, Z–66: Noncitizens who entered the United States 

prior to January 1, 1972, and who meet the other conditions.

No, per INA sec. 249 and 8 CFR part 

249.

Exempt, per INA sec. 249 and 8 CFR part 249. 

U–1 Crime Victim, spouse, children and parents, and siblings under INA sec. 245(m).No, per INA sec. 212(a)(4)(E) ................ Exempt, per INA sec. 212(a)(4)(E). 


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286Applicants who filed a Form I–485 before 

December 19, 1997, are exempt from the Affidavit 

of Support requirement. See Section 531(b) of Div. 

C of Public Law 104–208, 110 Stat. 3009–546, 

3009–675 (September 30, 1996). See 8 CFR 

213a.2(a)(2)(i) (adjustment applicants) and 8 CFR 

213a.2(a)(2)(ii)(B) (applicants for admission). 

Noncitizens who acquired citizenship under section 

320 of the INA, 8 U.S.C. 1431, upon admission to 

the United States are exempt from submitting an 

affidavit of support, and files Form I–864W, 

Request for Exemption for Intending Immigrant’s 

Affidavit of Support. See 8 CFR 213a.2(a)(2)(ii)(E). 

See Section 101 of the Child Citizenship Act, Public 

Law 106–395, 114 Stat. 1631, 1631 (October 30, 

2000) (amending section 320 of the INA, 8 U.S.C. 

1431). In addition, the surviving spouses, children, 

and parents of a deceased member of the military 

who obtain citizenship posthumously are exempt 

from a public charge determination. See Section 

1703(e) of the National Defense Authorization Act 

for Fiscal Year 2004, Public Law 108–136, 117 Stat. 

1392, 1695 (November 24, 2003). 

287Some categories of adjustment of status 

applicants are exempt from the Affidavit of Support 

requirement, but submit Form I–864W, Request for 

Exemption for Intending Immigrant’s Affidavit of 

Support, with their adjustment of status application 

to establish that a Form I–864 is not required in 

their case. These categories include children of U.S. 

citizens who will automatically become U.S. 

citizens under the Child Citizenship Act of 2000 

upon their admission to the United States, selfpetitioning widows and widowers of U.S. citizens, 

and self-petitioning battered spouses and children. 

Applicants who have earned (or can be credited 

with) 40 quarters (credits) of coverage under the 

Social Security Act (SSA) may also file Form I– 

864W to establish that a Form I–864 is not required 

in their case. 

288 Includes the following categories: IR–6 

Spouses; IR–7 Children; CR–7 Children, 

conditional; IH–8 Children adopted abroad under 

the Hague Adoption Convention; IH–9 Children 

coming to the United States to be adopted under the 

Hague Adoption Convention; IR–8 Orphans 

adopted abroad; IR–9 Orphans coming to the United 

States to be adopted; IR–0 Parents of adult U.S. 

citizens. Children adopted abroad generally do not 

apply for adjustment of status. 

289 Includes the following categories: A–16 

Unmarried Amerasian sons/daughters of U.S. 

citizens; F–16 Unmarried sons/daughters of U.S. 

citizens; A–17 Children of A–11 or A–16; F–17 

Children of F–11 or F–16; B–17 Children of B–11 

or B–16. 

290 Includes the following categories: F–26 

Spouses of noncitizen residents, subject to country 

limits; C–26 Spouses of noncitizen residents, 

subject to country limits, conditional; FX–6 

Spouses of noncitizen residents, exempt from 

country limits; CX–6 Spouses of noncitizen 

residents, exempt from country limits, conditional; 

F–27 Children of noncitizen residents, subject to 

country limits; C–28 Children of C–26, or C–27, 

subject to country limits, conditional; B–28 

Children of B–26, or B–27, subject to country limits; 

F–28 Children of F–26, or F–27, subject to country 

limits; C–20 Children of C–29, subject to country 

limits, conditional; B–20 Children of B–29, subject 

to country limits; F–20 Children of F–29, subject to 

country limits; C–27 Children of noncitizen 

residents, subject to country limits, conditional; 

FX–7 Children of noncitizen residents, exempt from 

country limits; CX–8 Children of CX7, exempt from 

country limits, conditional; FX–8 Children of FX– 

7, or FX–8, exempt from country limits; CX–7 

Children of noncitizen residents, exempt from 

country limits, conditional; F–29 Unmarried sons/ 

daughters of noncitizen residents, subject to 

country limits; C–29 Unmarried children of 

noncitizen residents, subject to country limits, 

conditional. 

291 Includes the following categories: A–36 

Married Amerasian sons/daughters of U.S. citizens; 

F–36 Married sons/daughters of U.S. citizens; C–36 

Married sons/daughters of U.S. citizens, 

conditional; A–37 Spouses of A–31 or A–36; F–37 

Spouses of married sons/daughters of U.S. citizens; 

C–37 Spouses of married sons/daughters of U.S. 

citizens, conditional; B–37 Spouses of B–31 or B– 

36; A–38 Children of A–31 or A–36, subject to 

country limits; F–38 Children of married sons/ 

daughters of U.S. citizens; C–38 Children of C–31 

or C–36, subject to country limits, conditional; B– 

38 Children of B–31 or B–36, subject to country 

limits. 

292 Includes the following categories: F–46 

Brothers/sisters of U.S. citizens, adjustments; F–47 

Spouses of brothers/sisters of U.S. citizens, 

adjustments; F–48 Children of brothers/sisters of 

U.S. citizens. 

293 Includes the following categories: CF–1 

Spouses, entered as fiance ́(e), adjustments 

conditional; IF–1 Spouses, entered as fiance ́(e). 

294 Includes the following categories: Immediate 

Relative AR–6 Children, Amerasian, First 

Preference: A–16 Unmarried Amerasian sons/ 

daughters of U.S. citizens; Third Preference A–36 

Married Amerasian sons/daughters of U.S. citizens. 

See section 204(f) of the INA, 8 U.S.C. 1154(f). Note 

that this program does not have a specific sunset 

date and technically applicants could apply but 

should have already applied. 

295 Includes the following categories: AM–1 

principal (born between 1/1/1962–1/1/1976); AM– 

2 Spouse, AM–3 child; AR–1 child of U.S. citizen 

born Cambodia, Korea, Laos, Thailand, Vietnam. 

Note that this program does not have a specific 

sunset date and technically applicants could apply 

but should have already applied. 

296 Includes the following categories: IB–6 

Spouses, self-petitioning; IB–7 Children, selfpetitioning; IB–8 Children of IB–1 or IB–6; IB–0 

Parents battered or abused, of U.S. citizens, selfpetitioning. 

297 Includes the following categories: B–26 

Spouses of noncitizen residents, subject to country 

limits, self-petitioning; BX–6 Spouses of noncitizen 

residents, exempt from country limits, selfpetitioning; B–27 Children of noncitizen residents, 

subject to country limits, self-petitioning; BX–7 

Children of noncitizen residents, exempt from 

country limits, self-petitioning; BX–8 Children of 

BX–6, or BX–7, exempt from country limits; B–29 

Unmarried sons/daughters of noncitizen residents, 

subject to country limits, self-petitioning. 

298 Includes the following categories: Third 

Preference VAWA; B–36 Married sons/daughters of 

U.S. citizens, self-petitioning; B–37 Spouses of B– 

36, adjustments; B–38 Children of B–36, subject to 

country limits. 

299 Includes the following categories: E–16 

Immigrants with extraordinary ability; E–17 

Outstanding professors or researchers; E–18 Certain 

Multinational executives or managers; E–19 

Spouses of E–11, E–12, E–13, E–16, E–17, or E18; 

E–10 Children of E–11, E–12, E–13, E–16, E–17, or 

E–18. 

300 If the applicant is adjusting based on an 

employment-based petition where the petition is 

filed by either a qualifying relative, or an entity in 

which such relative has a significant ownership 

interest (5 percent or more), and the applicant, at 

both the time of filing and adjudication of the Form 

I–485, also falls under a category exempted under 

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

1182(a)(4)(E) (for example, T nonimmigrants, U 

nonimmigrants, and VAWA self-petitioners), the 

applicant is not subject to section 212(a)(4) of the 

INA, 8 U.S.C. 1182(a)(4) (but is still required to file 

Form I–864). See 8 CFR 213a.2(b)(2). 

301Relative means a husband, wife, father, 

mother, child, adult son, adult daughter, brother, or 

sister. Significant ownership interest means an 

ownership interest of five percent or more in a forprofit entity that filed an immigrant visa petition to 

accord a prospective employee an immigrant status 

under section 203(b) of the INA, 8 U.S.C. 1153(b). 

See 8 CFR 213a.1. 

302 If the applicant is adjusting based on an 

employment-based petition where the petition is 

filed by either a qualifying relative, or an entity in 

which such relative has a significant ownership 

interest (five percent or more), and the applicant, 

at both the time of filing and adjudication of the 

Form I–485, also falls under a category exempted 

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

1182(a)(4)(E) (for example, T nonimmigrants, U 

nonimmigrants, and VAWA self-petitioners), the 

applicant is not subject to section 212(a)(4) of the 

INA, 8 U.S.C. 1182(a)(4) (but is still required to file 

Form I–864). See 8 CFR 213a.2(b)(2). 

303 Includes the following categories: EX–6 

Schedule A worker; EX–7 Spouses of EX–6; EX–8 

Children of EX–6; E–36 Skilled workers; E–37 

Professionals with baccalaureate degrees; E–39 

Spouses of E–36, or E–37; E–30 Children of E36, or 

E–37; EW–8 Other workers; EW–0 Children of EW– 

8; EW–9 Spouses of EW–8; EC–6 Chinese Student 

Protection Act (CSPA) principals; EC–7 Spouses of 

EC–6; EC–8 Children of EC–6. 

304 If the applicant is adjusting based on an 

employment-based petition where the petition is 

filed by either a qualifying relative, or an entity in 

which such relative has a significant ownership 

interest (5 percent or more), and the applicant, at 

both the time of filing and adjudication of the Form 

I–485, also falls under a category exempted under 

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

1182(a)(4)(E) (for example, T nonimmigrants, U 

nonimmigrants, and VAWA self-petitioners) the 

applicant is not subject to section 212(a)(4) of the 

INA, 8 U.S.C. 1182(a)(4) (but is still required to file 

Form I–864). See 8 CFR 213a.2(b)(2). 

305 Includes the following categories: C–56 

Employment creation, not in targeted area, 

adjustments, conditional E–56 Employment 

creation; I–56 Employment creation, targeted area, 

pilot program, adjustments, conditional; T–56 

TABLE 10—APPLICABILITY OF INA SEC. 212(a)(4) TO OTHER APPLICANTS—Continued 

Category Subject to INA sec. 212(a)(4)? INA sec. 213A, and Form I–864, Affidavit of Support under 

section 213A of the INA, required or exempt? 

Temporary Protected Status (TPS) ......................................... No, per 8 CFR 244.3(a) 339 .................... Exempt, per 8 CFR 244.3(a).340

Liberian Refugee Immigration Fairness (LRIF) 341 ................. No, per section 7611(b)(2) of the National Defense Authorization Act 

(NDAA) 2020, Public Law 116–92, 

113 Stat. 1198, 2310 (Dec. 20, 2019).

Exempt, by statute, as they are not listed in INA sec. 

212(a)(4) as a category that requires Form I–864 342


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Employment creation, targeted area, conditional; R– 

56 Investor pilot program, not targeted, conditional; 

C–57 Spouses of C–51 or C–56, conditional; E–57 

Spouses of E–51 or E–56; I–57 Spouses of I–51 or 

I–56, conditional; T–57 Spouses of T–51 or T–56, 

conditional; R–57 Spouses of R–51 or R–56, 

conditional; C–58 Children of C–51 or C–56, 

conditional; E–58 Children of E–51 or E–56; I–58 

Children of I–51 or I–56, conditional; T–58 

Children of T–51 or T–56, conditional; R–58 

Children of R–51 or R–56, conditional. 

306Fifth preference employment-based applicants 

are Immigrant Petition by Alien Entrepreneur (Form 

I–526) self-petitioners. The regulation at 8 CFR 

213a.1 relates to a person having ownership interest 

in an entity filing for a prospective employee and 

therefore the requirements for an affidavit of 

support under section 212(a)(4)(D) of the INA, 8 

U.S.C. 1182(a)(4)(D) is inapplicable. 

307 Includes the following categories: SD–6 

Ministers; SD–7 Spouses of SD–6; SD–8 Children of 

SD–6; SR–6 Religious workers; SR–7 Spouses of 

SR–6; SR–8 Children of SR–6. 

308For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

example, a religious institution), would generally 

not be a relative of the noncitizen or a for-profit 

entity and therefore the requirement for an affidavit 

of support under section 212(a)(4)(D) of the INA, 8 

U.S.C. 1182(a)(4)(D) generally is inapplicable. 

309 Includes the following categories: SE–6 

Employees of U.S. government abroad, adjustments; 

SE–7 Spouses of SE–6; SE–8 Children of SE–6. Note 

that this program does not have a specific sunset 

date and technically applicants could apply but 

should have already applied. 

310For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

example, the U.S. Armed Forces), would generally 

not be a relative of the noncitizen or a for-profit 

entity and therefore the requirement for an affidavit 

of support under section 212(a)(4)(D) of the INA, 8 

U.S.C. 1182(a)(4)(D), generally is inapplicable. 

311 Includes the following categories: SF–6 

Former employees of the Panama Canal Company 

or Canal Zone Government; SF–7 Spouses or 

children of SF–6; SG–6 Former U.S. government 

employees in the Panama Canal Zone; SG–7 

Spouses or children of SG–6; SH–6 Former 

employees of the Panama Canal Company or Canal 

Zone government, employed on April 1, 1979; SH– 

7 Spouses or children of SH–6. Note that this 

program does not have a specific sunset date and 

technically applicants could apply but should have 

already applied. 

312For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

generally would not be a relative of the noncitizen 

or a for-profit entity and therefore the requirement 

for an affidavit of support under section 

212(a)(4)(D) of the INA, 8 U.S.C. 1182(a)(4)(D), 

generally is inapplicable. 

313 Includes the following categories: SJ–6 Foreign 

medical school graduate who was licensed to 

practice in the United States on Jan. 9, 1978; SJ– 

7 Spouses or children of SJ–6. Note that this 

program does not have a specific sunset date and 

technically applicants could apply but should have 

already applied. 

314For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

generally not be a relative of the noncitizen or a forprofit entity and therefore the requirements for an 

affidavit of support under section 212(a)(4)(D) of the 

INA, 8 U.S.C. 1182(a)(4)(D), generally is 

inapplicable. 

315 Includes the following categories: SK–6 

Retired employees of international organizations; 

SK–7 Spouses of SK–1 or SK–6; SK–8; Certain 

unmarried children of SK–6; SK–9 Certain 

surviving spouses of deceased international 

organization employees. 

316 Includes the following categories: SN–6 

Retired NATO–6 civilian employees; SN–7 Spouses 

of SN–6; SN–9; Certain surviving spouses of 

deceased NATO–6 civilian employees; SN–8 

Certain unmarried sons/daughters of SN–6. 

317For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

generally not be a relative of the noncitizen or a forprofit entity and therefore the requirements for an 

affidavit of support under section 212(a)(4)(D), 8 

U.S.C. 1182(a)(4)(D), generally is inapplicable. 

318 Includes the following categories: SM–6 U.S. 

armed forces personnel, service (12 years) after 

October 1, 1991, SM–9 U.S. armed forces personnel, 

service (12 years) by October 1991; SM–7 Spouses 

of SM–1 or SM–6; SM–0 Spouses or children of 

SM–4 or SM–9; SM–8 Children of SM–1 or SM–6. 

319For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

generally not be a relative of the noncitizen or a forprofit entity and therefore the requirements for an 

affidavit of support under section 212(a)(4)(D) of the 

INA, 8 U.S.C. 1182(a)(4)(D), generally is 

inapplicable. 

320 Includes the following categories: BC–6 

Broadcast (IBCG of BBG) employees; BC–7 Spouses 

of BC–1 or BC–6; BC–8 Children of BC–6. 

321For this category, although the applicants are 

subject to public charge under section 212(a)(4) of 

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

generally not be a relative of the noncitizen or a forprofit entity and therefore the requirements for an 

affidavit of support under section 212(a)(4)(D) of the 

INA, 8 U.S.C. 1182(a)(4)(D), generally is 

inapplicable. 

322 Includes the following categories: SI–6 Special 

immigrant interpreters who are nationals of Iraq or 

Afghanistan; SI–6, SI–7, SI–8—spouse and child of 

SI–6; SQ–6 Certain Iraqis and Afghans employed by 

U.S. Government SQ–6, SQ7, SQ–8 Spouses and 

children of SQ–6; SI–6 Special immigrant 

interpreters who are nationals of Iraq or 

Afghanistan; SI–7 Spouses of SI–1 or SI–6; SI–8 

Children of SI–1 or SI–6. 

323Sections 245(c)(2), (7), and (8) of the INA, 8 

U.S.C. 1255(c)(2), (7), and (8), do not apply to 

special immigrant Iraq and Afghan nationals who 

were employed by or on behalf of the U.S. 

government (for Section 602(b) and 1244 

adjustment applicants who were either paroled into 

the United States or admitted as nonimmigrants). 

See Section 1(c) of Public Law 110–36, 121 Stat. 

227, 227 (June 15, 2007), which amended Section 

1059(d) of the National Defense Authorization Act 

for Fiscal Year 2006, Public Law 109–163, 119 Stat. 

3136, 3444 (Jan. 6, 2006) to state that sections 

245(c)(2), (7), and (8) of the INA, 8 U.S.C. 

1255(c)(2), (7), and (8), do not apply to Iraq or 

Afghan translator adjustment of status applicants. 

324 Includes the following categories: AS–6 

Asylees; AS–7 Spouses of AS–6; AS–8 Children of 

AS–6; SY–8 Children of SY6; GA–6 Iraqi asylees; 

GA–7 Spouses of GA–6; GA–8 Children of GA–6. 

325Note that this program does not have a specific 

sunset date and technically applicants could apply 

but should have already applied. 

326 Includes the following categories: RE–6 Other 

refugees (Refugee Act of 1980, Pub. L. 96–212, 94 

Stat. 102 (Mar. 17, 1980)); RE–7 Spouses of RE–6; 

RE–8 Children of RE–6; RE–9 Other relatives. 

327Note that this program has a sunset date of 2 

years after enactment, however, some cases may 

still be pending. 

328 Includes the following categories: HA–6 

Principal HRIFA Applicant; Spouse of HA–6, HA– 

7; Child of HA–6, HA–8; Unmarried Son or 

Daughter 21 Years of Age or Older of HA–6, HA– 

9; Principal HRIFA Applicant paroled into the 

United States before December 31, 1995 HB–6; 

Spouse of HB–6, HB–7; Child of HB–6, HB–8; 

Unmarried Son or Daughter 21 Years of Age or 

Older of HB–6 HB–9; Principal HRIFA Applicant 

who arrived as a child without parents in the 

United States HC–6; Spouse of HC–6, HC–7; Child 

of HC–6, HC–8; Unmarried Son or Daughter 21 

Years of Age or Older of HC–6, HC–9; Principal 

HRIFA Applicant child who was orphaned 

subsequent to arrival in the United States HD–6, 

Spouse of HD–6, HD–7; Child of HD–6, HD–8; 

Unmarried Son or Daughter 21 Years of Age or 

Older of HD–6, HD–9; Principal HRIFA Applicant 

child who was abandoned subsequent to arrival and 

prior to April 1, 1998 HE–6; Spouse of HE–6, HE– 

7; Child of HE–6, HE–8; Unmarried Son or Daughter 

21 Years of Age or Older of HE–6, HE9. Note that 

this program has a sunset date of March 31, 2000; 

however, dependents may still file for adjustment 

of status. 

329 Includes the following categories: DV–6 

Diversity immigrant; DV–7 Spouse of diversity 

immigrant; DV–8 Child of diversity immigrant. 

330 Diversity visas are issued under section 203(c) 

of the INA, 8 U.S.C. 1153, which do not fall under 

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

1182(a)(4)(C) or (D). 

331 Includes the following categories: W–16 

Entered without inspection before January 1, 1982; 

W–26 Entered as nonimmigrant and overstayed visa 

before January 1, 1982. 

332Certain aged, blind, or disabled persons as 

defined in Section 1614(a)(1) of the Social Security 

Act, 42 U.S.C. 1382c(a)(1), may apply for a waiver 

of the public charge inadmissibility ground. See 

section 245A(d)(2)(B)(ii) and (iii) of the INA, 8 

U.S.C. 1255A(d)(2)(B)(ii) and (iii). 

333Adjustment of status based on Tnonimmigrant status is under section 245(l) of the 

INA, 8 U.S.C. 1255(l), which does not fall under 

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

1182(a)(4)(C) or (D). 

334 DHS removed the regulations relating to 

Syrian asylees adjusting under Public Law 106–378 

in 76 FR 53793, 53774 (Aug. 29, 2011) because the 

provision was obsolete given that there were no 

longer eligible applicants for the adjustment 

provisions. DOJ has a regulation for this program 

that remains in effect at 8 CFR 1245.20. 

335S-nonimmigrants can apply for a waiver using 

the Inter-Agency Alien Witness and Informant 

Record (Form I–854). See section 245(j) of the INA, 

8 U.S.C. 1255(j) and section 101(a)(15)(S) of the 

INA, 8 U.S.C. 1101(a)(15)(S). See also 8 CFR 

214.2(t)(2) and 8 CFR 1245.11. 

336 Includes the following categories: NC–6 

Nicaraguan or Cuban national; NC–7 Spouse of NC– 

6; NC–8 Child of NC–6; NC–9 Unmarried son or 

daughter 21 years of age or older of NC–6. Note that 

this program has a sunset date of April 1, 2000; 

however, some cases may still be pending. 

337 Includes the following categories: Z–13 

Cancellation of removal; Z–14 Cancellation of 

removal of battered spouses or children pursuant to 

the Violence Against Women Act. 

338Note that this program sunset date of 

September 30, 2014, only applies to parole. Eligible 

applicants may still apply for adjustment of status. 

339 In adjudicating TPS eligibility, USCIS is 

authorized to waive any ground of inadmissibility 

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

for humanitarian purposes, to assure family unity, 

or when it is otherwise in the public interest, except 

for those that Congress specifically noted could not 

be waived or from which they are exempted by 

statute. See section 244(c)(2)(A) of the INA, 8 U.S.C. 

1254a(c)(2)(A). 

340See section 244(c)(2)(A) of the INA, 8 U.S.C. 

1254a(c)(2)(A). 

341 Includes the following categories: LR–6 

Liberian national as described in Section 

7611(c)(1)(A) of the National Defense Authorization 

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Act for Fiscal Year 2020 (NDAA 2020) who has 

adjusted status under LRIF; LR–7 Spouse of LR–6; 

LR–8 Child of LR–6; LR–9 Unmarried son or 

daughter of LR–6. 342Adjustment of status based on LRIF is under 

Section 7611(c)(1)(A) of the National Defense 

Authorization Act for Fiscal Year 2020 (NDAA 

2020), which does not fall under section 

212(a)(4)(C) or (D) of the INA, 8 U.S.C. 1182(a)(4)(C) 

or (D). 343See 64 FR 28676, 28681 (May 26, 1999); 64 FR 

28689 (May 26, 1999). 344 64 FR 28689, 28692 (May 26, 1999). 

345 Ibid. 

346 64 FR 28689 (May 26, 1999); 64 FR 28676 

(May 26, 1999). 

347 84 FR 41292, 41501 (Aug. 14, 2019). 

348 84 FR 41292, 41501 (Aug. 14, 2019). 

349 84 FR 41292, 41348–49 (Aug. 14, 2019). 

350 84 FR 41292, 41351 (Aug. 14, 2019). 

351See 86 FR 47025, 47028 (Aug. 23, 2021). 

352 In the 2019 Final Rule, DHS canvassed a range 

of sources to support the proposition that the 

statute was ambiguous, and that the new definition 

represented a reasonable interpretation of such 

ambiguity in light of the policy goals articulated in 

PRWORA. For example, DHS wrote that the rule ‘‘is 

not inconsistent with Congress’ intent in enacting 

the public charge ground of inadmissibility in [the 

Illegal Immigration Reform and Immigration 

Responsibility Act of 1996 (IIRIRA)], or in enacting 

PRWORA.’’ See 84 FR 41292, 41317 (Aug. 14, 

2019). DHS noted that Congress enacted those two 

laws in the same year, that IIRIRA amended the 

public charge inadmissibility statute, and that 

PRWORA contained the statements of national 

policy. DHS continued by stating that the rule, ‘‘in 

accordance with PRWORA, disincentivizes 

immigrants from coming to the United States in 

reliance on public benefits.’’ Id. Similarly, in 

support of a similar definition of ‘‘public charge’’ 

in the 2018 NPRM, DHS wrote that ‘‘the term public 

charge is ambiguous as to how much government 

assistance an individual must receive or the type of 

assistance an individual must receive to be 

considered a public charge. The statute and case 

law do not prescribe the degree to which an alien 

must be receiving public benefits to be considered 

a public charge. Given that neither the statute nor 

the case law prescribes the degree to which an alien 

must be dependent on public benefits to be 

considered a public charge, DHS has determined 

that it is permissible and reasonable to propose a 

different approach.’’ See 83 FR 51114, 51164 (Oct. 

10, 2018). 

C. Definitions 

1. Likely at Any Time To Become a 

Public Charge 

Both the 1999 Interim Field Guidance 

and the 1999 NPRM defined public 

charge to mean, for admission and 

adjustment purposes, ‘‘an alien . . . 

who is likely to become . . . primarily 

dependent on the government for 

subsistence, as demonstrated by either 

(i) the receipt of public cash assistance 

for income maintenance or (ii) 

institutionalization for long-term care at 

government expense.’’ 343 This 

definition is based on DHS’s conclusion 

that not all receipt of public benefits 

paid for in whole or in part by the 

government indicates that an individual 

is a public charge or is likely at any time 

to become a public charge.344 Rather, 

the type of benefit received matters, and 

DHS’s focus should be on the types of 

benefits that reflect primary dependence 

on the government.345 Neither the 1999 

Interim Field Guidance nor the 1999 

NPRM defined ‘‘likely’’ or ‘‘likely at any 

time to become a public charge’’ 346 for 

purposes of making public charge 

inadmissibility determinations. 

In the 2019 Final Rule, ‘‘public 

charge’’ was defined as a noncitizen 

who receives one or more public 

benefits for more than 12 months in the 

aggregate within any 36-month period 

(such that, for instance, receipt of two 

public benefits in 1 month counts as 2 

months).347 DHS also separately defined 

public benefits to include any Federal, 

State, local, or Tribal cash assistance for 

income maintenance (other than tax 

credits), including SSI, TANF, Federal, 

State, or local cash benefit programs for 

income maintenance (often called 

‘‘General Assistance’’ in the State 

context, but which also exist under 

other names), as well as a list of 

specified non-cash benefits that 

included SNAP, Section 8 Housing 

Assistance, Section 8 Project-Based 

Rental Assistance, most forms of 

Medicaid, and Public Housing.348 DHS 

stated that the expanded definition was 

consistent with Congress’ intent, and 

reflected the self-sufficiency goals set 

forth in PRWORA.349 DHS wrote that 

this approach ‘‘balance[d] an alien’s 

lack of self-sufficiency against 

temporary welfare assistance that does 

not amount to a lack of selfsufficiency.’’ 350

The major change between the 1999 

Interim Field Guidance and NPRM, on 

the one hand, and the 2019 Final Rule, 

on the other, was the degree of 

dependence on the government 

necessary to render an individual 

inadmissible as likely to become a 

public charge. Under the 2019 Final 

Rule, reliance on government support to 

assist with certain specified needs— 

food, housing, and health care—could 

be deemed sufficient to render an 

individual inadmissible as likely to 

become a public charge if the receipt of 

such benefits surpassed prescribed 

thresholds for duration of receipt. As set 

forth above, under the 1999 Interim 

Field Guidance and NPRM, by contrast, 

the former INS set a threshold of 

primary dependence on the government, 

as evidenced by the use of cash 

assistance or long-term 

institutionalization for care at 

government expense. Under the 1999 

Interim Field Guidance approach, the 

use of supplemental government 

support to assist with discrete needs 

was deemed inadequate to render an 

individual inadmissible as likely to 

become a public charge. 

DHS asked for public comment on 

how to define the term ‘‘public charge’’ 

in the ANPRM.351 Some commenters 

noted that, before DHS enacted the 2019 

Final Rule, there was a well settled 

understanding for more than 100 years 

that the term public charge meant an 

individual who is, or is likely to, 

become primarily and permanently 

dependent on the government for 

subsistence. Commenters characterized 

the approach taken in the 2019 Final 

Rule as an unprecedented departure 

from that longstanding meaning and 

requested that DHS continue to define 

public charge as a person who is 

primarily or entirely dependent on the 

government for subsistence. 

DHS now proposes to adopt a 

standard more like the one used in the 

1999 Interim Field Guidance and 

NPRM, which required primary 

dependence on the government for 

subsistence as demonstrated by the 

receipt of public cash assistance for 

income maintenance or long-term 

institutionalization at government 

expense. 

DHS now believes the ‘‘primarily 

dependent’’ standard is a better 

interpretation of the statute and 

properly balances the competing policy 

objectives established by Congress.352

Although the term ‘‘public charge’’ does 

not have a single clear meaning, its 

basic thrust is clear: Significant reliance 

on the government for support. This has 

been the longstanding purpose of the 

public charge ground of inadmissibility; 

individuals who are unable or unwilling 

to work to support themselves, and who 

do not have other nongovernmental 

means of support such as family 

members, assets, or sponsors, are at the 

core of the term’s meaning. Individuals 

who are likely to primarily rely on their 

own resources as well as some 

government support—even if they could 

be reliably identified—are less readily 

characterized as public charges. DHS 

does not believe that the term is best 

understood to include a person who 

receives benefits from the government to 

help to meet some needs but is not 

primarily dependent on the government 

and instead has one or more sources of 

independent income or resources upon 

which the individual primarily relies. 

The forward-looking nature of the 

inquiry also suggests that it more 

naturally examines whether a 

noncitizen is likely to lack a primary 

means of support other than government 

assistance, rather than requiring 

predictions about the precise mix of 

means-tested benefits and other 


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353See 84 FR 41292, 41490 (Aug. 14, 2019) (citing 

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

354At various points in the 2019 Final Rule’s 

preamble, DHS identified each as a benefit. See, 

e.g., 84 FR 41292, 41493 (Aug. 14, 2019) 

(‘‘Additionally, because the final rule considers 

public benefits for purposes of the inadmissibility 

determination that were not considered under the 

1999 Interim Field Guidance, DHS determined that 

the aliens found inadmissible under section 

212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), will likely 

increase. However, given the compelling need for 

this rulemaking, including but not limited to 

ensuring self-sufficiency and minimizing the 

incentive to immigrate based on the U.S. social 

safety net, DHS determined that this rulemaking’s 

impact is justified, and no further actions are 

required.’’). 

355USCIS Field Operations Directorate (June 

2021); USCIS Office of Performance and Quality 

(June 2021). 

resources that an applicant is likely to 

use for a given period of time. The 

statutory factors that DHS is required to 

consider (age; health; family status; 

assets, resources, and financial status; 

and education and skills) could be 

relevant to either inquiry. But Congress 

might readily have presumed that DHS 

would be able to predict based on those 

factors (and any others that might be 

relevant) whether the noncitizen will 

have a primary means of support in the 

future apart from government benefits. 

By contrast, nothing in the statute 

instructs or equips DHS to make the 

type of complex prediction it aimed to 

do under the 2019 Final Rule as to 

whether the noncitizen would surpass a 

specific threshold of benefits receipt for 

designated benefits that contain 

particular thresholds for eligibility, 

some of which vary by State or locality 

or are available on a more generous 

basis to children or those with 

disabilities. 

DHS’s proposed definition of public 

charge is also consistent with how 

Congress legislated eligibility for meanstested benefits programs. As noted 

above, in 1996, Congress separately 

addressed the concern that noncitizens 

would seek admission or adjustment of 

status in order to take advantage of 

means-tested benefits programs by 

generally excluding them from 

participation for the first 5 years after 

admission or adjustment of status. One 

consequence of this change is that, in 

most cases, in administering the public 

charge ground of inadmissibility, DHS is 

unlikely to gain much insight by 

considering whether a given applicant 

has in the past received, or is currently 

receiving, specified public benefits 

(because most applicants are likely 

ineligible for those benefits). By 

contrast, DHS’s past experience, as 

discussed in relation to chilling effects 

above, demonstrates the significant 

potential downsides of considering 

noncitizens’ past or current receipt of 

benefits. 

In this proposed rule, DHS opts for a 

compromise approach, in which DHS 

considers past or current receipt of the 

benefits most indicative of whether a 

person is likely to become primarily 

dependent on the government for 

subsistence. But DHS excludes from 

consideration a range of benefits that are 

less indicative of primary dependence, 

and for which applicants for admission 

and adjustment of status are likely 

ineligible in any event. 

For the above reasons, DHS believes 

its proposed definition of public charge 

reflects a better interpretation of the 

statute and congressional purpose. In 

weighing alternatives to the definition 

of public charge proposed in this rule, 

DHS considered that neither DHS nor 

any reviewing court suggested that the 

2019 Final Rule’s definition of public 

charge was compelled by statute. 

DHS’s experience while the 2019 

Final Rule was in effect largely supports 

DHS’s proposed definition. In the 

Regulatory Impact Analysis (RIA) 

accompanying the 2019 Final Rule, DHS 

wrote that ‘‘[t]he primary benefit of the 

final rule would be to better ensure that 

aliens who are admitted to the United 

States, seek extension of stay or change 

of status, or apply for adjustment of 

status will be self-sufficient, i.e., will 

rely on their own financial resources, as 

well as the financial resources of the 

family, sponsors, and private 

organizations.’’ 353 DHS interprets this 

statement to refer to: (1) Potential 

benefits associated with denials of 

admission and adjustment of status to 

those who are likely to become a public 

charge as defined in the rule (i.e., 

potentially reduced transfer payments, 

which are not formally a benefit); and 

(2) benefits associated with the 

incentives created by the rule (i.e., again 

reduced transfer payments due to the 

rule’s potential deterrent effect on 

migration to the United States by those 

who might otherwise have hoped to rely 

on certain public benefits).354 But 

notwithstanding DHS’s decision at that 

time to expand the public charge 

definition to consider non-cash benefits, 

USCIS data show that during the year 

the 2019 Final Rule was in effect, out of 

the 47,555 applications to which the 

rule was applied, DHS issued only 3 

denials (which were subsequently 

reopened and approved) and 2 Notices 

of Intent to Deny (which were 

ultimately rescinded, and the 

applications were approved) based on 

the totality of the circumstances public 

charge inadmissibility determination 

under section 212(a)(4)(A)–(B) of the 

Act, 8 U.S.C. 1182(a)(4)(A)–(B).355

Experience with the 2019 Final Rule 

also suggests that the proposed 

definition would better achieve 

Congress’s policy objectives in other 

arenas. As noted above, the 2019 Final 

Rule had a modest effect on denials 

under the public charge ground of 

inadmissibility. But the Rule had the 

significant and unintended effect of 

discouraging noncitizens from using 

benefits for fear that such benefits usage 

would be used against them in 

immigration proceedings, even though 

most categories of noncitizens who are 

eligible for benefits are not subject to the 

public charge ground of inadmissibility. 

That the 2019 Final Rule’s predominant 

effect was unintended and had the 

result of discouraging people from 

accessing the benefits for which 

Congress determined they are eligible, 

counsels in favor of the approach within 

this proposed rule, which generally 

aligns with the standard that existed 

before the 2019 Final Rule. For instance, 

this approach mitigates the possibility 

that intending immigrants and their 

families (or others who are not subject 

to the public charge ground of 

inadmissibility), despite being eligible 

for benefits under PRWORA, would 

choose to disenroll from special purpose 

and supplemental benefits, which serve 

to reduce the likelihood that the 

beneficiary will become primarily 

dependent on the government for 

subsistence. Important public health 

objectives are also advanced by 

mitigating the risk that noncitizens are 

discouraged due to potential adverse 

immigration consequences from 

obtaining healthcare coverage, where 

eligible. This is a particularly important 

goal in light of the ongoing COVID–19 

pandemic and potential similar public 

health crises in the future. 

DHS believes that defining ‘‘likely at 

any time to become a public charge’’ as 

‘‘likely at any time to become primarily 

dependent on the government for 

subsistence, as demonstrated by either 

the receipt of public cash assistance for 

income maintenance or long-term 

institutionalization at government 

expense,’’ provides a closer connection 

between the exact language used in the 

statutory standard and the regulatory 

definition than an approach that simply 

defines the term ‘‘public charge’’ 

independent of the forward-looking 

aspect of the statutory standard. 

In response to comments received 

after publishing the 2018 NPRM, DHS 

stated that it was necessary, in addition 

to defining public charge and public 

benefits, to also clarify the degree of 

likelihood that would be high enough to 

justify a denial based on the public 


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356 84 FR 41292, 41392–93 (Aug. 14, 2019). 

357 84 FR 41292, 41501 (Aug. 14. 2019). 

358 84 FR 41292, 41392–93 (Aug. 14, 2019). 

359Although no cases have specifically identified 

which types of public benefits can give rise to a 

public charge finding, a definition that is based on 

primary dependence on the government remains 

consistent with the facts found in the case law 

relied on in the 1999 Interim Field Guidance and 

the 1999 NPRM. See 64 FR 28689, 28690 (May 26, 

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

360See 64 FR 28689, 28690 (May 26, 1999) and 

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

361See 64 FR 28689, 28692 (May 26, 1999). 

362See 64 FR 28689, 28692 (May 26, 1999). 

363See 64 FR 28689, 28692–28693 (May 26, 

1999). 

364For instance, in July 2021, over 76 million 

individuals were enrolled in Medicaid, of whom 

between 42–44 million were adults. See 

Medicaid.gov, July 2021 Medicaid & CHIP 

Enrollment Data Highlights, https://

www.medicaid.gov/medicaid/program-information/ 

medicaid-and-chip-enrollment-data/reporthighlights/index.html (accessed Feb. 10, 2022). 

365Center on Budget and Policy Priorities, 

Administration’s Public Charge Rules Would Close 

the Door to U.S. to Immigrants Without Substantial 

Means (Nov. 11, 2019), https://www.cbpp.org/ 

research/immigration/administrations-publiccharge-rules-would-close-the-door-to-us-toimmigrants (accessed Jan. 27, 2022). The analysis 

also observed that ‘‘[i]n contrast, only about 5 

percent of U.S.-born citizens meet the [1999 Interim 

Field Guidance] benefit-related criteria in the 

public charge determination.’’ Id. 

366 In the 2018 NPRM, DHS stated that ‘‘[c]ash aid 

and non-cash benefits directed toward food, 

housing, and healthcare account for significant 

federal expenditure on low-income individuals and 

bear directly on self-sufficiency,’’ and emphasized 

the significant impact, in terms of overall 

expenditures, of non-cash benefit programs such as 

Medicaid and SNAP. See 83 FR at 51160. At the 

same time, DHS acknowledged that ‘‘receipt of noncash public benefits is more prevalent than receipt 

of cash benefits’’ (83 FR at 51160.), and DHS cited 

data indicating that over 20 percent of the U.S. 

population receives Medicaid, SNAP, or Federal 

housing assistance, whereas 3.5 percent of the U.S. 

population receives cash benefits (83 FR at 51162). 

DHS acknowledges that non-cash benefits programs 

involve significant expenditures of government 

funds, but the Department believes that the term 

‘‘public charge’’ is best interpreted by reference to 

the degree of an individual’s dependence on the 

government for support, rather than the scale of 

overall government expenditures for particular 

programs. 

367See, e.g., HHS Office of Family Assistance, 

Characteristics and Financial Circumstances of 

TANF Recipients, FY 2010 (Aug. 8, 2012), https:// 

www.acf.hhs.gov/ofa/data/characteristics-andfinancial-circumstances-tanf-recipients-fiscal-year2010 (accessed Jan. 25, 2022) (‘‘In FY 2010, about 

17 percent of TANF families had non-TANF 

income.’’); SSA, Fast Facts & Figures About Social 

Security, 2021, https://www.ssa.gov/policy/docs/ 

chartbooks/fast_facts/2021/fast_facts21.html 

(among SSI recipients, ‘‘[e]arned income was most 

prevalent (4.1%) among those aged 18–64’’); GAO, 

GAO–17–558, Federal Low-Income Programs: 

Eligibility and Benefits Differ for Selected Programs 

Due to Complex and Varied Rules at 23–24 (June 

2017) (illustrating income eligibility thresholds for 

a hypothetical family of three, and showing lower 

charge ground of inadmissibility.356 As 

a result, in the 2019 Final Rule, DHS 

defined ‘‘likely at any time to become a 

public charge’’ to mean more likely than 

not at any time in the future to become 

a public charge based on the totality of 

the person’s circumstances.357 DHS 

explained that ‘‘likely’’ and ‘‘more likely 

than not’’ have been used 

interchangeably in other DHS 

regulations interpreting the same term 

in other parts of the statute and also are 

supported by case law.358

DHS therefore proposes that an 

individual is likely at any time to 

become a public charge if the individual 

is likely to become primarily dependent 

on the government for subsistence, as 

demonstrated by either receipt of public 

cash assistance for income maintenance 

or long-term institutionalization at 

government expense. DHS welcomes 

comment on whether it should use 

‘‘primarily’’ dependent on the 

government for subsistence, as opposed 

to a greater or lesser level of 

dependence. DHS also believes that it is 

appropriate, and consistent with DHS’s 

broad discretion and historical practice 

in administering the public charge 

ground of inadmissibility, to not specify 

a specific numerical formula or 

threshold associated with this standard. 

DHS welcomes comment on alternative 

approaches, however. 

2. Public Benefits 

DHS proposes to consider the same 

list of public benefits that are 

considered under the 1999 Interim Field 

Guidance with a few clarifications. 

These benefits are public cash 

assistance for income maintenance and 

long-term institutionalization at 

government expense (including when 

funded by Medicaid). DHS believes that 

this approach is consistent with a more 

natural interpretation of the term 

‘‘public charge’’ and has the additional 

benefit of being more administrable and 

consistent with long-standing practice 

than the 2019 Final Rule, and less likely 

to result in the significant chilling 

effects and burdens on State and local 

governments that were observed 

following promulgation of the 2019 

Final Rule. 

In proposing to consider these 

benefits, DHS reviewed the discussion 

of these issues in the 1999 Interim Field 

Guidance and NPRM, as well as the 

2019 Final Rule. The public benefits 

covered in the 1999 Interim Field 

Guidance and again in this NPRM are 

consistent with the case law; 359 past 

practices of the former INS, DHS, and 

DOS; limited eligibility for public 

benefits among the categories of 

noncitizens subject to the public charge 

ground of inadmissibility; and the 

public policy considerations that have 

consistently informed administrative 

policymaking in this area.360 It has 

never been DHS (or the former INS) 

policy that receipt of any public services 

or benefits paid for wholly or in part by 

government funds renders a noncitizen 

inadmissible as likely to become a 

public charge.361 The nature of the 

program must be considered in light of 

public health and other national public 

policy decisions.362 For example, DHS, 

and the INS before it, have never 

considered free or subsidized school 

lunches, home energy assistance, 

childcare assistance, or special 

nutritional benefits for children and 

pregnant women to be the types of 

public benefits that should be 

considered in a public charge 

determination, notwithstanding that 

each could conceivably have some 

nexus to future primary dependence on 

the government (or, in the case of the 

2019 Final Rule, some nexus to future 

receipt of designated benefits above that 

rule’s durational threshold).363

DHS notes that the structure of 

means-tested benefits programs—many 

of which were changed in 1996, roughly 

contemporaneously with the last 

amendment to the public charge 

provision—supports the view that 

predicted participation in non-cash 

programs should not lead to a 

conclusion that a noncitizen is likely to 

become a public charge. Many modern 

public assistance programs take the 

form of payments or in-kind benefits to 

help individuals meet particular needs 

and are not limited to individuals 

without a separate primary means of 

support. The Medicaid program, 

subsidized housing, and SNAP provide 

benefits to millions of individuals and 

families across the nation, many of 

whom also work.364 One analysis of the 

2019 Final Rule found that ‘‘[i]n a single 

year, 24 percent—nearly 1 in 4—of U.S.- 

born citizens receive one of the main 

benefits in the [rule’s] definition . . . . 

Looking at benefit receipt at any point 

over a 20-year period, approximately 41 

to 48 percent of U.S.-born citizens 

received at least one of the main 

benefits in the public charge 

definition.’’ 365 Although the public 

charge ground of inadmissibility does 

not apply to most participants in these 

programs, it would seem not to comport 

with common usage to describe so many 

Americans as being public charges.366

Relatedly, all program participants will 

need a separate source of income to 

meet a number of basic needs. 

Cash assistance programs, on the 

other hand, are often reserved for 

individuals with few if any other 

sources of income.367 In addition, 


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income eligibility thresholds for SSI ($1,551) and 

TANF ($0 to $1,660, depending on the State) as 

compared to SNAP ($2,184), Housing Choice 

Vouchers ($1,613 to $4,925 depending on the 

program and State), and Medicaid ($218 to $5,359 

depending on the beneficiary’s age and the State)). 

368See, e.g., Center on Budget and Policy 

Priorities, Policy Basics: Supplemental Security 

Income (Feb. 8, 2021), https://www.cbpp.org/ 

research/social-security/supplemental-securityincome (‘‘Over 60 percent of SSI recipients also get 

SNAP (food stamps) and about one-quarter receive 

housing assistance.’’) (accessed Jan. 26, 2022). 

369As explained more fully below, for the 

purposes of this proposed rule, DHS is replacing the 

term ‘‘institutionalization for long-term care at 

government expense’’ that was used in the 1999 

NPRM and 1999 Interim Field Guidance with the 

term ‘‘long-term institutionalization.’’ 

370See 64 FR 28676, 28677 (May 26, 1999). The 

former INS consulted primarily with HHS, SSA, 

and USDA in formulating the list of public benefits 

that would be considered. See 64 FR 28676, 28677 

(May 26, 1999). 

371See 64 FR 28689, 28692 (May 26, 1999). 

372 Ibid. 373See 64 FR 28689, 28692 (May 26, 1999). 374 Ibid. 375See 64 FR 28676, 28677–28678 (May 26, 1999) 

and 64 FR 28689, 28692 (May 26, 1999). 376See HHS letter in 64 FR 28676, 28686–28687 

(May 26, 1999). 377See HHS letter in 64 FR 28676, 28686 (May 

26, 1999). 378See HHS letter in 64 FR 28676, 28686 (May 

26, 1999). While the SSA letter did not address noncash benefits, the USDA letter concurred with the 

HHS letter and provided that neither the receipt of 

food stamps nor nutritional assistance as provided 

for under the Special Nutritional Programs should 

be considered in making a public charge 

determination. See 64 FR 28676, 28687–28688 (May 

26, 1999). 

379See HHS letter in 64 FR 28676, 28686 (May 

26, 1999). 

380See 84 FR 41292 (Aug. 14, 2019), as amended 

by Inadmissibility on Public Charge Grounds; 

Correction, 84 FR 52357 (Oct. 2, 2019). 

because cash assistance is not restricted 

to particular uses, receipt of cash 

assistance—which often coincides with 

receipt of other means-tested 

benefits 368—allows an individual to 

become dependent on the government 

in a way that participation in one or 

more non-cash benefits programs 

cannot. For example, an individual who 

receives only non-cash assistance would 

need another source of income to 

acquire various basic necessities like 

clothing or household items, while an 

individual who receives cash assistance 

could potentially rely on that assistance, 

combined with non-cash government 

benefits, to the exclusion of any other 

independent source of income or 

support. 

In addition, as discussed above, when 

deciding to limit consideration to public 

cash assistance for income maintenance 

and ‘‘institutionalization for long-term 

care’’ at government expense,369 the 

former INS consulted with benefitgranting agencies. The former INS 

concluded that cash assistance for 

income maintenance and long-term 

institutionalization at government 

expense constituted the best evidence of 

whether a noncitizen is primarily 

dependent on the government for 

subsistence.370

In reaching this conclusion, the INS 

observed that non-cash benefits (with 

the exception of ‘‘institutionalization for 

long-term care at government expense’’) 

are, by their nature, supplemental and 

do not, alone or in combination, provide 

sufficient resources to support an 

individual or a family.371 In addition to 

receiving non-cash benefits, a 

noncitizen would have to have either 

additional income (such as wages, 

savings, or earned retirement benefits) 

or public cash assistance to support 

themselves or their family.372 Thus, by 

focusing on public cash assistance for 

income maintenance and 

‘‘institutionalization for long-term care’’ 

at government expense, the INS 

believed that it could more readily 

identify those who are primarily 

dependent on the government for 

subsistence without inhibiting access to 

non-cash benefits that serve important 

public interests.373 Additionally, the 

INS observed that certain Federal, State, 

and local benefits were increasingly 

being made available to families with 

incomes far above the poverty level, 

reflecting broad public policy decisions 

about improving general public health 

and nutrition, promoting education, and 

assisting working-poor families in the 

process of becoming self-sufficient.374

Thus, the INS concluded that 

participation in such non-cash programs 

is not evidence of primary 

dependence.375

In formulating such a conclusion, the 

former INS relied heavily on the 

expertise of HHS and other benefitgranting agencies in the form of 

consultation letters. HHS, in its 

consultation letter, stated that non-cash 

benefits (with the exception of 

institutionalization for long-term care at 

government expense) provide 

supplementary support to low-income 

families in the form of vouchers or 

direct services to support nutrition, 

health, and living condition needs.376

The primary objectives of these noncash benefits are to supplement and 

support the overall health and nutrition 

of the community by making services 

generally available to all.377 When 

comparing cash benefits to non-cash 

benefits and support programs, the noncash programs generally have more 

generous eligibility rules in order to also 

make them available to individuals and 

families with incomes well above the 

poverty line so that more people within 

the community have access to these 

programs that support individuals to be 

self-sufficient.378 HHS further stated 

that it is extremely unlikely that an 

individual or family other than someone 

who permanently resides in a long-term 

care institution could subsist solely on 

a combination of non-cash support 

benefits or services, so as to be primarily 

dependent on the government for 

subsistence. HHS provided a few 

examples of non-cash benefits that do 

not directly provide subsistence: Food 

stamps (now SNAP), Medicaid (with the 

exception of long-term 

institutionalization at government 

expense, as noted in this proposed rule), 

CHIP and their related State programs, 

WIC, housing benefits, and 

transportation vouchers. The one and 

only exception identified by HHS to the 

principle that non-cash benefits do not 

demonstrate primary dependence on the 

government for subsistence is the 

instance where Medicaid or other 

government programs pay for the costs 

of a person’s long-term 

institutionalization for care.379 HHS 

concluded that the receipt of these noncash benefits (except institutionalization 

for long-term care at government 

expense) should not be relevant in 

public charge determinations. 

In the 2019 Final Rule, DHS expanded 

the list of public benefits that would be 

considered by DHS to include certain 

non-cash benefits beyond 

institutionalization for long-term care at 

government expense, including SNAP, 

most non-emergency forms of Medicaid, 

Section 8 Housing Assistance under the 

Housing Choice Voucher (HCV) 

Program, Section 8 Project-Based Rental 

Assistance, and public housing under 

the Housing Act of 1937.380 As noted 

above, however, even in 2019, DHS did 

not express a view that it was under a 

statutory obligation to expand its 

inquiry in this way; instead, DHS 

justified the expansion by reference to 

other policy goals, such as the 

significant national expenditures for 

each designated benefit, and DHS’s 

desire to more closely align public 

charge policy with its interpretation of 

the statement of national policy 

contained in PRWORA. DHS also 

concluded that it— 

does not believe that Congress intended for 

DHS to administer section 212(a)(4) of the 

Act, 8 U.S.C. 1182(a)(4), in a manner that 

fails to account for aliens’ receipt of food, 

medical, and housing benefits so as to help 

aliens become self-sufficient. DHS believes 

that it will ultimately strengthen public 

safety, health, and nutrition through this rule 

by denying admission or adjustment of status 


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381See 84 FR 41292, 41314 (Aug. 14, 2019). 

382 Vartanian, Thomas P.; Houser, Linda; and 

Harkness, Joseph. ‘‘Food Stamps and Dependency: 

Disentangling the Short-term and Long-term 

Economic Effects of Food Stamp Receipt and Low 

Income for Young Mothers,’’ The Journal of 

Sociology & Social Welfare, 2011. Available at: 

https://scholarworks.wmich.edu/jssw/vol38/iss4/6. 

383 In the 2022 letter, USDA also mentioned the 

Nutrition Assistance Program (NAP) block grants 

that operate in American Samoa, CNMI, and Puerto 

Rico. These block grants provide nutritional 

assistance to low-income households in the U.S. 

territories. USDA proposed that NAP benefits also 

not be considered in a public charge inadmissibility 

determination and indicated that the NAP benefits 

are even more modest than SNAP benefits. 

384See Kaiser Family Foundation, Work Among 

Medicaid Adults: Implications of Economic 

Downturn and Work Requirements (Feb. 11, 2021), 

available at https://www.kff.org/report-section/ 

work-among-medicaid-adults-implications-ofeconomic-downturn-and-work-requirementsappendix-2/ (accessed Feb. 15, 2022). 

to aliens who are not likely to be selfsufficient.381

When developing this proposed rule, 

as in 1999, DHS consulted with 

benefits-granting agencies, including 

USDA, which administers SNAP. As 

part of that consultation, USDA 

provided an on-the-record letter to DHS, 

similar to the letters included in an 

appendix to the 1999 NPRM, affirming 

that receipt of SNAP benefits does not 

indicate that an individual is likely to 

become primarily dependent on the 

government for subsistence. The letter 

explains that SNAP is supplementary in 

nature as the benefits are calculated to 

cover only a portion of a household’s 

food costs with the expectation that the 

household will use its own resources to 

provide the rest. The letter also states 

that SNAP benefits are modest and 

tailored based on the Thrifty Food Plan 

(TFP), USDA’s lowest cost food plan, 

and that an individual or family could 

not subsist on SNAP alone. Historically, 

most households receive less than the 

maximum allotment. According to 

USDA, the average per-person benefit in 

February 2020, prior to the pandemic, 

was about $121. While this amount has 

since increased—the 2021 reevaluation 

of the TFP and cost-of-living 

adjustments brings the average regular 

SNAP benefit to $169 per person 

today—the TFP estimates that the actual 

cost to feed an individual is $209. 

USDA emphasized that SNAP benefits 

can only be used for the purchase of 

food, such as fruits and vegetables, dairy 

products, breads and cereals, or seeds 

and plants that produce food for the 

household to eat. SNAP benefits may 

not be converted to cash or used to 

purchase hot foods or any nonfood 

items. Receiving SNAP benefits only 

pertains to a need for supplemental food 

assistance and does not address all food 

needs or other general needs such as 

cooking equipment, hygiene items, or 

clothing, for example. 

USDA also stated that there is no 

research demonstrating that receipt of 

SNAP benefits is a predictor of future 

dependency. USDA identified a study 

that showed that SNAP receipt in early 

motherhood does not lead to more or 

less participation in public assistance 

programs in the long run compared to 

other young mothers who have low 

income but do not receive SNAP.382

USDA recommended that DHS continue 

the long-standing practice prior to the 

2019 Final Rule, as set forth in the 1999 

Interim Field Guidance, that receipt of 

benefits from nutrition assistance 

programs administered by USDA should 

not be taken into account in public 

charge inadmissibility determinations in 

this proposed rule.383

During development of this proposed 

rule, DHS also consulted with HHS, 

which administers TANF and Medicaid. 

As part of that consultation, HHS 

provided an on-the-record letter to DHS, 

similar to the USDA letter and the 

letters included in an appendix to the 

1999 NPRM. In that letter HHS 

expressed their general support for the 

approach to public charge 

inadmissibility taken by INS in the 1999 

Interim Field Guidance and 1999 

NPRM, and specifically supported an 

understanding of public charge linked 

to being primarily dependent on the 

government for subsistence as 

demonstrated by the receipt of cash 

assistance for income maintenance or 

long-term institutionalization at 

government expense. 

In its letter, HHS evaluated the 

Medicaid program within the context of 

a public charge definition based on 

primary dependence on the government 

for subsistence. HHS stated that ‘‘with 

the exception of long-term 

institutionalization at government 

expense, receipt of Medicaid benefits is 

. . . not indicative of a person being or 

likely to become primarily dependent 

on the government for subsistence.’’ 

This conclusion was based on HHS’ 

assessment that Medicaid, except for 

long-term institutionalization, does not 

provide assistance to meet basic 

subsistence needs such as for food or 

housing. 

In addition, HHS highlighted 

developments since 1999 that ‘‘reaffirm 

Medicaid’s status as a supplemental 

benefit.’’ These developments include 

Congressional action that has expanded 

Medicaid coverage, such that in many 

states individuals and families are 

eligible for Medicaid despite having 

income substantially above the HHS 

poverty guidelines. HHS also noted that 

among working age adults without 

disabilities who participate in the 

Medicaid program, most are 

employed.384 HHS discussed the 

significant negative public health 

impacts that could potentially be 

associated with considering Medicaid 

generally as indicative of primary 

dependence in a public charge 

inadmissibility determination, as 

highlighted by the COVID–19 pandemic 

‘‘and the important role that HHS health 

care programs like Medicaid have 

played in vaccination and treatment of 

COVID–19.’’ 

HHS also agreed with DHS that 

‘‘receipt of cash assistance for income 

maintenance, in the totality of the 

circumstances, is evidence that an 

individual may be primarily dependent 

on the government for subsistence.’’ 

HHS addressed the TANF program, 

which it administers, and stated that 

unlike Medicaid, cash assistance 

programs under TANF have remained 

limited to families with few sources of 

other income and are much more 

frequently used as a primary source of 

subsistence. 

In addition to reflecting a better 

interpretation of the term ‘‘public 

charge,’’ as discussed above, DHS’s 

general approach to public benefits in 

this proposed rule also better balances 

the competing policy objectives 

established by Congress, including 

ensuring that individuals eligible for 

certain public benefits are not unduly 

dissuaded from applying for them. This 

proposed rule is not an example of DHS 

administering the public charge ground 

of inadmissibility ‘‘so as to help aliens 

become self-sufficient,’’ as DHS argued 

in 2019. Rather, this rule is an effort to 

faithfully implement the public charge 

statute without unnecessarily and at this 

point, predictably, harming separate 

efforts related to health and well-being 

of people whom Congress made eligible 

for supplemental supports. This 

approach is also supported by the 

feedback DHS received on the ANPRM. 

Many commenters to the ANPRM 

recommended that DHS exclude noncash benefits in any new proposed 

regulation due to the negative 

consequences of including 

consideration of non-cash benefits, 

which were highlighted by the COVID– 

19 pandemic. As far as the economic 

impact, an association for hospitals and 

health systems stated that 

[t]he negative effects of COVID–19 go beyond 

health care . . . Further inclusion of housing 

and nutritional benefits [in a public charge 

definition] counteracts the progress that 

policymakers, health care providers, and 

other community partners have made in 


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385Health Insurance Coverage and Access to Care 

for Immigrants: Key Challenges and Policy Options, 

HHS, Assistant Secretary for Planning and 

Evaluation (ASPE), Office of Health Policy (Dec. 

2021), available at https://aspe.hhs.gov/sites/ 

default/files/documents/ 

96cf770b168dfd45784cdcefd533d53e/immigranthealth-equity-brief.pdf (accessed Feb. 2, 2022). 

386See CDC, Demographic Trends of COVID–19 

cases and deaths in the U.S. reported to CDC, 

available at https://covid.cdc.gov/covid-datatracker/#demographics (accessed Feb. 1, 2022). See 

also CDC, COVID–19 7-Day Case Rate per 100,000 

Population in United States, by Percentage of 

County Population in Poverty, available at https:// 

covid.cdc.gov/covid-data-tracker/#pop-factors_

7daynewcases (accessed Feb 1, 2022). 

387See Centers for Medicare & Medicaid Services 

(CMS) Vaccine Toolkit: Coverage and 

Reimbursement of COVID–19 Vaccines, Vaccine 

Administration, and Cost Sharing under Medicaid, 

the Children’s Health Insurance Program, and Basic 

Health Program (updated May 2021), available at: 

https://www.medicaid.gov/state-resource-center/ 

downloads/covid-19-vaccine-toolkit.pdf; CMS State 

Health Official letter #12–006, ‘‘Mandatory 

Medicaid and CHIP Coverage of COVID–19-Related 

Treatment under the American Rescue Plan Act of 

2021,’’ (issued October 22, 2021), available at: 

https://www.medicaid.gov/federal-policy-guidance/ 

downloads/sho102221.pdf; CMS State Health 

Official letter #21–003, ‘‘Medicaid and CHIP 

Coverage and Reimbursement of COVID–19 Testing 

under the American Rescue Plan Act of 2021 and 

Medicaid Coverage of Habilitation Services’’ (issued 

August 30, 2021), available at https://

www.medicaid.gov/federal-policy-guidance/ 

downloads/sho-21-003.pdf. 

388See Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman (2021), Immigrant 

Families Continued Avoiding the Safety Net during 

the COVID–19 Crisis at 1 (The Urban Institute), 

available at https://www.urban.org/research/ 

publication/immigrant-families-continuedavoiding-safety-net-during-covid-19-crisis (accessed 

Feb. 13, 2021). 

389See Randy Capps et al., Migration Policy 

Institute, Anticipated ‘‘Chilling Effects’’ of the 

Public-Charge Rule Are Real: Data Reflect Steep 

Decline in Benefits Use by Immigrant Families (Dec. 

2020), https://www.migrationpolicy.org/news/ 

anticipated-chilling-effects-public-charge-rule-arereal (accessed Jan. 26, 2022). See also Barofsky, 

Jeremy, et al. Spreading Fear: The Announcement 

of The Public Charge Rule Reduced Enrollment in 

Child Safety-Net Programs (Oct. 2020); Health 

Affairs Vol. 39, No.10: Children’s Health, https://

www.healthaffairs.org/doi/10.1377/ 

hlthaff.2020.00763 (accessed Jan. 18, 2022). 

addressing factors beyond clinical care that 

influence a person’s health, including their 

social, economic, and environmental 

circumstances. Disenrollment from or 

delayed enrollment in these programs will 

inevitably drive up poverty rates, 

homelessness, and malnutrition, all of which 

lead to adverse health outcomes and 

undermine public health. 

Another commenter stated that ‘‘[t]he 

inclusion of any non-cash benefit in the 

public charge assessment creates 

confusion that causes people to avoid 

essential services.’’ 

While, as discussed above, DHS had 

anticipated some of the consequences of 

the 2019 Final Rule as it relates to 

chilling effects before promulgating that 

rule, it underestimated the scope of the 

chilling effects, which was highlighted 

by the COVID–19 pandemic. The 

inclusion of non-cash benefits in the 

2019 Final Rule had a chilling effect on 

enrollment in Federal and State public 

benefits, including Medicaid, resulting 

in fear and confusion in the immigrant 

community. Concerns over actual and 

perceived adverse legal consequences 

tied to seeking public benefits have 

affected whether or not immigrants seek 

to enroll in public programs, 

particularly Medicaid and CHIP, and 

have resulted in a decrease in health 

insurance rates of eligible immigrants, 

particularly Latinos.385

Moreover, as discussed above, many 

of the pandemic’s effects have been felt 

most acutely in more vulnerable 

communities, including localities with 

high poverty rates and among certain 

racial and ethnic populations.386

Medicaid provides critical health care 

services including vaccination, testing 

and treatment of COVID–19.387

Commenters on the 2018 NPRM 

expressed concerns that it would make 

immigrant families afraid to seek the 

healthcare they need, including 

vaccinations, endangering their health 

and their communities. DHS 

acknowledges the extensive evidence 

that the 2019 Final Rule had the effect 

of discouraging people, including 

children, from accessing important 

nutrition and health benefits, both 

before and during the pandemic, even 

among individuals who were not subject 

to the public charge inadmissibility 

ground. 

This proposed rule reflects, in part, an 

effort by DHS to avoid exacerbating 

such ongoing challenges in vulnerable 

communities. The effects of the 2019 

Final Rule, both direct and indirect, 

were felt strongly by vulnerable 

populations, including populations that 

have seen disproportionate impacts 

from the COVID–19 pandemic. At the 

same time as the government was 

relying extensively on public benefits as 

a part of its strategy to address the 

public health and economic effects of 

the pandemic, immigrant families 

withdrew from or avoided participation 

in important programs such as 

Medicaid, SNAP, and housing 

assistance, as noted above.388 The 

decline in benefit use is particularly 

notable among vulnerable U.S. citizen 

children with noncitizen family 

members even though those children are 

not subject to the public charge ground 

of inadmissibility.389 By focusing on 

those public benefits that are indicative 

of primary dependence on the 

government for subsistence, DHS can 

faithfully administer the public charge 

ground of inadmissibility without 

exacerbating challenges confronting 

individuals who work, go to school, and 

contribute meaningfully to our nation’s 

social, cultural, and economic fabric. 

This approach is consistent with the 

INA, PRWORA, and this country’s long 

history of welcoming immigrants 

seeking to build a better life. 

In short, to best respond to 

commenters’ concerns, and to achieve 

closer alignment to the statute and ease 

of administrability, DHS now proposes 

a policy more closely resembling the 

1999 Interim Field Guidance framework 

(with some clarifications) in which noncash benefits, except for long-term 

institutionalization at government 

expense, would be excluded from 

consideration in a public charge 

inadmissibility determination. By 

focusing on cash assistance for income 

maintenance and long-term 

institutionalization at government 

expense, DHS can identify those 

individuals who are likely at any time 

to become primarily dependent on the 

government for subsistence, without 

interfering with the administrability and 

effectiveness of other benefit programs 

that serve important public interests. 

DHS welcomes comment on the 

proposal to consider cash assistance for 

income maintenance, but not non-cash 

benefits (apart from long-term 

institutionalization), in determining 

whether a noncitizen is likely at any 

time to become primarily dependent on 

the government for subsistence. DHS 

also notes that it remains particularly 

concerned about the potential effects of 

public charge policy on children, 

including children in mixed-status 

households. DHS welcomes public 

comments on ways to mitigate 

unintended adverse impacts on 

children, while remaining faithful to the 

public charge statute, which does not 

contain an exemption for children and 

requires consideration of age. 

3. Public Cash Assistance for Income 

Maintenance 

DHS proposes that public cash 

assistance for income maintenance 

would mean: (1) Supplemental Security 

Income (SSI), 42 U.S.C. 1381 et seq.; (2) 

Cash assistance for income maintenance 

under Temporary Assistance for Needy 

Families (TANF), 42 U.S.C. 601 et seq.; 

or (3) State, Tribal, territorial, or local 

cash benefit programs for income 

maintenance (often called ‘‘General 

Assistance’’ in the State context, but 

which also exist under other names). 

Supplemental Security Income (SSI) 

provides monthly income payments 

intended to help ensure that aged, blind 

or disabled persons with limited income 

and resources have a minimum level of 


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390See U.S. Soc. Sec. Admin., Social Security 

Handbook, Ch. 21 (‘‘SSA Handbook’’), section 

2102.1, available at https://www.ssa.gov/OP_Home/ 

handbook/handbook.21/handbook-toc21.html 

(accessed Jan. 31, 2022). 

391See SSA Handbook section 2101 (accessed Jan. 

31, 2022). 

392See SSA Handbook section 2103 (accessed Jan. 

31, 2022). 

393See SSA Handbook section 2103 (accessed Jan. 

31, 2022). 

394See SSA Handbook section 2102 (accessed Jan. 

31, 2022). Only four States and one territory choose 

not to supplement Federal SSI: Arizona, 

Commonwealth of Northern Mariana Islands, 

Mississippi, North Dakota, West Virginia. See: 

Understanding Supplemental Security Income SSI 

Benefits—2021 Edition, https://www.ssa.gov/ssi/ 

text-benefits-ussi.htm (accessed Jan. 31, 2022). 

395See SSA Handbook section 2113.1. 

396See SSI Federal Payment Amounts for 2022, 

https://www.ssa.gov/oact/cola/SSI.html (accessed 

Jan. 31, 2022). 

397See SSA Handbook, Ch. 21, section 2128, 

https://www.ssa.gov/OP_Home/handbook/ 

handbook.21/handbook-toc21.html (accessed Jan. 

31, 2022). 

398See HHS, Admin. for Children & Families, 

Office of Family Assistance, About TANF, available 

at https://www.acf.hhs.gov/ofa/programs/tanf/ 

about (accessed Feb. 1, 2022). 

399See 42 U.S.C. 601 (The purpose of this part is 

to increase the flexibility of States in operating a 

program designed to: (1) Provide assistance to 

needy families so that children may be cared for in 

their own homes or in the homes of relatives; (2) 

end the dependence of needy parents on 

government benefits by promoting job preparation, 

work, and marriage; (3) prevent and reduce the 

incidence of out-of-wedlock pregnancies and 

establish annual numerical goals for preventing and 

reducing the incidence of these pregnancies; and (4) 

encourage the formation and maintenance of twoparent families.). 

400See 42 U.S.C. 612. 401See Office of Family Assistance, Help for 

Families, available at https://www.acf.hhs.gov/ofa/ 

map/about/help-families (accessed Jan. 31, 2022). 402See, Congressional Research Services, The 

Temporary Assistance for Needy Families (TANF) 

Block Grant: Responses to Frequently Asked 

Questions, https://sgp.fas.org/crs/misc/RL32760.pdf 

(Updated Dec. 14, 2021). 

403See U.S. Soc. Sec. Admin., Social Security 

Programs in the United States—General Assistance, 

available at https://www.ssa.gov/policy/docs/ 

progdesc/sspus/genasist.pdf (accessed Jan. 31, 

2022). 

404 Id. 

405See Minn. Dep’t of Human Servs., General 

Assistance (GA), available at https://mn.gov/dhs/ 

people-we-serve/adults/economic-assistance/ 

income/programs-and-services/ga.jsp (accessed Jan. 

31, 2022). 

406See 64 FR 28689, 28692–28693 (May 26, 

1999). 

407See 42 U.S.C. 8621, et seq. 

408See 42 U.S.C. 5174. 

income.390 SSI is administered by the 

U.S. Social Security Administration.391

The SSI program operates in the 50 

States, the District of Columbia, and the 

Northern Mariana Islands.392 The 

program also covers blind or disabled 

children of military parents stationed 

abroad and certain students studying 

outside the United States for a period of 

less than one year.393 The eligibility 

requirements and the Federal income 

floor are identical everywhere the 

program operates; this provides 

assurance of a minimum income that 

States and the District of Columbia may 

choose to supplement.394 In order to 

receive SSI benefits, an individual 

cannot have monthly countable income 

more than the current Federal benefit 

rate (FBR). The FBR for an eligible 

couple is approximately one and a half 

as much as that for an individual. These 

amounts are set by law and are subject 

to annual increases based on cost-ofliving adjustments.395 The monthly 

maximum Federal amounts for 2022 are 

$841/month for an eligible individual, 

$1,261/month for an eligible individual 

with an eligible spouse, and $421 for an 

essential person.396 The amount of an 

individual’s income determines 

eligibility for SSI and the amount of the 

SSI benefit—generally, the more income 

a person receives, the lower the SSI 

benefit.397

Temporary Assistance for Needy 

Families (TANF) is a Federal block grant 

that can be used to provide cash 

assistance for income maintenance to 

needy families with children,398 along 

with a broad range of other benefits and 

services that meet one or more of the 

four purposes of TANF.399 The TANF 

program provides approximately $16.5 

billion to States, the District of 

Columbia, and U.S. territories (Guam, 

the U.S. Virgin Islands, and Puerto 

Rico). Federally recognized American 

Indian tribes and Alaska Native 

organizations may offer TANF through 

the tribal TANF program.400 The 

Federal Government does not provide 

TANF cash assistance or other TANF 

benefits and services directly to the 

public. Instead, States, territories, and 

Tribes determine the uses of their TANF 

grants and then provide cash assistance 

and other benefits and services to 

eligible beneficiaries.401 ‘‘TANF 

assistance benefit amounts are set by 

states. In July 2019, the maximum 

monthly benefit for a family of three 

ranged from $1,066 in New Hampshire 

to $170 in Mississippi. Only New 

Hampshire (at 60% of the Federal 

poverty guidelines) had a maximum 

TANF assistance amount for this sized 

family in excess of 50% of poverty-level 

income.’’ 402 Like the 1999 NPRM and 

the 1999 Interim Field Guidance, in this 

rule DHS is only proposing to take into 

consideration in public charge 

inadmissibility determinations cash 

assistance payments for income 

maintenance, but not other benefits or 

services funded by TANF block grants. 

Programs of cash assistance for 

income maintenance provided at 

various levels of government are 

sometimes called ‘‘General Assistance,’’ 

but sometimes given other names. 

‘‘General assistance is often the only 

resource for individuals who cannot 

qualify for unemployment insurance, or 

whose benefits are inadequate or 

exhausted. Help may either be in cash 

or in kind, including such assistance as 

groceries and rent.’’ 403 ‘‘The eligibility 

requirements and payment levels for 

general assistance vary from State to 

State, and often within a State. 

Payments are usually at lower levels 

and of shorter duration than those 

provided by federally financed 

programs.’’ 404 General assistance is 

administered and financed by State and 

local governments under their own 

guidelines. For example, in Minnesota, 

the ‘‘General Assistance program helps 

people without children pay for basic 

needs. It provides money to people who 

can[no]t work enough to support 

themselves, and whose income and 

resources are very low.’’ 405 To the 

extent that aid provided through a 

general assistance program is in the 

form of cash, check, or money 

instrument (as compared to in-kind 

goods or services through vouchers and 

similar means) and intended for income 

maintenance, DHS would consider it as 

cash assistance for income maintenance 

under this proposed rule. 

Similar to the approach taken in the 

1999 NPRM and 1999 Interim Field 

Guidance, not all cash assistance would 

be relevant for public charge 

inadmissibility purposes. For example, 

cash payments that are provided for 

child-care assistance or other 

supplemental, special purpose cash 

assistance would not be considered in a 

public charge inadmissibility 

determination because they do not 

constitute primary dependence on the 

government for subsistence.406

Similarly, DHS would not consider 

special purpose benefits like energy 

assistance provided through the Low 

Income Home Energy Assistance 

Program (LIHEAP) 407 because such 

assistance is not intended for income 

maintenance. Nor would DHS consider 

Stafford Act disaster assistance, 

including financial assistance provided 

to individuals and households under 

Individual Assistance under the Federal 

Emergency Management Agency’s 

(FEMA) Individuals and Households 

Program 408 as cash assistance for 

income maintenance. The same would 

be true for comparable disaster 

assistance provided by State, Tribal, 

territorial, or local, governments. 

Federal, State, Tribal, territorial, and 

local governments provided pandemicrelated cash assistance in response to 


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409See 64 FR 28676, 28678–28679 (May 26, 

1999). 

410Section 1905(a) of the Social Security Act 

specifies that medical assistance in the Medicaid 

program does not include ‘‘care or services for any 

individual who has not attained 65 years of age and 

who is a patient in an institution for mental 

diseases.’’ Institutions for mental diseases are 

defined at section 1905(i) of the Social Security Act 

as ‘‘a hospital, nursing facility, or other institution 

of more than 16 beds, that is primarily engaged in 

providing diagnosis, treatment, or care of persons 

with mental diseases.’’ While the Federal 

Government is not incurring a financial obligation 

for Medicaid beneficiaries in institutions for mental 

diseases, with specified exceptions, State 

governments are responsible for the cost of services 

provided to beneficiaries in these settings. 

411See Ctrs. For Medicare & Medicaid Servs., 

Institutional Long Term Care, available at https:// 

www.medicaid.gov/medicaid/ltss/institutional/ 

index.html (accessed Dec. 13, 2021). See also 42 

CFR 435.700 et seq. 

412See HHS letter in 64 FR 28676, 28687 (May 

26, 1999). 

413 Defined as institutional services under sec. 

1905(a) of the Social Security Act. 

COVID–19. This took a variety of forms, 

including Economic Impact Payments 

and the California Pandemic Emergency 

Assistance Fund. Under this proposed 

rule, DHS would not consider these 

types of supplemental, special purpose 

cash assistance programs or similar ones 

established in response to future public 

health emergencies in public charge 

inadmissibility determinations. 

Other categories of cash assistance 

that are not intended to maintain a 

person at a minimum level of income, 

such as assistance specifically targeted 

to aid survivors of trafficking or crime, 

would similarly not fall within the 

definition. Moreover, earned cash 

benefits would continue to be excluded 

from consideration in public charge 

inadmissibility determinations. A few 

examples of such earned benefits that 

would not be considered include Title 

II Social Security benefits, government 

pension benefits, unemployment 

insurance payments, and veterans’ 

benefits, as well as any benefits received 

via a tax credit or deduction.409

DHS has clarified above that specialpurpose and earned-benefit cash 

assistance programs would not be 

considered in public charge 

inadmissibility determinations. The 

proposed regulatory text does not 

explicitly address the exclusion of these 

programs but does limit the 

consideration of cash assistance to 

programs providing cash assistance 

intended for income maintenance. DHS 

welcomes comment on how, if at all, to 

clarify these exclusions within the final 

rule or related guidance. 

In response to the 2021 ANPRM, some 

commenters encouraged DHS to exclude 

all exclusively non-Federal benefits, 

including cash benefits, from public 

charge inadmissibility determinations. 

A coalition of more than 630 national, 

State, and local organizations and 

agencies wrote that programs funded 

solely by a State ‘‘are exercises of the 

powers traditionally reserved to the 

states and should not be counted as 

factors in a new public charge test.’’ The 

commenter explained that the State 

provided State-funded benefits, 

including cash benefits, to foreign-born 

victims of trafficking, torture, or other 

serious crimes, and their derivative 

family members. The coalition 

emphasized that States and localities 

‘‘have a compelling interest in 

promoting health and safety that 

includes providing benefits at their own 

expense without barriers caused by 

federal policies,’’ and suggested that 

because ‘‘these benefits vary 

significantly by state, excluding all state 

and local programs will make the public 

charge rule easier for immigrants and 

federal DHS adjudicators to 

understand.’’ 

Although this proposed rule covers 

Federal, State, Tribal, territorial, or local 

cash benefit programs for income 

maintenance (consistent with past 

policy and the original function of the 

public charge ground of 

inadmissibility), DHS welcomes 

comment on this proposal, particularly 

as it relates to non-Federal programs 

targeted at individual populations. 

4. Long-Term Institutionalization at 

Government Expense 

Consistent with the 1999 Interim 

Field Guidance and 1999 NPRM, DHS 

proposes that long-term 

institutionalization at government 

expense (in the case of Medicaid, 

limited to institutional services under 

section 1905(a) of the Social Security 

Act), including in a nursing home or 

mental health institution, be included in 

public charge inadmissibility 

determinations.410 Similarly, long-term 

institutionalization at government 

expense would be the only category of 

Medicaid-funded services to be 

considered in public charge 

inadmissibility determinations. 

As suggested by HHS in its on-therecord consultation letter, DHS proposes 

to replace the term ‘‘institutionalization 

for long-term care at government 

expense,’’ used in the 1999 Interim 

Field Guidance and 1999 NPRM, with 

‘‘long-term institutionalization at 

government expense,’’ in order to better 

describe the specific types of services 

covered and the duration for receiving 

them. Consistent with the 1999 Interim 

Field Guidance and 1999 NPRM, longterm institutionalization does not 

include imprisonment for conviction of 

a crime or institutionalization for short 

periods or for rehabilitation purposes, as 

discussed further below. 

Institutions assume total care of the 

basic living requirements of individuals 

who are admitted, including room and 

board.411 Such long-term 

institutionalization at government 

expense (at any level of government) is 

the only non-cash benefit that would be 

considered under this rule. As 

discussed above, when developing the 

1999 Interim Field Guidance and 

NPRM, the former INS consulted with 

Federal benefit-granting agencies such 

as HHS. In its consultation letter, HHS 

stated that non-cash benefits should 

generally be excluded from 

consideration. However, it noted that 

the one exception in which receipt of 

non-cash benefits would indicate that 

an individual is primarily dependent on 

government assistance for subsistence, 

and therefore would potentially be a 

public charge, is the case of an 

individual permanently residing in a 

long-term institution and who is relying 

on government assistance for those longterm care services. In such a case, all of 

that individual’s basic subsistence 

needs are assumed by the institution.412

‘‘Long-term institutionalization’’ 

would be the only category of Medicaidfunded services to be considered in 

public charge inadmissibility 

determinations.413 The 1999 Interim 

Field Guidance indicates that ‘‘short 

term rehabilitation services’’ are not to 

be considered for public charge 

purposes, but it does not otherwise 

describe the length of stay that is 

relevant for a public charge 

determination. Generally, DHS 

considers ‘‘long-term 

institutionalization’’ to be characterized 

by uninterrupted, extended periods of 

stay in an institution, such as a nursing 

home or a mental health institution. 

Under this approach, DHS, for example, 

would not consider a person to be 

institutionalized long term if that person 

had sporadic stays in a mental health 

institution, where the person was 

discharged after each stay. On the other 

hand, DHS would consider a person to 

be institutionalized long term if the 

person remained in the institution over 

a long period of time, even if that period 

included off-site trips or visits without 

discharge. Therefore, for purposes of 

this rulemaking, DHS is considering 

whether to codify this approach in a 

final rule, and whether to reference a 

specific length of time in the final rule 

or associated guidance. In considering 

such an approach, DHS welcomes the 


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414However, as DHS notes later, given advances 

in alternatives to receiving care in institutional 

settings, prior receipt of long-term institutional 

services, even for extended periods of time, is not 

necessarily determinative of requiring institutional 

care in the future. DHS would always consider past 

or current receipt of long-term institutional services 

in the totality of the circumstances. 

415HCBS provide opportunities for individuals 

with disabilities, such as intellectual or 

developmental disabilities, physical disabilities, 

and/or mental illnesses to receive services in their 

own home or community rather than in institutions. 

See https://www.medicaid.gov/medicaid/homecommunity-based-services/index.html (accessed 

Dec. 28, 2021). 

416See Kaiser Family Foundation, Medicaid 

Beneficiaries Who Need Home and CommunityBased Services (Mar. 2014), available at https://

www.kff.org/wp-content/uploads/2014/03/8568- 

medicaid-beneficiaries-who-need-home-andcommunity-based-servcies.pdf (accessed Feb. 1, 

2022). 

417See https://www.medicaid.gov/medicaid/longterm-services-supports/employment-initiatives/ 

employment-hcbs/index.html (describing Medicaid 

HCBS supports for employment) (accessed Jan. 26, 

2021); See also https://www.macpac.gov/wpcontent/uploads/2018/07/The-Role-of-Medicaid-inSupporting-Employment.pdf (accessed Jan. 26, 

2021). 

418See, e.g., HHS, Report to the President and 

Congress: The Money Follows the Person 

Rebalancing Demonstration (2017), https://

www.medicaid.gov/sites/default/files/2019-12/mfprtc.pdf (accessed Jan. 27, 2022) (‘‘On average, perbeneficiary per-month expenditures . . . declined 

by $1,840 (23 percent) among older adults 

transitioning from nursing homes . . . which 

translates to average cost savings for Medicaid and 

Medicare programs of $22,080 during the first year 

after the transition to home and community-based 

LTSS’’). 

419 Kaiser Family Foundation, Medicaid Home 

and Community-Based Services Enrollment and 

Spending (Feb. 4, 2020), available at https://

www.kff.org/medicaid/issue-brief/medicaid-homeand-community-based-services-enrollment-andspending/. 

420See Statement of the Department of Justice on 

Enforcement of the Integration Mandate of Title II 

of the Americans with Disabilities Act and 

Olmstead v. L.C. (DOJ Olmstead Statement), 

available at https://www.ada.gov/olmstead/q&a_

olmstead.htm. 

421 527 U.S. 581 (1999). 

422For example, Congress has expanded access to 

HCBS as an alternative to long-term 

institutionalization since 1999 by establishing a 

number of new programs, including the Money 

Follows the Person program and the Balancing 

Incentive Program, and new Medicaid State plan 

authorities, including Community First Choice (42 

U.S.C. 1396n(k)) and the HCBS State Plan Option 

under 42 U.S.C. 1396n(i). Most recently, Congress 

provided increased funding to expand HCBS in the 

American Rescue Plan. These programs are in 

addition to the HCBS waiver program under 42 

U.S.C. 1396n(c), first authorized in the Social 

Security Act in the early 1980s. As a result of a 

combination of these new HCBS programs and 

authorities and the Supreme Court’s Olmstead 

decision in 1999, States have expanded HCBS. See, 

e.g., CMS Long Term Services and Supports 

Rebalancing Toolkit, available at https://

www.medicaid.gov/medicaid/long-term-servicessupports/downloads/ltss-rebalancing-toolkit.pdf. 

423See proposed 8 CFR 212.22(a)(3). 

submission of data on lengths of stay for 

long-term care in a range of institutional 

settings.414

Although the 2019 Final Rule 

required all Medicaid benefits (with 

specified exceptions) to be taken into 

account in public charge 

determinations, as indicated above, that 

is not the approach DHS is proposing 

here. Rather, DHS proposes an approach 

that is consistent with the 1999 Interim 

Field Guidance and 1999 NPRM on the 

scope of impact of Medicaid benefits. 

Also consistent with the 1999 Interim 

Field Guidance and the 1999 NPRM, the 

consideration of long-term 

institutionalization would not include 

the prior or current receipt of, or 

eligibility for, home and communitybased services (HCBS),415 even if those 

are offered at public expense, including 

through Medicaid. 

In contrast to institutional services, 

Medicaid-funded HCBS help older 

adults and people with disabilities live, 

work, and fully participate in their 

communities.416 These services and 

supports can promote employment 417

and decrease reliance on costly 

government-funded institutional care. 

For instance, HCBS meets the needs of 

beneficiaries at a fraction of the cost of 

long-term institutional care.418 Unlike 

Medicaid-funded institutional services, 

Medicaid-funded HCBS do not include 

payments for room and board, and 

therefore do not provide the total care 

for basic needs provided by institutions. 

Medicaid is by far the largest provider 

of HCBS; Medicare and private health 

insurance coverage generally do not 

cover these services.419 The vast 

majority of public comments received in 

response to the 2021 ANPRM supported 

excluding past or current use, or 

eligibility for, HCBS from the public 

charge determination. 

This approach is also supported by 

HHS. In its on-the-record consultation 

letter, HHS encouraged DHS to 

‘‘consider clarifications to its publiccharge framework that would account 

for advancements over the last two 

decades in the way that care is provided 

to people with disabilities and in the 

laws that protect such individuals.’’ 

Specifically, HHS suggested that HCBS 

should not be considered in public 

charge inadmissibility determinations. 

HHS affirmed, as discussed above, that 

‘‘HCBS help older adults and persons 

with disabilities live, work, and fully 

participate in their communities, 

promoting employment and decreasing 

reliance on costly government-funded 

institutional care.’’ The HHS letter also 

distinguished HCBS from long-term 

institutionalization at government 

expense by stating that HCBS do not 

provide ‘‘total care for basic needs’’ 

because they do not pay for room and 

board. 

In its letter, HHS also encouraged 

DHS to take into account ‘‘legal 

developments in the application of 

Section 504 since 1999,’’ including 

looking at whether a person might have 

been institutionalized at government 

expense in violation of their rights. 

As a departure from the 1999 Interim 

Field Guidance and the 1999 NPRM, in 

this proposed rule, DHS also recognizes 

that there are some circumstances where 

an individual may be institutionalized 

long-term in violation of Federal antidiscrimination laws, including the 

Americans with Disabilities Act (ADA) 

and Section 504. The ADA requires 

public entities, and Section 504 requires 

recipients of Federal financial 

assistance, to provide services to 

individuals in the most integrated 

setting appropriate to their needs.420 In 

1999, the Supreme Court in Olmstead v. 

L.C.,421 held that unjustified 

institutionalization of individuals with 

disabilities by a public entity is a form 

of discrimination under the ADA and 

Section 504. Given the significant 

advancements in the availability of 

Medicaid-funded HCBS since the 1999 

Interim Field Guidance was issued,422

individuals who previously experienced 

long-term institutionalization may not 

need long-term institutionalization in 

the future. The public charge ground of 

inadmissibility is designed to render 

inadmissible those persons who, based 

on their own circumstances, would 

need to rely on the government for 

subsistence, and not those persons who 

might be confined in an institution 

without justification. The possibility 

that an individual will be confined 

without justification thus should not 

contribute to the likelihood that the 

person will be a public charge, and to 

this end, DHS proposes to direct 

adjudicators who are assessing the 

probative value of past or current 

institutionalization to take into account, 

when applicable and in the totality of 

the circumstances, any evidence that 

past or current institutionalization is in 

violation of Federal law, including the 

Americans with Disabilities Act or the 

Rehabilitation Act.423 DHS seeks 

comment about what specific types of 

evidence it should consider for this 

purpose. 

As discussed in more detail in Section 

D (detailing factors DHS would take into 

account when making a public charge 

determination), DHS also clarifies that 

the presence of a disability, as defined 

by Section 504, or any other medical 

condition is not alone a sufficient basis 

to determine that a noncitizen is likely 

at any time to become a public charge, 


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424See proposed 8 CFR 212.21(d), (a), (b) and (c), 

respectively. 

425See 84 FR 41292, 41502 (Aug. 14, 2019). 

426See 64 FR 28676, 28683 (May 26, 1999). See 

64 FR 28689, 28691–28692 (May 26,1999). 

427See proposed 8 CFR 212.21(a) ‘‘Likely at any 

time to become a public charge means likely at any 

time to become primarily dependent on the 

government for subsistence, as demonstrated by 

either the receipt of public cash assistance for 

income maintenance or long-term 

institutionalization at government expense.’’ 

428See proposed 8 CFR 212.21(e). 

429 64 FR 28676, 28681 (May 26, 1999). 

430 64 FR 28689, 28692 (May 26, 1999); 64 FR 

28676, 28676 (May 26, 1999). 

including that the individual is likely to 

require long-term institutionalization at 

government expense. Instead, under this 

proposed rule, DHS would, in the 

totality of the circumstances, take into 

account all of the statutory minimum 

factors, including the applicant’s health, 

as well as the sufficient Affidavit of 

Support Under Section 213A of the INA, 

if required, in determining the 

noncitizen’s likelihood at any time of 

becoming a public charge. 

5. Receipt (of Public Benefits) 

DHS is proposing to define ‘‘receipt 

(of public benefits)’’ separately from its 

definition of ‘‘likely at any time to 

become a public charge’’ and in 

addition to defining the universe of 

public benefits that would be 

considered in public charge 

inadmissibility determinations.424 In 

this definition, DHS makes clear that the 

receipt of public benefits occurs when a 

public benefit-granting agency provides 

public benefits to a noncitizen, but only 

where the noncitizen is listed as a 

beneficiary. In addition, and similarly to 

the 2019 Final Rule,425 applying for a 

public benefit on one’s own behalf or on 

behalf of another would not constitute 

receipt of public benefits by the 

noncitizen applicant, nor would 

approval for future receipt of a public 

benefit on the noncitizen’s own behalf 

or on behalf of another. Finally, this 

definition would make clear that the 

noncitizen’s receipt of public benefits 

solely on behalf of another, or the 

receipt of public benefits by another 

individual (even if the noncitizen assists 

in the application process), would also 

not constitute receipt of public benefits 

by the noncitizen. This approach differs 

slightly from the approach proposed in 

the 1999 NPRM and taken in the 1999 

Interim Field Guidance under which 

DHS considers the receipt of (covered) 

public benefits received by relatives but 

only where such benefits constitute the 

sole source of support for the 

noncitizen, and only along with other 

factors in the totality of the 

circumstances.426 DHS believes that this 

departure is necessary to mitigate 

significant chilling effects observed by 

DHS following the 2019 Final Rule. 

With the inclusion of definitions of 

‘‘public cash assistance for income 

maintenance’’ and ‘‘long-term 

institutionalization at government 

expense’’ DHS is proposing to 

specifically address the public benefits 

that would be considered in public 

charge inadmissibility determinations, 

i.e., cash assistance for income 

maintenance and long-term 

institutionalization at government 

expense. Other public assistance 

programs, including SNAP and 

Medicaid (other than Medicaid payment 

for long-term institutionalization at 

government expense), would not be 

included. 

This proposal was informed by public 

comments received on the ANPRM. 

Generally, commenters strongly 

supported excluding from consideration 

public benefits received by family 

members from consideration in public 

charge inadmissibility determinations. 

These commenters strongly supported 

clarifying the definition of receipt in 

rulemaking to limit confusion and 

potential disenrollment effects. 

Due to the wide variety of programs 

that provide or fund public cash 

assistance for income maintenance and 

long-term institutionalization at 

government expense, and the varying 

requirements and procedures for such 

programs, individuals may be confused 

about whether their or their family 

members’ participation in or contact 

with such programs in the past, 

currently, or in the future would be 

considered ‘‘receipt’’ of such benefits 

under this proposed rule. DHS believes 

that this definition, if finalized, would 

help alleviate such confusion and 

unintended chilling effects that resulted 

from the 2019 Final Rule by clarifying 

that only the receipt of specific benefits 

covered by the rule, only by the 

noncitizen applying for the immigration 

benefit, and only where such noncitizen 

is a named beneficiary would be taken 

into consideration. By extension, DHS 

would not consider public benefits 

received by the noncitizen’s relatives 

(including U.S. citizen children or 

relatives). 

DHS welcomes public comments on 

the most effective ways for DHS to 

communicate to the public that, with 

respect to Federal public benefits 

covered by this rule, DHS’s 

consideration of past or current receipt 

of SSI, TANF, or Medicaid (only for 

long-term institutionalization at 

government expense) would be in the 

totality of the noncitizen’s 

circumstances, and that such receipt 

may result in a determination that an 

applicant is likely at any time to become 

a public charge, but would not 

necessarily result in such a 

determination in all cases. 

In addition, as discussed elsewhere in 

this preamble, DHS welcomes public 

comments regarding the most effective 

ways to communicate to the public that, 

with respect to Federal public benefits 

covered by this rule, DHS would only 

consider past or current receipt of SSI, 

TANF for cash assistance for income 

maintenance, or Medicaid (only for 

long-term institutionalization at 

government expense) by those 

categories of noncitizens identified in 

Table 3, above. For instance, DHS 

welcomes comments on how to 

communicate to parents of U.S. citizen 

children that the receipt of benefits by 

such children would not be considered 

as part of a public charge 

inadmissibility determination for the 

parents. 

6. Government 

DHS’s proposed definition of ‘‘likely 

at any time to become a public 

charge’’ 427 identifies the term 

‘‘government’’ as the entity on which 

the noncitizen may become primarily 

dependent, as evidenced by the receipt 

of public cash assistance for income 

maintenance or long-term 

institutionalization. Therefore, DHS 

proposes to define this term as any 

Federal, State, Tribal, territorial, or local 

government entity or entities of the 

United States.428 This definition would 

help to identify the universe of public 

cash assistance and long-term 

institutionalization programs DHS 

would consider in public charge 

inadmissibility determinations. 

The 1999 NPRM defined government 

as any Federal, State, or local 

government entity or entities of the 

United States.429 The 1999 NPRM does 

not explain the basis for the definition, 

but both the 1999 Interim Field 

Guidance and the 1999 NPRM suggest 

that the definition for public charge is 

tied to the fact that the types of benefits 

that are indicative of primary 

dependence on the government for 

subsistence are public cash assistance 

for income maintenance provided by 

Federal, State, and local benefitsgranting agencies as well as 

institutionalization at Federal, State, 

and local entities’ expense.430 As a 

result, then-INS provided a definition 

for government to explain the types of 

benefits that would render an ‘‘alien’’ 

‘‘likely to become (for admission/ 

adjustment purposes) primarily 


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431 64 FR 28689, 28689 (May 26, 1999). 

432See 84 FR 41292 (Aug. 14, 2019). 

433See 64 FR 28689, 28692 (May 26, 1999). 

434See, e.g., USCIS–2021–0013–0182, USCIS– 

2021–0013–0148, and USCIS–2021–0013–0080. 

435See the Social Security Amendments of 1972, 

Public Law 92–603, 86 Stat. 1329 (Oct. 30, 1972), 

PRWORA, Public Law 104–193, 110 Stat. 2105 

(Aug. 22, 1996), and the Social Security 

Amendments of 1965, Public Law 89–97, 79 Stat. 

286 (July 30, 1965). 

436See proposed 8 CFR 212.21(e). 

437See 8 U.S.C. 1601(4). 

438See proposed 8 CFR 212.21(a); 84 FR 41292, 

41501 (Aug. 14, 2019). 

439See proposed 8 CFR 212.21(b); 64 FR 28689, 

28692 (May 26, 1999); 64 FR 28676, 28682 (May 26, 

1999). 

440See proposed 8 CFR 212.21(d); 84 FR 41292, 

41502 (Aug. 14, 2019). 

441See proposed 8 CFR 212.21(e); 64 FR 28676, 

28681 (May 26, 1999). 

442 84 FR 41292, 41501 (Aug. 14, 2019); 64 FR 

28689, 28689 (May 26, 1999); 64 FR 28676, 28681 

(May 26, 1999). 

443See 64 FR 28676, 28681 (May 26, 1999). 

444See 84 FR 41292, 41501 (Aug. 14, 2019). 

445See 84 FR 41292, 41501–02 (Aug. 14, 2019). 

446See 84 FR 41292, 41502 (Aug. 14, 2019). 

447See proposed 8 CFR 212.21. 

448See 64 FR 28676, 28681 (May 26, 1999). 

dependent on the government for 

subsistence.’’ 431

The 2019 Final Rule, however, did 

not define ‘‘government.’’ In that rule, 

DHS replaced the 1999 definition of 

public charge with a definition that did 

not use the term government and did 

not tie the definition to primary 

dependence on the government for 

subsistence.432 As such, there was no 

need to provide a definition for 

government in that rule. 

As noted above, DHS now proposes to 

codify the primary dependence 

framework reflected in the 1999 Interim 

Field Guidance and the 1999 NPRM and 

proposes to tie the definition of ‘‘likely 

at any time to become a public charge’’ 

to the likelihood of receiving certain 

government assistance. As was the case 

in 1999, the proper focus of the inquiry 

is on the public benefits programs that 

are evidence of dependence. DHS 

believes that, in addition to Federal cash 

assistance programs—SSI and TANF— 

the State, Tribal, territorial, and local 

programs that provide comparable cash 

assistance for income maintenance 

constitute such evidence of dependence. 

Cash assistance for income maintenance 

and long-term institutionalization 

provided by Federal, State, Tribal, 

territorial, and local entities remain the 

‘‘best evidence of whether an alien is 

primarily dependent on the government 

for subsistence.’’ 433

As noted above, some commenters to 

the ANPRM suggested limiting the 

definition of government to only the 

Federal Government for purposes of the 

public charge ground of 

inadmissibility.434 However, DHS 

currently believes that it is appropriate 

to use a definition of government that 

includes all U.S. government entities. 

For much of the time that the concept 

of public charge has been part of our 

immigration statutes, States, Tribes, 

territories, and localities provided much 

of the public support available to 

noncitizens. The Federal Government’s 

role in providing such benefits 

expanded in response to the Great 

Depression in the 1930s and in the Great 

Society programs of the 1960s.435 Even 

with this now more significant Federal 

role, the social safety net in the United 

States continues to consist of a variety 

of Federal, State, Tribal, territorial, and 

local programs that operate 

collaboratively to provide support for 

individuals. These non-Federal 

programs play an important role and are 

interwoven with Federal programs 

(some programs are funded by the 

Federal Government as well as States, 

Tribes, territories, and localities). 

Moreover, there are provisions of law 

that demonstrate Congressional concern 

not only with noncitizens’ receipt of 

Federal public benefits, but also 

noncitizens’ receipt of State, Tribal, 

territorial, and local public benefits. For 

example, in addition to codifying 

Federal deeming provisions in 8 U.S.C. 

1631, Congress included State 

‘‘deeming’’ provisions in 8 U.S.C. 1632, 

which allow States to consider the 

income and resources of a noncitizen’s 

sponsor and spouse in ‘‘determining the 

eligibility and the amount of benefits’’ 

of a noncitizen. 

Additionally, the INA includes a 

number of provisions that focus on 

reimbursing or otherwise holding 

harmless Federal, State, Tribal, 

territorial, and local entities. For 

example, the public charge bond 

provisions of section 213 of the INA, 8 

U.S.C. 1183, are intended to hold 

‘‘States, territories, counties, towns, 

municipalities, and districts’’ of the 

United States ‘‘harmless against such 

alien becoming a public charge’’ and 

allow any ‘‘State, territory, district, 

county, town, or municipality’’ to 

recover the costs of public benefits that 

they have provided from the bond by 

bringing suit. Under section 213A(b)(1) 

of the INA, 8 U.S.C. 1183a(b)(1), if a 

sponsored ‘‘alien’’ receives any meanstested public benefit while the sponsor 

obligations of the Affidavit of Support 

Under Section 213A of the INA are in 

effect, ‘‘the appropriate entity of the 

Federal Government, a State, or any 

political subdivision of a State shall 

request reimbursement by the sponsor.’’ 

Consistent with Congress’ focus on 

benefits provided by Federal, State, 

Tribal, territorial, and local entities, and 

its focus on reimbursing and holding 

harmless those entities, DHS believes 

that it is appropriate and consistent 

with Congressional purpose to define 

government to ‘‘mean[ ] any Federal, 

State, Tribal, territorial, or local 

government entity or entities of the 

United States.’’ 436 Furthermore, insofar 

as the focus of the public charge ground 

of inadmissibility and related statutory 

provisions appears to be minimizing the 

burden on the United States public,437

DHS believes it reasonable to consider 

only expenditures by U.S. government 

entities, rather than foreign government 

entities, under the public charge ground 

of inadmissibility. 

DHS welcomes public comments on 

whether DHS should define government 

in this rule and, if so, whether it should 

be limited to Federal, State, Tribal, 

territorial, and local entities, and why or 

why not. DHS also welcomes public 

comments on whether there is an 

alternative definition for government 

that better captures the benefits 

indicative of primary dependence for 

subsistence. 

7. Additional Definitions 

As explained more fully above, this 

rule proposes to define many of the 

terms defined in prior guidance or 

regulations, including ‘‘likely at any 

time to become a public charge,’’ 438

‘‘public cash assistance for income 

maintenance,’’ 439 ‘‘receipt (of public 

benefits),’’ 440 and ‘‘government,’’ 441

while this rule does not propose to 

define other terms defined in previous 

rulemaking and policy efforts, such as 

‘‘public charge,’’ 442 ‘‘cash,’’ 443 ‘‘public 

benefit,’’ 444 ‘‘alien’s household,’’ 445

and ‘‘primary caregiver’’ 446 for purposes 

of this rule.447 DHS welcomes 

comments on how, if at all, DHS should 

define ‘‘alien’s household’’ for use in 

applying the statutory minimum factors, 

as it did in the 2019 Final Rule. 

Additionally, although this proposed 

rule would define ‘‘public cash 

assistance for income maintenance,’’ 

and explains in this preamble in the 

context of general assistance that it 

would consider benefits provided in the 

form of cash, check, or other money 

instrument but not in-kind benefits, it 

does not provide a definition for what 

is meant by the term ‘‘cash’’ as the 1999 

NPRM included.448 As a result, DHS 

welcomes comments on whether a 

separate definition for the term ‘‘cash’’ 

is needed to explain what type of 

payments constitute public cash 

assistance for income maintenance. DHS 


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449See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 

1182(a)(4)(B)(i). The statute also permits, but does 

not require, the consideration of a sufficient 

Affidavit of Support Under Section 213A of the 

INA, if required. See INA sec. 212(a)(40(B)(ii), 8 

U.S.C. 1182(a)(4)(B)(ii). 

450See 64 FR 28689, 28690 (May 26, 1999). 

451See 64 FR 28689, 28689–90 (May 26, 1999). 

452See 64 FR 28689, 28689–90 (May 26, 1999). 

The 1999 Interim Field Guidance included 

consideration of the past and present receipt of cash 

assistance for income maintenance and noted that 

less weight would be assigned the longer ago the 

benefits were received. 64 FR at 28690. The 1999 

Interim Field Guidance also noted that applicants 

who received cash assistance for income 

maintenance could overcome such receipt by being 

employed full-time or having a sufficient Affidavit 

of Support Under Section 213A of the INA. 64 FR 

at 28690. 

453See 84 FR 41292, 41307 (Aug. 14, 2019). 

454See 84 FR 41292 (Aug. 14, 2019). 

455See 84 FR 41292, 41507 (Aug. 14, 2019). 

456As noted above, during the year during which 

DHS implemented the 2019 Final Rule that has 

been vacated, DHS only issued three denials, which 

were reopened and granted, and two Notices of 

Intent to Deny, which were rescinded. USCIS Field 

Operations Directorate (June 2021). 

457See, e.g., 84 FR 41292, 41315 (Aug. 14, 2019). 

458See 8 CFR 103.2(b)(8). 

459 DHS received comments relating to specific 

factors and their possible negative effect on the 

public charge inadmissibility determination for 

certain populations, as well as comments requesting 

a lighter evidentiary burden. However, few 

commenters provided ideas for consideration of the 

statutory minimum factors or how information 

about the factors should be collected so as to 

minimize public burden. 

also welcomes comments on any other 

definitions needed to explain or clarify 

the public charge inadmissibility 

determination. 

D. Public Charge Inadmissibility 

Determination 

1. Factors 

a. Statutory Minimum Factors 

Under section 212(a)(4) of the INA, 8 

U.S.C. 1182(a)(4), officers are required 

to consider specific minimum factors in 

determining whether an applicant 

seeking admission to the United States 

or seeking to adjust status to that of 

lawful permanent resident is likely at 

any time to become a public charge. 

These factors include the noncitizen’s 

age; health; family status; assets, 

resources, and financial status; and 

education and skills.449 The statute does 

not indicate the circumstances under 

which any of these factors are to be 

treated positively or negatively, how 

much weight the factors should be 

given, or what evidence or information 

is relevant to the each of the statutory 

minimum factors. 

In the 1999 Interim Field Guidance, 

the former INS noted that officers must 

consider the mandatory statutory 

factors, and that ‘‘[t]he existence or 

absence of a particular factor should 

never be the sole criterion for 

determining if an alien is likely to 

become a public charge.’’ 450 The 

guidance suggested that the factors 

would be either positive or negative,451

but did not explain what evidence or 

information officers should consider in 

evaluating these factors listed in section 

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

1182(a)(4)(B), or the weight to be given 

to a particular factor, in the totality of 

the circumstances.452

In the 2019 Final Rule (that is no 

longer in effect), DHS also required 

officers to consider the mandatory 

statutory factors in the totality of the 

circumstances when assessing an 

applicant’s likelihood of becoming a 

public charge at any time in the 

future.453 That rule provided certain 

standards for officers to use in assessing 

each factor and also identified detailed 

evidence that USCIS deemed relevant 

for the consideration of these factors.454

The 2019 Final Rule also required that 

applicants for adjustment of status 

submit Form I–944, Declaration of Self 

Sufficiency,455 which imposed 

substantial burdens on the public and 

on DHS due to the nature and volume 

of the information collected as part of 

the required initial evidence, while 

ultimately resulting in few adverse 

public charge inadmissibility 

determinations during the time the rule 

was in effect.456

A number of the comments provided 

in response to the 2018 NPRM stated 

that the proposal would result in a high 

paperwork burden on applicants that 

could discourage eligible individuals 

from applying for adjustment of 

status.457 Moreover, commenters 

responding to the ANPRM strongly 

opposed the reintroduction of Form I– 

944 due to its substantial evidentiary 

burdens, which resulted in high 

administrative costs for organizations 

assisting applicants to be able to 

understand, explain, and collect the 

required information. The commenters 

on the ANPRM also noted that the 

evidentiary requirements in the 2019 

Final Rule, which required applicants to 

obtain and submit a great deal of 

documentation, were burdensome and 

in some cases duplicative. 

DHS therefore proposes to maintain 

the longstanding and straightforward 

framework set forth in the 1999 Interim 

Field Guidance, in which officers 

consider the statutory minimum factors 

and the Affidavit of Support Under 

Section 213A of the INA, where 

required, in the totality of the 

circumstances, without separately 

codifying the standard and evidence 

required for each factor as was done in 

the 2019 Final Rule. This will reduce 

burdensome and unnecessary 

evidentiary and information collection 

requirements pertaining to the statutory 

minimum factors, which in turn will 

decrease the burdens on DHS when 

reviewing and evaluating information 

and evidence. Rather than creating a 

new form to collect information 

pertaining to the statutory minimum 

factors when an applicant applies for 

adjustment of status with USCIS, DHS 

will collect information relevant to the 

statutory minimum factors from existing 

information collections, e.g., 

information pertaining to the health 

factor will be obtained from Form I–693, 

Report of Medical Examination and 

Vaccination Record, and DHS proposes 

adding new questions to the existing 

Form I–485 regarding the other statutory 

minimum factors. As with any benefit 

request, officers may request additional 

information or evidence relating to any 

of the statutory minimum factors as 

needed, on a case-by-case basis, when 

indicated by evidence in the record, 

including responses to questions on 

Form I–485 or other forms.458

DHS requests public comments on 

how each of the statutory minimum 

factors should be considered in the 

totality of the circumstances in a public 

charge inadmissibility determination. 

DHS is particularly interested in 

evidence and data that would inform to 

what extent each factor would impact 

whether a noncitizen is likely at any 

time to become a public charge, and 

how these factors can be considered 

without placing an unreasonable 

evidentiary burden on applicants for 

adjustment of status. In particular, DHS 

invites public comment on how it 

should define and apply family status; 

assets, resources, and financial status; 

and education and skills. DHS requested 

comments on this topic in the ANPRM. 

While many commenters on the 

ANPRM provided their thoughts on the 

statutory minimum factors, the 

commenters generally did not provide 

recommendations about the best way for 

DHS to define or apply the factors.459

DHS therefore requests additional 

public input, noting, respectfully, that 

DHS cannot entertain requests to 

exclude from consideration any of the 

congressionally established statutory 

minimum factors. 

DHS also requests public comments 

on the initial evidence applicants 

should provide regarding each of the 

statutory minimum factors. DHS is 

particularly interested in what specific 

questions should be included on the 

Form I–485, Application to Register 


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460 INA sec. 213A(a)(1)(A), 8 U.S.C. 

1183a(a)(1)(A). However, a sponsor who is on active 

duty (other than active duty for training) in the 

Armed Forces of the United States and filed a 

petition on behalf of a spouse or child only needs 

to demonstrate support equal to at least 100 percent 

of the Federal poverty line. See INA sec. 213A(f)(3), 

8 U.S.C. 1183a(f)(3). 

461 INA sec. 213A, 8 U.S.C. 1183a(a)(1). 

462 Ibid. 

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

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

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

465See H.R. Rep. No. 104–651, at 1449 (1996) (in 

explaining the provision, emphasizing that the 

Affidavit of Support Under Section 213A of the INA 

would permit benefit-providing agencies to seek 

reimbursement). 

466 64 FR 28689, 28690 (May 26, 1999). 

467 64 FR 28689, 28690 (May 26, 1999) (‘‘For 

instance, a work authorized alien who has current 

full-time employment or an [Affidavit of Support] 

should be found admissible despite past receipt of 

cash public benefits, unless there are other adverse 

factors in the case.’’) The 1999 Interim Field 

Guidance also states that ‘‘[u]nder the new [affidavit 

of support] rules, all family-based immigrants (and 

some employment-based immigrants) will have a 

sponsor who has indicated an ability and 

willingness to come to [the immigrant’s] 

assistance.’’ 64 FR 28689, 28690 (May 26, 1999). 

468 64 FR 28676, 28682 (May 26, 1999). 

469 Ibid. 

470 84 FR 41292, 41440 (Aug. 14, 2019). 

471 84 FR 41292, 41197 (Aug. 14, 2019). 472 84 FR 41292, 41198 (Aug. 14, 2019). 473 84 FR 41292, 41440 (Aug. 14, 2019). 474 84 FR 41292, 41198 (Aug. 14, 2019). However, 

the statute requires a finding of inadmissibility on 

public charge grounds if the noncitizen is required 

to submit an affidavit of support and fails to do so. 

INA sec. 212(a)(4)(D), 8 U.S.C. 1182(a)(4)(D). 475 84 FR 41114, 41198 (Aug. 14, 2019). 476See INA sec. 213A, 8 U.S.C. 1183a. See Erler 

v. Erler, 824 F.3d 1173 (9th Cir. 2016); Belevich v. 

Thomas, 17 F.4th 1048 (11th Cir. 2021); Wenfang 

Liu v. Mund, 686 F.3d 418 (7th Cir. 2012). 

Permanent Residence or Adjust Status, 

to document information and evidence 

relevant to the statutory minimum 

factors without placing an unreasonable 

evidentiary burden on the public or 

significantly delaying adjustment of 

status adjudications by USCIS. 

b. Affidavit of Support Under Section 

213A of the INA 

IIRIRA amended the INA by setting 

forth requirements for submitting what 

would be an enforceable affidavit of 

support (i.e., the current Affidavit of 

Support Under Section 213A of the 

INA). An Affidavit of Support Under 

Section 213A of the INA is a contract 

between the sponsor and the U.S. 

Government that imposes on the 

sponsor a legally enforceable obligation 

‘‘to provide support to maintain the 

sponsored alien at an annual income 

that is not less than 125 percent of the 

Federal poverty line during the period 

in which the affidavit is 

enforceable.’’ 460

Under section 212(a)(4)(C) and (D) of 

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

most family-based immigrants and some 

employment-based immigrants are 

required to submit an Affidavit of 

Support Under Section 213A of the INA 

executed by a sponsor to avoid being 

found inadmissible based on the public 

charge ground.461 This requirement 

applies even if the officer would 

ordinarily find, after reviewing the 

statutory minimum factors, that the 

intending immigrant is not likely at any 

time to become a public charge.462

Where such an Affidavit of Support 

Under Section 213A of the INA has been 

executed on an applicant’s behalf, the 

statute permits DHS to consider it along 

with the statutory minimum factors in 

the public charge inadmissibility 

determination.463

A sufficient Affidavit of Support 

Under Section 213A of the INA does 

not, alone, result in a finding that a 

noncitizen is not likely at any time to 

become a public charge due to the 

statute’s requirement to consider the 

statutory minimum factors.464

Additionally, an Affidavit of Support 

Under Section 213A is not intended to 

guarantee that an intending immigrant 

will not become primarily dependent on 

the government for subsistence, as 

demonstrated by either the receipt of 

public cash assistance for income 

maintenance or long-term 

institutionalization at government 

expense, but rather, to ensure that 

public benefit granting agencies could 

be reimbursed for certain aid provided 

to the sponsored noncitizen.465

Under the 1999 Interim Field 

Guidance, a sufficient Affidavit of 

Support Under Section 213A of the INA 

should be considered in the totality of 

the circumstances along with the 

statutory minimum factors in the public 

charge inadmissibility determination.466

The 1999 Interim Field Guidance does 

not explain whether a required Affidavit 

of Support Under Section 213A of the 

INA is a positive factor or otherwise 

explain how an officer should consider 

the affidavit in the totality of the 

circumstances, but does imply that 

having a sufficient affidavit is a positive 

consideration in the totality of the 

circumstances.467 The 1999 NPRM 

proposed that the officer ‘‘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.’’ 468 Under the 1999 NPRM, ‘‘[n]o 

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.’’ 469

In the 2019 Final Rule, when a 

required sufficient Affidavit of Support 

Under Section 213A of the INA was 

submitted, DHS would consider the 

likelihood that the sponsor who 

executed the affidavit ‘‘would actually 

provide the statutorily required amount 

of financial support to the alien, and 

any other related considerations.’’ 470

The preamble to that rule noted that 

DHS generally considered a sufficient 

Affidavit of Support Under Section 

213A of the INA to be a positive factor 

in the totality of the circumstances,471

and when determining how much 

positive weight to give a sufficient 

affidavit in the totality of the 

circumstances, USCIS assessed the 

likelihood that the sponsor who 

executed the affidavit would actually 

provide financial support to the 

applicant by looking at the relationship 

between the sponsor and the applicant, 

whether they lived together, and 

whether the sponsor had submitted any 

Affidavit of Support Under Section 

213A of the INA on behalf of other 

individuals.472 However, under the 

2019 Final Rule, a sufficient Affidavit of 

Support Under Section 213A of the INA 

would be a negative factor in the totality 

of the circumstances if the evidence 

reflected the sponsor’s inability or 

unwillingness of the sponsor to 

financially support the noncitizen.473

Nonetheless, under the 2019 Final Rule, 

DHS noted that a sufficient Affidavit of 

Support Under Section 213A of the INA 

would not alone be a sufficient basis to 

determine whether an applicant is likely 

at any time to become a public charge, 

as the presence of a sufficient affidavit 

does not eliminate the need to consider 

all of the statutory minimum factors in 

the totality of the circumstances.474

Under the statute, a sufficient 

Affidavit of Support Under Section 

213A of the INA, alone, is not a 

sufficient basis to determine the 

likelihood at any time of becoming a 

public charge given that the statute 

requires DHS to consider the statutory 

minimum factors, and does not require 

the same for the affidavit.475 An 

Affidavit of Support Under Section 

213A of the INA is an enforceable 

contract and DHS believes that it is 

unnecessary to evaluate a sponsor’s 

subjective intent to support the 

applicant and abide by the terms of the 

contract when making a public charge 

inadmissibility determination in the 

totality of the circumstances.476 A 

sponsor has the burden under section 

213A of the INA, 8 U.S.C. 1183a, to 

demonstrate that their Affidavit of 

Support Under Section 213A of the INA 

is sufficient. Congress established the 


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477See INA sec. 213A(a)(1)(A), 8 U.S.C. 

1183a(a)(1)(A). See e.g., Erler v. Erler, 824 F.3d 1173 

(9th Cir. 2016), Belevich v. Thomas, 17 F.4th 1048 

(11th Cir. 2021), Wenfang Liu v. Mund, 686 F.3d 

418 (7th Cir. 2012). 

478See proposed 8 CFR 212.22(a)(2). 

479 64 FR 28689, 28691 (May 26, 1999). 

480 64 FR 28676, 28683 (May 26, 1999). 

481 64 FR 28689, 28690 (May 26, 1999). 64 FR 

28676, 28683 (May 26, 1999). 

482 Ibid. 

483See 84 FR 41292, 41503–14504 (Aug. 14, 

2019). 

484See 84 FR 41292, 41503 (Aug. 14, 2019). 

485See 84 FR 41292, 41504 (Aug. 14, 2019). 

486See proposed 8 CFR 212.22(a)(3). 

487For example, Congress has greatly expanded 

access to HCBS since 1999 by establishing a number 

of new programs, including the Money Follows the 

Person program and the Balancing Incentive 

Program, and new Medicaid State plan authorities, 

including Community First Choice (42 U.S.C. 

1396n(k)) and the HCBS State Plan Option under 

42 U.S.C. 1396n(i). Most recently, Congress 

provided increased funding to expand HCBS in the 

American Rescue Plan. These programs are in 

addition to the HCBS waiver program under 42 

U.S.C. 1396n(c), first authorized in the Social 

Security Act in the early 1980s. As a result of a 

Continued 

requirements for a sponsor in INA 

213A(f), 8 U.S.C. 1183a(f), and these 

requirements do not include a 

demonstration of the sponsor’s 

subjective intent. Once DHS determines 

that an Affidavit of Support Under 

Section 213A of the INA is sufficient, it 

would be duplicative to reevaluate 

whether or not the sponsor’s binding 

Affidavit of Support Under Section 

213A of the INA is sufficient when 

conducting a public charge 

inadmissibility determination. DHS 

believes that such a reevaluation would 

create an unnecessary burden for DHS 

adjudicators and the public. 

DHS believes that, in the context of 

public charge inadmissibility 

determinations, the approach taken in 

1999 to consider only the existence of 

a sufficient Affidavit of Support Under 

Section 213A of the INA, when 

required, and not assess whether the 

sponsor who executed the affidavit 

would actually provide financial 

support to the noncitizen, gives proper 

consideration to such an affidavit, 

consistent with the statutory provision. 

While the 1999 Interim Field 

Guidance did not expressly direct 

officers to favorably consider an 

Affidavit of Support Under Section 

213A of the INA, DHS believes that 

treating a sufficient affidavit favorably 

was implied and is wholly consistent 

with the statute. DHS believes that 

treating an Affidavit of Support Under 

Section 213A of the INA favorably is 

supported by the fact that sponsored 

noncitizens are less likely to turn to the 

government first for financial support 

because they can and have been known 

to successfully enforce the statutory 

requirement that sponsors provide 

financial support to the sponsored 

noncitizen at the level required by 

statute for the period the obligation is in 

effect.477 Additionally, DHS believes 

that treating a sufficient Affidavit of 

Support Under Section 213A of INA 

favorably is supported by the Federal 

and State deeming provisions of 8 

U.S.C. 1631 and 1632, which may 

reduce the likelihood that a sponsored 

noncitizen would be eligible for a 

means-tested benefit, and therefore, less 

likely to become a public charge at any 

time in the future. 

Accordingly, DHS proposes to 

favorably consider an Affidavit of 

Support Under Section 213A of the INA 

in the totality of the circumstances 

analysis, when required to be submitted 

under section 212(a)(4)(C) or (D) of the 

INA, 8 U.S.C. 1182(a)(4)(C) or (D), as 

long as it meets the requirements of 

section 213A of the INA, 8 U.S.C. 1183a, 

and 8 CFR 213a.478 DHS believes that, 

while a sufficient Affidavit of Support 

Under Section 213A does not, in and of 

itself, mean an intending immigrant is 

not likely at any time to become a 

public charge, the existence of such an 

affidavit is indeed relevant to making 

that determination and should be 

considered favorably (i.e., a positive 

factor that makes an applicant less 

likely at any time to become a public 

charge in the totality of the 

circumstances). 

c. DHS Welcomes Public Comments or 

Data Regarding The Connection 

Between Being a Sponsored Noncitizen 

Who Has Submitted a Sufficient 

Affidavit of Support Under Section 

213A of the INA and the Likelihood of 

Being Primarily Dependent on the 

Government for Subsistence. Current/ 

Past Receipt of Public Benefits 

The 1999 Interim Field Guidance, 

1999 NPRM, and 2019 Final Rule all 

considered an applicant’s past and 

current receipt of public benefits as part 

of the public charge inadmissibility 

determination, although the framework 

for considering past and current receipt 

of benefits differed. 

Under the 1999 Interim Field 

Guidance 479 and 1999 NPRM,480

current or past receipt of public cash 

assistance for income maintenance did 

not automatically make a noncitizen 

inadmissible as likely at any time to 

become a public charge, nor did past 

institutionalization for long-term care at 

government expense. Rather, an 

applicant’s history of benefit receipt was 

one of the factors to be considered in the 

totality of the circumstances in a public 

charge inadmissibility determination. 

The longer ago an applicant received 

cash benefits or was institutionalized at 

government expense, the less weight the 

applicant’s receipt of such benefits 

would be given as a predictor that the 

applicant would receive these benefits 

in the future.481 Additionally, the length 

of time an applicant received benefits 

and the amount of benefits received are 

considered under the 1999 Interim Field 

Guidance.482

In the 2019 Final Rule, past and 

current receipt of public benefits were 

considered a negative factor in the 

totality of the circumstances.483 Under 

the 2019 Final Rule, DHS considered 

whether the applicant had applied for, 

received, or been certified or approved 

to receive any of the defined public 

benefits.484 Past or current receipt, as 

well as certification or approval to 

receive one or more of the defined 

public benefits, for more than 12 

months in the aggregate within any 36- 

month period, beginning no earlier than 

36 months before the application for 

admission or adjustment of status, was 

treated as a heavily weighted negative 

factor in the totality of the 

circumstances.485

DHS proposes to consider a 

noncitizen’s current and past receipt of 

public cash assistance for income 

maintenance and long-term 

institutionalization at government 

expense in making a public charge 

inadmissibility determination in the 

totality of the circumstances. As stated 

earlier in this proposed rule, DHS 

believes that, by focusing on cash 

assistance for income maintenance or 

long-term institutionalization at 

government expense, DHS can identify 

those individuals who are likely to 

become primarily dependent on the 

government for subsistence, without 

interfering with other benefit programs 

that serve important public interests. 

When making a public charge 

inadmissibility determination, DHS will 

consider the amount, duration, and 

recency of receipt of such benefits.486

For example, the longer ago a noncitizen 

received such benefits, the less likely 

such receipt helps predict future receipt 

of public benefits. By contrast, the 

longer a noncitizen has received such 

benefits in the past and the greater the 

amount of benefits, the stronger the 

implication that the noncitizen is likely 

to become a public charge. As DHS 

acknowledged above, given the 

significant advancements in the 

availability of Medicaid-funded HCBS 

since the 1999 Interim Field Guidance 

was issued,487 individuals who 


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combination of these new HCBS programs and 

authorities and the Supreme Court’s Olmstead 

decision in 1999, States have significantly 

expanded HCBS. See, e.g., CMS Long Term Services 

and Supports Rebalancing Toolkit, available at 

https://www.medicaid.gov/medicaid/long-termservices-supports/downloads/ltss-rebalancingtoolkit.pdf. 

488See proposed 8 CFR 212.22(a)(3). 

489See 64 FR 28689 (May 26, 1999). 

490See 64 FR 28689, 28690 (May 26, 1999); 64 FR 

28676, 28683 (May 26, 1999); 83 FR 51114, 51178 

(Oct. 10, 2018); 84 FR 41292, 41363 (Aug. 14, 2019). 

491See proposed 8 CFR 212.22(a)(4). 

492One analysis of American Community Survey 

data found that average State percentages from 2012 

to 2016 of people with disabilities living in 

institutions were very low, ranging from 3.2 percent 

for Nevada to a high of 8.6 percent in North Dakota. 

ADA Participatory Action Research Consortium 

(ADA–PARC), Percentage of People with 

Disabilities Living in an Institution, 2012 to 16, 

available at https://www.centerondisability.org/ 

ada_parc/utils/indicators.php?id=1 (accessed Jan. 

27, 2022). 

493 29 U.S.C. 794(a). 

494 29 U.S.C. 705(20)(B). 

495 45 CFR 84.4(l)(4) (using the older term 

‘‘qualified handicapped person’’); 6 CFI5.3(e)(2). 496Sch. Bd. of Nassau Cty. v. Arline, 480 U.S. 

273, 287 (1987). 497 ‘‘27 years after [the ADA’s] passage, people 

with disabilities still face many outdated attitudes 

and stereotypes. For example, some believe that 

people with disabilities cannot live independently 

or contribute meaningfully to the workforce or their 

communities.’’ National Council on Disability, 

National Disability Policy: A Progress Report (Oct. 

2017), at 52, available at https://ncd.gov/sites/ 

default/files/NCD_A%20Progress%20Report_

508.pdf (accessed Feb. 4, 2022). 

498 In Matter of Martinez-Lopez, 10 I&N Dec. 409, 

421–422 (BIA 1962; Att’y Gen. 1964), the Attorney 

General opined that the statute requires a specific 

circumstance suggesting the individual may become 

a public charge to be present, not merely ‘‘a 

showing of a possibility that an alien will require 

public support.’’ Id. at 421. Although the individual 

at issue in the decision did not have a disability, 

the decision contains a reference to disability, 

among other factors, that may be such a 

circumstance. Id. (‘‘[s]ome specific circumstances, 

such as mental or physical disability . . . or other 

fact reasonably tending to show that the burden of 

supporting the alien is likely to be cast on the 

public, must be present.’’). The Attorney General 

did not indicate that any disability reasonably tends 

to show that an individual is likely to become a 

public charge, irrespective of the particular 

disability or the totality of the individual’s 

circumstances. Instead, the Attorney General called 

for a case-by-case assessment of the individual’s 

particular circumstances, including whether a 

specific disability might have a bearing on the 

public charge inadmissibility determination. This 

interpretation is consistent with the approach taken 

in this proposed rule. DHS notes that this decision 

predates Section 504 by nearly a decade and the 

ADA by over 25 years. 

previously experienced long-term 

institutionalization may not need longterm institutionalization in the future, 

and may instead be able to rely on their 

own resources for housing and other 

expenses while using Medicaid-funded 

HCBS only as a supplement. DHS also 

intends to analyze the available 

empirical data relating to public benefits 

use to determine the predictive value of 

past and current receipt of benefits in 

making public charge inadmissibility 

determinations. 

Under this proposed rule, current 

and/or past receipt of these benefits, 

alone, would not be a sufficient basis to 

determine whether an applicant is likely 

at any time to become a public 

charge.488 DHS will consider the current 

and/or past receipt of these benefits in 

the totality of the noncitizen’s 

circumstances, along with the other 

factors. DHS will consider the amount 

and duration of receipt, as well as how 

recently the noncitizen received the 

benefits, and for long-term 

institutionalization, evidence submitted 

by the applicant that the applicant’s 

institutionalization violates Federal law, 

including the Americans with 

Disabilities Act or the Rehabilitation 

Act. However, current and/or past 

receipt of these benefits will not alone 

be a sufficient basis to determine 

whether the noncitizen is likely at any 

time to become a public charge. 

This proposed approach is consistent 

with the 1999 Interim Field 

Guidance 489 and aspects of the 2019 

Final Rule. INS and DHS have 

consistently considered the past and 

current receipt of benefits in making 

public charge inadmissibility 

determinations and have consistently 

considered such receipt in the totality of 

the circumstances, taking into account 

the amount, duration, and recency of 

the receipt. INS and DHS have also 

consistently stated that the past or 

current receipt of benefits alone is not 

a sufficient basis to determine whether 

an applicant is likely at any time to 

become a public charge.490 However, 

unlike in the 2019 Final Rule, DHS is 

not proposing to add any heavily 

weighted negative factors because DHS 

has determined that each public charge 

inadmissibility determination is heavily 

fact-dependent and factors that may 

weigh heavily in one case may not have 

equal weight in another depending on 

the totality of the applicant’s 

circumstances. Because DHS has 

proposed to consider the statutory 

minimum factors in their totality, 

without separately defining each factor 

and its weight, DHS proposes to 

similarly consider current and past 

benefit use as one element within the 

totality of the circumstances. 

d. Disability Alone Is Not a Sufficient 

Basis To Determine Whether an 

Applicant Is Likely at Any Time To 

Become a Public Charge 

DHS proposes to clarify that the 

presence of a disability alone is not a 

sufficient basis to determine whether a 

noncitizen is likely at any time to 

become a public charge.491 DHS will not 

presume that an individual having a 

disability in and of itself means that the 

individual is in poor health or is likely 

to receive cash assistance for income 

maintenance or require long-term 

institutionalization at government 

expense, or otherwise presume that 

their disability in and of itself 

negatively impacts any of the other 

statutory minimum factors. For 

example, many disabilities do not 

impact an individual’s health or require 

extensive medical care, and the vast 

majority of people with disabilities do 

not use institutional care.492

Section 504 of the Rehabilitation Act 

prohibits discrimination against a 

qualified individual with a disability 

solely on the basis of that disability 

under any program or activity receiving 

Federal financial assistance or under 

any federally conducted program or 

activity.493 Under Section 504, an 

individual with a disability is defined as 

a person with: (i) A physical or mental 

impairment that substantially limits one 

or more major life activities; (ii) a record 

of such an impairment; or (iii) being 

regarded as having such an 

impairment.494 An individual with a 

disability is a ‘‘qualified’’ individual 

with a disability if they meet the 

essential eligibility requirements for the 

receipt of the services they are 

seeking.495 A fundamental purpose of 

Section 504 is to prohibit decisions on 

the basis of ‘‘prejudice, stereotypes, or 

unfounded fear’’ about people with 

disabilities.496 Unfounded assumptions 

about people with disabilities, including 

that they are in poor health or are 

unable to work, are both pervasive and 

inaccurate.497

The 1999 NPRM did not directly 

address how the presence of disability 

should be considered in a public charge 

determination and the 1999 Interim 

Field Guidance only references 

disability in the context of citing a 1964 

Attorney General decision in Matter of 

Martinez-Lopez relating to the totality of 

circumstances test.498 Under the 2019 

Final Rule, discussed in detail in the 

background section, while disability 

was not explicitly mentioned in the 

regulatory text, a number of negatively 

weighted factors impacted people with 

disabilities. For example, as part of the 

health factor, DHS treated an applicant’s 

diagnosis with a medical condition that 

was likely to require extensive medical 

treatment or institutionalization or that 

would interfere with the applicant’s 

ability to care for themself, to attend 

school, or to work upon admission or 

adjustment of status as a heavily 

weighted negative factor in the totality 


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499See 84 FR 41292, 41502 (Aug. 14, 2019). 

500Section 504 defines ‘‘disability’’ as 

impairments that substantially limit one or more 

major life activities, including caring for oneself, 

working, or learning. 42 U.S.C. 12102(2)(A). 

501See 84 FR 41292, 41504 (Aug. 14, 2019). 

502Cook County, 962 F.3d at 227–228 (7th Cir. 

2020). 

503Cook County, 962 F.3d at 227–228 (7th Cir. 

2020). 

504Cook County, 962 F.3d at 227–228 (7th Cir. 

2020). 

505Cook County, 962 F.3d at 227–228 (7th Cir. 

2020) (‘‘The alien is not a full-time student and is 

authorized to work, but is unable to demonstrate 

current employment, recent employment history, or 

a reasonable prospect of future employment.’’). 

506 86 FR 47025, 47029 (Aug. 23, 2021). 

507Proposed 8 CFR 212.22(b). 

508 Ibid. 

509 Ibid. 

510Section 212(a)(4)(B) of the INA, 8 U.S.C. 

1182(a)(4)(B). 

511See 64 FR 28689, 28690 (May 26, 1999) citing 

Zambrano v. INS, 972 F.2d 1122 (9th Cir. 1992), 

judgment vacated on other grounds, 509 U.S. 918) 

(1993). 

512See, e.g., Zambrano v. INS, 972 F.2d 1122 (9th 

Cir. 1992), judgment vacated on other grounds, 509 

U.S. 918 (1993). 

513 64 FR 28689, 28690 (May 26, 1999). 

514 84 FR 41292, 41502 (Aug. 14, 2019). 

515 84 FR 41292, 41295 (Aug. 14, 2019). 

of the circumstances.499 All of these 

conditions constitute disabilities under 

Section 504.500 Additionally, under the 

2019 Final Rule, an applicant with a 

disability could have other heavily 

weighted negative factors present in 

their case, including if they received 

disability services through Medicaid.501

As discussed previously, several 

lawsuits challenged the 2019 Final Rule 

as violating Section 504 of the 

Rehabilitation Act. The U.S. Court of 

Appeals for the Seventh Circuit found 

that ‘‘the [r]ule disproportionately 

burdens disabled people and in many 

instances [the rule] makes it all but 

inevitable that a person’s disability will 

be the but-for cause of her being deemed 

likely to become a public charge.’’ 502

For example, the court noted that many 

people with disabilities would be 

subject to a heavily weighted negative 

factor.503 The court also pointed out that 

people with disabilities would be likely 

to be subject to a number of other 

heavily weighted negative factors 

because only Medicaid, and not private 

health insurance, covers the benefits 

and services that help people with 

disabilities work and thus avoid 

becoming public charges.504 Under the 

2019 Final Rule, using Medicaid for 

more than 12 months in the aggregate 

within any 36-month period was a 

heavily weighted negative factor. Yet, if 

a noncitizen with a disability had 

forgone the receipt of Medicaid to avoid 

the 2019 Final Rule’s negative 

immigration consequences, and 

therefore could not obtain the services 

that are only available with Medicaid 

coverage to allow that individual to 

work or attend school, the noncitizen 

could potentially be subject to the 

heavily weighted negative factor 

addressing current employment, lack of 

employment history or prospect of 

future employment.505 In addition, 

causing noncitizens to avoid the very 

supplemental benefits that will 

contribute to their health and selfsufficiency is inconsistent with 

Congress’ purpose. 

Taking into consideration these issues 

identified in litigation, in the ANPRM 

DHS requested comment on the 

treatment of disability in DHS’s analysis 

of the health factor in light of Section 

504’s prohibition against discrimination 

on the basis of disability.506 DHS 

received extensive comment on this 

topic. For example, in a joint comment 

letter, 17 organizations representing 

people with disabilities wrote 

‘‘disability equates neither to poor 

health nor long-term primary 

dependence on the government for 

subsistence’’ and ‘‘many people with 

disabilities live healthy lives and 

support themselves.’’ Another 

commentor stressed that disability is a 

‘‘life condition,’’ not necessarily a 

health condition, and that the presence 

of a disability does not equate to having 

a chronic medical condition or the need 

for ongoing medical treatment, 

including institutionalization. 

In light of these comments and the 

relevant authorities and case law, DHS 

believes that clarifying that disability 

alone is not a sufficient basis to 

determine whether an applicant is likely 

at any time to become a public charge 

is necessary and appropriate. This 

clarification reflects DHS’s 

consideration of the extensive input of 

commentors to the ANPRM and is 

consistent with the proposed totality of 

the circumstances framework set forth 

in this proposed rule. 

2. Totality of the Circumstances 

DHS proposes that the ‘‘[t]he 

determination of an alien’s likelihood of 

becoming a public charge at any time in 

the future must be based on the totality 

of the alien’s circumstances.’’ 507 The 

proposed regulation further states that 

none of the statutory minimum factors 

other than the lack of a sufficient 

Affidavit of Support Under Section 

213A of the INA, if required, ‘‘should be 

the sole criterion for determining if an 

alien is likely to become a public 

charge’’ 508 and that ‘‘DHS may 

periodically issue guidance to 

adjudicators to inform the totality of the 

circumstances assessment. Such 

guidance will consider how these 

factors affect the likelihood that the 

alien will become a public charge at any 

time based on an empirical analysis of 

the best-available data as 

appropriate.’’ 509

Under section 212(a)(4)(B) of the INA, 

8 U.S.C. 1182(a)(4)(B), officers are 

required, at a minimum, to consider the 

noncitizen’s age; health; family status; 

assets, resources, and financial status; 

and education and skills, and may 

consider a sufficient Affidavit of 

Support Under Section 213A of the INA, 

where required.510 Although the statute 

does not expressly include a totality of 

the circumstances test, as noted in the 

1999 Interim Field Guidance, this test 

‘‘has been developed in several Service, 

BIA, and Attorney General decisions 

and has been codified in the Service 

regulations implementing the 

legalization provisions of the 

Immigration Reform and Control Act of 

1986.’’ 511 Federal courts have also 

endorsed this ‘‘totality of the 

circumstances’’ test.512 As a result, the 

1999 Interim Field Guidance required 

officers to make public charge 

inadmissibility determinations in the 

totality of the circumstances and 

indicated that no single factor, other 

than the lack of a sufficient Affidavit of 

Support, when required, would control 

the decision.513

Consistent with this historical 

approach to public charge 

inadmissibility determinations, the 2019 

Final Rule also adopted a totality of the 

circumstances approach.514 However, in 

addition to the prospective 

determination based on the totality of 

the circumstances framework, in which 

the officer was required to weigh ‘‘all 

factors that are relevant to whether the 

alien is more likely than not at any time 

in the future’’ to become a public 

charge, the totality test in that rule 

detailed standards and new evidentiary 

requirements related to the factors that 

went into the analysis, designating some 

factors as heavily weighted positive or 

heavily weighted negative factors.515

In addition to the evidentiary and 

paperwork burdens established by the 

2019 Final Rule and discussed above, 

DHS has determined that the totality of 

the circumstances framework 

established by the 2019 Final Rule was 

overly prescriptive. As reflected in 

Congress’s instruction that several 

factors specific to the applicant must be 

considered, each public charge 


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516 84 FR 41292, 41400 (Aug. 14, 2019). 

517 Ibid. 

518For more information about SIPP, see https:// 

www.census.gov/programs-surveys/sipp/about.html 

(accessed Jan. 18, 2022). 

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

520See 64 FR 28689 (May 26, 1999). 

521See 84 FR 41292, 41502 (Aug. 14, 2009). 

522 8 CFR 103.3(a)(1)(i). 

523 8 CFR 103.3(a)(1)(i). 

524See proposed 8 CI212.22(c). 

525See 8 CFR 103.3(a)(1)(i). See also USCIS Policy 

Manual Vol. 7 Part A Ch. 11, https://www.uscis.gov/ 

policy-manual/volume-7-part-a-chapter-11. 

526See USCIS Policy Manual, Volume 1—General 

Policies and Procedures, Part E—Adjudications, 

Chapter 6, Evidence and Chapter 9, Rendering a 

Decision. See also 8 CFR 103.2(b)(8) and (16)(iv). 

527See 84 FR 41292, 41501 (Aug. 14, 2019). 

inadmissibility determination must be 

individualized and based on the 

evidence presented in the specific case, 

and the relative weight of each factor 

and associated evidence is necessarily 

determined by the presence or absence 

of specific facts. Consequently, the 

designation of some factors as always 

‘‘heavily weighted’’ suggested a level of 

mathematical precision that would be 

unfounded and inconsistent with the 

long-standing standard of considering 

the totality of the individual’s 

circumstances. DHS may periodically 

issue guidance that will consider how 

the factors affect the likelihood that a 

noncitizen will become a public charge 

at any time based on an empirical 

analysis of the best available data as 

appropriate. In light of this intention to 

issue guidance to generally inform the 

predictive nature of the factors as an 

objective aspect of the analysis, as 

discussed below, declining to take this 

categorical approach of weighting the 

relevant factors would best enable 

adjudicators to fully consider the 

applicant’s individual circumstances 

and evidence presented, thereby better 

achieving the goals of the public charge 

inadmissibility determination. DHS’s 

proposal therefore includes elements 

consistent with the standard previously 

in place for over 20 years, under which 

officers will consider the statutory 

minimum factors and the Affidavit of 

Support Under Section 213A of the INA 

(when required) in the totality of the 

circumstances, while also introducing 

an empirical element as appropriate. 

In connection with the 2019 Final 

Rule, DHS received a public comment 

requesting that DHS establish a base rate 

of likelihood that a noncitizen would 

become a public charge based on 

empirical evidence.516 In response to 

the comment, DHS explained the data 

and practical limitations it encountered 

in declining to base the totality of the 

circumstances on an empirical data 

model.517 As mentioned above, DHS is 

now proposing that USCIS would 

conduct empirical analyses of the best 

available data as appropriate to inform 

the agency on how the factors included 

in the totality of circumstances would 

affect an applicant’s likelihood of 

becoming a public charge. This analysis 

may include Survey of Income and 

Program Participation (SIPP) panel data 

and other appropriate data sources 

USCIS identifies for this purpose.518

USCIS is not proposing to designate a 

specific empirical model for use in the 

adjudication process in order to predict 

precise probabilities of becoming a 

public charge for individual applicants. 

In addition, DHS is not proposing a 

fixed data source or methodology 

because the availability of data, as well 

as the efficacy of empirical models, are 

continuously evolving. DHS intends for 

any empirical analysis it conducts to 

inform the predictive nature of the 

various factors to be taken into 

consideration in conjunction with the 

assessment of the applicant’s individual 

circumstances when making a public 

charge inadmissibility determination. In 

that vein, DHS welcomes public 

comments on the data sources that may 

be best suited to this type of analysis or 

studies that may inform USCIS’ 

development of the methodology, as 

well as any feedback regarding how 

empirical data should be used in 

making the predictive determination of 

whether a noncitizen is likely to become 

a public charge at any time in the 

totality of the circumstances. 

3. Denial Decision 

In making a public charge 

inadmissibility determination, officers 

are required to consider the statutory 

minimum factors and may consider the 

Affidavit of Support Under Section 

213A of the INA, if required.519

The 1999 Interim Field Guidance 

required that every denial decision 

based on the public charge ground of 

inadmissibility ‘‘reflect consideration of 

each of these factors and specifically 

articulate the reasons for the officer’s 

determination.’’ 520 While the 2019 

Final Rule continued to follow a totality 

of the circumstances approach to public 

charge inadmissibility determinations in 

which officers were required to assess 

‘‘the totality of the alien’s circumstances 

by weighing all factors that are relevant 

to whether the alien is more likely than 

not at any time in the future to’’ become 

a public charge,521 it did not state that 

denials based on the public charge 

ground of inadmissibility must include 

a detailed discussion of all of the 

factors. There is a general regulatory 

requirement, however, that USCIS 

officers ‘‘explain in writing the specific 

reasons for a denial.’’ 522 This 

requirement applies to all applications 

and petitions adjudicated by USCIS, 

including denials based on a public 

charge inadmissibility determination.523

DHS is now proposing to codify the 

language set forth in the 1999 Interim 

Field Guidance that reiterated more 

specifically the general requirement that 

every written denial decision issued by 

USCIS based on the public charge 

ground of inadmissibility include a 

discussion of each of the factors. DHS 

proposes that ‘‘[e]very written denial 

decision issued by USCIS based on the 

totality of the circumstances set forth in 

paragraph (b) of this section will reflect 

consideration of each of the factors 

outlined in paragraph (a) of this section 

and specifically articulate the reasons 

for the officer’s determination.’’ 524

Although existing DHS regulations and 

policy already require USCIS officers to 

specify in written denials the basis for 

the denial,525 DHS believes that a 

provision explicitly requiring a 

discussion of the factors considered in 

the denial is consistent with the statute 

and is necessary to ensure that any 

denial based on this ground of 

inadmissibility is made on a case-bycase basis in light of the totality of the 

circumstances. 

In response to the 2021 ANPRM, some 

commenters requested that applicants 

have a reasonable opportunity to 

present additional evidence related to 

their applications. DHS notes that DHS 

regulations and USCIS policy provide 

guidance to officers on situations when 

it is appropriate to issue a Request for 

Evidence (RFE) or a Notice of Intent to 

Deny (NOID) before denying an 

application, petition, or request. An 

officer should issue an RFE or NOID 

when the facts and the law warrant. 

However, an officer should issue a 

denial without first issuing an RFE or 

NOID if there would be no legal basis 

for approval or there is no possibility 

that additional information or 

explanation would establish a legal 

basis for approval.526

4. Exclusion From Consideration of 

Receipt of Certain Public Benefits 

In the 2019 Final Rule, DHS excluded 

from consideration benefits provided 

under Medicaid for the treatment of an 

emergency medical condition, certain 

educational and school-based services, 

as well as Medicaid received by 

noncitizens under the age of 21, and 

pregnant persons.527 DHS also excluded 

from consideration public benefits 


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528 Ibid. 

529See proposed 8 CFR 212.21(a), 212.21(a)(3). 

530See U.S. Gov’t Accountability Office, GAO– 

16–561, Military Personnel: DOD Needs More 

Complete Data on Active-Duty Servicemembers’ 

Use of Food Assistance Programs (July 2016), 

available at https://www.gao.gov/assets/680/ 

678474.pdf (reporting estimates ranging from 2,000 

active duty servicemembers receiving SNAP to 

22,000 such servicemembers receiving SNAP). 

Effective FY16, Congress implemented a 

recommendation by the Military Compensation and 

Retirement Modernization Commission to sunset 

DOD’s Family Subsistence Supplemental 

Allowance Program within the United States, 

Puerto Rico, the U.S. Virgin Islands, and Guam; 

SNAP reliance may have increased somewhat 

following termination of the program. See Public 

Law 114–92, div. A, sec. 602, 129 Stat. 726, 836 

(2015); Military Comp. & Ret. Modernization 

Comm’n, Final Report 187 (Jan. 2015) (‘‘The 

[Family Subsistence Supplemental Allowance 

Program] should be sunset in the United States, 

Puerto Rico, Guam, and other U.S. territories where 

SNAP or similar programs exist, thereby reducing 

the administrative costs of a duplicative program.’’). 

531See, e.g., 84 FR 41379–80 (Aug. 14, 2019) 

(discussing the exclusion of individuals under 21 

and pregnant women). 

532See 8 U.S.C. 1611, 1621, and 1641. 

533See 8 U.S.C. 1641. 

534See 84 FR 41292, 41501 (Aug. 14, 2019). 

535See INA sec. 103, 8 U.S.C. 1103. 

536For example, refugees, asylees, Afghans and 

Iraqis employed by the U.S. government, special 

immigrant juveniles, Temporary Protected Status 

recipients, and trafficking and crime victims. 

received by certain active-duty military 

personnel and their spouses and 

children, benefits received by 

noncitizens while in a status not subject 

to the public charge ground of 

inadmissibility, as well as public 

benefits received by certain children of 

U.S. citizens who are expected to obtain 

U.S. citizenship automatically or shortly 

after arriving in the United States.528

While DHS included the above 

exclusions from consideration in the 

2019 Final Rule, INS did not exclude 

from consideration the receipt of public 

benefits by certain populations in the 

1999 Interim Field Guidance. Similar to 

the 1999 Interim Field Guidance, DHS 

proposes to consider current and/or past 

receipt of public cash assistance for 

income maintenance and long-term 

institutionalization at government 

expense. DHS makes clear in the 

proposed regulatory text that DHS 

would consider the amount, duration, 

and recency of receipt, and that the 

current and/or past receipt of these 

public benefits is not alone sufficient for 

determining whether an individual is 

inadmissible because DHS would also 

consider the minimum statutory factors 

in each case before making a 

determination under the totality of the 

circumstances.529 DHS is proposing to 

exclude from consideration public 

benefits received in two circumstances, 

as discussed below, and believes that it 

is unnecessary to further expand the list 

of exclusions. 

Exclusions previously adopted by 

DHS are not necessary in this proposed 

rule because this proposed rule’s 

provisions do not unduly interfere with 

the receipt of public benefits by the 

populations that were covered by 

exclusions under the 2019 Final Rule. 

DHS therefore believes it need not 

exclude from consideration, for 

example, the receipt of public benefits 

for active-duty U.S. service members 

and their spouses and children, as it did 

in the 2019 Final Rule, because that 

exclusion resulted in significant part 

from the inclusion of SNAP 530 in the 

definition of public benefits. DHS is 

proposing to exclude SNAP receipt from 

consideration altogether in this 

proposed rule. Similarly, the exclusions 

from consideration in the 2019 Final 

Rule applicable to children and 

pregnant women resulted from that 

rule’s inclusion of most forms of 

Medicaid,531 which DHS is proposing in 

this rule to consider only in the context 

of long-term institutionalization at 

government expense. DHS also does not 

believe that it is necessary to exclude 

from consideration the receipt of public 

benefits by certain children of U.S. 

citizens expected to naturalize 

automatically or shortly after coming to 

the United States. In DHS’s view, the 

scope of this rule and the fact that DHS 

would consider in the totality of the 

circumstances the amount, length of 

time, and recency of a noncitizen’s 

receipt of these benefits, makes it 

unlikely that the receipt of such benefits 

by such children would carry much 

weight in public charge inadmissibility 

determinations. 

a. Receipt of Public Benefits While a 

Noncitizen Is in a Category Exempt 

From Public Charge 

Under PRWORA, many noncitizens, 

whether present in the United States in 

a lawful immigration status or not, are 

not eligible to receive many types of 

public benefits.532 Those that are 

eligible for Federal, State, Tribal, 

territorial or local benefits include 

lawful permanent residents, refugees, 

and asylees who are not subject to a 

public charge inadmissibility 

determination.533 Although many 

noncitizens who are eligible for Federal, 

State, Tribal, territorial, or local benefits 

receive those benefits while present in 

an immigration classification or 

category that is exempt from the public 

charge ground of inadmissibility or after 

the noncitizen obtained a waiver of the 

public charge ground of inadmissibility, 

such noncitizens may later apply for an 

immigration benefit that subjects them 

to the public charge ground of 

inadmissibility. For example, a 

noncitizen admitted as a refugee may 

have received benefits on that basis but 

may later apply for adjustment of status 

based on marriage to a U.S. citizen and 

will be subject to the public charge 

ground of inadmissibility. 

The 1999 Interim Field Guidance did 

not expressly address how to treat an 

applicant’s receipt of public benefits 

while present in an immigration 

category that is exempt from the public 

charge ground of inadmissibility or for 

which the noncitizen received a waiver 

of the public charge ground of 

inadmissibility. The 2019 Final Rule, 

however, excluded from consideration 

the receipt of those public benefits from 

consideration in public charge 

inadmissibility determinations.534

Congress, not DHS, has specified 

which categories of noncitizens are 

subject to or are exempt from the public 

charge ground of inadmissibility. 

Congress did not exempt from the 

public charge ground of inadmissibility 

noncitizens who are applying for 

admission or adjustment in a category 

subject to the public charge ground but 

who, in the past, were in a category of 

noncitizen exempt from the ground. 

However, DHS has the authority, in 

promulgating the public charge 

inadmissibility framework, to determine 

which public benefits should be 

considered as part of a public charge 

inadmissibility determination.535

A review of the categories of 

noncitizens that are exempt from the 

public charge ground of inadmissibility 

or eligible for waivers provides an 

indication of the concerns that Congress 

had when establishing these exemptions 

and waivers. The categories comprise a 

long list of vulnerable populations or 

groups of noncitizens of particular 

policy significance for the United 

States.536 Congress expressed a policy 

preference that individuals in these 

categories should be able to receive 

public benefits without risking adverse 

immigration consequences. DHS 

believes that Congress did not intend to 

later penalize such noncitizens for using 

benefits while in these categories 

because doing so would undermine the 

intent of their exemption. Given the 

nature of these populations and the fact 

that if they were applying for admission 

or, as permitted, adjustment of status 

under those categories they would be 

exempt from the public charge ground 

of inadmissibility, it is reasonable for 

DHS to exclude from consideration 

those benefits that an applicant received 


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537See proposed 8 CFR 212.22(a) and (c). 

538 INA sec. 207, 8 U.S.C. 1157. 

539 INA sec. 209, 8 U.S.C. 1159. 

540 INA sec. 208, 8 U.S.C. 1158. 

541 INA sec. 209, 8 U.S.C. 1159. 

542 64 FR 28689, 28691 (May 26, 1999). 

543 64 FR 28676, 28683 (May 26, 1999). 

544 84 FR 41292, 41504 (Aug. 14, 2019). 

545See proposed 8 CFR 212.23(a)(1) and (2). 

546On August 29, 2021, President Biden directed 

DHS to lead implementation of ongoing efforts 

across the Federal Government to support 

vulnerable Afghans, including those that worked 

alongside the U.S. Government in Afghanistan for 

the past two decades, as they safely resettled in the 

United States. These coordinated efforts were 

initially referred to as Operation Allies Refuge, and 

the operation has since been renamed Operation 

Allies Welcome. See DHS, Operation Allies 

Welcome, https://www.dhs.gov/allieswelcome 

(accessed Dec. 14, 2021). 

547See section 2502(b) of the Extending 

Government Funding and Delivering Emergency 

Assistance Act, Public Law 117–43 (Sept. 30, 2021). 

548These are the Secretary of Health and Human 

Services, the Secretary of Labor, the Board of 

Directors of the Legal Services Corporation, and the 

heads of other Federal agencies. See 22 U.S.C. 

7105(b)(1)(B). 

549See 22 U.S.C. 7105(b)(1)(A). 

550See proposed 8 CFR 212.22(e). 

551 DHS, Operation Allies Welcome (2021) https:// 

www.dhs.gov/sites/default/files/publications/21_

1110-opa-dhs-resettlement-of-at-risk-afghans.pdf 

(accessed Jan. 12, 2022). 

552See Sec. 102(b), Victims of Trafficking and 

Violence Protection Act of 2000, Public Law 106– 

386. 

553See proposed 8 CFR 212.23(a). 

while in a status that is exempt from the 

public charge ground of inadmissibility. 

Therefore, DHS proposes that, in any 

application for admission or adjustment 

of status in which the public charge 

ground of inadmissibility applies, DHS 

will not consider any public benefits 

received by a noncitizen during periods 

in which the noncitizen was present in 

the United States in an immigration 

category that is exempt from the public 

charge ground of inadmissibility, as set 

forth in proposed 8 CFR 212.23(a), or for 

which the noncitizen received a waiver 

of public charge inadmissibility, as set 

forth in proposed 8 CFR 212.23(c).537

However, under this proposed rule, any 

benefits received prior to or subsequent 

to the noncitizen being in an exempt 

status would be considered in a public 

charge inadmissibility determination. 

b. Receipt of Public Benefits by Those 

Granted Refugee Benefits 

As explained below, under the INA, 

refugees at the time of admission 538 and 

adjustment of status 539 and asylees at 

the time of being granted asylum 540 and 

adjustment of status 541 are exempt from 

the public charge ground of 

inadmissibility. Consistent with the 

statute, the 1999 Interim Field 

Guidance,542 1999 NPRM,543 and 2019 

Final Rule 544 all included express 

provisions explaining that these 

categories are exempt from the public 

charge ground of inadmissibility, and 

DHS is proposing to include similar 

provisions in this rule.545 As explained 

above, DHS will not consider any public 

benefits received by noncitizens while 

they are in a category exempt from the 

public charge ground of inadmissibility, 

including refugees and asylees, when 

making public charge inadmissibility 

determinations. 

Afghans that have been recently 

resettled in the United States pursuant 

to Operation Allies Welcome (OAW) 546

are not refugees admitted under section 

207 of the INA, 8 U.S.C. 1157. However, 

such Afghans are eligible for 

resettlement assistance, entitlement 

programs, and other benefits available to 

refugees admitted under section 207 of 

the INA, 8 U.S.C. 1157, including 

services described under 8 U.S.C. 

1522(d)(2) provided to an 

‘‘unaccompanied alien child’’ as defined 

under 6 U.S.C. 279(g)(2).547 Similarly, 

noncitizens who are the victims of a 

severe form of trafficking in persons as 

defined in 22 U.S.C. 7105(b)(1)(C) and 

noncitizens classified as nonimmigrants 

under section 101(a)(15)(T)(ii) of the 

INA, 8 U.S.C. 1101(a)(15)(T)(ii), are 

eligible for benefits and services under 

any Federal or State program or activity 

funded or administered by certain 

officials or agencies 548 to the same 

extent as noncitizens admitted to the 

United States as refugees under section 

207 of the INA, 8 U.S.C. 1157.549

Under this proposed rule, when 

making public charge inadmissibility 

determinations DHS will not consider 

any public benefits that were received 

by noncitizens who are eligible for 

resettlement assistance, entitlement 

programs, and other benefits available to 

refugees admitted under section 207 of 

the INA, 8 U.S.C. 1157, including 

services described under 8 U.S.C. 

1522(d)(2) provided to an 

‘‘unaccompanied alien child’’ as defined 

under 6 U.S.C. 279(g)(2).550 This 

provision would only apply to those 

categories of noncitizens who are 

eligible for all three of the types of 

support listed (resettlement assistance, 

entitlement programs, and other 

benefits) typically reserved for refugees. 

DHS does not want to discourage any 

such noncitizens eligible for 

resettlement assistance and other 

benefits available to refugees from 

accessing services for which they are 

eligible. The U.S. government has 

resettled and continues to resettle our 

Afghan allies. This is a population 

invited by the government to come to 

the United States at the government’s 

expense in recognition of their 

assistance over the past two decades or 

their unique vulnerability were they to 

remain in Afghanistan.551 In recognition 

of the unique needs of this population 

and the manner of their arrival in the 

United States, Congress explicitly 

extended benefits normally reserved for 

refugees to our Afghan allies. DHS 

serves as the lead for coordinating the 

ongoing efforts, across the Federal 

Government, to support vulnerable 

Afghans under OAW. As such, DHS has 

been actively communicating and 

promoting the various benefits that this 

vulnerable population may be eligible 

for depending on their admission, status 

in the United States, or both, including 

SSI, TANF, and various other public 

benefits. 

Similarly, the U.S. government has 

expressed its strong concern for the 

victims of severe forms of trafficking in 

persons and a dedication to stabilizing 

them. The Trafficking Victims 

Protection Act of 2000 (TVPA), part of 

the Victims of Trafficking and Violence 

Protection Act of 2000, was enacted to 

strengthen the ability of law 

enforcement agencies to detect, 

investigate, and prosecute trafficking in 

persons, while offering protections to 

victims of such trafficking, including 

temporary protections from removal, 

access to certain federal and state public 

benefits and services, and the ability to 

apply for T nonimmigrant status. With 

the passage of the TVPA, Congress 

intended to protect victims of trafficking 

and to take steps to try to meet victim’s 

needs regarding health care, housing, 

education, and legal assistance.552

DHS strongly encourages these 

populations to access any and all 

services and benefits available to them 

without fear of a future negative impact. 

Thus, DHS now proposes to exempt 

from consideration receipt of public 

benefits by those granted refugee 

benefits by Congress, even when those 

individuals are not refugees admitted 

under section 207 of the INA, 8 U.S.C. 

1157, such as the Afghans that have 

been recently resettled in the United 

States pursuant to OAW and noncitizen 

victims of a severe form of trafficking in 

persons. 

E. Exemptions and Waivers 

The public charge inadmissibility 

ground does not apply to certain 

exempted applicants for admission and 

adjustment of status.553 Congress has 

specifically exempted certain groups 

from the public charge inadmissibility 

ground, and DHS regulations permit 


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554See 64 FR 28676, 28683 (May 26, 1999). 

555See 64 FR 28676, 28684 (May 26, 1999). 

556See 84 FR 41292, 41504–41505 (Aug. 14, 

2019). 

557See 84 FR 41292, 41505 (Aug. 14, 2019). 

558See proposed 8 CFR 212.23. This section 

includes two provisions that also account for any 

additional exemptions established by law or 

waivers established by law or regulation. See 

proposed 8 CFR 212.23(a)(29) and (c)(3). 

559Adjustment of Status of Certain Syrian 

Nationals, Public Law 106–378, 114 Stat. 1442 (Oct. 

27, 2000). 

560 DHS is adding LRIF to the list of exemptions 

as Congress established LRIF after the publication 

of the 2019 Final Rule. In the 2019 Final Rule, DHS 

inadvertently omitted the former exemption for 

certain Syrian nationals adjusting status. 

561See Matter of Mesa, 12 I&N Dec. 432, 437 

(Dep. Act. Comm’r. 1967). 

562 INA sec. 244(c)(2)(ii), 8 U.S.C. 1254a(c)(2)(ii), 

authorizes DHS to waive any INA sec. 212(a), 8 

U.S.C. 1182(a) ground, except for those that 

Congress specifically noted could not be waived. 

563 Includes the following categories: G–1— 

Principal Resident Representative of Recognized 

Foreign Government to International Organization, 

Staff, or Immediate Family; G–2—Other 

Representative of Recognized Foreign Member 

Government to International Organization, or 

Immediate Family; G–3—Representative of Nonrecognized or Nonmember Foreign Government to 

International Organization, or Immediate Family; 

G–4—International Organization Officer or 

Employee, or Immediate Family; G–5—Attendant, 

Servant, or Personal Employee of G–1 through G– 

4, or Immediate Family. 

564 Includes the following categories: NATO 1— 

Principal Permanent Representative of Member 

State to NATO (including any of its Subsidiary 

Bodies) Resident in the U.S. and Resident Members 

of Official Staff; Secretary General, Assistant 

Secretaries General, and Executive Secretary of 

NATO; Other Permanent NATO Officials of Similar 

Rank, or Immediate Family; NATO 2—Other 

Representative of Member State to NATO 

(including any of its Subsidiary Bodies) including 

Representatives, Advisers, and Technical Experts of 

Delegations, or Immediate Family; Dependents of 

Member of a Force Entering in Accordance with the 

Provisions of the NATO Status-of-Forces Agreement 

or in Accordance with the provisions of the 

‘‘Protocol on the Status of International Military 

Headquarters’’; Members of Such a Force if Issued 

Visas; NATO 3—Official Clerical Staff 

Accompanying Representative of Member State to 

NATO (including any of its Subsidiary Bodies), or 

Immediate Family; NATO–4—Official of NATO 

(Other Than Those Classifiable as NATO–1), or 

Immediate Family; NATO–5—Experts, Other Than 

NATO Officials Classifiable Under NATO–4, 

Employed in Missions on Behalf of NATO, and 

their Dependents; NATO 6—Member of a Civilian 

Component Accompanying a Force Entering in 

Accordance with the Provisions of the NATO 

Status-of-Forces Agreement; Member of a Civilian 

Component Attached to or Employed by an Allied 

Headquarters Under the ‘‘Protocol on the Status of 

International Military Headquarters’’ Set Up 

Pursuant to the North Atlantic Treaty; and their 

Dependents; NATO–7—Attendant, Servant, or 

Personal Employee of NATO–1, NATO–2, NATO– 

3, NATO–4, NATO–5, and NATO–6 Classes, or 

Immediate Family. 

waivers of the inadmissibility ground 

for certain other groups. 

In the 1999 NPRM, INS provided a list 

of categories of noncitizens exempt from 

the public charge of inadmissibility.554

The 1999 NPRM also included a section 

discussing the available waivers.555

Similarly, in the 2019 Final Rule, DHS 

provided a list of the categories of 

noncitizens to whom the public charge 

ground of inadmissibility does not 

apply.556 Likewise, the 2019 Final Rule 

also contained provisions relating to the 

available waivers.557

Although these exemptions and 

waivers are addressed in the statute and 

in some existing regulations, DHS 

believes it appropriate to include a list 

of exemptions and waivers to better 

ensure that the regulated public 

understands which applicants for 

admission and adjustment of status are 

either exempt from the public charge 

ground of inadmissibility or may be 

eligible for a waiver of the 

inadmissibility ground. DHS proposes 

to include a list of the exemptions from 

and waivers of the public charge ground 

of inadmissibility.558

1. Exemptions 

DHS proposes to include the 

following list of exemptions from the 

public charge ground of inadmissibility 

in this rule, as it did in the 2019 Final 

Rule (that is no longer in effect), with 

two additional exemptions pertaining to 

certain Syrian nationals adjusting status 

under Public Law 106–378 559 as well as 

applicants for adjustment of status 

under Liberian Refugee Immigration 

Fairness (LRIF).560

• Refugees at the time of admission 

pursuant to section 207 of the INA, 8 

U.S.C. 1157, and asylees at the time of 

a grant of asylum under section 208 of 

the INA, 8 U.S.C. 1158, as well as 

refugees and asylees at the time of 

adjustment of status to lawful 

permanent resident; 

• Amerasian immigrants at 

admission, pursuant to in section 

584(a)(2) of the Foreign Operations, 

Export Financing, and Related Programs 

Appropriations Act of 1988, Public Law 

100–202, 101 Stat. 1329–183 (Dec. 22, 

1987) (as amended), 8 U.S.C. 1101 note 

5; 

• Afghan and Iraqi Interpreters, or 

Afghan or Iraqi nationals employed by 

or on behalf of the U.S. Government, 

pursuant to section 1059(a)(2) of the 

National Defense Authorization Act for 

Fiscal Year 2006 Public Law 109–163 

(Jan. 6, 2006), section 602(b) of the 

Afghan Allies Protection Act of 2009, as 

amended, Public Law 111–8 (Mar. 11, 

2009), and section 1244(g) of the 

National Defense Authorization Act for 

Fiscal Year 2008, as amended, Public 

Law 110–181 (Jan. 28, 2008); 

• Cuban and Haitian entrants at 

adjustment of status, pursuant to section 

202 of the Immigration Reform and 

Control Act of 1986 (IRCA), Public Law 

99–603, 100 Stat. 3359 (Jan. 3, 1986) (as 

amended), 8 U.S.C. 1255a, note; 561

• Aliens applying for adjustment of 

status, pursuant to the Cuban 

Adjustment Act, Public Law 89–732 

(Nov. 2, 1966) as amended; 8 U.S.C. 

1255, note; 

• Nicaraguans and other Central 

Americans who are adjusting status to 

lawful permanent resident, pursuant to 

section 202(a) and section 203 of 

NACARA, Public Law 105–100, 111 

Stat. 2193 (Nov. 19, 1997) (as amended), 

8 U.S.C. 1255 note; 

• Haitians who are adjusting status to 

lawful permanent resident, pursuant to 

section 902 of the Haitian Refugee 

Immigration Fairness Act of 1998, 

Public Law 105–277, 112 Stat. 2681 

(Oct. 21, 1998), 8 U.S.C. 1255 note; 

• Lautenberg parolees, pursuant to 

section 599E of the Foreign Operations, 

Export Financing, and Related Programs 

Appropriations Act of 1990, Public Law 

101–167, 103 Stat. 1195 (Nov. 21, 1989), 

8 U.S.C.A. 1255 note; 

• Special immigrant juveniles, 

pursuant to section 245(h) of the INA, 

8 U.S.C. 1255(h); 

• 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 INA, 8 U.S.C. 

1259, and 8 CFR part 249; 

• Aliens applying for Temporary 

Protected Status, pursuant to section 

244(c)(2)(ii) of the INA, 8 U.S.C. 

1254a(c)(2)(ii) and 8 CFR 244.3(a); 562

• Nonimmigrants described in section 

101(a)(15)(A)(i) and (ii) of the INA, 8 

U.S.C. 1101(a)(15)(A)(i) and (ii) 

(Ambassador, Public Minister, Career 

Diplomat or Consular Officer, or 

Immediate Family or Other Foreign 

Government Official or Employee, or 

Immediate Family), pursuant to section 

102 of the INA, 8 U.S.C. 1102, 22 CFR 

41.21(d); 

• Nonimmigrants classifiable as C–2 

(alien in transit to U.N. Headquarters) or 

C–3 (foreign government official), 

pursuant to 22 CFR 41.21(d); 

• Nonimmigrants described in section 

101(a)(15)(G)(i), (ii), (iii), and (iv), of the 

INA (Principal Resident Representative 

of Recognized Foreign Government to 

International Organization, and related 

categories),563 8 U.S.C. 1101(a)(15)(G)(i), 

(ii), (iii), and (iv), pursuant to section 

102 of the INA, 8 U.S.C. 1102, 22 CFR 

41.21(d); 

• Nonimmigrants classifiable as a 

NATO (North Atlantic Treaty 

Organization) representative and related 

categories,564 pursuant to 22 CFR 

41.21(d); 

• Individuals who have a pending 

application that sets forth a prima facie 


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565This includes individuals seeking adjustment 

of status who are in T nonimmigrant status, U 

nonimmigrant status, VAWA self-petitioners, and 

‘‘qualified aliens’’ described in section 431(c) of 

PRWORA, 8 U.S.C. 1641(c). 

566Section 212(a)(4)(E) of the INA, 8 U.S.C. 

1182(a)(4)(E), specifically excludes these categories 

of noncitizens from sections 212(a)(4)(A), (B), and 

(C) of the INA, 8 U.S.C. 1882(a)(4)(A), (B), and (C). 

567See, e.g., Lamie v. U.S. Tr., 540 U.S. 526, 538 

(2004) and Yith v. Nielsen, 881 F.3d 1155, 1164 (9th 

Cir. 2018). 

568See, e.g., INA 212(d)(3), 8 U.S.C. 1182(d)(3) 

(broadly authorizing waivers of various grounds of 

inadmissibility for noncitizens applying for a 

nonimmigrant visa or admission as a 

nonimmigrant). 

569See 84 FR 41292, 41505–41507 (Aug. 14, 

2019). 

570See 64 FR 28689, 28693 (May 26, 1999). See 

64 FR 28676, 28684 (May 26, 1999). 

case for eligibility for nonimmigrant 

status under section 101(a)(15)(T) of the 

INA (Victim of Severe Form of 

Trafficking), 8 U.S.C. 1101(a)(15)(T), 

pursuant to section 212(d)(13)(A) of the 

INA, 8 U.S.C. 1182(d)(13)(A), or who are 

in valid T nonimmigrant status and are 

seeking an immigration benefit for 

which admissibility is required; 

• Petitioners for, or individuals who 

are granted, nonimmigrant status under 

section 101(a)(15)(U) of the INA, 8 

U.S.C. 1101(a)(15)(U) (Victim of 

Criminal Activity), pursuant to section 

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

1182(a)(4)(E)(ii); 

• Nonimmigrants who were admitted 

under section 101(a)(15)(U) (Victim of 

Criminal Activity) of the INA, 8 U.S.C. 

1101(a)(15)(U), at the time of their 

adjustment of status under section 

245(m) of the INA, 8 U.S.C. 1155(m), 

and 8 CFR 245.24; 

• Aliens who are VAWA selfpetitioners as defined in section 

101(a)(51) of the INA, 8 U.S.C. 1101, 

pursuant to section 212(a)(4)(E)(i) of the 

INA, 8 U.S.C. 1182(a)(4)(E)(i); 

• ‘‘Qualified aliens’’ described in 

section 431(c) of PRWORA (8 U.S.C. 

1641(c)) (certain battered aliens as 

‘‘qualified aliens’’), pursuant to section 

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

1182(a)(4)(E)(iii); 

• Applicants adjusting status under 

section National Defense Authorization 

Act For Fiscal Year 2004 (NDAA 2004), 

Public Law 108–136, 117 Stat. 1392 

(Nov. 24, 2003) (posthumous benefits to 

surviving spouses, children, and 

parents); 

• Noncitizen American Indians Born 

in Canada, pursuant to section 289 of 

the INA, 8 U.S.C. 1359 

• Noncitizen members of the Texas 

Band of Kickapoo Indians of the 

Kickapoo Tribe of Oklahoma pursuant 

to Public Law 97–429 (Jan. 8, 1983); 

• Nationals of Vietnam, Cambodia, 

and Laos adjusting status, pursuant to 

section 586 of Public Law 106–429 

(Nov. 1, 2000); 

• Polish and Hungarian Parolees who 

were paroled into the United States 

from November 1, 1989, to December 

31, 1991, under section 646(b) of the 

IIRIRA, Public Law 104–208, Div. C, 

Title VI, Subtitle D (Sept. 30, 1996), 8 

U.S.C. 1255 note; 

• Certain Syrian nationals adjusting 

status under Public Law 106–378; 

• Applicants adjusting under the 

Liberian Refugee Immigration Fairness 

(LRIF) law, pursuant to section 7611 of 

the National Defense Authorization Act 

for Fiscal Year 2020 (NDAA 2020), 

Public Law 116–92, 113 Stat. 1198, 2309 

(Dec. 20, 2019); and 

• Any other categories of aliens 

exempt under any other law from the 

public charge ground of inadmissibility 

provisions under section 212(a)(4) of the 

Act. 

In general, the aforementioned classes 

of noncitizens are vulnerable 

populations of immigrants and 

nonimmigrants. Some have been 

persecuted or victimized and others 

have little to no private support network 

in the United States. These individuals 

tend to require government protection 

and support for a period of time. 

Admission of these noncitizens also 

serves distinct public policy goals 

separate from the general immigration 

system. The source of each exemption 

mentioned in proposed 8 CFR 212.23(a) 

can be found elsewhere in U.S. law. 

2. Limited Exemption 

Noncitizens described in proposed 8 

CFR 212.23(a)(18) through (21) 565 are 

exempt from the public charge ground 

of inadmissibility.566 Congress, 

however, did not include paragraph (D) 

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

1182(a)(4)(D), among the exemptions in 

paragraph (E) for these categories. 

Paragraph (E) requires that an applicant 

for admission or adjustment of status in 

the employment-based preference 

categories of section 203(b) of the INA, 

8 U.S.C. 1153(b), based on a petition 

filed by a relative of such an applicant 

(or by an entity in which the relative has 

a significant ownership interest) submit 

an Affidavit of Support Under Section 

213A of the INA. DHS lacks the 

authority to expand the exemptions 

listed in section 212(a)(4)(E) of the INA, 

8 U.S.C. 1182(a)(4)(E), to include 

paragraph (D).567 Therefore, in certain 

circumstances these categories of 

individuals must submit an Affidavit of 

Support Under Section 213A of the INA 

if they are applying for adjustment of 

status based on an employment-based 

petition that requires such an affidavit 

of support under section 212(a)(4)(D) of 

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

DHS proposes to codify this limited 

exemption in proposed 8 CFR 212.23(b). 

3. Waivers 

The proposed regulation at 8 CFR 

212.23(c) lists the categories of 

applicants Congress has authorized to 

apply for waivers of the public charge 

inadmissibility ground, as follows: 

• S (alien witness or informant) 

nonimmigrants described in section 

101(a)(15)(S) of the INA, 8 U.S.C. 

1101(a)(15)(S); 

• Applicants for admission and 

adjustment of status under section 245(j) 

of the INA, 8 U.S.C. 1255(j) (alien 

witness or informant); and 

• Other waivers of the public charge 

inadmissibility provisions in section 

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

permissible under the law.568

F. Public Charge Bonds 

As detailed in the background section, 

DHS has existing regulations 

implementing its discretionary authority 

to accept public charge bonds under 

section 213 of the INA, 8 U.S.C. 1183. 

These bond provisions, found at 8 CFR 

213.1 and 8 CFR 103.6, regulate the 

admission, upon giving a bond, of 

individuals found inadmissible to the 

United States under section 212(a)(4) of 

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

how such bonds are posted and 

cancelled. 

After the 2019 Final Rule, which 

included more detailed public charge 

bond provisions,569 was vacated, DHS 

sought public comments in the ANPRM 

addressing public charge bonds and 

received a number of thoughtful 

suggestions. After careful consideration 

of those comments, DHS is not 

proposing changes to the existing 

regulatory provisions at this time. This 

approach is consistent with the 

approach DHS has taken historically 

when implementing the public charge 

ground of inadmissibility under the 

1999 Interim Field Guidance that is 

currently in place.570 Notwithstanding 

the approach taken in the 2019 Final 

Rule, at this time, the existing 

regulations provide an adequate 

framework for DHS to exercise its 

discretion with respect to public charge 

bonds, particularly given the relatively 

small number of cases where USCIS 

may be inclined to offer a public charge 

bond in its discretion. 


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571See proposed 8 CFR 212.21(a). 

572As noted in the public benefits section above, 

DHS proposes to replace the term 

‘‘institutionalization for long-term care at 

government expense’’ with ‘‘long-term 

institutionalization,’’ which better describes the 

specific types of services covered and the duration 

for receiving them. The terms are not meant to be 

substantively different. 

573Calculations: Total annual net costs 

($12,856,152) = Total annual costs 

($12,871,511)¥Total annual savings ($15,359). 

VI. Statutory and Regulatory 

Requirements 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

Executive Order (E.O.) 12866 and E.O. 

13563 direct agencies to assess the costs 

and benefits of available regulatory 

alternatives and, to the extent permitted 

by law, to proceed only if the benefits 

justify the costs. They also direct 

agencies to select regulatory approaches 

that maximize net benefits while giving 

consideration, to the extent appropriate 

and consistent with law, to values that 

are difficult or impossible to quantify, 

including equity, human dignity, 

fairness, and distributive impacts. In 

particular, E.O. 13563 emphasizes the 

importance of not only quantifying both 

costs and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility, but also considering equity, 

fairness, distributive impacts, and 

human dignity. 

The Office of Information and 

Regulatory Affairs (OIRA) in the Office 

of Management and Budget (OMB) has 

determined that this proposed rule is an 

economically ‘‘significant regulatory 

action’’ under section 3(f)(1) of 

Executive Order 12866. Accordingly, 

OMB has reviewed this regulation. 

1. Summary of the Proposed Rule 

The proposed rule describes how DHS 

will determine whether a noncitizen is 

inadmissible because they are likely at 

any time to become a public charge, i.e., 

likely to become primarily dependent 

on the government for subsistence. The 

proposed rule also clarifies the types of 

public benefits that are considered in 

public charge inadmissibility 

determinations. DHS proposes to limit 

such consideration to public cash 

assistance for income maintenance and 

long-term institutionalization at 

government expense.571 572 Public cash 

assistance for income maintenance 

would include cash assistance provided 

under TANF, SSI, and general 

assistance. This is the same list of 

public benefits that are considered 

under the 1999 Interim Field Guidance 

that was the operative standard for 

nearly 20 years until the 2019 Final 

Rule (that is no longer in effect) was 

promulgated. DHS also proposes to 

define key terms and to codify a list of 

categories of noncitizens who are 

statutorily exempt from the public 

charge ground of inadmissibility, or 

eligible for a waiver. 

The proposed rule uses a framework 

similar to the one set forth in the 1999 

Interim Field Guidance, under which 

officers consider past or current receipt 

of certain public benefits, as well as the 

statutory minimum factors (the 

noncitizen’s age, health, family status, 

assets, resources, and financial status, 

and education and skills) and the 

Affidavit of Support Under Section 

213A of the INA, where required, as part 

of a totality of the circumstances 

framework. The proposed rule 

maintains the language set forth in the 

1999 Interim Field Guidance that 

reiterated more specifically the general 

requirement that every written denial 

decision issued by USCIS based on the 

public charge ground of inadmissibility 

include a discussion of each of the 

statutory factors. 

The proposed rule establishes two 

exclusions from consideration of public 

benefits received by certain noncitizens. 

First, the proposed rule clarifies that, in 

any application for admission or 

adjustment of status in which the public 

charge ground of inadmissibility 

applies, DHS will not consider any 

public benefits received by a noncitizen 

during periods in which the noncitizen 

was present in the United States in an 

immigration category that is exempt 

from the public charge ground of 

inadmissibility. Second, under the 

proposed rule, when making a public 

charge inadmissibility determination, 

DHS will also not consider any public 

benefits that were received by 

noncitizens who are eligible for 

resettlement assistance, entitlement 

programs, and other benefits available to 

refugees admitted under section 207 of 

the INA, 8 U.S.C. 1157, including 

services described under 8 U.S.C. 

1522(d)(2) provided to an 

‘‘unaccompanied alien child’’ as defined 

under 6 U.S.C. 279(g)(2). This provision 

would only apply to those categories of 

noncitizens who are eligible for all three 

of the types of support listed 

(resettlement assistance, entitlement 

programs, and other benefits) typically 

reserved for refugees. 

2. Summary of the Costs and Benefits of 

the Proposed Rule 

The proposed rule would result in 

new costs, benefits, and transfers. To 

provide a full understanding of the 

impacts of the proposed rule, DHS 

considers the potential impacts of this 

proposed rule relative to two baselines, 

as well the potential impact of a 

regulatory alternative. The No Action 

Baseline represents a state of the world 

under the 1999 Interim Field Guidance, 

which is the policy currently in effect. 

The second baseline is the Pre-Guidance 

Baseline, which represents a trajectory 

established before the issuance of the 

1999 Interim Field Guidance (i.e., a state 

of the world in which the 1999 Interim 

Field Guidance did not exist). The 

alternative analysis presented below 

relates to an alternative consistent with 

the 2019 Final Rule. 

Relative to the No Action Baseline, 

the primary source of quantified new 

direct costs for the proposed rule is the 

increase in the time required to 

complete Form I–485. DHS estimates 

that the proposed rule would impose 

additional new direct costs of 

approximately $12,871,511 annually to 

applicants filing Form I–485. In 

addition, the proposed rule results in an 

annual savings for a subpopulation of 

affected individuals; T nonimmigrants 

applying for adjustment of status will no 

longer need to submit Form I–601 to 

seek a waiver of the public charge 

ground of inadmissibility. DHS 

estimates the total annual savings for 

this population will be $15,359. DHS 

estimates that the total annual net costs 

will be $12,856,152.573

Over the first 10 years of 

implementation, DHS estimates the total 

net costs of the proposed rule would be 

approximately $128,561,520 

(undiscounted). In addition, DHS 

estimates that the 10-year discounted 

total net costs of this proposed rule 

would be about $109,665,584 at a 3- 

percent discount rate and about 

$90,296,232 at a 7-percent discount rate. 

DHS expects the primary benefit of 

this proposed rule to be the nonquantified benefit of establishing clear 

standards governing a determination 

that a noncitizen is inadmissible based 

on the public charge ground. 

The following two tables provide a 

more detailed summary of the proposed 

provisions and their impacts relative to 

the No Action Baseline and PreGuidance Baseline, respectively. 

BILLING CODE 9111–97–P 


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574See OMB. ‘‘Circular A–4.’’ September 17, 

2003. Available at https://www.whitehouse.gov/ 

sites/whitehouse.gov/files/omb/circulars/A4/a4.pdf. 

In addition to the impacts 

summarized above, and as required by 

OMB Circular A–4, the following two 

tables present the prepared accounting 

statement showing the costs associated 

with this proposed rule.574


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575See INA sec. 212(a)(4); 8 U.S.C. 1182(a)(4). 

576See INA sec. 212(a)(4)(B)(i); 8 U.S.C. 

1182(a)(4)(B)(i). 

3. Background and Purpose of the Rule 

As discussed in the preamble, DHS 

seeks to administer the public charge 

ground of inadmissibility in a manner 

that will be clear and comprehensible 

and will lead to fair and consistent 

adjudications. Under the INA, a 

noncitizen who, at the time of 

application for a visa, admission, or 

adjustment of status, is deemed likely at 

any time to become a public charge is 

ineligible for a visa, inadmissible, or 

ineligible for adjustment of status.575

While the INA does not define public 

charge, Congress has specified that, 

when determining if a noncitizen is 

likely at any time to become a public 

charge, immigration officers must, at a 

minimum, consider certain factors, 

including the noncitizen’s age; health; 

and family status; assets, resources, and 

financial status; and education and 

skills.576 Additionally, DHS may 

consider any affidavit of support 


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577See INA sec. 212(a)(4)(B)(ii). When required, 

the applicant must submit Form I–864, Affidavit of 

Support Under Section 213A of the INA. 

578See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 

1182(a)(4)(C) and (D). 

579See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4). 

submitted under section 213A of the 

Act, 8 U.S.C. 1183a, on behalf of the 

applicant when determining whether 

the applicant may become a public 

charge.577 For most family-based and 

some employment-based immigrant 

visas or adjustment of status 

applications, applicants must have a 

sufficient affidavit of support or they 

will be found inadmissible as likely to 

become a public charge.578

The estimation of costs and benefits 

for this proposed rule focuses on 

individuals applying for adjustment of 

status with USCIS using Form I–485. 

Such individuals would be applying 

from within the United States, rather 

than applying for a visa from outside the 

United States at a DOS consulate 

abroad. Moreover, DHS notes that CBP 

may incur costs pursuant to this 

proposed rule, but we are unable to 

determine this potential cost at this time 

due to data limitations. For example, 

CBP employees would have to spend 

time examining noncitizens arriving at a 

port of entry seeking admission, either 

pursuant to a previously issued visa or 

as a traveler for whom visa requirements 

have been waived and determining if 

they are likely to become a public 

charge if they are admitted. However, 

DHS is not able to quantify the number 

of noncitizens who would possibly be 

deemed inadmissible at a port of entry 

based on a public charge determination 

pursuant to this proposed rule. DHS is 

qualitatively acknowledging this 

potential impact. 

4. Population 

This proposed rule would affect 

individuals who are present in the 

United States who are seeking 

adjustment of status to that of a lawful 

permanent resident. By statute, an 

individual who is seeking adjustment of 

status and is at any time likely to 

become a public charge is ineligible for 

such adjustment, unless the individual 

is exempt from or has received a waiver 

of the public charge ground of 

inadmissibility.579 The grounds of 

inadmissibility set forth in section 212 

of the INA, 8 U.S.C. 1182, also apply 

when certain noncitizens seek 

admission to the United States, whether 

for a temporary purpose or permanently. 

However, the public charge 

inadmissibility ground (including 

ineligibility for adjustment of status) 

does not apply to all applicants since 

there are various categories of 

applicants that Congress expressly 

exempted from the public charge 

inadmissibility ground. Within USCIS, 

this proposed rule would affect 

individuals who apply for adjustment of 

status because these individuals would 

be required to be reviewed for a 

determination of inadmissibility based 

on public charge grounds as long as the 

individual is not in a category of 

applicant that is exempt from the public 

charge ground of inadmissibility. DHS 

notes that the population estimates are 

based on noncitizens present in the 

United States who are applying for 

adjustment of status and does not 

include individuals seeking admission 

at a port of entry due to the data 

limitations. These limitations could 

result in underestimation of the cost, 

benefit, or transfer payments of the 

proposed rule. However, DHS is unable 

to quantify the magnitude. 

a. Population Seeking Adjustment of 

Status 

The population affected by this rule 

consists of individuals who are applying 

for adjustment of status using Form I– 

485. Under the proposed rule, a subset 

of these individuals (i.e., those who are 

not exempt from the public charge 

ground of inadmissibility) would 

undergo review for determination of 

inadmissibility based on public charge 

grounds, unless an individual is in a 

category of applicant that is exempt 

from the public charge ground of 

inadmissibility. The following table 

shows the total number of Form I–485 

applications received for FY 2014 to FY 

2021. DHS selects the period FY 2014– 

FY 2018 to project the number of 

applications to be filed for the next 10 

years for the reasons discussed below. 

Between FY 2014 and FY 2018, the 

population of individuals applying for 

adjustment of status ranged from a low 

of 637,138 in FY 2014 to a high of 

763,192 in FY 2017. In addition, the 

average population of individuals who 

applied for adjustment of status over 

this period was 690,837. 


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580USCIS excluded data from FY 2019–FY 2021 

due to data anomalies. As shown in the table, the 

population of adjustment of status applicants in FY 

2019 and FY 2020 decreased significantly, followed 

by an increase beginning at the end of FY 2020 and 

beginning of FY 2021. By far the most significant 

increase in FY 2021 occurred in October 2020, 

during which receipts reached 184,779, as 

compared to 86,911 in October 2019, and 55,483 in 

October 2018. The level of receipts in October 2020 

was substantially higher than the level of receipts 

for any other month since FY 2014. Source: USCIS 

analysis of data provided by USCIS, Policy and 

Research Division (Jan. 10, 2022). 

For this analysis, DHS projects the 

affected population for the 10-year 

period from the beginning of FY 2022. 

DHS bases its population projection on 

the historical number of Form I–485 

applications received over the period 

FY 2014–FY 2018.580

i. Exemptions From Determination of 

Inadmissibility Based on Public Charge 

Ground 

There are exemptions and waivers for 

certain categories of noncitizens that are 

not subject to a determination of 

inadmissibility based on the public 

charge ground. The following table 

shows the classes of applicants for 

admission, adjustment of status, or 

registry according to statute or 

regulation that are exempt from 

inadmissibility based on the public 

charge ground. 


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581Calculation of total estimated population that 

would be subject to public charge review: (Total 

Population Applying for Adjustment of Status)— 

(Total Population Seeking Adjustment of Status that 

is Exempt from Public Charge Review for 

Inadmissibility) = Total Population Subject to 

Public Charge Review for Inadmissibility. 

582Calculation of total population subject to 

public charge review for inadmissibility for fiscal 

year 2018: 704,407—180,179 = 524,228. 

To estimate the annual total 

population of individuals seeking to 

adjust status who would be subject to 

review for inadmissibility based on the 

public charge ground, DHS examined 

the annual total population of 

individuals who applied for adjustment 

of status for FY 2014–FY 2018. As noted 

above, the most recent fiscal years, FY 

2019–FY 2021, are not considered for 

this analysis because they may be 

outlier years. 

For each fiscal year, DHS removed 

individuals from the population whose 

category of applicants is exempt from 

review for inadmissibility on the public 

charge ground, as shown in Table 17 

below, leaving the total population that 

would be subject to such review. 

Further discussion of these exempt 

categories can be found in the preamble. 

Table 17 shows the total estimated 

population of individuals seeking to 

adjust status under a category of 

applicant that is exempt from review for 

inadmissibility on the public charge 

ground for FY 2014–FY 2018 as well as 

the total estimated population that 

would be subject to public charge 

review.581 In FY 2018, for example, the 

total number of persons who applied for 

adjustment of status across various 

classes of admission was 704,407. After 

removing individuals from this 

population whose category of applicant 

is exempt from review for 

inadmissibility on the public charge 

ground, DHS estimates the total 

population of adjustment of status 

applicants in FY 2018 who would be 

subject to review for inadmissibility on 

the public charge ground is 524,228.582


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583See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 

1182(a)(4)(C) and (D). 

584See INA sec. 212(a)(4)(C) and (D), 213A(a), 8 

U.S.C. 1182(a)(4)(C) and (D), 1183a(a). 

585See INA sec. 213A(a) and (b), 8 U.S.C. 

1183a(a) and (b). 

DHS estimates the projected annual 

average total population of adjustment 

of status applicants that would be 

subject to review for inadmissibility on 

the public charge ground is 501,520. 

This estimate is based on the 5-year 

average of the annual estimated total 

population subject to review for 

inadmissibility on the public charge 

ground from FY 2014–FY 2018. Over 

this 5-year period, the estimated 

population of individuals who applied 

for adjustment of status subject to 

review for inadmissibility on the public 

charge ground ranged from a low of 

459,131 in FY 2014 to a high of 541,563 

in FY 2017. DHS notes that the 

population estimates are based on 

noncitizens present in the United States 

who are applying for adjustment of 

status, rather than noncitizens who 

apply for an immigrant visa through 

consular processing at a DOS consulate 

or embassy abroad. 

ii. Requirement To Submit an Affidavit 

of Support Under Section 213A of the 

INA 

Certain noncitizens seeking 

immigrant visas or adjustment of status 

are required to submit an Affidavit of 

Support Under Section 213A of the INA 

executed by a sponsor on their behalf. 

This requirement applies to most 

family-sponsored immigrants and some 

employment-based immigrants.583 Even 

within the family-sponsored and 

employment-based classes of admission, 

some noncitizens are not required to 

submit an Affidavit of Support Under 

Section 213A executed by a sponsor on 

their behalf. A failure to meet the 

requirement for a sufficient Affidavit of 

Support Under Section 213A of the INA 

will result in the noncitizen being found 

inadmissible under the public charge 

ground of inadmissibility without 

review of the statutory minimum factors 

discussed above.584 When a sponsor 

executes an Affidavit of Support Under 

Section 213A of the INA on behalf of an 

applicant, they establish a legally 

enforceable contract between the 

sponsor and the U.S. Government with 

an obligation to financially support the 

applicant and reimburse benefit 

granting agencies if the sponsored 

immigrant receives certain benefits 

during the period of enforceability.585

Table 18 shows the estimated total 

population of individuals seeking 

adjustment of status who were required 

or not required to have a sponsor 

execute an Affidavit of Support Under 

Section 213A of the INA on their behalf 

over the period FY 2014—FY 2018. The 

estimated annual average population of 

individuals seeking to adjust status who 

were required to have a sponsor submit 

an affidavit of support on their behalf 

over the 5-year period was 297,998. 

Over this 5-year period, the estimated 

total population of individuals required 

to submit an affidavit of support from a 

sponsor ranged from a low of 268,091 in 

FY 2014 to a high of 329,011 in FY 

2017. 


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586See ‘‘Americans Are Seeing Highest Minimum 

Wage in History (Without Federal Help)’’ Emie 

Tedschi, The New York Times, April 24, 2019. 

Accessed at https://www.nytimes.com/2019/04/24/ 

upshot/why-america-may-already-have-its-highestminimum-wage.html (accessed Jan. 10, 2022). 

587USCIS analysis of data provided by USCIS, 

Policy and Research Division (Dec. 2021). 

588The benefits-to-wage multiplier is calculated 

as follows: (Total Employee Compensation per 

hour)/(Wages and Salaries per hour) = $39.55/ 

$27.35 = 1.446 = 1.45(rounded). See Economic 

News Release, Employer Cost for Employee 

Compensation (September 2021), U.S. Dept. of 

Labor, BLS, Table 1. Employer costs per hour 

worked for employee compensation and costs as a 

percent of total compensation: Civilian workers, by 

major occupational and industry group. available at 

https://www.bls.gov/news.release/pdf/ecec.pdf 

(viewed Jan. 6, 2022). 

589The calculation of the weighted Federal 

minimum hourly wage for applicants: $11.80 per 

hour * 1.45 benefits-to-wage multiplier = 

$17.11(rounded) per hour. 

590See ‘‘Inadmissibility and Deportability on 

Public Charge Grounds,’’ Proposed Rule,’’ 64 FR 

28676 (May 26, 1999). 

591See ‘‘Field Guidance on Deportability and 

Inadmissibility on Public Charge Grounds,’’ 64 FR 

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

Federal Register version of the Field Guidance is 

dated ‘‘March 26, 1999,’’ even though the guidance 

was signed May 20, 1999, became effective May 21, 

1999, and was published in the Federal Register on 

May 26, 1999. 

5. Cost-Benefit Analysis 

DHS expects this proposed rule to 

produce costs and benefits associated 

with the procedures for administering 

the public charge ground of 

inadmissibility. For this proposed rule, 

DHS generally uses the effective 

minimum wage plus weighted average 

benefits of $17.11 per hour ($11.80 

effective minimum wage base plus $5.31 

weighted average benefits) as a 

reasonable proxy of the opportunity cost 

of time for individuals who are applying 

for adjustment of status.586 DHS also 

uses $17.11 per hour to estimate the 

opportunity cost of time for individuals 

who cannot or choose not to participate 

in the labor market as these individuals 

incur opportunity costs, assign 

valuation in deciding how to allocate 

their time, or both. This analysis uses 

the effective minimum wage rate since 

approximately 80 percent of the total 

number of individuals who applied for 

lawful permanent resident status were 

in a category of applicant under the 

family-sponsored categories (including 

immediate relatives of U.S. citizens) and 

other non-employment-based 

classifications such as diversity, 

refugees and asylees, and parolees.587

Even when an individual is not working 

for wages, their time has value. For 

example, if someone performs childcare, 

housework, or other activities without 

paid compensation, that time still has 

value. Due to the wide variety of nonpaid activities an individual could 

pursue, it is difficult to estimate the 

value of that time. DHS requests public 

comment on ways to best estimate the 

value of this non-paid time. DHS 

assumes the effective minimum wage 

for this non-paid time. DHS requests 

comments on using effective minimum 

wage. 

The effective minimum wage of 

$11.80 is an unweighted hourly wage 

that does not account for worker 

benefits. DHS accounts for worker 

benefits when estimating the 

opportunity cost of time by calculating 

a benefits-to-wage multiplier using the 

most recent Department of Labor, 

Bureau of Labor Statistics (BLS) report 

detailing the average employer costs for 

employee compensation for all civilian 

workers in major occupational groups 

and industries. DHS estimates that the 

benefits-to-wage multiplier is 1.45, 

which incorporates employee wages and 

salaries and the full cost of benefits, 

such as paid leave, insurance, and 

retirement.588 DHS notes that there is no 

requirement that an individual be 

employed in order to file Form I–485 

and many applicants may not be 

employed. Therefore, in this proposed 

rule, DHS calculates the total rate of 

compensation for individuals applying 

for adjustment of status as $17.11 per 

hour in this proposed rule using the 

benefits-to-wage multiplier, where the 

mean hourly wage is $11.80 per hour 

worked and average benefits are $5.31 

per hour.589

a. Establishing the Baselines 

DHS discusses the potential impacts 

of this proposed rule relative to two 

baselines. The first baseline is a No 

Action Baseline that represents a state of 

the world in which DHS is 

implementing the public charge ground 

of inadmissibility consistent with the 

1999 Interim Field Guidance. 

The second baseline is a Pre-Guidance 

Baseline, which represents a state of the 

world in which the 1999 NPRM,590 1999 

Interim Field Guidance,591 and the 2019 

Final Rule were not enacted. 

DHS requests comment on whether 

the No Action and 1999 Interim Field 

Guidance baselines capture the range of 

reasonably likely futures in the absence 

of this proposed rule (including 

directions and magnitudes of impacts 

associated with changes in subregulatory guidance) or if the range 

should be broadened or narrowed. 

Relatedly, feedback is welcome 

regarding the extent to which the 2019 

Final Rule (presented below as a 

regulatory alternative) affected the 


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592Calculation: Form I–485 filing fee ($1,140) * 

Estimated annual population filing Form I–485 

(501,520) = $571,732,800 annual cost for filing 

Form I–485. 

baseline and thus should be 

incorporated into this portion of the 

analysis, rather than in the assessment 

of alternative options. 

b. No Action Baseline 

The No Action Baseline represents the 

current state of the world in which DHS 

applies the public charge ground of 

inadmissibility consistent with the 1999 

Interim Field Guidance. For this 

proposed rule, DHS estimates the No 

Action Baseline according to current 

operations and requirements and 

compares the estimated costs and 

benefits of the provisions set forth in 

this proposed rule to this baseline. DHS 

notes that costs detailed as part of the 

No Action Baseline include all current 

costs associated with completing and 

filing Form I–485, including required 

biometrics collection and medical 

examination (Form I–693), as well as 

any affidavits of support (Forms I–864, 

I–864A, I–864EZ, and I–864W) or 

requested fee waivers (Form I–912). 

As noted previously in this analysis, 

DHS estimates the projected average 

annual total population of adjustment of 

status applicants that would be subject 

to review for inadmissibility on the 

public charge ground is 501,520. This 

estimate is based on the 5-year average 

of the annual estimated total population 

subject to review for inadmissibility on 

the public charge ground from FY 2014– 

FY 2018. Table 19 shows the estimated 

population and annual costs of filing for 

adjustment of status for the proposed 

rule. These costs primarily result from 

the process of applying for adjustment 

of status, including filing Form I–485 

and Form I–693 as well as filing an 

affidavit of support or Form I–912 or 

both, if necessary. 

BILLING CODE 9111–97–C 

i. Forms Relevant to This Proposed Rule 

Form I–485, Application To Register 

Permanent Residence or Adjust Status 

The basis of the quantitative costs 

estimated for this proposed rule is the 

cost of filing for adjustment of status 

using Form I–485, the opportunity cost 

of time for completing this form, any 

other required forms, and the cost for 

any other incidental costs (e.g., travel 

costs) an individual must bear that are 

required in the filing process. DHS 

reiterates that costs examined in this 

section are not additional costs that the 

proposed rule would impose; rather, 

they are costs that applicants incur as 

part of the current application process 

to adjust status. The current filing fee 

for Form I–485 is $1,140. The fee is set 

at a level to recover the processing costs 

to DHS. As previously discussed in the 

population section, the estimated 

average annual population of 

individuals who apply for adjustment of 

status using Form I–485 is 501,520. 

Therefore, DHS estimates that the 

annual filing fee costs associated for 

Form I–485 is approximately 

$571,732,800.592

DHS estimates the time burden of 

completing Form I–485 is 6.42 hours per 

response, including the time for 

reviewing instructions, gathering the 


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593USCIS. ‘‘Instructions for Application to 

Register Permanent Residence or Adjust Status 

(Form I–485).’’ OMB No. 1615–0023. Expires Mar. 

31, 2023. Available at: https://www.uscis.gov/sites/ 

default/files/document/forms/i-485instr.pdf 

(Accessed 1/12/2022). 

594Calculation for opportunity cost of time for 

filing Form I–485: ($17.11 per hour * 6.42 hours) 

= $109.85 (rounded) per applicant. 

595Calculation: Form I–485 estimated 

opportunity cost of time ($109.85) * Estimated 

annual population filing Form I–485 (501,520) = 

$55,091,972 (rounded) annual opportunity cost of 

time for filing Form I–485. 

596Calculation: Biometrics services processing fee 

($85) * Estimated annual population filing Form I– 

485 (501,520) = $42,629,200 annual cost for 

associated with Form I–485 biometrics services 

processing. 

597See Employment Authorization for Certain H– 

4 Dependent Spouses, Final Rule, 80 FR 10284 

(Feb. 25, 2015); and Provisional and Unlawful 

Presence Waivers of Inadmissibility for Certain 

Immediate Relatives; Final Rule, 78 FR 536, 572 

(Jan. 3, 2013). 

598Source for biometric time burden estimate: 

USCIS. ‘‘Instructions for Application to Register 

Permanent Residence or Adjust Status (Form I– 

485).’’ OMB No. 1615–0023. Expires Mar. 31, 2023. 

Available at: https://www.uscis.gov/sites/default/ 

files/document/forms/i-485instr.pdf (accessed Jan. 

12, 2022). 

599Calculation for opportunity cost of time to 

comply with biometrics submission for Form I–485: 

($17.11 per hour * 3.67 hours) = $62.79 (rounded) 

per applicant. 

600Calculation: Estimated opportunity cost of 

time to comply with biometrics submission for 

Form I–485 ($62.79) * Estimated annual population 

filing Form I–485 (501,520) = $31,490,441 

(rounded) annual opportunity cost of time for filing 

Form I–485. 

601See U.S. General Services Administration 

website for Privately Owned Vehicle (POV) Mileage 

Reimbursement Rates, https://www.gsa.gov/travel/ 

plan-book/transportation-airfare-rates-pov-ratesetc/privately-owned-vehicle-pov-mileagereimbursement-rates (accessed Jan. 7, 2022). 

602Calculation: (Biometrics collection travel 

costs) * (Estimated annual population filing Form 

I–485) = $29.25 * 501,520= $14,669,460 annual 

travel costs related to biometrics collection for Form 

I–485. 

603Calculation: $571,732,800 (Annual filing fees 

for Form I–485) + $55,091,972 (Opportunity cost of 

time for filing Form I–485) + $42,629,200 

(Biometrics services fees) + $31,490,441 

(Opportunity cost of time for biometrics collection 

requirements) + $14,669,460 (Travel costs for 

biometrics collection) = $715,613,873 total current 

annual cost for filing Form I–485. 604Source for immigration medical examination 

cost range: Paperwork Reduction Act (PRA) Report 

required documentation and 

information, completing the application, 

preparing statements, attaching 

necessary documentation, and 

submitting the application.593 Using the 

total rate of compensation for minimum 

wage of $17.11 per hour, DHS estimates 

the opportunity cost of time for 

completing and submitting Form I–485 

would be $109.85 per applicant.594

Therefore, using the total population 

estimate of 501,520 annual filings for 

Form I–485, DHS estimates the total 

opportunity cost of time associated with 

completing Form I–485 is 

approximately $55,091,972 annually.595

USCIS requires applicants who file 

Form I–485 to submit biometric 

information (fingerprints and signature) 

by attending a biometrics services 

appointment at a designated USCIS 

Application Support Center (ASC). The 

biometrics services processing fee is 

$85.00 per applicant. Therefore, DHS 

estimates that the annual cost associated 

with biometrics services processing for 

the estimated average annual population 

of 501,520 individuals applying for 

adjustment of status is approximately 

$42,629,200.596

In addition to the biometrics services 

fee, the applicant would incur the costs 

to comply with the biometrics 

submission requirement as well as the 

opportunity cost of time for traveling to 

an ASC, the mileage cost of traveling to 

an ASC, and the opportunity cost of 

time for submitting their biometrics. 

While travel times and distances vary, 

DHS estimates that an applicant’s 

average roundtrip distance to an ASC is 

50 miles and takes 2.5 hours on average 

to complete the trip.597 Furthermore, 

DHS estimates that an applicant waits 

an average of 1.17 hours for service and 

to have their biometrics collected at an 

ASC,598 adding up to a total biometricsrelated time burden of 3.67 hours. Using 

the total rate of compensation of the 

effective minimum wage of $17.11 per 

hour, DHS estimates the opportunity 

cost of time for completing the 

biometrics collection requirements for 

Form I–485 is $62.79 per applicant.599

Therefore, using the total population 

estimate of 501,520 annual filings for 

Form I–485, DHS estimates the total 

opportunity cost of time associated with 

completing the biometrics collection 

requirements for Form I–485 is 

approximately $31,490,441 annually.600

In addition to the opportunity cost of 

providing biometrics, applicants would 

incur travel costs related to biometrics 

collection. The cost of travel related to 

biometrics collection would equal 

$29.25 per trip, based on the estimated 

average 50-mile roundtrip distance to an 

ASC and the General Services 

Administration’s (GSA) travel rate of 

$0.585 per mile.601 DHS assumes that 

each applicant would travel 

independently to an ASC to submit their 

biometrics, meaning that this rule 

would impose a travel cost on each of 

these applicants. Therefore, DHS 

estimates that the total annual cost 

associated with travel related to 

biometrics collection for the estimated 

average annual population of 501,520 

individuals applying for adjustment of 

status is approximately $14,669,460.602

In sum, DHS estimates the total 

current annual cost for filing Form 

I–485 is $715,613,873, which includes 

Form I–485 filing fees, biometrics 

services fees, opportunity cost of time 

for completing Form I–485 and 

submitting biometrics information, and 

travel cost associated with biometrics 

collection.603 DHS notes that a medical 

examination is generally required as 

part of the application process to adjust 

status. Costs associated with the 

medical examination are detailed in the 

next section. Moreover, costs associated 

with submitting an affidavit of support 

and requesting a fee waiver are also 

detailed in subsequent sections since 

such costs are not required for every 

individual applying for an adjustment of 

status. 

Form I–693, Report of Medical 

Examination and Vaccination Record 

USCIS requires most applicants who 

file Form I–485 seeking adjustment of 

status to submit Form I–693 as 

completed by a USCIS-designated civil 

surgeon. Form I–693 is used to report 

results of an immigration medical 

examination to USCIS. For this analysis, 

DHS assumes that all individuals who 

apply for adjustment of status using 

Form I–485 will also submit Form 

I–693. DHS reiterates that costs 

examined in this section are not 

additional costs that the proposed rule 

would impose, but costs that applicants 

currently incur as part of the application 

process to adjust status. Form I–693 is 

required for adjustment of status 

applicants to establish that they are not 

inadmissible to the United States on 

health-related grounds. While there is 

no filing fee associated with Form I– 

693, the applicant is responsible for 

paying all costs of the immigration 

medical examination, including the cost 

of any follow-up tests or treatment that 

is required, and must make payments 

directly to the civil surgeon or other 

health care provider. In addition, 

applicants bear the opportunity cost of 

time for completing the applicant 

portions of Form I–693, as well as 

sitting for the immigration medical 

exam and the time waiting to be 

examined. 

USCIS does not regulate the fees 

charged by civil surgeons for the 

completion of an immigration medical 

examination. In addition, immigration 

medical examination fees vary widely 

by civil surgeon, from as little as $20 to 

as much as $1,000 per applicant 

(including vaccinations, additional 

medical evaluations, and testing that 

may be required based on the medical 

conditions of the applicant).604 DHS 


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of Medical Examination and Vaccination Record 

(Form I–693) (OMB control number 1615–0033). 

The PRA Supporting Statement can be found at 

Question 13 on Reginfo.gov at https://

www.reginfo.gov/public/do/ 

PRAViewDocument?ref_nbr=202108-1615-004. 605Source for immigration medical examination 

cost estimate: Paperwork Reduction Act (PRA) 

Report of Medical Examination and Vaccination 

Record (Form I–693) (OMB control number 1615– 

0033). The PRA Supporting Statement can be found 

at Question 13 on Reginfo.gov at https://

www.reginfo.gov/public/do/ 

PRAViewDocument?ref_nbr=202108-1615-004. 606Calculation: (Estimated immigration medical 

examination cost for Form I–693) * (Estimated 

annual population filing Form I–485) = $493.75 * 

501,520 = $247,625,500 annual estimated medical 

exam costs for Form I–693. 607Source for immigration medical examination 

time burden estimate: USCIS. ‘‘Instructions for 

Report of Medical Examination and Vaccination 

Record (Form I–693).’’ OMB No. 1615–0033. 

Expires Mar. 31, 2023. Available at: https://

www.uscis.gov/sites/default/files/document/forms/ 

i-693instr.pdf (accessed Jan. 13, 2022). 

608Calculation for immigration medical 

examination opportunity cost of time: ($17.11 per 

hour * 2.5 hours) = $42.78 per applicant. 

609Calculation: (Estimated immigration medical 

examination opportunity cost of time for Form 

I–693) * (Estimated annual population filing Form 

I–485) = $42.78 * 501,520 = $21,455,026 (rounded) 

annual opportunity cost of time for filing Form 

I–485. 

610Calculation: $247,625,500 (Medical exam 

costs) + $21,455,026 (Opportunity cost of time for 

Form I–693) = $269,080,526 total current annual 

cost for filing Form I–693. 

611 DHS notes that the estimated population of 

individuals who would request a fee waiver for 

filing Form I–485 includes all visa classifications 

for those applying for adjustment of status. We are 

unable to determine the number of fee waiver 

requests for filing Form I–485 that are associated 

with specific visa classifications that are subject to 

public charge review. 

estimates that the average cost for these 

activities is $493.75 and that all 

applicants would incur this cost.605

Since DHS assumes that all applicants 

who apply for adjustment of status 

using Form I–485 must also submit 

Form I–693, DHS estimates that based 

on the estimated average annual 

population of 501,520 the annual cost 

associated with filing Form I–693 is 

$247,625,500.606

DHS estimates the time burden 

associated with filing Form I–693 is 2.5 

hours per applicant, which includes 

understanding and completing the form, 

setting an appointment with a civil 

surgeon for a medical exam, sitting for 

the medical exam, learning about and 

understanding the results of medical 

tests, allowing the civil surgeon to 

report the results of the medical exam 

on the form, and submitting the medical 

exam report to USCIS.607 DHS estimates 

the opportunity cost of time for 

completing and submitting Form I–693 

is $42.78 per applicant based on the 

total rate of compensation of minimum 

wage of $17.11 per hour.608 Therefore, 

using the total population estimate of 

501,520 annual filings for Form I–485, 

DHS estimates the total opportunity cost 

of time associated with completing and 

submitting Form I–693 is approximately 

$21,455,026 annually.609

In sum, DHS estimates the total 

current annual cost for filing Form 

I–693 is $260,805,446, including 

medical exam costs, the opportunity 

cost of time for completing Form I–693, 

and cost of postage to mail the Form I– 

693 package to USCIS.610

Form I–912, Request for Fee Waiver 

Some applicants seeking an 

adjustment of status may be eligible for 

a fee waiver when filing Form I–485. An 

applicant who is unable to pay the filing 

fees or biometric services fees for an 

application or petition may be eligible 

for a fee waiver by filing Form I–912. If 

an applicant’s Form I–912 is approved, 

USCIS, as a component of DHS, will 

waive both the filing fee and biometric 

services fee. Therefore, DHS assumes for 

the purposes of this economic analysis 

that the filing fees and biometric 

services fees required for Form I–485 are 

waived if an approved Form I–912 

accompanies the application. Filing 

Form I–912 is not required for 

applications and petitions that do not 

have a filing fee. DHS also notes that 

costs examined in this section are not 

additional costs that would be imposed 

by the proposed rule but costs that 

applicants currently could incur as part 

of the application process to adjust 

status. 

Table 20 shows the estimated 

population of individuals that requested 

a fee waiver (Form I–912), based on 

receipts, when applying for adjustment 

of status in FY 2014–FY 2018, as well 

as the number of requests that were 

approved or denied each fiscal year. 

During this period, the number of 

individuals who requested a fee waiver 

when applying for adjustment of status 

ranged from a low of 49,292 in FY 2014 

to a high of 95,476 in FY 2017. In 

addition, the estimated average 

population of individuals applying to 

adjust status who requested a fee waiver 

for Form I–485 over the 5-year period 

FY 2014–FY 2018 was 69,194. DHS 

estimates that 69,194 is the average 

annual projected population of 

individuals who would request a fee 

waiver using Form I–912 when filing 

Form I–485 to apply for an adjustment 

of status.611


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612Source for fee waiver time burden estimate: 

USCIS. ‘‘Instructions for Fee Waiver Request (Form 

I–912).’’ OMB No. 1615–0116. Expires Sept. 30, 

2024. Available at: https://www.uscis.gov/sites/ 

default/files/document/forms/i-912instr.pdf 

(accessed Jan. 13, 2022). 613Calculation for fee waiver opportunity cost of 

time: ($17.11 per hour * 1.17 hours) = $20.02 

(rounded). 614Calculation: (Estimated opportunity cost of 

time for Form I–912) * (Estimated annual 

population of approved Form I–912) = $20.02 * 

69,194= $1,385,264 (rounded) annual opportunity 

cost of time for filing Form I–912 that are approved. 

615Source for Form I–864 time burden estimate: 

USCIS. ‘‘Instructions for Affidavit of Support Under 

Section 213A of the INA (Form I–864).’’ OMB No. 

1615–0075. Expires Sept. 30, 2021. Available at: 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-864instr.pdf (accessed Jan. 13, 2022). 

616See Economic News Release, Employer Cost 

for Employee Compensation (September 2021), U.S. 

Dept. of Labor, BLS, Table 1. Employer costs per 

hour worked for employee compensation and costs 

as a percent of total compensation: Civilian 

workers, by major occupational and industry group. 

Available at https://www.bls.gov/news.release/ 

archives/ecec_12162021.pdf (last modified Dec. 17, 

2021). 

617Calculation opportunity cost of time for 

completing and submitting Form I–864, Affidavit of 

Support Under Section 213A of the INA: ($39.55 

per hour * 6.0 hours) = $237.30 per applicant. 

To provide a reasonable proxy of time 

valuation for applicants, as described 

previously, DHS assumes that 

applicants requesting a fee waiver for 

Form I–485 earn the total rate of 

compensation for individuals applying 

for adjustment of status as $17.11 per 

hour, where the value of $10.51 per 

hour represents the effective minimum 

wage with an upward adjustment for 

benefits. 

DHS estimates the time burden 

associated with filing Form I–912 is 1 

hour and 10 minutes per applicant (1.17 

hours), including the time for reviewing 

instructions, gathering the required 

documentation and information, 

completing the request, preparing 

statements, attaching necessary 

documentation, and submitting the 

request.612 Therefore, using $17.11 per 

hour as the total rate of compensation, 

DHS estimates the opportunity cost of 

time for completing and submitting 

Form I–912 is $20.02 per applicant.613

Using the total population estimate of 

69,194 requests for a fee waiver for 

Form I–485, DHS estimates the total 

opportunity cost of time associated with 

completing and submitting Form I–912 

is approximately $1,385,264 

annually.614

Form I–864, Affidavit of Support Under 

Section 213A of the INA, and Related 

Forms 

As previously discussed, submitting a 

Form I–864 is required for most familybased immigrants and some 

employment-based immigrants to show 

that they have adequate means of 

financial support and are not likely to 

become a public charge. Additionally, 

Form I–864 can include Form I–864A, 

which may be filed when a sponsor’s 

income and assets do not meet the 

income requirements of Form I–864 and 

the qualifying household member 

chooses to combine their resources with 

the sponsor’s income, assets, or both to 

meet those requirements. Some 

sponsors for applicants filing 

applications for adjustment of status 

may be able to execute Form I–864EZ 

rather than Form I–864, provided 

certain criteria are met. Moreover, 

certain classes of immigrants currently 

are exempt from the requirement to file 

Form I–864 or Form I–864EZ and 

therefore must file Form I–864W, 

Request for Exemption for Intending 

Immigrant’s Affidavit of Support. 

There is no filing fee associated with 

filing Form I–864 with USCIS. However, 

DHS estimates the time burden 

associated with a sponsor executing 

Form I–864 is 6 hours per adjustment 

applicant, including the time for 

reviewing instructions, gathering the 

required documentation and 

information, completing the affidavit, 

preparing statements, attaching 

necessary documentation, and 

submitting the Form I–864.615

To estimate the opportunity cost of 

time associated with filings of I–864, 

this analysis uses $39.55 per hour, the 

total compensation amount including 

costs for wages and salaries and benefits 

from the BLS report on Employer Costs 

for Employee Compensation detailing 

the average employer costs for employee 

compensation for all civilian workers in 

major occupational groups and 

industries.616 DHS uses this wage rate 

because DHS expects that sponsors who 

file affidavits of support have adequate 

means of financial support and are 

likely to be employed. 

Using the average total rate of 

compensation of $39.55 per hour, DHS 

estimates the opportunity cost of time 

for completing and submitting Form I– 

864 would be $237.30 per petitioner.617

DHS assumes that the average rate of 

total compensation used to calculate the 


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618Calculation: (Form I–864 estimated 

opportunity cost of time) * (Estimated annual 

population filing Form I–864) = $237.30 * 297,998 

= $70,714,925 (rounded) total annual opportunity 

cost of time for filing Form I–864. 

619Source for I–864A time burden estimate: 

USCIS. ‘‘Instructions for Contract Between Sponsor 

and Household Member (Form I–864A).’’ OMB No. 

1615–0075. Expires Sept. 30, 2021. Available at: 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-864ainstr.pdf (accessed Jan. 13, 2022). 

620Calculation opportunity cost of time for 

completing and submitting Form I–864A, Contract 

Between Sponsor and Household Member: ($39.55 

per hour * 1.75 hours) = $69.21 (rounded) per 

petitioner. 

621Source for I–864EZ time burden estimate: 

USCIS. ‘‘Instructions for Affidavit of Support Under 

Section 213A of the INA (Form I–864EZ).’’ OMB 

No. 1615–0075. Expires Sept. 30, 2021. Available at: 

https://www.uscis.gov/sites/default/files/document/ 

forms/i-864ezinstr.pdf (accessed Jan. 13, 2022). 

622Calculation opportunity cost of time for 

completing and submitting Form I–864EZ, Affidavit 

of Support Under Section 213A of the INA: ($39.55 

per hour * 2.5 hours) = $98.88 (rounded). 

623Source for I–864W time burden estimate: 

USCIS. ‘‘Instructions for Request for Exemption for 

Intending Immigrant’s Affidavit of Support (Form I– 

864W).’’ OMB No. 1615–0075. Expires Sept. 30, 

2021. Available at: https://www.uscis.gov/sites/ 

default/files/document/forms/i-864winstr.pdf 

(accessed Jan. 13, 2022). 

624Calculation opportunity cost of time for 

completing and submitting Form I–864W: ($39.55 

per hour * 1.0 hours) = $39.55. 

625To be clear, these form changes will not affect 

applicants who are exempt from the public charge 

ground of inadmissibility listed in proposed 8 CFR 

212.23. 

opportunity cost of time for Form I–864 

is appropriate since the sponsor of an 

immigrant, who is agreeing to provide 

financial and material support, is 

instructed to complete and submit the 

form. Using the estimated annual total 

population of 297,998 individuals 

seeking to adjust status who are 

required to submit an affidavit of 

support using Form I–864, DHS 

estimates the opportunity cost of time 

associated with completing and 

submitting Form I–864 $70,714,925 

annually.618 DHS estimates this amount 

as the total current annual cost for filing 

Form I–864, as required when applying 

to adjust status. 

There is also no filing fee associated 

with filing Form I–864A with USCIS. 

However, DHS estimates the time 

burden associated with filing Form I– 

864A is 1 hour and 45 minutes (1.75 

hours) per petitioner, including the time 

for reviewing instructions, gathering the 

required documentation and 

information, completing the contract, 

preparing statements, attaching 

necessary documentation, and 

submitting the contract.619 Therefore, 

using the average total rate of 

compensation of $39.55 per hour, DHS 

estimates the opportunity cost of time 

for completing and submitting Form I– 

864A will be $69.21 per petitioner.620

DHS assumes the average total rate of 

compensation used for calculating the 

opportunity cost of time for Form I–864 

since both the sponsor and another 

household member agree to provide 

financial support to an immigrant 

seeking to adjust status. However, the 

household member also may be the 

intending immigrant. While Form I– 

864A must be filed with Form I–864, 

DHS notes that we are unable to 

determine the number of filings of Form 

I–864A since not all individuals filing I– 

864 need to file Form I–864A with a 

household member. 

As with Form I–864, there is no filing 

fee associated with filing Form I–864EZ 

with USCIS. However, DHS estimates 

the time burden associated with filing 

Form I–864EZ is 2 hours and 30 

minutes (2.5 hours) per petitioner, 

including the time for reviewing 

instructions, gathering the required 

documentation and information, 

completing the affidavit, preparing 

statements, attaching necessary 

documentation, and submitting the 

affidavit.621 Therefore, using the average 

total rate of compensation of $39.55 per 

hour, DHS estimates the opportunity 

cost of time for completing and 

submitting Form I–864EZ will be $98.88 

per petitioner.622 However, DHS notes 

that we are unable to determine the 

number of filings of Form I–864EZ and, 

therefore, rely on the annual cost 

estimate developed for Form I–864. 

There is also no filing fee associated 

with filing Form I–864W with USCIS. 

However, DHS estimates the time 

burden associated with filing this form 

is 60 minutes (1 hour) per petitioner, 

including the time for reviewing 

instructions, gathering the required 

documentation and information, 

completing the request, preparing 

statements, attaching necessary 

documentation, and submitting the 

request.623 Therefore, using the average 

total rate of compensation of $39.55 per 

hour, DHS estimates the opportunity 

cost of time for completing and 

submitting Form I–864EZ will be $39.55 

per petitioner.624 However, DHS notes 

that we are unable to determine the 

number of filings of Form I–864W and, 

therefore, rely on the annual cost 

estimate developed for Form I–864. 

ii. Costs of Proposed Regulatory 

Changes 

In this section, DHS estimates costs of 

the proposed rule relative to No Action 

Baseline. The primary source of 

quantified new costs for the proposed 

rule would be from an additional 1.5 

hours increase in the time burden 

estimate to complete Form I–485 for 

applicants who are subject to the public 

charge ground of inadmissibility.625 The 

additional time burden is required to 

collect information based on factors 

such as age; health; family status; assets, 

resources, and financial status; and 

education and skills, so that USCIS 

could determine whether an applicant 

would be inadmissible to the United 

States based on the public charge 

ground. 

The proposed rule would include 

additional instructions as well as 

additional questions for filing Form I– 

485 for applicants who are subject to the 

public charge ground of inadmissibility 

and, as a result, those applicants would 

spend additional time reading the 

instructions increasing the estimated 

time to complete the form. The current 

estimated time to complete Form I–485 

is 6 hours and 25 minutes (6.42 hours). 

For the proposed rule, DHS estimates 

that the time burden for completing 

Form I–485 would increase by 1.5 

hours. Therefore, in the proposed rule, 

the time burden to complete Form I–485 

would be 7 hours and 55 minutes (7.92 

hours). 

The following cost is a new cost that 

would be imposed on the population 

applying to adjust status using Form I– 

485 for applicants who are subject to the 

public charge ground of inadmissibility. 

Table 21 shows the estimated new 

annual costs that the proposed rule 

would impose on individuals seeking to 

adjust status using Form I–485 for 

applicants who are subject to the public 

charge ground of inadmissibility with a 

1.5-hour increase in the time burden 

estimate for completing Form I–485. 


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626Source: USCIS. ‘‘Instructions for Application 

to Register Permanent Residence or Adjust Status 

(Form I–485).’’ OMB No. 1615–0023. Expires Mar. 

31, 2023. Available at: https://www.uscis.gov/sites/ 

default/files/document/forms/i-485instr.pdf 

(accessed Jan. 12, 2022). 

627Calculation for opportunity cost of time for 

filing Form I–485: ($17.11 per hour * 1.5 hours) = 

$25.67 (rounded) per applicant. 

628Calculation: Form I–485 estimated 

opportunity cost of time ($17.11 per hour * 1.5 

hours) * Estimated annual population filing Form 

I–485 (501,520) = $17.11 

*1.5*501,520=$12,871,511(rounded) annual 

opportunity cost of time for filing Form I–485. 

629See Public Law 113–4, 127 Stat. 54 (Mar. 7, 

2013). 

The time burden includes the time for 

reviewing instructions, gathering the 

required documentation and 

information, completing the application, 

preparing statements, attaching 

necessary documentation, and 

submitting the application.626 Using the 

total rate of compensation for minimum 

wage of $17.11 per hour, DHS currently 

estimates the opportunity cost of time 

for completing and filing Form I–485 

would be $25.67 per applicant.627

Therefore, using the total population 

estimate of 501,520 annual filings for 

Form I–485 for applicants who are 

subject to the public charge ground of 

inadmissibility, DHS estimates the 

current total opportunity cost of time 

associated with completing Form I–485 

is approximately $12,871,511 

annually.628

iii. Cost Savings of the Proposed 

Regulatory Changes 

DHS anticipates that the proposed 

rule would produce some quantitative 

cost savings relative to both baselines. 

DHS proposes that T nonimmigrants 

applying for adjustment of status will no 

longer need to submit Form I–601 

seeking a waiver on public charge 

grounds of inadmissibility. The existing 

regulations at 8 CFR 212.18 and 8 CFR 

245.23 stating that T nonimmigrants are 

required to obtain waivers are not in 

line with the Violence Against Women 

Act Reauthorization Act of 2013 (VAWA 

2013).629 T nonimmigrants are exempt 

from public charge inadmissibility 

under the statute, and therefore never 

should have required a waiver in order 

to adjust status. The proposed rule 

would align the regulation with the 

statute. DHS estimates the cost savings 

for this population will be $15,359 

annually. 

Table 22 shows the total population 

between FY 2014 and FY 2018 that filed 

form I–601. Over the 5-year period the 

population of individuals who have 

applied for adjustment of status ranged 

from a low of 6 in FY 2018 to a high 

of 35 in FY 2014. On average, the 

annual population of individuals over 

five fiscal years who filed Form I–601 

and applied for adjustment of status 

with a T nonimmigrant status is 16. 


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630Source: USCIS. ‘‘Instructions for Application 

for Waiver of Grounds of Inadmissibility (Form I– 

601).’’ OMB No. 1615–0029. Expires July. 31, 2023. 

Available at: https://www.uscis.gov/sites/default/ 

files/document/forms/i-601instr.pdf (accessed Jan. 

20, 2022). 

631Calculation: (Form I–601, time burden) * 

(Estimated annual applicants for Form I–601) * 

(Hourly wage) = 1.75 * 16 *$17.11= $479.08 

(rounded) per applicant. 

632Calculation: Filing fee* Estimated annual 

applicants for Form I–601 = $930*16=$14,880. 

633Calculation: Total savings ($15,359) 

=$479.08+$14,880=$15,359 (rounded). 

634Calculation: (Average total compensation for 

all occupations) * (Time to read proposed rule— 

lower bound) = (Opportunity cost of time [OCT] to 

read proposed rule) = $39.55 * 3 hours = $118.65 

OCT per individual to read proposed rule, 3 hours 

(rounded) = (approximately 60,000 words/300)/60. 

Calculation: (Average total compensation for all 

occupations) * (Time to read proposed rule—upper 

bound) = (Opportunity cost of time [OCT] to read 

proposed rule) = $39.55 * 4 hours = $158.20 OCT 

per individual to read proposed rule, 4 hours= 

(approximately 60,000 words/250)/60. 

Average total compensation for all occupation 

($39.55): See Economic News Release, Employer 

Cost for Employee Compensation (September 2021), 

U.S. Dept. of Labor, BLS, Table 1. Employer costs 

per hour worked for employee compensation and 

costs as a percent of total compensation: Civilian 

workers, by major occupational and industry group. 

Available at https://www.bls.gov/news.release/ 

archives/ecec_12162021.pdf (last modified 

December 17, 2021). 

DHS considers the historical data 

from FY 2014 to FY 2018 as the basis 

to form an estimated population 

projection of receipts for Form I–601 for 

T nonimmigrants who are adjusting 

status for the 10-year period beginning 

in FY 2022. Based on the average annual 

population of I–601 filers between FY 

2014 and FY 2018, DHS projects that 16 

T nonimmigrants who are applying for 

adjustment of status will no longer need 

to file Form I–601. DHS uses the 

effective minimum wage base plus 

weighted average benefit of $17.11 per 

hour to estimate the opportunity cost of 

time for these individuals since they are 

not likely to be participating in the labor 

market. DHS previously estimated the 

time burden to complete the Form I–601 

as 1.75 hours, including the time for 

reviewing instructions, gathering the 

required documentation and 

information, completing the application, 

preparing statements, attaching 

necessary documentation, and 

submitting the application.630 Thus, 

DHS estimates the opportunity cost of 

time for completing Form I–601 to be 

$479.08.631 Based on the population 

estimate and the filing fee of $930 for 

Form I–601, the total estimated cost for 

filing fees for the all 16 estimated filers 

would be approximately $14,880.632

The sum of the filing fee results in an 

estimated total annual savings of 

$15,359 resulting from the proposed 

rule, including the opportunity cost of 

time and filing fees.633

iv. Familiarization Costs 

A likely impact of the proposed rule 

relative to both baselines is that various 

individuals and other entities will incur 

costs associated with familiarization 

with the provisions of the rule. 

Familiarization costs involve the time 

spent reviewing a rule. A noncitizen 

might review the rule to determine 

whether they are subject to the proposed 

rule. To the extent an individual who is 

directly regulated by the rule incurs 

familiarization costs, those 

familiarization costs are a direct cost of 

the rule. 

In addition to those being directly 

regulated by the rule, a wide variety of 

other entities would likely choose to 

read the rule and incur familiarization 

costs. For example, immigration 

lawyers, immigration advocacy groups, 

health care providers of all types, 

benefits-administering agencies, 

nonprofit organizations, 

nongovernmental organizations, and 

religious organizations, among others, 

may want to become familiar with the 

provisions of this proposed rule. DHS 

believes such nonprofit organizations 

and other advocacy groups might 

choose to read the rule to provide 

information to noncitizens and 

associated households who may be 

subject to the rule. Familiarization costs 

incurred by those not directly regulated 

are indirect costs. Indirect impacts are 

borne by entities that are not 

specifically regulated by this rule but 

may incur costs due to changes in 

behavior related to this rule. 

DHS estimates the time that would be 

necessary to read the rule would be 

approximately 3 to 4 hours per person, 

resulting in opportunity costs of time. 

DHS assumes the average professional 

reads technical documents at a rate of 

about 250 to 300 words per minute. An 

entity, such as a nonprofit or advocacy 

group, may have more than one person 

who reads the proposed rule. Using the 

average total rate of compensation as 

$39.55 per hour for all occupations, 

DHS estimates that the opportunity cost 

of time will range from about $118.65 to 

$158.20 per individual who must read 

and review the final rule.634 However, 

DHS is unable to estimate the number 

of people that would familiarize 

themselves with this rule. As such, DHS 

is unable to quantify this cost. DHS 

requests comments on other possible 

indirect impacts of the rule and 

appropriate methodologies for 

quantifying these non-monetized 

potential impacts. 

v. Transfer Payments of Proposed 

Regulatory Changes 

DHS also considers transfer payments 

from the Federal and State governments 

to certain individuals who receive 

public benefits that would be more 

likely to occur under the proposed 

regulatory changes as compared to the 

No Action Baseline. While the proposed 

rule follows closely the approach taken 

in the 1999 Interim Field Guidance, it 

contains two changes that may have an 

effect on transfer payments. First, the 

proposed rule provides that, in any 

application for admission or adjustment 

of status in which the public charge 

ground of inadmissibility applies, DHS 

will not consider any public benefits 

received by a noncitizen during periods 

in which the noncitizen was present in 

the United States in an immigration 

category that is exempt from the public 

charge ground of inadmissibility. 

Second, under the proposed rule, when 

making a public charge inadmissibility 

determination, DHS will also not 

consider any public benefits that were 

received by noncitizens who are eligible 

for resettlement assistance, entitlement 

programs, and other benefits available to 

refugees admitted under section 207 of 

the INA, 8 U.S.C. 1157, including 

services described under 8 U.S.C. 

1522(d)(2) provided to an 

‘‘unaccompanied alien child’’ as defined 

under 6 U.S.C. 279(g)(2). Individuals 

covered by these exclusions may be 

more likely to participate in public 

benefit programs for the limited period 

of time that they are in such status or 

eligible for such benefits. This 

clarification could lead to an increase in 

public benefit participation by certain 

persons (most of whom would likely not 

to be subject to the public charge ground 

of inadmissibility in any event). This 

change could increase transfer payments 

from the Federal, Tribal, State, 

territorial, and local governments to 

certain individuals. DHS is unable to 

quantify the effects of these changes but 

welcomes public comments on the 

matter. 

vi. Benefits of Proposed Regulatory 

Changes 

The primary benefit of the proposed 

rule would be time savings of 

individuals directly and indirectly 

affected by the proposed rule. By 

clarifying standards governing a 

determination that a noncitizen is 

inadmissible or ineligible to adjust 

status on the public charge ground, the 

proposed rule would reduce time spent 

by the affected population who are 

making decisions to apply for 

adjustment of status or enrolling or 


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635See OMB. Circular A–4. September 17, 2003. 

Available at https://www.whitehouse.gov/sites/ 

whitehouse.gov/files/omb/circulars/A4/a-4.pdf. 

disenrolling in public benefit programs. 

For example, when noncitizens make 

decisions on whether to adjust status or 

to enroll or disenroll in public benefit 

programs, they may spend time 

gathering information or consulting 

attorneys. The proposed rule would 

reduce the time spent making these 

decisions. Specifically, the proposed 

rule provides clarity on inadmissibility 

on the public charge ground by 

codifying certain definitions, standards, 

and procedures. Listing the categories of 

noncitizens exempt from the public 

charge inadmissibility ground adds 

clarity as to which noncitizens are 

subject to the public charge 

determination and will help to reduce 

uncertainty and confusion. However, 

DHS is unable to quantify the reduction 

in time spent gathering information or 

consulting attorneys. DHS does not have 

data on how much time individuals 

would spend in making a decision on 

whether to adjust status or to enroll or 

disenroll in public benefit programs. 

DHS welcomes public comment on this 

benefit. 

vii. Total Estimated and Discounted 

Costs 

To compare costs over time, DHS 

applied a 3 percent and a 7 percent 

discount rate to the total estimated costs 

and savings associated with the 

proposed rule.635 Table 23 presents a 

summary of the total direct costs, 

savings, and net costs in the proposed 

rule. 

Over the first 10 years of 

implementation, DHS estimates the 

undiscounted direct costs of the 

proposed rule would be approximately 

$128,715,110, the cost savings $153,590, 

and the net costs $128,561,520. In 

addition, as seen in Table 24, DHS 

estimates that the 10-year discounted 

net cost of this proposed rule to 

individuals applying to adjust status 

who would be required to undergo 

review for determination of 

inadmissibility based on public charge 

would be approximately $109,665,584 

at a 3-percent discount rate and 

approximately $90,296,232 at a 

7-percent discount rate. 

viii. Costs to the Federal Government 

The INA provides for the collection of 

fees at a level that will ensure recovery 

of the full costs of providing 

adjudication and naturalization 

services, including administrative costs 

and services provided without charge to 

certain applicants and petitioners. See 

section 286(m) of the INA, 8 U.S.C. 

1356(m). DHS notes that USCIS 

establishes its fees by assigning costs to 

an adjudication based on its relative 

adjudication burden and use of USCIS 

resources. Fees are established at an 

amount that is necessary to recover 

these assigned costs, such as salaries 

and benefits for clerical positions, 

officers, and managerial positions, plus 

an amount to recover unassigned 

overhead (e.g., facility rent, IT 

equipment and systems) and 

immigration benefits provided without a 

fee charge. Consequently, since USCIS 


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636Office of Performance and Quality data 

received on December 30, 2021. The increase in 

employee cost is based on estimates of additional 

adjudication time due to the proposed rule, at 

compensation rates approximated by General 

Schedule wage data for USCIS employees. 637See OMB. Circular A–4, pp. 15–16. September 

17, 2003. Available at https://www.whitehouse.gov/ 

sites/whitehouse.gov/files/omb/circulars/A4/a4.pdf. 

638Fix, M.E., & Passel, J.S. (1999). Trends in 

noncitizens’ and citizens’ use of public benefits 

following welfare reform. The Urban Institute. 

http://webarchive.urban.org/publications/ 

408086.html. 

639Bell, S.H. (2001). Why are welfare caseloads 

falling? The Urban Institute. https://www.urban.org/ 

sites/default/files/publications/61341/310302-WhyAre-Welfare-Caseloads-Falling-.pdf. 

640Lofstrom, M., & Bean, F.D. (2002). Assessing 

immigrant policy options: Labor market conditions 

and post-reform declines in immigrants’ receipt of 

welfare. Demography 39(4), 617–63. 

641See Genser, J. (1999). Who is leaving the Food 

Stamps Program: An analysis of Caseload Changes 

from 1994 to 1997. Washington, DC: U.S. 

Department of Agriculture, Food and Nutrition 

Service, Office of Analysis, Nutrition, and 

Evaluation. Available at https://www.fns.usda.gov/ 

snap/who-leaving-food-stamp-program-analysiscaseload-changes-1994-1997 (accessed Jan. 27, 

2022). 

642 Id. at 2–3. 

643See Fix, M.E., and Passel, J.S. (1999). Trends 

in Noncitizens’ and Citizens’ Use of Public Benefits 

Following Welfare Reform: 1994–1997. Washington, 

DC: The Urban Institute. Available at https://

www.urban.org/research/publication/trendsnoncitizens-and-citizens-use-public-benefitsfollowing-welfare-reform (accessed Jan. 27, 2022). 

immigration fees are based on resource 

expenditures related to the service in 

question, USCIS uses the fee associated 

with an information collection as a 

reasonable measure of the collection’s 

costs to USCIS. Therefore, DHS has 

established the fee for the adjudication 

of Form I–485, Application to Register 

Permanent Residence or Adjust Status. 

DHS notes the time required for 

USCIS to review the additional 

information collected in Form I–485 

when the proposed rule is finalized 

includes the additional time to 

adjudicate the underlying benefit 

request. DHS notes that the proposed 

rule may increase USCIS’ costs 

associated with adjudicating 

immigration benefit requests. DHS 

estimates that the increased time to 

adjudicate the benefit request will result 

in an increased employee cost of 

approximately $14 million per year.636

USCIS currently does not charge a filing 

fee for other forms affected by this 

proposed rule do not currently charge a 

filing fee, including Form I–693, 

Medical Examination and Vaccination 

Record; Affidavit of Support forms 

(Form I–864, Form I–864A, Form I– 

864EZ, and I–864W); Form I–912, 

Request for Fee Waiver, and Form I– 

407, Record of Abandonment of Lawful 

Permanent Resident Status. While filing 

fees are not charged for these forms, the 

cost to USCIS is captured in the fee for 

I–485. Future adjustments to the fee 

schedule may be necessary to recover 

the additional operating costs and will 

be determined at USCIS’ next 

comprehensive biennial fee review. 

c. Pre-Guidance Baseline 

As noted above, the Pre-Guidance 

Baseline represents a state of the world 

in which the 1999 NPRM, 1999 Interim 

Field Guidance, and the 2019 Final Rule 

were not enacted. The Pre-Guidance 

Baseline is included in this analysis in 

accordance with OMB Circular A–4, 

which directs agencies to include a prestatutory baseline in an analysis if 

substantial portions of a rule may 

simply restate statutory requirements 

that would be self-implementing, even 

in the absence of the regulatory 

action.637 DHS previously has not 

performed a regulatory analysis on the 

regulatory costs and benefits of the 1999 

Interim Field Guidance and, therefore, 

includes a Pre-Guidance Baseline in this 

analysis for clarity and completeness. 

We present the Pre-Guidance Baseline 

to provide a more informed picture on 

the overall impacts of the 1999 Interim 

Field Guidance since its inception, 

while recognizing that many of these 

impacts have been realized already. 

The 2022 proposed rule would affect 

individuals who apply for adjustment of 

status because these individuals would 

be subject to inadmissibility 

determinations based on the public 

charge ground as long as the individual 

is not in a category of applicant that is 

exempt from the public charge ground 

of inadmissibility. In order to estimate 

the effect of the proposed rule relative 

to Pre-Guidance baseline, DHS revisits 

the state of the world for both the PreGuidance baseline and the No Action 

baseline. The state of the world in the 

Pre-Guidance baseline is one in which 

the 1999 Interim Field Guidance was 

never enacted. The state of the world in 

the No Action baseline is one in which 

the 1999 Interim Field Guidance was 

enacted and has been in practice. In 

order to estimate the effect of the 2022 

proposed rule relative to the PreGuidance baseline, DHS considers the 

effect of the 1999 Interim Field 

Guidance relative to the Pre-Guidance 

baseline as well as the changes in this 

proposed rule relative to the No Action 

Baseline. Since the latter has already 

been discussed in the No Action 

Baseline Section, the rest of this section 

focuses on estimating the effect of the 

1999 Interim Field Guidance relative to 

the Pre-Guidance baseline. 

PRWORA and IIRIRA generated 

considerable public confusion about 

noncitizen eligibility for public benefits 

and the related question of whether the 

receipt of Federal, State, or local public 

benefits for which a noncitizen may be 

eligible renders them likely to become a 

public charge. According to the 

literature, these laws led to sharp 

reductions in the use of public benefit 

programs by immigrants between 1994 

to 1997. This phenomenon is referred to 

as a chilling effect, which describes 

immigrants disenrolling from or 

forgoing enrollment in public benefit 

programs due to fear or confusion 

regarding: (1) The immigration 

consequences of public benefit receipt; 

or (2) the rules regarding noncitizen 

eligibility for public benefits.638 639 640

The state of the world before the 1999 

NPRM and 1999 Field Guidance 

reflected growing public confusion over 

the meaning of the term ‘‘public charge’’ 

in immigration law, which was 

undefined, and its relationship to the 

receipt of Federal, State, or local public 

benefits. 

The U.S. Department of Agriculture 

(USDA) published a study shortly after 

PRWORA took effect. The study found 

that the number of people receiving 

food stamps fell by over 5.9 million 

between summer 1994 and summer 

1997.641 The study notes that 

enrollment in the food stamps program 

was falling during this period, possibly 

due to strong economic growth, but the 

decline in enrollment was steepest 

among legal immigrants. Under 

PRWORA, legal immigrants were facing 

significantly stronger restrictions under 

which most of them would become 

ineligible to receive food stamps in 

September 1997. The study found that 

enrollment of legal immigrants in the 

food stamps program fell by 54 percent, 

accounting for 14 percent of the total 

decline. USDA also observed that 

Restrictions on participation by legal 

immigrants ‘‘appear to have deterred 

participation by their children, many of 

whom retained their eligibility for food 

stamps. Participation among U.S. born 

children living with their legal immigrant 

parents fell faster than participation among 

children living with native-born parents. The 

number of participating children living with 

legal immigrants fell by 37 percent, versus 15 

percent for children living with native-born 

parents.’’ 642

Another study found evidence of a 

‘‘chilling effect’’ following enactment of 

PRWORA and IIRIRA where noncitizen 

enrollment in public benefits programs 

declined more steeply than U.S. citizen 

enrollment over the period 1994 

through 1997.643 The study found that 


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644 Id. at 1–2. 

645 Id. 

646Relatively few noncitizens in the United States 

are both subject to INA 212(a)(4) and eligible for 

public benefits prior to adjustment of status (see 

Table 3 above). 

‘‘[w]hen viewed against the backdrop of 

overall declines in welfare receipt for all 

households, use of public benefits 

among noncitizen households fell more 

sharply (35 percent) between 1994 and 

1997 than among citizen households (14 

percent). These patterns hold for welfare 

(defined here as TANF, SSI, and General 

Assistance), food stamps, and 

Medicaid.’’ 644 The study authors 

concluded that rising incomes did not 

explain the relatively high 

disenrollment rate and suggested that 

the steeper declines in noncitizens’ use 

of benefits was attributable more to the 

chilling effects of PRWORA and public 

charge, among other factors. The study 

authors expected that, over time, 

eligibility changes would become more 

important because, under PRWORA, 

most immigrants admitted after August 

22, 1996, would be ineligible for most 

means-tested public benefits for at least 

5 years after their entry to the 

country.645

As described in the 1999 NPRM, the 

1999 NPRM sought to reduce the 

negative public health and nutrition 

consequences generated by the existing 

confusion and to provide noncitizens 

with better guidance as to the types of 

public benefits that would be 

considered or not considered in reviews 

for inadmissibility on the public charge 

ground. 

By providing a clear definition of 

‘‘likely at any time to become a public 

charge’’ and identifying the types of 

public benefits that would be 

considered in public charge 

inadmissibility determinations, the 

proposed rule could alleviate confusion 

and uncertainty 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 not only 

causes considerable harm, but also can 

have a range of downstream 

consequences for the general public. By 

describing the kinds of public benefits, 

if received, that could result in a 

determination that a person is likely at 

any time to become a public charge, 

immigrants would be able to maintain 

available supplemental benefits that are 

designed to aid individuals in gaining 

and maintaining employment. The 

proposed rule also lists the factors that 

must be considered in making public 

charge determinations. The proposed 

rule makes clear that the past or current 

receipt of public assistance, by itself, 

would not lead to a determination of 

being a public charge without also 

considering the minimum statutory 

factors. 

The primary impact of the proposed 

rule relative to the Pre-Guidance 

Baseline would be an increase in 

transfer payments from the Federal and 

State governments to individuals. As 

discussed above, the chilling effect due 

to PRWORA and IIRIRA resulted in a 

decline in participation in public 

benefit programs among noncitizens and 

foreign-born individuals and their 

families. The proposed rule would 

alleviate confusion and uncertainty, as 

compared to the Pre-Guidance Baseline, 

by clarifying the ground of public 

charge inadmissibility. This clarification 

would lead to an increase in public 

benefit participation by certain persons 

(most of whom would likely not be 

subject to the public charge ground of 

inadmissibility in any event).646 Due to 

the increase in transfer payments, DHS 

believes that the rule may also have 

indirect effects on businesses in the 

form of increased revenues for 

healthcare providers participating in 

Medicaid, companies that manufacture 

medical supplies or pharmaceuticals, 

grocery retailers participating in SNAP, 

and agricultural producers who grow 

foods that are eligible for purchase using 

SNAP benefits. However, DHS is unable 

to quantify this indirect effect due to the 

significant passage of time between the 

1999 Interim Field Guidance and this 

proposed rule. DHS invites comment on 

the indirect effects of the proposed rule 

on businesses and nonprofits. 

DHS believes that the rule may have 

indirect effects on State, local, and/or 

Tribal government as compared to the 

Pre-Guidance baseline. There may be 

costs to various entities associated with 

familiarization of and compliance with 

the provisions of the rule, including 

salaries and opportunity costs of time to 

monitor and understand regulation 

requirements, disseminate information, 

and develop or modify information 

technology (IT) systems as needed. It 

may be necessary for many government 

agencies to update guidance documents, 

forms, and web pages. It may be 

necessary to prepare training materials 

and retrain staff at each level of 

government, which will require 

additional staff time and will generate 

associated costs. However, DHS is 

unable to quantify these effects. DHS 

invites comment on the indirect effect of 

the proposed rule on State, local, and/ 

or Tribal governments. 

Due to the passage of a significant 

amount of time between the 1999 

Interim Field Guidance and this 

proposed rule, DHS cannot quantify the 

effects that this proposed rule would 

have as compared to the Pre-Guidance 

baseline. For instance, although DHS 

could estimate the chilling effects of 

PRWORA and IIRIRA and the 

countervailing effects of the 1999 

Interim Field Guidance, it would be 

challenging to apply such estimates to 

the 20-plus years since that time. A 

wide number of changes in the economy 

and Federal laws occurred during that 

time period that might have affected 

public benefits usage among the 

population most likely to be affected by 

the proposed rule. Thus, DHS is unable 

to quantify these effects. 

d. Regulatory Alternative 

Consistent with E.O. 12866, DHS 

considered the costs and benefits of 

available regulatory alternatives. One 

alternative that DHS considered was a 

rulemaking similar to the rulemaking 

that comprised the 2018 NPRM and the 

2019 Final Rule (the Alternative). DHS 

considered both the effects of the 2018 

NPRM and the 2019 Final Rule because 

the indirect disenrollment effects 

associated with the rulemaking began 

prior to the publication of the Final 

Rule. DHS sought to avoid 

underestimating the full impact the 

rulemaking had on the public. 

As compared to the 1999 Interim 

Field Guidance, the 2019 Final Rule 

expanded the criteria used in public 

charge inadmissibility determinations. 

The 2019 Final Rule broadened the 

definition of ‘‘public charge,’’ both by 

adding new public benefits for 

consideration and by implementing a 

test under which receipt of the 

designated benefits for more than 12 

months in the aggregate within a 36- 

month period would render a person a 

public charge. 

The additional public benefits in the 

2019 Final Rule were non-emergency 

Medicaid for non-pregnant adults, 

federally funded nutritional assistance 

(SNAP), and certain housing assistance, 

subject to certain exclusions for certain 

populations. In addition, the 2019 Final 

Rule required noncitizens to submit a 

declaration of self-sufficiency on a new 

form designated by DHS and required 

the submission of extensive initial 

evidence relating to the public charge 

ground of inadmissibility. 

The 2019 Final Rule also provided, 

with limited exceptions, that certain 

applicants for extension of stay or 

change of nonimmigrant status would 


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647See ‘‘Inadmissibility on Public Charge 

Grounds,’’ Final Rule, 84 FR 41292 (Aug. 14, 2019), 

as amended by Inadmissibility on Public Charge 

Grounds; Correction, 84 FR 52357 (Oct. 2, 2019). 

648 Ibid. 

649Cost to file form I–944: Form I–944 Time 

burden estimated in the 2019 Final Rule (4.5 hour) 

* Average total rate of compensation discussed in 

Section VI.A.5 using the effective minimum wage 

($17.11) * Total Population Subject to Review for 

Inadmissibility on the Public Charge Ground from 

Table 17 (501,520) = $38,614,532 (rounded), Cost of 

obtaining credit report and score cost from Experian 

($19.99) * Total Population Subject to Review for 

Inadmissibility on the Public Charge Ground from 

Table 17 (501,520) = $10,025,385 (rounded). Total 

cost to file form I–944 = $38,614,532 + $10,025,385 

= $48,639,917. DHS uses this burden hour estimate 

for consistency with the analysis in the 2019 Final 

Rule. 

650Cost to file form I–485: Form I–485 Time 

burden increase estimated in the 2019 Final Rule 

(3 hour) * Average total rate of compensation 

discussed in Section VI.A.5 using the effective 

minimum wage ($17.11) * Total Population Subject 

to Review for Inadmissibility on the Public Charge 

Ground from Table 17 (501,520) = $25,743,022 

(rounded). 

651Cost to file form I–945: Form I–945 Time 

burden estimated in the 2019 Final Rule (1 hour) 

* Average total rate of compensation discussed in 

Section VI.A.5 using the effective minimum wage 

($17.11) * Estimated annual population in the 2019 

Final Rule who would file Form I–945 (960) = 

$16,426 (rounded). 

652Cost to file form I–356: (Form I–356 Time 

burden estimated in the 2019 Final Rule (0.75 hour) 

* Average total rate of compensation discussed in 

Section VI.A.5 using the effective minimum wage 

($17.11) + Filing fee estimated in the 2019 Final 

Rule ($25)) * Estimated annual population in the 

2019 Final Rule who would file Form I–356 (25) = 

($12.83 + $25) *25 = $946 (rounded). 

653Cost to file form I–129: Form I–129 Time 

burden increase estimated in the 2019 Final Rule 

(0.5 hour) * the total compensation from BLS 

discussed in Section VI.A.5 ($39.55) * Estimated 

annual population who would file Form I–129 

using FY2014–FY2018 data from USCIS (364,147) 

= $7,201,007 (rounded). 

654Cost to file form I–129CW: Form I–129 CW 

Time burden increase estimated in the 2019 Final 

Rule (0.5 hour) * the total compensation from BLS 

discussed in Section VI.A.5 ($39.55) * Estimated 

annual population who would file Form I–129CW 

using FY2014–FY2018 data from USCIS (7,653) = 

$151,338 (rounded). 

655Cost to file form I–539: Form I–539 Time 

burden increase estimated in the 2019 Final Rule 

(0.5 hour) * the total compensation from BLS 

discussed in Section VI.A.5 ($39.55) * Estimated 

annual population who would file Form I–539 

using FY2014–FY2018 data from USCIS (204,570) 

= $4,045,372 (rounded). 

657Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman (2021), Immigrant 

Families Continued Avoiding the Safety Net during 

the COVID–19 Crisis 1 (The Urban Institute), 

available at https://www.urban.org/research/ 

publication/immigrant-families-continuedavoiding-safety-net-during-covid-19-crisis (accessed 

Feb. 13, 2021). Several additional studies are cited 

in the discussion below, repeatedly finding that it 

was those individuals not subject to INA 212(a)(4) 

who typically chose to disenroll or refrain from 

enrolling in public benefits, due to fear of adverse 

consequences from the 2019 Final Rule throughout 

its rulemaking process. Relatively few noncitizens 

in the United States are both subject to INA 

212(a)(4) and eligible for public benefits prior to 

adjustment of status (see Table 3 above). 

658Calculation, based on 5-year averages over the 

period fiscal year 2012–2016: (544,246 receipts for 

I–485, adjustments of status/22,214,947 estimated 

noncitizen population) * 100 = 2.45 = 2.5% 

(rounded), 84 FR 41292, 41392–93 (Aug. 14, 2019). 

Source for estimated noncitizen population of 

22,214,947, see U.S. Census Bureau American 

Continued 

be required to demonstrate that they 

have not received, since obtaining the 

nonimmigrant status they seek to extend 

or change and through the time of filing 

and adjudication, one or more public 

benefits for more than 12 months in the 

aggregate within any 36-month period 

(such that, for instance, receipt of two 

benefits in 1 month counts as 2 months). 

In order to estimate the effect of the 

Alternative relative to the Pre-Guidance 

baseline, DHS sums the effect of the 

1999 Interim Field Guidance relative to 

the Pre-Guidance baseline with the 

effect of the Alternative relative to the 

No Action Baseline. Detailed discussion 

of the costs, benefits, and transfer 

payments of the Alternative relative to 

the No Action baseline is discussed 

below. The effect of the 1999 Interim 

Field Guidance relative to the PreGuidance baseline under the Alternative 

is the same as discussed in the 

assessment of the proposed rule. This 

effect is discussed in the Pre-Guidance 

Baseline Section. 

i. Direct Costs 

Total direct costs resulting from the 

2019 Final Rule were estimated to be 

approximately $35.4 million per year.647

Total annual transfer payment decreases 

related to the 2019 Final Rule were 

estimated to be about $2.47 billion 

resulting from individuals (most of 

whom would likely not have been 

subject to the 2019 Final Rule) 

disenrolling from or forgoing enrollment 

in public benefit programs.648 For 

purposes of estimating the costs and 

benefits of the Alternative, DHS updated 

its estimates of the total annual direct 

cost of and change in the total annual 

transfer payment increases related to the 

2019 Final Rule. 

After updating the costs from the 2019 

Final Rule, DHS estimates the total 

annual direct costs of the Alternative 

would be approximately $86 million, as 

detailed below. These costs would 

include about $48,639,917 to the public 

to fill out and submit a new form 

I–944,649 Declaration of SelfSufficiency, which would require 

noncitizens to declare self-sufficiency 

and provide a range of evidence that 

DHS required for making public charge 

inadmissibility determinations under 

the 2019 Final Rule. There is also an 

estimated additional time burden cost of 

$25,743,022 to applicants who would be 

required to fill out and submit Form 

I–485; 650 $40,426 to public charge bond 

obligors for filing Form I–945,651 Public 

Charge Bond; $946 to filers for 

submitting Form I–356,652 Request for 

Cancellation of Public Charge Bond; and 

$7,201,007 to applicants for completing 

and filing forms I–129,653 Petition for a 

Nonimmigrant Worker, $151,338 for 

I–129CW,654 Petition for a CNMI-Only 

Nonimmigrant Transitional Worker, and 

$4,045,372 for I–539,655 Application to 

Extend/Change Nonimmigrant Status to 

demonstrate that the applicant has not 

received public benefits since obtaining 

the nonimmigrant status that they are 

seeking to extend or change.656

ii. Transfer Payments 

As noted above, the August 2019 

Final Rule was also associated with 

widespread indirect effects, primarily 

with respect to those who were not 

subject to the August 2019 Final Rule in 

the first place, such as U.S.-citizen 

children in mixed-status households, 

longtime lawful permanent residents 

who are only subject to the public 

charge ground of inadmissibility in 

limited circumstances, and noncitizens 

in a humanitarian status who would be 

exempt from the public charge ground 

of inadmissibility in the context of 

adjustment of status.657 DHS expects 

that similar effects would occur under 

the Alternative. DHS estimates that the 

total annual transfer payments from the 

Federal Government to public benefits 

recipients who are members of 

households that include noncitizens 

would be approximately $3.79 billion 

lower, as detailed below. 

As noted below, DHS is unable to 

estimate the downstream effects that 

would result from such decreases. DHS 

expects that in some cases, a decrease in 

transfers associated with one program or 

service would include an increase in 

transfers associated with other programs 

or services, such as programs or services 

delivered by nonprofits. 

In the 2019 Final Rule, DHS estimated 

the reduction in transfer payments by 

multiplying a disenrollment/forgone 

enrollment rate of 2.5 percent by an 

estimate of the number of public 

benefits recipients who are members of 

households that include noncitizens 

(i.e., the population that may disenroll) 

and then multiplying the estimated 

population by an estimate of the average 

annual benefit received per person or 

household for the covered benefits. 

In the 2019 Final Rule, DHS estimated 

the 2.5 percent disenrollment/forgone 

enrollment rate by dividing the annual 

number of adjustment of status 

applications by the estimated noncitizen 

population of the United States.658 DHS 


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Database. ‘‘S0501: Selected Characteristics of the 

Native and Foreign-born Populations 2012–2016 

American Community Survey (ACS) 5-year 

Estimates. Available at https://data.census.gov/ 

cedsci (accessed Jan. 13, 2022). 

659Calculation, based on 5-year averages over the 

period fiscal year 2014–2018: (690,837 receipts for 

I-485, adjustments of status/22,289,490 estimated 

noncitizen population) * 100 = 3.1 percent 

(rounded). 22,289,490 (estimated noncitizen 

population): U.S. Census Bureau American 

Database. ‘‘S0501: Selected Characteristics of the 

Native and Foreign-born Populations 2014–2018 

American Community Survey (ACS) 5-year 

Estimates. Available at https://data.census.gov/ 

cedsci (accessed Jan. 13, 2022). 

660Capps, R., Fix, M., & Batalova, J. (2020). 

Anticipated ‘‘Chilling Effects’’ of the public-charge 

rule are real: Census data reflect steep decline in 

benefits use by immigrant families. Migration Policy 

Institute, available at https://

www.migrationpolicy.org/news/anticipatedchilling-effects-public-charge-rule-are-real 

(accessed Jan. 19, 2022). Note: This study finds a 

4.1-percent decrease in Medicaid/CHIP enrollment 

from 2016 to 2017 for low-income noncitizens. 

661Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman (2021), Immigrant 

Families Continued Avoiding the Safety Net during 

the COVID–19 Crisis 1 (The Urban Institute), 

available at https://www.urban.org/research/ 

publication/immigrant-families-continuedavoiding-safety-net-during-covid-19-crisis (accessed 

Feb. 13, 2021). 

662Capps, R., Fix, M., & Batalova, J. (2020). 

Anticipated ‘‘Chilling Effects’’ of the public-charge 

rule are real: Census data reflect steep decline in 

benefits use by immigrant families. Migration Policy 

Institute, available at https://

www.migrationpolicy.org/news/anticipatedchilling-effects-public-charge-rule-are-real 

(accessed Jan. 19, 2022). 

663See, e.g., Capps, R., Fix, M., & Batalova, J. 

‘‘Anticipated ‘‘Chilling Effects’’ of the PublicCharge Rule Are Real: Census Data Reflect Steep 

Decline in Benefits Use by Immigrant Families.’’ 

Available at https://www.migrationpolicy.org/news/ 

anticipated-chilling-effects-public-charge-rule-arereal (accessed Feb. 10, 2022). 

664 Ibid. Capps, R., Fix, M., & Batalova, J. (2020). 

665Sommers, B., Allen, H. Bhanja, A., Blendon, 

R., Orav, J., and Epstein, A., (2020). Assessment of 

Perceptions of the Public Charge Rule Among LowIncome Adults in Texas, JAMA Network. 

666Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman, One in Seven 

Adults in Immigrant Families Reported Avoiding 

Public Benefit Programs in 2018 (Urban Institute, 

2019). 

667Haley, JM., Kenney, GM., Bernstein, H., and 

Gonzalez, D. (2020), One in Five Adults in 

Immigrant Families with Children Reported Chilling 

Effects on Public Benefit Receipt in 2019, Urban 

Institute, https://www.urban.org/sites/default/files/ 

publication/102406/one-in-five-adults-inimmigrant-families-with-children-reported-chillingeffects-on-public-benefit-receipt-in-2019.pdf. 

668Babey, SH, Wolstein, J., Shimkhada, R., Ponce 

NA (2021). One in 4 Low-Income Immigrant Adults 

in California Avoided Public Programs, Likely 

Worsening Food Insecurity and Access to Health 

Care, UCLA Center for Health Policy Research. 

https://healthpolicy.ucla.edu/publications/ 

Documents/PDF/2021/publiccharge-policybriefmar2021.pdf. 

669Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman, One in Seven 

Adults in Immigrant Families Reported Avoiding 

Public Benefit Programs in 2018 (Urban Institute, 

2019). 

670Haley, JM., Kenney, GM., Bernstein, H., and 

Gonzalez, D. (2020), One in Five Adults in 

Immigrant Families with Children Reported Chilling 

Effects on Public Benefit Receipt in 2019, Urban 

Institute, https://www.urban.org/sites/default/files/ 

publication/102406/one-in-five-adults-inimmigrant-families-with-children-reported-chillingeffects-on-public-benefit-receipt-in-2019.pdf. 

671Capps, R., Fix, M., & Batalova, J. (2020). 

Anticipated ‘‘Chilling Effects’’ of the public-charge 

rule are real: Census data reflect steep decline in 

benefits use by immigrant families. Migration Policy 

Institute, available at https://

www.migrationpolicy.org/news/anticipatedchilling-effects-public-charge-rule-are-real 

(accessed Jan. 19, 2022). 

672 Ibid. See Figure 1 for changes in participation 

by low-income noncitizens from 2016 to 2019 (37 

percent decrease in SNAP, 37 percent decrease in 

TANF/GA, and 20 percent decrease in Medicaid/ 

CHIP). DHS calculates annualized reduction among 

low-income noncitizen from 2016 to 2019: For 

TANF/GA (12 percent) = 37 percent/3 years = 12 

(rounded), for SNAP (12 percent) = 37 percent/3 

years = 12(rounded), and Medicaid/CHIP (7 

percent) = 20 percent/3 years = 7(rounded). 

estimated this disenrollment rate as the 

five-year average annual number of 

persons seeking to adjust status or as a 

percentage of the noncitizen population 

in the United States (2.5 percent). This 

estimate reflected an assumption that 

100 percent of such noncitizens and 

their household members are either 

enrolled in or eligible for public benefits 

and will be sufficiently concerned about 

potential consequences of the policies 

proposed in this rule to disenroll or 

forgo enrollment in public benefits. The 

resulting transfer estimates will 

therefore have had a tendency toward 

overestimation, at least as it relates to 

the population that would be directly 

regulated by the 2019 Final Rule. DHS 

assumed that the population likely to 

disenroll from or forgo enrollment in 

public benefits programs in any year 

would be the expected annual number 

of individuals intending to apply for 

adjustment of status. But as discussed 

below, this approach appears to have 

resulted in an underestimate due to the 

documented chilling effects associated 

with the 2019 Final Rule among other 

parts of the noncitizen and citizen 

populations who were not part 

adjustment applicants or members of 

households of adjustment applicants 

and other noncitizens who were not 

adjustment applicants. For the low 

estimate, DHS uses the same 

methodology, but with updated data, to 

estimate the low rate of disenrollment or 

forgone enrollment due to the 

Alternative would be 3.1 percent.659

Since the publication of the 2019 

Final Rule, several studies have been 

published that discuss the impact of the 

2019 Final Rule on the rate of public 

benefit disenrollment or forgone 

enrollment, i.e., a chilling effect. Studies 

conducted between 2016 and 2020 show 

reductions in enrollment in public 

benefits programs due to a chilling 

effect ranging from 4.1 percent to 36.1 

percent.660 661 The results of these 

studies depend on several factors, such 

as the sample examined or the period or 

method of analysis. The Public Charge 

NPRM was published in late 2018 and 

the 2019 Final Rule was finalized in 

August 2019. The 2019 Final Rule 

became effective in February 2020. 

However, after subsequent legal 

challenges to the 2019 Final Rule, it was 

vacated in March 2021. Given this 

timeline, several studies show that the 

largest observed disenrollment from or 

forgone enrollment in public benefit 

programs occurred between 2018 and 

2019.662 Capps, R., Fix, M., & Batalova, 

J. (2020) looked at benefits usage across 

all groups and observed that enrollment 

was declining over this time period for 

all groups (albeit with consistently more 

significant reductions in enrollment 

among noncitizens or those in mixedstatus households than among the 

public at large). Capps, R., Fix, M., & 

Batalova, J. (2020) attributed the 

reduction in enrollment in the overall 

U.S. population to the improving 

economic conditions between 2016 and 

2019, although other factors may also 

have influenced these rates.663

Some studies examined different 

samples such as low-income 

noncitizens,664 low-income citizen,665

adults in immigrant families,666

immigrant families with children,667 or 

low-income immigrant adults.668 The 

studies show that the 2019 Final Rule 

directly or indirectly affected adult 

noncitizens and indirectly affected 

adults in immigrant families who are 

lawful permanent residents or 

naturalized citizens.669 One study 

shows that immigrant families with 

children reported a greater reduction in 

public benefit enrollment (20.4 percent) 

compared to immigrant families without 

children (10 percent) in 2019.670

Another study shows the reduction in 

public benefit program enrollment also 

differs by the type of the public benefit 

program examined.671 This study found 

reduced enrollment in SNAP, Medicaid/ 

CHIP, and TANF and General 

Assistance (TANF/GA), but noted that 

the reduction was relatively larger for 

TANF/GA (12 percent annualized 

reduction among low-income 

individuals from 2016 to 2019) and 

SNAP (12 percent annualized 

reduction), as compared to Medicaid/ 

CHIP (7 percent annualized 

reduction).672 The study observed that 

participation in all three programs fell 

about twice as fast over the 2016 to 2019 

period for U.S.-citizen children with 

noncitizens in the household as for 


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673 DHS seeks comment on potential 

methodologies to adjust these estimates to account 

for changes since the 2019 Final Rule was first 

implemented, including: (1) Disenrollment or 

benefits avoidance that has already occurred; (2) 

changes in the economy; (3) changes to public 

benefits eligibility; and (4) changes in public 

benefits participation rates following the vacatur of 

the 2019 Final Rule. 

674Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman (2019), One in 

Seven Adults in Immigrant Families Reported 

Avoiding Public Benefit Programs in 2018 (Urban 

Institute), available at https://www.urban.org/sites/ 

default/files/publication/100270/one_in_seven_

adults_in_immigrant_families_reported_avoiding_

publi_8.pdf (accessed Feb. 13, 2021). 

675Bernstein, H., Dulce Gonzalez, Michael 

Karpman, and Stephen Zuckerman (2020), Amid 

Confusion over the Public Charge Rule, Immigrant 

Families Continued Avoiding Public Benefits in 

2019 (Urban Institute), available at https://

www.urban.org/sites/default/files/publication/ 

102221/amid-confusion-over-the-public-chargerule-immigrant-families-continued-avoiding-publicbenefits-in-2019_3.pdf (accessed Feb. 13, 2021). 

676Bernstein, H., Dulce Gonzalez, Michael 

Karpman, & Stephen Zuckerman (2021), Immigrant 

Families Continued Avoiding the Safety Net during 

the COVID–19 Crisis 1 (The Urban Institute), 

available at https://www.urban.org/research/ 

publication/immigrant-families-continuedavoiding-safety-net-during-covid-19-crisis (accessed 

Feb. 13, 2021). 

those with only citizens in the 

household. 

Due to the uncertainty of the rate of 

disenrollment or forgone enrollment in 

public benefits programs related to the 

2019 Final Rule, DHS uses a range of 

rates to estimate the change in Federal 

Government transfer payments that 

would be associated with the 

Alternative.673 For estimating the lower 

bound of the range, DHS uses a 3.1 

percent rate of disenrollment or forgone 

enrollment in public benefits programs 

based on the estimation methodology 

from the 2019 Final Rule (as discussed 

above). 

DHS bases the upper bound of the 

range on the results of studies by 

Bernstein, Gonzalez, Karpman, and 

Zuckerman (Bernstein et al. [2019] 674

and Bernstein et al. [2020] 675), which 

provided an average of 14.7 percent rate 

of disenrollment or forgone enrollment 

in public benefits programs. These 

studies observed reductions in the 

public benefit participation rate for 

adults in immigrant families in 2018 

and 2019. Bernstein et al. (2019; 2020) 

uses a population of nonelderly adults 

who are foreign born or living with a 

foreign-born relative in their 

household—this matches the population 

of mixed-status households for which 

DHS estimates for the Alternative the 

rate of disenrollment from or foregone 

future enrollment in a public benefits 

program. Other studies such as Capps 

et al. (2020) examined a chilling effect 

among low-income families, which only 

covers a subset of the population of 

interest. One study showed that in 2020, 

more than one in six adults in 

immigrant families (17.8 percent) 

reported avoiding a noncash 

government benefit program or other 

help with basic needs because of green 

card concerns or other worries about 

immigration status or enforcement. 

More than one in three adults in 

families in which one or more members 

do not have a green card (36.1 percent) 

reported these broader chilling 

effects.676 Looking at the subset of the 

noncitizen population, however, shows 

a larger chilling effect as this smaller 

group likely experienced a larger 

disenrollment rate. However, this small 

population does not capture other 

noncitizen groups that might have also 

disenrolled in public benefits. DHS 

chose to use the two Bernstein studies 

described below, because the studies 

analyze the impact on the broader 

population of noncitizens, which 

includes the smaller subsets identified 

in the other studies. 

Bernstein et al. (2019; 2020) examined 

beneficiaries of SNAP, Medicaid, and 

housing subsidies, which are public 

benefits programs considered for public 

charge inadmissibility determinations 

under the Alternative. However, 

Bernstein et al. (2019; 2020) does not 

include other public benefit programs 

considered for public charge 

inadmissibility determinations under 

the Alternative, such as TANF or SSI. 

Since DHS estimates the change in 

transfer payments for Medicaid, SNAP, 

TANF, SSI, and housing subsidies, DHS 

uses an overall average rate of chilling 

effect, based on the chilling effects 

reported by Bernstein et al. (2019; 2020). 

Bernstein et al. (2019) showed that 

13.7 percent of adults in immigrant 

families reported that they (i.e., the 

respondent) or a family member avoided 

a noncash government benefit program 

in 2018. Bernstein et al. (2020) showed 

that 15.6 percent of adults in immigrant 

families reported that they (the 

respondent) or a family member avoided 

a noncash government benefit program 

in 2019. DHS calculates a simple 

average of these two percentages (13.7 

percent and 15.6 percent) from the 

Bernstein et al. (2019; 2020) to arrive at 

the estimated annual decrease of 14.7 

percent described above. 

DHS uses 8.9 percent as the primary 

estimate in order to estimate the annual 

reduction in Federal Government 

transfer payments associated with the 

Alternative, which is the midpoint 

between the lower estimate (3.1 percent) 

and the upper estimate (14.7 percent) of 

disenrollment or forgone enrollment in 

public benefits programs. DHS chose to 

provide a range due to the difficulty in 

estimating the effect on various 

populations. For example, the lower 

bound estimate of a 3.1 percent rate of 

disenrollment or foregone enrollment 

may result in an underestimate to the 

extent that covered noncitizens may 

choose to disenroll from or forego 

enrollment in public benefits programs 

sooner than in the same year that the 

noncitizen applies for adjustment of 

status. Some noncitizens and members 

of their households may adjust their 

behavior in anticipation of eventually 

applying for adjustment of status, but 

not know exactly when they will submit 

such applications. 

As well, DHS acknowledges that the 

upper bound estimate of a 14.7 percent 

rate of disenrollment or foregone 

enrollment may result in an 

underestimate since the Bernstein et al. 

(2019; 2020) studies did not include all 

the public benefit programs such as 

TANF and SSI. As shown in Capps, R., 

Fix, M., & Batalova, J. (2020) study, cash 

assistance public benefit programs, 

TANF/GA and SNAP experienced a 

greater rate in disenrollment relative to 

Medicaid/CHIP. On the other hand, the 

upper bound estimate of a 14.7 percent 

rate of disenrollment or foregone 

enrollment may result in an 

overestimate. While Capps, R., Fix, M., 

& Batalova, J. (2020) study noted that 

during the period between 2016 and 

2019 the participation rate in public 

benefits was declining for both U.S. 

citizens and noncitizens (albeit at 

significantly different rates), the 

disenrollment rates produced in the 

Bernstein et al. (2019; 2020) studies did 

not control for the overall trend in the 

U.S. population at large. 

Bernstein et al. (2019; 2020) 

population estimates are based on a 

nationally representative survey of 

nonelderly adults who are foreign born 

or living with a foreign-born relative in 

their household. From there, Bernstein 

et al. (2019; 2020) compare the 

disenrollment year over year for 

Medicaid/CHIP, SNAP, or housing 

subsidies to arrive at an overall 

disenrollment rate of 13.7 percent in 

2018 and 15.6 percent in 2019. 


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677 DHS recognizes that the proposed rule would 

create a similar disincentive to receipt of TANF and 

SSI by certain noncitizens, although DHS expects 

that the scope and relative simplicity of this rule, 

and the fact that these benefits have been 

considered in public charge inadmissibility 

determinations since 1999, would mitigate chilling 

effects to some extent. Note that the Medicaid 

enrollment does not include child enrollment 

because the 2019 Final Rule did not include 

Medicaid or CHIP for children. 

678See U.S. Census Bureau. American 

Community Survey 2020 Subject Definitions. 

Available at https://www2.census.gov/programssurveys/acs/tech_docs/subject_definitions/2020_

ACSSubjectDefinitions.pdf (accessed Jan. 14, 2022). 

The foreign-born population includes anyone who 

was not a U.S. citizen or a U.S. national at birth, 

which includes respondents who indicated they 

were a U.S. citizen by naturalization or not a U.S. 

citizen. The ACS questionnaires do not ask about 

immigration status but uses responses to determine 

the U.S. citizen and non-U.S.-citizen populations as 

well as to determine the native and foreign-born 

populations. The population surveyed includes all 

people who indicated that the United States was 

their usual place of residence on the survey date. 

The foreign-born population includes naturalized 

U.S. citizens, lawful permanent residents, 

noncitizens with a nonimmigrant status (e.g., 

foreign students), noncitizens with a humanitarian 

status (e.g., refugees), and noncitizens present 

without a lawful immigration status. 

679To estimate the number of households with at 

least 1 foreign-born noncitizen family member that 

have received public benefits, DHS calculated the 

overall percentage of total U.S. households that are 

foreign-born noncitizen as 6.9 percent. Calculation: 

[22,289,490 (Foreign-born noncitizens)/322,903,030 

(Total U.S. population)] * 100 = 6.9 percent. See 

U.S. Census Bureau American Database. ‘‘S0501: 

Selected Characteristics of the Native and Foreignborn Populations 2018 American Community 

Survey (ACS) 5-year Estimates.’’ Available at 

https://data.census.gov/cedsci (accessed Jan. 13, 

2022). 

680See U.S. Census Bureau American Database. 

‘‘S0501: Selected Characteristics of the Native and 

Foreign-born Populations 2018 American 

Community Survey (ACS) 5-year Estimates.’’ 

Available at https://data.census.gov/cedsci 

(accessed Jan. 13, 2022). The average foreign-born 

household size is reported as 3.31 persons. DHS 

multiplied this figure by the estimated number of 

benefits-receiving households with at least 1 

foreign-born noncitizen receiving benefits to 

estimate the population living in benefits-receiving 

households that include a foreign-born noncitizen. 

681 In this analysis, DHS uses the American 

Community Survey (ACS) to develop population 

estimates along with beneficiary data from each of 

the benefits program. DHS notes that the ACS data 

were used for the purposes of this analysis because 

it provided a cross-sectional survey based on a 

random sample of the population each year 

including current immigration classifications. Both 

surveys reflect use by noncitizens of the public 

benefits included in the Alternative. 

682See U.S. Census Bureau Database. ‘‘S0501: 

Selected Characteristics of the Native and Foreignborn Populations 2018 American Community 

Survey (ACS) 5-year Estimates.’’ Available at 

https://data.census.gov/cedsci (accessed Jan. 13, 

2022). 

683 Ibid. Calculation: [22,289,490 (Foreign-born 

noncitizens)/322,903,030 (Total U.S. population)] * 

100 = 6.9 percent. 

684See U.S. Census Bureau Database. ‘‘S0501: 

Selected Characteristics of the Native and Foreignborn Populations 2018 American Community 

Survey (ACS) 5-year Estimates.’’ Available at 

https://data.census.gov/cedsci (accessed Jan. 13, 

2022). 

Many studies discussed earlier in this 

section similarly attempted to measure 

the disenrollment or forgone enrollment 

rate due to the 2019 Final Rule. These 

studies show reductions in enrollment 

in public benefits programs due to a 

chilling effect ranging from 4.1 percent 

to 36.1 percent. DHS uses the estimates 

of the chilling effect by Bernstein et al. 

(2019; 2020) as a proxy because their 

population closely matches the 

population of interest for this analysis 

whereas the other studies looked at a 

smaller subset of the population. DHS 

welcomes public comments on the 

estimation of the disenrollment or 

foregone enrollment rate used in this 

analysis. 

Using the primary estimate rate of 

disenrollment or forgone enrollment in 

public benefits programs of 8.9 percent, 

DHS estimates that the total annual 

reduction in transfer payments from the 

Federal Government to individuals who 

may choose to disenroll from or forgo 

enrollment in public benefits programs. 

Based on the data presented below, DHS 

estimates that the total annual reduction 

in transfer payments paid by the Federal 

Government to individuals who may 

choose to disenroll from or forgo 

enrollment in public benefits programs 

would be approximately $3.79 billion 

for an estimated 819,599 individuals 

and 31,940 households across the public 

benefits programs examined. 

To estimate the reduction in transfer 

payments that under the Alternative, 

DHS must multiply the estimated 

disenrollment/forgone enrollment rate 

of 8.9 percent by: (1) The population of 

analysis (i.e., those who may disenroll 

from or forgo enrollment in Medicaid, 

SNAP, TANF, SSI, and Federal rental 

assistance, the programs that would be 

covered under the Alternative); 677 and 

(2) the value of the forgone benefits. 

Table 25 shows the estimated 

population of public benefits recipients 

who are members of households that 

include noncitizens. DHS assumes that 

this is the population of individuals 

who may disenroll from or forgo 

enrollment in public benefits under the 

Alternative. The table also shows 

estimates of the number of households 

with at least one noncitizen family 

member that may have received public 

benefits.678 679 Based on the number of 

households with at least one noncitizen 

family member, DHS estimates the 

number of public benefits recipients 

who are members of households that 

include at least one noncitizen who may 

have received benefits using the U.S. 

Census Bureau’s estimated average 

household size for foreign-born 

households.680 681

In order to estimate the population of 

public benefits recipients who are 

members of households that include at 

least one noncitizen DHS uses a 5-year 

average of public benefit recipients’ data 

from FY 2014 to FY 2018. Although data 

from FY 2019 to FY 2021 were 

available, DHS opted not to use data 

from these years because the 

populations of public benefit recipients 

in those years were affected by both the 

2019 Final Rule and the COVID–19 

pandemic. 

Consistent with the approach DHS 

took in the 2019 Final Rule, DHS’s 

methodology was as follows. First, for 

most of the public benefits programs 

analyzed, DHS estimated the number of 

households with at least one person 

receiving such benefits by dividing the 

number of people that received public 

benefits by the U.S. Census Bureau’s 

estimated average household size of 

2.63 for the U.S. total population.682

Second, DHS estimated the number of 

such households with at least one 

noncitizen resident. According to the 

U.S. Census Bureau population 

estimates, the noncitizen population is 

6.9 percent of the U.S. total 

population.683 While there may be some 

variation in the percentage of 

noncitizens who receive public benefits, 

including depending on which public 

benefits program one considers, DHS 

assumes in this economic analysis that 

the percentage holds across the 

populations of the various public 

benefits programs. Therefore, to 

estimate the number of households with 

at least one noncitizen who receives 

public benefits, DHS multiplies the 

estimated number of households for 

each public benefits program by 6.9 

percent. This step may introduce 

uncertainty into the estimate because 

the percentage of households with at 

least one noncitizen may differ from the 

percentage of noncitizens in the 

population. However, if noncitizens 

tend to be grouped together in 

households, then an overestimation of 

households that include at least one 

noncitizen is more likely. 

DHS then estimates the number of 

noncitizens who received benefits by 

multiplying the estimated number of 

households with at least one noncitizen 

who receives public benefits by the U.S. 

Census Bureau’s estimated average 

household size of 3.31 for those who are 

foreign-born.684

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685 DHS notes that the amounts presented may 

not account for overhead costs associated with 

administering each of these public benefits 

programs. The costs presented are based on 

amounts recipients have received in benefits as 

reported by benefits-granting agencies. 

In order to estimate the economic 

impact of disenrollment or forgone 

enrollment from public benefits 

programs, it is necessary to estimate the 

typical annual public benefits a person 

receives for each public benefits 

program included in this economic 

analysis. DHS estimated the annual 

benefit received per person for each 

public benefit program in Table 26. For 

each benefit but Medicaid, the benefit 

per person is calculated for each public 

benefit program by dividing the average 

annual program payments for public 

benefits by the average annual total 

number of recipients.685 For Medicaid, 

DHS uses Centers for Medicare & 

Medicaid Services’ (CMS) median per 

capita expenditure estimate across all 

States for 2018. To the extent that data 

are available, these estimates are based 

on 5-year annual averages for the years 

between FY 2014 and FY 2018. 


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As discussed earlier, using the 

midpoint reduction rate of 8.9 percent, 

Table 27 shows the estimated 

population that would be likely to 

disenroll or forgo enrollment in a 


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686As previously noted, the average annual 

benefits per person amounts presented may not 

account for overhead costs associated with 

administering each of these public benefits 

programs since they are based on amounts 

recipients have received in benefits as reported by 

benefits-granting agencies. Therefore, the costs 

presented may underestimate the total amount of 

transfer payments to the Federal Government. 

federally-funded public benefits 

program under the Alternative. 

BILLING CODE 9111–97–C 

Table 27 shows the estimated 

population that would be likely to 

disenroll from or forgo enrollment in 

federally-funded public benefits 

programs due to the Alternative’s 

indirect chilling effect. The table also 

presents the previously estimated 

average annual benefit per person who 

received benefits for each of the public 

benefits programs.686 Multiplying the 

estimated population that would be 

likely to disenroll from or forgo 

enrollment in public benefit programs 

due to the Alternative by the average 

annual benefit per person who received 

benefits for each of the public benefit 

programs, DHS estimates that the total 

annual reduction in transfer payments 

paid by the Federal Government to 

individuals who may choose to 

disenroll from or forgo enrollment in 

public benefits programs would be 

approximately $3.79 billion for an 

estimated 819,599 individuals and 

31,927 households across the public 

benefits programs examined. As these 

estimates reflect only Federal financial 

participation in programs whose costs 

are shared by U.S. States, there may also 


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687See Dept. of Health and Human Servs. Notice, 

Federal Financial Participation in State Assistance 

Expenditures; Federal Matching Shares for 

Medicaid, the Children’s Health Insurance Program, 

and Aid to Needy Aged, Blind, or Disabled Persons 

for October 1, 2016, through September 30, 2017, 

80 FR 73779 (Nov. 25, 2015). 

688Total annual Federal and State reduction in 

transfer payment for Medicaid = (Estimated 

Reduction in Transfer Payments Based On A 8.9% 

Rate of Disenrollment or Forgone Enrollment for 

Medicaid from Table 28)/(average Federal Medical 

Assistance Percentages (FMAP) across all States and 

U.S. territories) = $2,403,360,488/0.59 = $4.07 

billion (rounded). 

689State annual reduction in transfer payment for 

Medicaid = Total annual Federal and State 

reduction in transfer payment for 

Medicaid¥Federal annual reduction in transfer 

payment for Medicaid = $4.07 billion¥$2.40 billion 

= $1.67 billion. 690From Table 29 transfer payment reduction for 

SNAP is $661,704,855, for TANF is $29,678,326, 

and for Federal Rental Assistance is $269,177,034. 

Calculation of the sum: $960,560,215 ($0.96 

billion). 691See USDA, Characteristics of Supplemental 

Nutrition Assistance Program Households: Fiscal 

Year 2019 at 1, available at https://fnsprod.azureedge.net/sites/default/files/resourcefiles/Characteristics2019.pdf, (accessed Feb. 14, 

2022). DHS notes that because State participation in 

these programs may vary depending on the type of 

benefit provided, we were unable to fully or 

specifically quantify the impact of State transfers. 

For example, the Federal Government funds all of 

SNAP food expenses, but only 50 percent of 

allowable administrative costs for regular operating 

expenses (per section 16(a) of the Food and 

Nutrition Act of 2008). See also USDA, FNS 

Handbook 901, p. 41 available at: https://fnsprod.azureedge.net/sites/default/files/apd/FNS_

HB901_v2.2_Internet_Ready_Format.pdf). 

Similarly, Federal Medical Assistance Percentages 

(FMAP) in some HHS programs like Medicaid can 

vary from between 50 percent to an enhanced rate 

of 100 percent in some cases (see HHS, Notice, 

Federal Financial Participation in State Assistance 

Expenditures; Federal Matching Shares for 

Medicaid, the Children’s Health Insurance Program, 

and Aid to Needy Aged, Blind, or Disabled Persons 

for October 1, 2016 through September 30, 2017, 80 

FR 73779 (Nov. 25, 2015)). Since the State share of 

Federal financial participation (FFP) varies from 

State to State, DHS uses the average FMAP across 

all States and U.S. territories of 59 percent to 

estimate the amount of State transfer payments. 

692See 45 CFR 263.13(a)(i). 

693See SSI information available at https://

www.ssa.gov/policy/docs/statcomps/supplement/ 

2018/ssi.html. 

be additional reductions in transfer 

payments from U.S. States to 

individuals who may choose to 

disenroll from or forgo enrollment in a 

public benefits program. 

Since the Federal share of Federal 

financial participation (FFP) varies from 

State to State, DHS uses the average 

Federal Medical Assistance Percentages 

(FMAP) across all States and U.S. 

territories of 59 percent to estimate the 

total reduction of transfer payments for 

Medicaid.687 Table 28 shows that 

Federal annual transfer payments for 

Medicaid would be reduced by about 

$2.4 billion under the Alternative. From 

this amount and the average FMAP of 

59 percent, DHS calculates the total 

reduction in transfer payments from 

Federal and State governments to 

individuals to be about $4.07 billion.688

From that total amount, DHS estimates 

State annual transfer payments would 

be reduced by approximately $1.67 

billion due to the disenrollment or 

forgone enrollment of foreign-born 

noncitizens and their households from 

Medicaid.689

For SNAP, TANF and Federal Rental 

Assistance, the Federal Government 

pays 100 percent of benefits values 

included in Table 26 and Table 27 

above. Therefore, Table 28 shows the 

Federal share of annual transfer 

payments would be about $0.96 billion 

for SNAP, TANF, and Federal Rental 

Assistance.690 Federal, State, and local 

governments share administrative costs 

(with the Federal Government 

contributing approximately 50 percent) 

for SNAP.691 Federal TANF funds can 

be used for administrative TANF costs, 

up to 15 percent of a state’s family 

assistance grant amount. 692 For SSI, the 

maximum Federal benefit changes 

yearly. Effective January 1, 2018, the 

rate was $750 monthly for an individual 

and $1,125 for a couple. Some States 

supplement the Federal SSI benefit with 

additional payments, which make the 

total SSI benefit levels higher in those 

States.693 Moreover, the estimates of 

expenditures for Federal Rental relate to 

purely Federal funds, although housing 

programs are administered by State and 

local public housing authorities which 

may supplement program funding. 

Those authorities would incur 

administrative costs. However, DHS is 

unable to quantify the State portion of 

the transfer payment due to a lack of 

data related to State-level 

administration of these public benefit 

programs. DHS welcomes public 

comments on data related to the State 

contributions and share of costs of these 

public benefit programs. 

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As shown in Table 29, applying the 

same calculations using the low 

estimate of 3.1 percent DHS estimates 

that the total annual reduction in 

transfer payments paid by the Federal 

government to individuals who may 

choose to disenroll from or forgo 

enrollment in public benefits programs 

would be approximately $1.32 billion 

for an estimated 285,479 individuals 

and 11,121 households across the public 

benefits programs examined. For the 

high estimate of 14.7 percent DHS 

estimates that the total annual reduction 

in transfer payments paid by the Federal 

government to individuals who may 

choose to disenroll from or forgo 

enrollment in public benefits programs 

would be approximately $6.25 billion 

for an estimated 1,353,720 individuals 

and 52,733 households across the public 

benefits programs examined. 


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694USCIS Field Operations Directorate (June 

2021); USCIS Office of Performance and Quality 

(June 2021). 

695USCIS, Field Office Directorate, October 18, 

2021. 

696Bernstein, H., Dulce Gonzalez, Michael 

Karpman, and Stephen Zuckerman (2020), Amid 

Confusion over the Public Charge Rule, Immigrant 

Families Continued Avoiding Public Benefits in 

2019 (Urban Institute). 

697See, e.g., 84 FR at 43130–43134, 41364–41392. 

DHS notes that this conclusion is similar to the 

INS’s reasoning when issuing the 1999 Interim 

Field Guidance. In issuing that policy, the INS 

wrote that a policy that led to benefits 

disenrollment or avoidance would have ‘‘an adverse 

impact not just on the potential recipients, but on 

public health and the general welfare.’’ See 64 FR 

at 28692. 

BILLING CODE 9111–97–C 

In the 2019 Final Rule, DHS 

anticipated that USCIS’ review of public 

charge inadmissibility would 

substantially increase the number of 

denials for adjustment of status 

applicants because of the rule’s 

provisions and process for public charge 

determinations. However, USCIS data 

show that the 2019 Final Rule did not 

result in the anticipated increase in 

denials of adjustment of status 

applications based on the public charge 

ground of inadmissibility during the 

period it was in effect between February 

2020 and March 2021. During the year 

the 2019 Final Rule was in effect, DHS 

issued only 3 denials and 2 Notices of 

Intent to Deny based on the totality of 

the circumstances public charge 

inadmissibility determination under 

section 212(a)(4)(A)–(B) of the Act, 8 

U.S.C. 1182(a)(4)(A)–(B). The 2019 Final 

Rule thus resulted in adverse decisions 

in only 5 of the 47,555 applications for 

adjustment of status to which it was 

applied.694 695

Comparison of the total direct annual 

cost between the current proposed rule 

and the Alternative show that the direct 

costs of the Alternative is greater than 

that of the proposed rule. Although the 

Alternative would indirectly have the 

effect of a larger reduction of transfer 

payments than the proposed rule, likely 

primarily among those not regulated by 

the Alternative, transfer payments are 

not considered to be costs or benefits of 

a rule. Rather, they are transfers from 

one group to another group that do not 

result in a net gain or loss to society. 

For instance, Bernstein et al. (2020) 

found that the chilling effect on public 

benefits associated with the 2019 Final 

Rule is partially attributable to 

confusion and misunderstanding. That 

study finds that two-thirds of adults in 

immigrant families (66.6 percent) were 

aware of the 2019 Final Rule, and 65.5 

percent were confident in their 

understanding about the rule. Yet only 

22.7 percent knew it does not apply to 

applications for naturalization, and only 

19.1 percent knew children’s enrollment 

in Medicaid would not be considered in 

their parents’ public charge 

determinations. These results suggest 

that under the Alternative, parents 

might pull their eligible U.S.-citizen 

children out of crucial benefit programs, 

and current lawful permanent residents 

might choose not to enroll in safety net 

programs for which they might be 

eligible for fear of risking their 

citizenship prospects.696

iii. Additional Indirect Effects 

DHS notes that there would likely be 

additional indirect effects related to 

increased disenrollment or forgone 

enrollment in public benefit programs. 

In the 2019 Final Rule, DHS recounted 

at length the many detailed comments 

received regarding the importance of 

public benefits programs, and the social 

harms associated with benefits 

disenrollment and avoidance.697 DHS 


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698See 84 FR at 41381. 

699See 84 FR at 41493. 

700See DHS, Regulatory Impact Analysis: 

Inadmissibility on Public Charge Grounds Final 

Rule, RIN 1615–AA22 at 109 (Aug. 2019), available 

at https://www.regulations.gov/document/USCIS2010-0012-63741 (accessed Jan. 27, 2022). 

701 Id. at 6. 

702 84 FR 41292, 41493 (Aug. 14, 2019). 

703Leighton Ku, ‘‘New Evidence Demonstrates 

That the Public Charge Rule Will Harm Immigrant 

Families and Others,’’ HEALTH AFFS (Oct. 9, 

2019), https://www.healthaffairs.org/do/10.1377/ 

hblog20191008.70483/full. 

704 5 U.S.C. Ch. 6. 

705Public Law 104–121, tit. II, 110 Stat. 847 (5 

U.S.C. 601 note). 

706A small business is defined as any 

independently owned and operated business not 

dominant in its field that qualifies as a small 

business per the Small Business Act (15 U.S.C. 

632). 

707 5 U.S.C. 601(6). 

708See BLS, Historical Consumer Price Index for 

All Urban Consumers (CPI–U): U.S. City Average, 

All Items, https://www.bls.gov/cpi/tables/ 

supplemental-files/historical-cpi-u-202112.pdf. 

Steps in calculation of inflation: (1) Calculate the 

average monthly CPI–U for the reference year (1995) 

and the most recent current year available (2021); 

(2) Subtract reference year CPI–U from current year 

CPI–U; (3) Divide the difference of the reference 

year CPI–U and current year CPI–U by the reference 

year CPI–U; (4) Multiply by 100. 

Calculation of inflation: [(Average monthly 

CPI–U for 2021¥Average monthly CPI–U for 1995)/ 

(Average monthly CPI–U for 1995)] * 100 = 

[(270.970¥152.383)/152.383] * 100 = (118.587/ 

152.383) * 100 = 0.7782 * 100 = 77.82 percent = 

77.8 percent (rounded). 

Calculation of inflation-adjusted value: $100 

million in 1995 dollars * 1.778 = $177.8 million in 

2021 dollars. 

709See 2 U.S.C. 1502(1), 658(6). 

710 2 U.S.C. 658(5). 

‘‘acknowledge[d] the positive outcomes 

associated with public benefits 

programs’’ 698 and concluded that ‘‘the 

rule may decrease disposable income 

and increase the poverty of certain 

families and children, including U.S. 

citizen children.’’ 699 Similarly, in the 

RIA accompanying the 2019 Final Rule, 

DHS wrote that ‘‘[d]isenrollment or 

foregoing enrollment in public benefits 

programs by aliens who are otherwise 

eligible could lead to the following: 

• Worse health outcomes, including 

increased prevalence of obesity and 

malnutrition, especially for pregnant or 

breastfeeding women, infants, or 

children, and reduced prescription 

adherence; 

• Increased use of emergency rooms 

and emergent care as a method of 

primary health care due to delayed 

treatment; 

• Increased prevalence of 

communicable diseases, including 

among members of the U.S. citizen 

population who are not vaccinated; 

• Increases in uncompensated care in 

which a treatment or service is not paid 

for by an insurer or patient; 

• Increased rates of poverty and 

housing instability; and 

• Reduced productivity and 

educational attainment.’’ 700

DHS also— 

recognize[d] that reductions in federal and 

state transfers under federal benefit programs 

may have impacts on state and local 

economies, large and small businesses, and 

individuals. For example, the rule might 

result in reduced revenues for healthcare 

providers participating in Medicaid, 

companies that manufacture medical 

supplies or pharmaceuticals, grocery retailers 

participating in SNAP, agricultural producers 

who grow foods that are eligible for purchase 

using SNAP benefits, or landlords 

participating in federally funded housing 

programs.701

In another section of the 2019 Final 

Rule, DHS stated that it had 

‘‘determined that the rule may decrease 

disposable income and increase the 

poverty of certain families and children, 

including U.S. citizen children.’’ 702

At the time of the 2019 Final Rule’s 

issuance, one study estimated that as 

many as 3.2 million fewer persons 

might receive Medicaid due to fear and 

confusion surrounding the 2019 Final 

Rule, which could lead to as many as 

4,000 excess deaths every year.703 The 

same study estimated that 1.8 million 

fewer people would use SNAP benefits, 

even though many of them are U.S. 

citizens. In addition, loss of Federal 

housing security would likely lead to 

worse health outcomes and dependence 

on other elements of the social safety 

net for some persons. As noted above, 

Executive Orders 12866 and 13563 

direct agencies to select regulatory 

approaches that maximize net benefits 

while giving consideration, to the extent 

appropriate and consistent with law, to 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. In addition, Executive Order 

13563 emphasizes the importance of not 

only quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility, but also 

considering equity, fairness, distributive 

impacts, and human dignity. DHS 

recognizes that many of the indirect 

effects discussed in this section 

implicate values such as equity, 

fairness, distributive impacts, and 

human dignity. DHS acknowledges that 

although many of these effects are 

difficult to quantify, they would be an 

indirect cost of the Alternative. 

B. Regulatory Flexibility Act 

The Regulatory Flexibility Act of 1980 

(RFA),704 as amended by the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (SBREFA),705

requires Federal agencies to consider 

the potential impact of regulations on 

small businesses, small governmental 

jurisdictions, and small organizations 

during the development of their rules. 

The term ‘‘small entities’’ comprises 

small businesses, not-for-profit 

organizations that are independently 

owned and operated and are not 

dominant in their fields, and 

governmental jurisdictions with 

populations of less than 50,000.706

The proposed rule does not directly 

regulate small entities and is not 

expected to have a direct effect on small 

entities. It does not mandate any actions 

or requirements for small entities in the 

process of a Form I–485 Adjustment of 

Status requestor seeking immigration 

benefits. Rather, this proposed rule 

regulates individuals, and individuals 

are not defined as ‘‘small entities’’ by 

the RFA.707 Based on the evidence 

presented in this analysis and 

throughout this preamble, the Secretary 

of Homeland Security certifies that this 

proposed rule would not have a 

significant economic impact on a 

substantial number of small entities. 

DHS nonetheless welcomes comments 

regarding potential economic impacts 

on small entities, which DHS may 

consider as appropriate in a final rule. 

C. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (UMRA) is intended, among 

other things, to curb the practice of 

imposing unfunded Federal mandates 

on State, local, and Tribal governments. 

Title II of UMRA requires each Federal 

agency to prepare a written statement 

assessing the effects of any Federal 

mandate in a proposed or final agency 

rule that may directly result in a $100 

million or more expenditure (adjusted 

annually for inflation) in any one year 

by State, local, and Tribal governments, 

in the aggregate, or by the private sector. 

The inflation-adjusted value of $100 

million in 1995 is approximately $177.8 

million in 2021 based on the Consumer 

Price Index for All Urban Consumers 

(CPI–U).708

The term ‘‘Federal mandate’’ means a 

Federal intergovernmental mandate or a 

Federal private sector mandate.709 The 

term ‘‘Federal intergovernmental 

mandate’’ means, in relevant part, a 

provision that would impose an 

enforceable duty upon State, local, or 

Tribal governments (except as a 

condition of Federal assistance or a duty 

arising from participation in a voluntary 

Federal program).710 The term ‘‘Federal 

private sector mandate’’ means, in 

relevant part, a provision that would 

impose an enforceable duty upon the 


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711 2 U.S.C. 658(7). 

712See 2 U.S.C. 1502(1), 658(6). 

private sector (except as a condition of 

Federal assistance or a duty arising from 

participation in a voluntary Federal 

program).711

This proposed rule does not contain 

such a mandate, because it does not 

impose any enforceable duty upon any 

other level of government or private 

sector entity. Any downstream effects 

on such entities would arise solely due 

to their voluntary choices and would 

not be a consequence of an enforceable 

duty imposed by this rule. Similarly, 

any costs or transfer effects on State and 

local governments would not result 

from a Federal mandate as that term is 

defined under UMRA.712 The 

requirements of title II of UMRA, 

therefore, do not apply, and DHS has 

not prepared a statement under UMRA. 

DHS has, however, analyzed many of 

the potential effects of this action in the 

RIA above. DHS welcomes comments on 

this analysis. 

D. Executive Order 13132 (Federalism) 

Executive Order 13132 was issued to 

ensure the appropriate division of 

policymaking authority between the 

States and the Federal Government and 

to further the policies of the Unfunded 

Mandates Act. This proposed rule 

would not have substantial direct effects 

on the States, on the relationship 

between the Federal Government and 

the States, or on the distribution of 

power and responsibilities among the 

various levels of government. DHS does 

not expect that this rule would impose 

substantial direct compliance costs on 

State and local governments or preempt 

State law. Therefore, in accordance with 

section 6 of E.O. 13132, this proposed 

rule does not have sufficient federalism 

implications to warrant the preparation 

of a federalism summary impact 

statement. DHS welcomes comments on 

this assessment. 

E. Executive Order 12988 (Civil Justice 

Reform) 

This proposed rule was drafted and 

reviewed in accordance with E.O. 

12988, Civil Justice Reform. This 

proposed rule was written to provide a 

clear legal standard for affected conduct 

and was carefully reviewed to eliminate 

drafting errors and ambiguities, so as to 

minimize litigation and undue burden 

on the Federal court system. DHS has 

determined that this proposed rule 

meets the applicable standards provided 

in section 3 of E.O. 12988. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This proposed rule does not have 

‘‘tribal implications’’ because, if 

finalized, it would not have substantial 

direct effects on one or more Indian 

Tribes, on the relationship between the 

Federal Government and Indian Tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes, 

although there are references to Indian 

Tribes in this proposed rule. 

Accordingly, E.O. 13175, Consultation 

and Coordination with Indian Tribal 

Governments, requires no further 

agency action or analysis. 

G. Family Assessment 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. 

Agencies must assess whether the 

regulatory action: (1) Impacts the 

stability or safety of the family, 

particularly in terms of marital 

commitment; (2) impacts the authority 

of parents in the education, nurture, and 

supervision of their children; (3) helps 

the family perform its functions; (4) 

affects disposable income or poverty of 

families and children; (5) financially 

impacts families, if at all, only to the 

extent such impacts are justified; (6) 

may be carried out by State or local 

government or by the family; and (7) 

establishes a policy concerning the 

relationship between the behavior and 

personal responsibility of youth and the 

norms of society. If the determination is 

affirmative, then the agency must 

prepare an impact assessment to address 

criteria specified in the law. 

DHS has analyzed this proposed 

regulatory action in accordance with the 

requirements of section 654 and 

determined that this proposed rule does 

not affect family well-being, and 

therefore DHS is not issuing a Family 

Policymaking Assessment. 

H. National Environmental Policy Act 

DHS and its components analyze 

proposed actions to determine whether 

the National Environmental Policy Act 

(NEPA) applies to them and, if so, what 

degree of analysis is required. DHS 

Directive 023–01 Rev. 01 and 

Instruction Manual 023–01–001–01 Rev. 

01 (Instruction Manual) establish the 

procedures that DHS and its 

components use to comply with NEPA 

and the Council on Environmental 

Quality (CEQ) regulations for 

implementing NEPA, 40 CFR parts 1500 

through 1508. 

The CEQ regulations allow Federal 

agencies to establish, with CEQ review 

and concurrence, categories of actions 

(‘‘categorical exclusions’’) that 

experience has shown do not 

individually or cumulatively have a 

significant effect on the human 

environment and, therefore, do not 

require an environmental assessment or 

environmental impact statement. 40 

CFR 1507.3(e)(2)(ii) and 1501.4. The 

Instruction Manual, Appendix A, Table 

1 lists categorical exclusions that DHS 

has found to have no such effect. Under 

DHS NEPA implementing procedures, 

for an action to be categorically 

excluded, it must satisfy each of the 

following three conditions: (1) The 

entire action clearly fits within one or 

more of the categorical exclusions; (2) 

the action is not a piece of a larger 

action; and (3) no extraordinary 

circumstances exist that create the 

potential for a significant environmental 

effect. Instruction Manual, section 

V.B.2(a–c). 

This proposed rule applies to 

applicants for admission or adjustment 

of status as long as the individual is 

applying for an immigration status that 

is subject to the public charge ground of 

inadmissibility. As discussed in detail 

above, this proposed rule establishes a 

definition of public charge and specifies 

the types of public benefits that DHS 

would consider as part of its public 

charge inadmissibility determinations. 

This list of benefits is the same as under 

the 1999 Interim Field Guidance that 

governed public charge inadmissibility 

determinations for over 20 years. This 

list of public benefits is narrower than 

under the 2019 Final Rule. The 

proposed rule, if finalized, would codify 

a totality of the circumstances 

framework for the analysis of the 

factors, including statutory minimum 

factors, used to make public charge 

inadmissibility determinations. The 

proposed rule does not propose to make 

changes to the regulations governing 

public charge bonds. 

Given the similarity between the 

proposed rule and the 1999 Interim 

Field Guidance with respect to public 

charge inadmissibility determinations, 

DHS does not anticipate any change in 

the number of individuals admitted to 

the United States under the proposed 

rule. DHS is unable to quantitatively 

estimate any such change, and any 

assessment of potential derivative 

environmental effects at the national 

level would be unduly speculative. 

DHS has therefore determined that 

this proposed rule clearly fits within 

Categorical Exclusion A3(d) in DHS 


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Instruction Manual 023–01–001–01, the 

Department’s procedures for 

implementing NEPA issued November 

6, 2014 (available at https://

www.dhs.gov/sites/default/files/ 

publications/DHS_

Instruction%20Manual%20023-01-001- 

01%20Rev%2001_

508%20Admin%20Rev.pdf), because it 

interprets or amends a regulation 

without changing its environmental 

effect. 

This proposed rule is a standalone 

action to prescribe standards regarding 

inadmissibility determinations on 

public charge grounds, and it is not part 

of a larger action. This proposed rule 

will not result in any major Federal 

action that will significantly affect the 

quality of the human environment. 

Furthermore, it presents no 

extraordinary circumstances creating 

the potential for significant 

environmental effects. Therefore, this 

proposed rule is categorically excluded 

from further NEPA review. 

I. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, 44 U.S.C. 3501–12, DHS must 

submit to OMB, for review and 

approval, any reporting requirements 

inherent in a rule unless they are 

exempt. 

DHS and USCIS invite the general 

public and other Federal agencies to 

comment on the impact to the proposed 

collection of information. In accordance 

with the PRA, the information 

collection notice is published in the 

Federal Register to obtain comments 

regarding the proposed edits to the 

information collection instrument. 

Comments are encouraged and will be 

accepted for 60 days from the 

publication date of the proposed rule. 

All submissions received must include 

the OMB Control Number 1615–0023 in 

the body of the letter and the agency 

name. Use only the method under the 

ADDRESSES and Public Participation 

section of this rule to submit comments. 

Comments on this information 

collection should address one or more 

of the following four points: 

(1) Evaluate whether the collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information will have practical utility; 

(2) Evaluate the accuracy of the 

agency’s estimate of the burden of the 

collection of information, including the 

validity of the methodology and 

assumptions used; 

(3) Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

(4) Minimize the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technological collection techniques or 

other forms of information technology 

(e.g., permitting electronic submission 

of responses). 

Overview of information collection: 

(1) Type of Information Collection: 

Revision of a Currently Approved 

Collection. 

(2) Title of the Form/Collection: 

Application to Register Permanent 

Residence or Adjust Status. 

(3) Agency form number, if any, and 

the applicable component of DHS 

sponsoring the collection: I–485, 

Supplement A, and Supplement J; 

USCIS. 

(4) Affected public who will be asked 

or required to respond, as well as a brief 

abstract: Primary: Individuals or 

households. The information on Form I– 

485 will be used to request and 

determine eligibility for adjustment of 

permanent residence status. 

Supplement A is used to adjust status 

under section 245(i) of the Immigration 

and Nationality Act. Supplement J is 

used by employment-based applicants 

for adjustment of status who are filing 

or have previously filed Form I–485 as 

the principal beneficiary of a valid Form 

I–140 in an employment-based 

immigrant visa category that requires a 

job offer. 

(5) An estimate of the total number of 

respondents and the amount of time 

estimated for an average respondent to 

respond: The estimated total number of 

respondents for the information 

collection I–485 is 690,837 and the 

estimated hour burden per response is 

7.92 hours. The estimated total number 

of respondents for the information 

collection Supplement A is 29,213 and 

the estimated hour burden per response 

is 1.25 hour. The estimated total number 

of respondents for the information 

collection Supplement J is 37,358 and 

the estimated hour burden per response 

is 1 hour. The estimated total number of 

respondents for the information 

collection of Biometrics is 690,837 and 

the estimated hour burden per response 

is 1.17 hour. 

(6) An estimate of the total public 

burden (in hours) associated with the 

collection: The total estimated annual 

hour burden associated with this 

collection is 6,353,583 hours. 

(7) An estimate of the total public 

burden (in cost) associated with the 

collection: The estimated total annual 

cost burden associated with this 

collection of information is 

$236,957,091. 

VII. List of Subjects and Regulatory 

Amendments 

List of Subjects 

8 CFR Part 212 

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas, Reporting and 

recordkeeping requirements. 

8 CFR Part 245 

Aliens, Immigration, Reporting and 

recordkeeping requirements. 

Accordingly, DHS proposes to amend 

chapter I of title 8 of the Code of Federal 

Regulations as follows: 

PART 212—DOCUMENTARY 

REQUIREMENTS: NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

■ 1. The authority citation for part 212 

continues to read as follows: 

Authority: 6 U.S.C. 111, 202(4) and 271; 

8 U.S.C. 1101 and note, 1102, 1103, 1182 and 

note, 1184, 1187, 1223, 1225, 1226, 1227, 

1255, 1359; section 7209 of Pub. L. 108–458 

(8 U.S.C. 1185 note); Title VII of Pub. L. 110– 

229 (8 U.S.C. 1185 note); 8 CFR part 2; Pub. 

L. 115–218. 

Section 212.1(q) also issued under section 

702, Public Law 110–229, 122 Stat. 754, 854. 

■ 2. Amend § 212.18 by revising 

paragraphs (b)(2) and (3) to read as 

follows: 

§ 212.18 Application for Waivers of 

inadmissibility in connection with an 

application for adjustment of status by T 

nonimmigrant status holders 

* * * * * 

(b) * * * 

(2) If an applicant is inadmissible 

under section 212(a)(1) of the Act, 

USCIS may waive such inadmissibility 

if it determines that granting a waiver is 

in the national interest. 

(3) If any other applicable provision of 

section 212(a) renders the applicant 

inadmissible, USCIS may grant a waiver 

of inadmissibility if the activities 

rendering the alien inadmissible were 

caused by or were incident to the 

victimization and USCIS determines 

that it is in the national interest to waive 

the applicable ground or grounds of 

inadmissibility. 

■ 3. Add §§ 212.20 through 212.23 to 

read as follows: 

Sec. 

* * * * * 

212.20 Applicability of public charge 

inadmissibility. 

212.21 Definitions. 

212.22 Public charge inadmissibility 

determination. 

212.23 Exemptions and waivers for public 

charge ground of inadmissibility. 


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§ 212.20 Applicability of public charge 

inadmissibility. 

Sections 212.20 through 212.23 

address the public charge ground of 

inadmissibility under section 212(a)(4) 

of the Act. Unless the alien requesting 

the immigration benefit or classification 

has been exempted from section 

212(a)(4) of the Act as listed in 

§ 212.23(a), the provisions of this 

section through § 212.23 apply to an 

applicant for admission or adjustment of 

status to that of a lawful permanent 

resident. 

§ 212.21 Definitions. 

For the purposes of §§ 212.20 through 

212.23, the following definitions apply: 

(a) Likely at any time to become a 

public charge means likely at any time 

to become primarily dependent on the 

government for subsistence, as 

demonstrated by either the receipt of 

public cash assistance for income 

maintenance or long-term 

institutionalization at government 

expense. 

(b) Public cash assistance for income 

maintenance means: 

(1) Supplemental Security Income 

(SSI), 42 U.S.C. 1381 et seq.; 

(2) Cash assistance for income 

maintenance under the Temporary 

Assistance for Needy Families (TANF), 

42 U.S.C. 601 et seq.; or 

(3) State, Tribal, territorial, or local 

cash benefit programs for income 

maintenance (often called ‘‘General 

Assistance’’ in the State context, but 

which also exist under other names). 

(c) Long-term institutionalization at 

government expense means long-term 

government assistance for 

institutionalization (in the case of 

Medicaid, limited to institutional 

services under section 1905(a) of the 

Social Security Act) received by aliens, 

including in a nursing home or mental 

health institution. Long-term 

institutionalization does not include 

imprisonment for conviction of a crime 

or institutionalization for short periods 

for rehabilitation purposes. 

(d) Receipt (of public benefits). 

Receipt of public benefits occurs when 

a public benefit-granting agency 

provides public cash assistance for 

income maintenance or long-term 

institutionalization at government 

expense to an alien, where the alien is 

listed as a beneficiary. Applying for a 

public benefit on one’s own behalf or on 

behalf of another does not constitute 

receipt of public benefits by such alien. 

Approval for future receipt of a public 

benefit on one’s own behalf or on behalf 

of another does not constitute receipt of 

public benefits. An alien’s receipt of 

public benefits solely on behalf of 

another individual does not constitute 

receipt of public benefits. The receipt of 

public benefits solely by another 

individual, even if an alien assists with 

the application process, does not 

constitute receipt for such alien. 

(e) Government means any Federal, 

State, Tribal, territorial, or local 

government entity or entities of the 

United States. 

§ 212.22 Public charge inadmissibility 

determination. 

(a) Factors to consider—(1) 

Consideration of minimum factors: For 

purposes of a public charge 

inadmissibility determination, DHS will 

at a minimum consider the alien’s: 

(i) Age; 

(ii) Health; 

(iii) Family status; 

(iv) Assets, resources, and financial 

status; and 

(v) Education and skills. 

(2) Consideration of affidavit of 

support. DHS will favorably consider an 

affidavit of support under section 213A 

of the INA, when required under section 

212(a)(4)(C) or (D) of the Act, that meets 

the requirements of section 213A of the 

Act and 8 CFR 213a, in making a public 

charge inadmissibility determination. 

(3) Consideration of current and/or 

past receipt of public benefits: DHS will 

consider the alien’s current and/or past 

receipt of public cash assistance for 

income maintenance or long-term 

institutionalization at government 

expense (consistent with § 212.21(c)). 

DHS will consider such receipt in the 

totality of the circumstances, along with 

the other factors. DHS will consider the 

amount and duration of receipt, as well 

as how recently the alien received the 

benefits, and for long-term 

institutionalization, evidence submitted 

by the applicant that the applicant’s 

institutionalization violates federal law, 

including the Americans with 

Disabilities Act or the Rehabilitation 

Act. However, current and/or past 

receipt of these benefits will not alone 

be a sufficient basis to determine 

whether the alien is likely at any time 

to become a public charge. 

(4) Disability alone not sufficient. A 

finding that an alien has a disability, as 

defined by Section 504 of the 

Rehabilitation Act, will not alone be a 

sufficient basis to determine whether 

the alien is likely at any time to become 

a public charge. 

(b) Totality of the circumstances. The 

determination of an alien’s likelihood of 

becoming a public charge at any time in 

the future must be based on the totality 

of the alien’s circumstances. No one 

factor outlined in paragraph (a) of this 

section, other than the lack of a 

sufficient affidavit of support, if 

required, should be the sole criterion for 

determining if an alien is likely to 

become a public charge. DHS may 

periodically issue guidance to 

adjudicators to inform the totality of the 

circumstances assessment. Such 

guidance will consider how these 

factors affect the likelihood that the 

alien will become a public charge at any 

time based on an empirical analysis of 

the best-available data as appropriate. 

(c) Denial Decision. Every written 

denial decision issued by USCIS based 

on the totality of the circumstances set 

forth in paragraph (b) of this section will 

reflect consideration of each of the 

factors outlined in paragraph (a) of this 

section and specifically articulate the 

reasons for the officer’s determination. 

(d) Receipt of public benefits while an 

alien is in an immigration category 

exempt from public charge 

inadmissibility. In an adjudication for 

an immigration benefit for which the 

public charge ground of inadmissibility 

applies, DHS will not consider any 

public benefits received by an alien 

during periods in which the alien was 

present in the United States in an 

immigration category that is exempt 

from the public charge ground of 

inadmissibility, as set forth in 

§ 212.23(a), or for which the alien 

received a waiver of public charge 

inadmissibility, as set forth in 

§ 212.23(c). 

(e) Receipt of benefits available to 

refugees. DHS will not consider any 

public benefits that were received by an 

alien who, while not a refugee admitted 

under section 207 of the Act, is eligible 

for resettlement assistance, entitlement 

programs, and other benefits available to 

refugees admitted under section 207 of 

the Act, including services described 

under section 412(d)(2) of the Act 

provided to an unaccompanied alien 

child as defined under 6 U.S.C. 

279(g)(2). 

§ 212.23 Exemptions and waivers for 

public charge ground of inadmissibility. 

(a) Exemptions. The public charge 

ground of inadmissibility under section 

212(a)(4) of the Act does not apply, 

based on statutory or regulatory 

authority, to the following categories of 

aliens: 

(1) Refugees at the time of admission 

under section 207 of the Act and at the 

time of adjustment of status to lawful 

permanent resident under section 209 of 

the Act; 

(2) Asylees at the time of grant under 

section 208 of the Act and at the time 

of adjustment of status to lawful 

permanent resident under section 209 of 

the Act; 


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(3) Amerasian immigrants at the time 

of application for admission as 

described in sections 584 of the Foreign 

Operations, Export Financing, and 

Related Programs Appropriations Act of 

1988, Public Law 100–202, 101 Stat. 

1329–183, section 101(e) (Dec. 22, 

1987), as amended, 8 U.S.C. 1101 note; 

(4) Afghan and Iraqi Interpreters, or 

Afghan or Iraqi nationals employed by 

or on behalf of the U.S. Government as 

described in section 1059(a)(2) of the 

National Defense Authorization Act for 

Fiscal Year 2006 Public Law 109–163 

(Jan. 6, 2006), as amended, and section 

602(b) of the Afghan Allies Protection 

Act of 2009, Public Law 111–8, title VI 

(Mar. 11, 2009), as amended, 8 U.S.C. 

1101 note, and section 1244(g) of the 

National Defense Authorization Act for 

Fiscal Year 2008, as amended, Public 

Law 110–181 (Jan. 28, 2008); 

(5) Cuban and Haitian entrants 

applying for adjustment of status under 

section 202 of the Immigration Reform 

and Control Act of 1986 (IRCA), Public 

Law 99–603, 100 Stat. 3359 (Nov. 6, 

1986), as amended, 8 U.S.C. 1255a note; 

(6) Aliens applying for adjustment of 

status under the Cuban Adjustment Act, 

Public Law 89–732 (Nov. 2, 1966), as 

amended, 8 U.S.C. 1255 note; 

(7) Nicaraguans and other Central 

Americans applying for adjustment of 

status under section 202(a) and section 

203 of the Nicaraguan Adjustment and 

Central American Relief Act (NACARA), 

Public Law 105–100, 111 Stat. 2193 

(Nov. 19, 1997), as amended, 8 U.S.C. 

1255 note; 

(8) Haitians applying for adjustment 

of status under section 902 of the 

Haitian Refugee Immigration Fairness 

Act of 1998, Public Law 105–277, 112 

Stat. 2681 (Oct. 21, 1998), as amended, 

8 U.S.C. 1255 note; 

(9) Lautenberg parolees as described 

in section 599E of the Foreign 

Operations, Export Financing, and 

Related Programs Appropriations Act of 

1990, Public Law 101–167, 103 Stat. 

1195, title V (Nov. 21, 1989), as 

amended, 8 U.S.C. 1255 note; 

(10) Special immigrant juveniles as 

described in section 245(h) of the Act; 

(11) 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 (Registry); 

(12) Aliens applying for or 

reregistering for Temporary Protected 

Status as described in section 244 of the 

Act in accordance with section 

244(c)(2)(A)(ii) of the Act and 8 CFR 

244.3(a); 

(13) Nonimmigrants described in 

section 101(a)(15)(A)(i) and (ii) of the 

Act (Ambassador, Public Minister, 

Career Diplomat or Consular Officer, or 

Immediate Family or Other Foreign 

Government Official or Employee, or 

Immediate Family), in accordance with 

section 102 of the Act and 22 CFR 

41.21(d); 

(14) Nonimmigrants classifiable as C– 

2 (alien in transit to U.N. Headquarters) 

or C–3 (foreign government official), 22 

CFR 41.21(d); 

(15) Nonimmigrants described in 

section 101(a)(15)(G)(i), (ii), (iii), and 

(iv), of the Act (Principal Resident 

Representative of Recognized Foreign 

Government to International 

Organization, and related categories), in 

accordance with section 102 of the Act 

and 22 CFR 41.21(d); 

(16) Nonimmigrants classifiable as 

NATO–1, NATO–2, NATO–3, NATO–4 

(NATO representatives), and NATO–6 

in accordance with 22 CFR 41.21(d); 

(17) Applicants for nonimmigrant 

status under section 101(a)(15)(T) of the 

Act, in accordance with 8 CFR 

212.16(b); 

(18) Except as provided in section 

212.23(b), individuals who are seeking 

an immigration benefit for which 

admissibility is required, including but 

not limited to adjustment of status 

under section 245(a) of the Act and 

section 245(l) of the Act and who: 

(i) Have a pending application that 

sets forth a prima facie case for 

eligibility for nonimmigrant status 

under section 101(a)(15)(T) of the Act, 

or 

(ii) Have been granted nonimmigrant 

status under section 101(a)(15)(T) of the 

Act, provided that the individual is in 

valid T nonimmigrant status at the time 

the benefit request is properly filed with 

USCIS and at the time the benefit 

request is adjudicated; 

(19) Except as provided in § 212.23(b), 

(i) Petitioners for nonimmigrant status 

under section 101(a)(15)(U) of the Act, 

in accordance with section 

212(a)(4)(E)(ii) of the Act; or 

(ii) Individuals who are granted 

nonimmigrant status under section 

101(a)(15)(U) of the Act in accordance 

with section 212(a)(4)(E)(ii) of the Act, 

who are seeking an immigration benefit 

for which admissibility is required, 

including, but not limited to, 

adjustment of status under section 

245(a) of the Act, provided that the 

individuals are in valid U nonimmigrant 

status at the time the benefit request is 

properly filed with USCIS and at the 

time the benefit request is adjudicated; 

(20) Except as provided in paragraph 

(b) of this section, any aliens who are 

VAWA self-petitioners under section 

212(a)(4)(E)(i) of the Act; 

(21) Except as provided in section 

paragraph (b) of this section, qualified 

aliens described in section 431(c) of the 

Personal Responsibility and Work 

Opportunity Reconciliation Act of 1996, 

8 U.S.C. 1641(c), under section 

212(a)(4)(E)(iii) of the Act; 

(22) Applicants adjusting status who 

qualify for a benefit under section 1703 

of the National Defense Authorization 

Act, Public Law 108–136, 117 Stat. 1392 

(Nov. 24, 2003), 8 U.S.C. 1151 note 

(posthumous benefits to surviving 

spouses, children, and parents); 

(23) American Indians born in Canada 

determined to fall under section 289 of 

the Act; 

(24) Texas Band of Kickapoo Indians 

of the Kickapoo Tribe of Oklahoma, 

Public Law 97–429 (Jan. 8, 1983); 

(25) Nationals of Vietnam, Cambodia, 

and Laos applying for adjustment of 

status under section 586 of Public Law 

106–429 under 8 CFR 245.21; 

(26) Polish and Hungarian Parolees 

who were paroled into the United States 

from November 1, 1989 to December 31, 

1991, under section 646(b) of the 

IIRIRA, Public Law 104–208, Div. C, 

Title VI, Subtitle D (Sept. 30, 1996), 8 

U.S.C. 1255 note; 

(27) Applicants adjusting status who 

qualify for a benefit under Section 7611 

of the National Defense Authorization 

Act for Fiscal Year 2020, Public Law 

116–92, 113 Stat. 1198, 2309 (December 

20, 2019) (Liberian Refugee Immigration 

Fairness), later extended by Section 901 

of Division O, Title IX of the 

Consolidated Appropriations Act, 2021, 

Public Law 116–260 (December 27, 

2020) (Adjustment of Status for Liberian 

Nationals Extension); 

(28) Certain Syrian nationals adjusting 

status under Public Law 106–378; and 

(29) Any other categories of aliens 

exempt under any other law from the 

public charge ground of inadmissibility 

provisions under section 212(a)(4) of the 

Act. 

(b) Limited Exemption. Aliens 

described in § 212.23(a)(18) through (21) 

must submit an affidavit of support 

under section 213A of the INA if they 

are applying for adjustment of status 

based on an employment-based petition 

that requires such an affidavit of 

support as described in section 

212(a)(4)(D) of the Act. 

(c) Waivers. A waiver for the public 

charge ground of inadmissibility may be 

authorized based on statutory or 

regulatory authority, for the following 

categories of aliens: 

(1) Applicants for admission as 

nonimmigrants under 101(a)(15)(S) of 

the Act; 

(2) Nonimmigrants admitted under 

section 101(a)(15)(S) of the Act applying 


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Federal Register / Vol. 87, No. 37 / Thursday, February 24, 2022 / Proposed Rules 10671 

for adjustment of status under section 

245(j) of the Act (witnesses or 

informants); and 

(3) Any other waiver of the public 

charge ground of inadmissibility that is 

authorized by law or regulation. 

PART 245—ADJUSTMENT OF STATUS 

TO THAT OF A PERSON ADMITTED 

FOR PERMANENT RESIDENCE 

■ 4. The authority citation for part 245 

continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 

Pub. L. 105–100, section 202, 111 Stat. 2160, 

2193; Pub. L. 105–277, section 902, 112 Stat. 

2681; Pub. L. 110–229, tit. VII, 122 Stat. 754; 

8 CFR part 2. 

■ 5. In § 245.23, revise paragraph (c)(3) 

to read as follows: 

§ 245.23 Adjustment of aliens in T 

nonimmigrant classification. 

* * * * * 

(c) * * * 

(3) The alien is inadmissible under 

any applicable provisions of section 

212(a) of the Act and has not obtained 

a waiver of inadmissibility in 

accordance with 8 CFR 212.18 or 

214.11(j). Where the alien establishes 

that the victimization was a central 

reason for the applicant’s unlawful 

presence in the United States, section 

212(a)(9)(B)(iii) of the Act is not 

applicable, and the applicant need not 

obtain a waiver of that ground of 

inadmissibility. The alien, however, 

must submit with the Form I–485 

evidence sufficient to demonstrate that 

the victimization suffered was a central 

reason for the unlawful presence in the 

United States. To qualify for this 

exception, the victimization need not be 

the sole reason for the unlawful 

presence but the nexus between the 

victimization and the unlawful presence 

must be more than tangential, 

incidental, or superficial. 

* * * * * 

Alejandro N. Mayorkas, 

Secretary of Homeland Security. 

[FR Doc. 2022–03788 Filed 2–18–22; 11:15 am] 

BILLING CODE 9111–97–P 


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