[Federal Register Volume 87, Number 37 (Thursday, February 24, 2022)]
[Proposed Rules]
[Pages 10570-10671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03788]



[[Page 10569]]

Vol. 87

Thursday,

No. 37

February 24, 2022

Part IV





Department of Homeland Security





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8 CFR Parts 212 and 245





Public Charge Ground of Inadmissibility; Proposed Rule

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

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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.

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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2019, DHS issued a different rule on this topic, which is no longer in 
effect.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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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.
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    \1\ For purposes of this discussion, USCIS uses the term 
``noncitizen'' colloquially to be synonymous with the term 
``alien.''
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    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).
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    \2\ See 84 FR 41292 (Aug. 14, 2019), as amended by 
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 
(Oct. 2, 2019).
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    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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 10572]]

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.
    <bullet> 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.
    <bullet> 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\
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    \3\ Calculations: Total annual net costs ($12,856,152) = Total 
annual costs ($12,871,511) - Total annual savings ($15,359)
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    Over the first 10 years of implementation, DHS estimates the total 
net costs of the proposed rule would be approximately $128,561,520 
(undiscounted). In addition, DHS estimates that the 10-year discounted 
total net costs of this proposed rule would be about $109,665,584 at a 
3-percent discount rate and about $90,296,232 at a 7-percent discount 
rate.
    DHS expects the primary benefit of this proposed rule to be the 
qualitative benefit of establishing clear standards governing a 
determination that a noncitizen is inadmissible based on the public 
charge ground.
    Tables 1 and 2 provide a more detailed summary of the proposed 
provisions and their impacts relative to the No Action Baseline and 
Pre-Guidance Baseline, respectively.
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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\
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    \4\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq. 
(Nov. 25, 2002).
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    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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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\
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    \5\ See INA sec. 213, 8 U.S.C. 1183.
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    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\
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    \6\ See Fiallo v. Bell, 430 U.S. 787, 787 (1977) (The Supreme 
Court has ``long recognized [that] the power to expel or exclude 
aliens [i]s a fundamental sovereign attribute exercised by the 
Government's political departments largely immune from judicial 
control'').
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    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\
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    \7\ Admission is defined as ``the lawful entry of the alien into 
the United States after inspection and authorization by an 
immigration officer.'' See INA sec. 101(a)(13)(A), 8 U.S.C. 
1101(a)(13)(A).
    \8\ INA sec. 212(a), 8 U.S.C. 1182(a).
    \9\ Ibid.
    \10\ For example, adjustment of status. See INA sec. 245(a)(2), 
8 U.S.C. 1255(a)(2).
    \11\ See, e.g., INA sec. 212(a)(9)(B)(v), 8 U.S.C. 
1182(a)(9)(B)(v), INA sec. 212(h), 8 U.S.C. 1182(h), INA sec. 
212(i), 8 U.S.C. 1182(i); INA sec. 212(a)(9)(A)(iii), 8 U.S.C. 
1182(a)(9)(A)(iii); see also USCIS Policy Manual, Volume 9--Waivers, 
https://www.uscis.gov/policy-manual/volume-9.
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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\
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    \12\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
    \13\ See INA sec. 245(j). See 8 CFR 245.11. See INA sec. 
245(d)(2)(B). See INA sec. 212(d)(3)(A).
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    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\
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    \14\ See INA sec. 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
    \15\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii). 
When required, the applicant must submit an Affidavit of Support 
Under Section 213A of the INA (Form I-864 or Form I-864EZ).
    \16\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D).
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    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\
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    \17\ See INA sec. 213, 8 U.S.C. 1183.
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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.
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    \18\ See Immigration Act of 1882, ch. 376, secs. 1-2, 22 Stat. 
214, 214. Section 11 of the Act also provided that a noncitizen who 
became a public charge within 1 year of arrival in the United States 
from causes that existed prior to their landing was deemed to be in 
violation of law and was to be returned at the expense of the person 
or persons, vessel, transportation, company, or corporation who 
brought the noncitizen into the United States. See also, e.g., 
Immigration Act of 1891, ch. 551, 26 Stat. 1084, 1084; Immigration 
Act of 1907, ch. 1134, 34 Stat. 898, 899; Immigration Act of 1917, 
ch. 29, sec. 3, 39 Stat. 874, 876; INA of 1952, ch. 477, sec. 
212(a)(15), 66 Stat. 163, 183; Illegal Immigration Reform and 
Immigrant Responsibility Act, Public Law 104-208, sec. 531(a), 110 
Stat. 3009-546, 3009-674-75 (1996); Violence Against Women 
Reauthorization Act of 2013, Public Law 113-4, 127 Stat. 54.
    \19\ See INA of 1952, ch. 477, sec. 212(a)(15), 66 Stat. 163, 
183.
    \20\ See Matter of Harutunian, 14 I&N Dec. 583, 588 (Reg'l Cmm'r 
1974) (``[T]he determination of whether an alien falls into that 
category [as likely to become a public charge] rests within the 
discretion of the consular officers or the Commissioner . . . 
Congress inserted the words `in the opinion of' (the consul or the 
Attorney General) with the manifest intention of putting borderline 
adverse determinations beyond the reach of judicial review.'' 
(citation omitted)); see also Matter of Martinez-Lopez, 10 I&N Dec. 
409, 421 (Att'y Gen. 1962) (``[U]nder the statutory language the 
question for visa purposes seems to depend entirely on the consular 
officer's subjective opinion.'').
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    A series of administrative decisions after the passage of the INA 
of 1952 clarified that a totality of the circumstances review was the 
proper framework for making public charge determinations and that 
receipt of public benefits would not, alone, lead to a finding of 
likelihood of becoming a public charge. In Matter of Martinez-Lopez, 
the Attorney General opined that the statute ``require[d] more than a 
showing of a possibility that the alien will require public support. 
Some specific circumstance, such as mental or physical disability, 
advanced age, or other fact showing that the burden of supporting the 
alien is likely to be cast on the public, must be present. A healthy 
person in the prime of life cannot ordinarily be considered likely to 
become a public charge, especially where he has friends or relatives in 
the

[[Page 10580]]

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
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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.

[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\
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    \22\ 15 I&N Dec. 136, 137 (BIA 1974).

    As stated in Matter of Harutunian, public charge determinations 
should take into consideration factors such as a noncitizen's age, 
incapability of earning a livelihood, a lack of sufficient funds for 
self-support, and a lack of persons in this country willing and able to 
assure that the noncitizen will not need public support.\23\
---------------------------------------------------------------------------

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

    The totality of the circumstances framework for public charge 
inadmissibility determinations was codified in relation to one specific 
class of noncitizens in the 1980s. In 1986, Congress passed the 
Immigration Reform and Control Act (IRCA), providing eligibility for 
adjustment of status to that of a lawful permanent resident to certain 
noncitizens who had resided in the United States continuously prior to 
January 1, 1982.\24\ No changes were made to the language of the public 
charge exclusion ground under former section 212(a)(15) of the INA, 8 
U.S.C. 1182(a)(15), but IRCA contained special public charge rules for 
noncitizens seeking legalization under section 245A of the INA, 8 
U.S.C. 1255a. Although IRCA provided otherwise eligible noncitizens an 
exemption or waiver for some grounds of excludability, the noncitizens 
generally remained subject to the public charge ground of 
exclusion.\25\ Under IRCA, however, if an applicant demonstrated a 
history of self-support through employment and without receiving public 
cash assistance, they would not be ineligible for adjustment of status 
based on being inadmissible on the public charge ground.\26\ In 
addition, IRCA contained a discretionary waiver of public charge 
inadmissibility for noncitizens who were ``aged, blind or disabled'' as 
defined in section 1614(a)(1) of the Social Security Act who applied 
for lawful permanent resident status under IRCA and were determined to 
be inadmissible based on the public charge ground.\27\
---------------------------------------------------------------------------

    \24\ See IRCA of 1986, Public Law 99-603, sec. 201, 100 Stat. 
3359, 3394.
    \25\ See INA sec. 245A(d)(2)(B)(ii)(IV), 8 U.S.C. 
1255a(d)(2)(B)(ii)(IV).
    \26\ See INA sec. 245A(d)(2)(B)(iii), 8 U.S.C. 
1255a(d)(2)(B)(iii).
    \27\ See INA sec. 245A(d)(2)(B)(ii), 8 U.S.C. 
1255a(d)(2)(B)(ii); see also 42 U.S.C. 1382c(a)(1). This 
discretionary waiver applies only to IRCA legalization and not to 
adjustment of status under INA sec. 245(a), 8 U.S.C. 1255(a).
---------------------------------------------------------------------------

    The former Immigration and Naturalization Service (INS) promulgated 
8 CFR 245a.3,\28\ which established that immigration officers would 
make public charge inadmissibility determinations by examining the 
``totality of the alien's circumstances at the time of his or her 
application for legalization.'' \29\ According to the regulation, the 
existence or absence of a particular factor could never be the sole 
criterion for determining whether a person is likely to become a public 
charge.\30\ Further, the regulation provided that the determination is 
a ``prospective evaluation based on the alien's age, health, income, 
and vocation.'' \31\
---------------------------------------------------------------------------

    \28\ See Adjustment of Status for Certain Aliens, 54 FR 29442 
(Jul. 12, 1989). This regulation does not apply to adjustment of 
status under section 245(a) of the INA, 8 U.S.C. 1255, or to 
applications for admission with CBP. It is limited to adjustment 
from temporary to permanent resident status under the legalization 
provisions of IRCA. DHS does not propose amending 8 CFR 245a.3.
    \29\ See 8 CFR 245a.3(g)(4)(i).
    \30\ Ibid.
    \31\ Ibid.
---------------------------------------------------------------------------

    A special provision in the rule stated that noncitizens with 
incomes below the poverty level are not excludable if they are 
consistently employed and show the ability to support themselves.\32\ 
Finally, a noncitizen's past receipt of public cash assistance would be 
a significant factor in a context that also considers the noncitizen's 
consistent past employment.\33\ In Matter of A-, INS again pursued a 
totality of the circumstances approach in public charge determinations 
for applicants for legalization.\34\ ``Even though the test is 
prospective,'' INS ``considered evidence of receipt of prior public 
assistance as a factor in making public charge determinations.'' \35\ 
INS also considered a noncitizen's work history, age, capacity to earn 
a living, health, family situation, affidavits of support, and other 
relevant factors in their totality.\36\
---------------------------------------------------------------------------

    \32\ See 8 CFR 245a.3(g)(4)(iii).
    \33\ Ibid.
    \34\ 19 I&N Dec. 867 (Comm'r 1988).
    \35\ Ibid.
    \36\ See 19 I&N Dec. 867, 869 (Comm'r 1988).
---------------------------------------------------------------------------

    The administrative practices surrounding public charge 
inadmissibility determinations began to crystalize into legislative 
changes in the 1990s. The Immigration Act of 1990 reorganized section 
212(a) of the INA, 8 U.S.C. 1182(a), and redesignated the public charge 
provision as section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).\37\ In 
1996, the Illegal Immigration Reform and Immigrant Responsibility Act 
of 1996 (IIRIRA) \38\ added to section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), the mandatory statutory factors and the enforceable 
affidavit of support.\39\ Also in 1996, in the Personal Responsibility 
and Work Opportunity Reconciliation Act of 1996 (PRWORA), which is 
commonly known as the 1996 welfare reform law, Congress stated that 
noncitizens generally should not depend on public resources and that 
the availability of public benefits should not constitute an incentive 
for immigration to the United States.\40\
---------------------------------------------------------------------------

    \37\ See Immigration Act of 1990, Public Law 101-649, sec. 
601(a), 104 Stat. 4978, 5072. In 1990, Congress reorganized INA sec. 
212(a), redesignating the public charge provision as INA sec. 
212(a)(4).
    \38\ Public Law 104-208, div. C, 110 Stat 3009-546.
    \39\ Public Law 104-208, div. C, 110 Stat 3009-546.
    \40\ See Public Law 104-193, section 400, 110 Stat. 2105, 2260 
(codified at 8 U.S.C. 1601).
---------------------------------------------------------------------------

2. Public Benefits Under PRWORA
    PRWORA significantly restricted noncitizens' eligibility for many 
Federal, State, and local public benefits.\41\ When Congress enacted 
PRWORA, it set forth a self-sufficiency policy statement that 
noncitizens should be able to financially support themselves with their 
own resources or by relying on the aid of family members, sponsors, and 
private organizations, without depending on government assistance.\42\ 
Although not defined in PRWORA, in context, self-sufficiency is tied to 
a noncitizen's ability to meet their needs without depending on public 
resources.\43\
---------------------------------------------------------------------------

    \41\ 8 U.S.C. 1601-1646.
    \42\ 8 U.S.C. 1601(2).
    \43\ Ibid.
---------------------------------------------------------------------------

    PRWORA defines the term ``Federal public benefit'' \44\ and 
provides that an ``alien'' who is not a ``qualified alien'' is 
ineligible for any such benefits,\45\ subject to certain 
exceptions.\46\ Among the exceptions established by Congress allowing 
for eligibility for all noncitizens, are provision of medical 
assistance for the treatment of an emergency medical condition; short 
term, in-kind, non-cash emergency disaster relief; and public health 
assistance related to immunizations and treatment of the symptoms of a

[[Page 10581]]

communicable disease.\47\ The exceptions were further clarified by the 
Department of Justice (DOJ) and some of the agencies that administer 
these public benefits. On January 16, 2001, the DOJ published a notice 
of final order, ``Final Specification of Community Programs Necessary 
for Protection of Life or Safety Under Welfare Reform Legislation,'' 
\48\ which indicated that PRWORA does not preclude noncitizens from 
receiving certain other widely available programs, services, or 
assistance as well as certain benefits and services for the protection 
of life and safety.
---------------------------------------------------------------------------

    \44\ 8 U.S.C. 1611(c).
    \45\ 8 U.S.C. 1611(a).
    \46\ 8 U.S.C. 1611(b).
    \47\ See 8 U.S.C. 1611(b)(1). See Final Specification of 
Community Programs Necessary for Protection of Life or Safety Under 
Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001); see also 
Interim Guidance on Verification of Citizenship, Qualified Alien 
Status and Eligibility Under Title IV of the Personal Responsibility 
and Work Opportunity Reconciliation Act of 1996, 62 FR 61344 (Nov. 
17, 1997).
    \48\ See Final Specification of Community Programs Necessary for 
Protection of Life or Safety Under Welfare Reform Legislation, 66 FR 
3613 (Jan. 16, 2001); see also Specification of Community Programs 
Necessary for Protection of Life or Safety Under Welfare Reform 
Legislation, 61 FR 45985 (Aug. 30, 1996).
---------------------------------------------------------------------------

    PRWORA further identified three types of benefits and related 
eligibility rules. First, there are ``specified Federal programs,'' for 
which even ``qualified aliens'' are generally not eligible.\49\ Second, 
there are ``Federal means-tested public benefits,'' for which 
``qualified aliens'' are generally eligible after a 5-year waiting 
period.\50\ And finally, there are ``designated federal programs,'' for 
which States are allowed to determine whether and when a ``qualified 
alien'' is eligible, subject to certain restrictions.\51\
---------------------------------------------------------------------------

    \49\ 8 U.S.C. 1612(a).
    \50\ 8 U.S.C. 1613(a).
    \51\ 8 U.S.C. 1612(b).
---------------------------------------------------------------------------

    Subsequent legislation has added additional categories of 
noncitizens, many with humanitarian statuses, to PRWORA's various 
exceptions and special provisions in order to meet the needs of those 
vulnerable populations. DHS also discusses these statuses and 
modifications to PRWORA in the section below.
    The following is a list of immigration categories that are 
``qualified aliens'' under PRWORA. As noted above, subject to certain 
exceptions, ``qualified aliens'' are generally eligible for Federal 
public benefits after 5 years. As indicated in the section of this 
preamble on ``Exemptions and Waivers'' below, most categories of 
``qualified aliens'' are not subject to the public charge ground of 
inadmissibility.
    <bullet> An alien who is lawfully admitted for permanent residence 
under the INA.\52\
---------------------------------------------------------------------------

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

    <bullet> An alien who is granted asylum under section 208 of the 
INA.\53\
---------------------------------------------------------------------------

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

    <bullet> A refugee who is admitted to the United States under 
section 207 of the INA.\54\
---------------------------------------------------------------------------

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

    <bullet> An alien who is paroled into the United States under 
section 212(d)(5) of the INA for a period of at least 1 year.\55\
---------------------------------------------------------------------------

    \55\ 8 U.S.C. 1641(b)(4). Noncitizens who have been paroled have 
not been admitted. See INA sec. 101(a)(13)(B), 8 U.S.C. 
1101(a)(13)(B); see also INA sec. 212(d)(5), 8 U.S.C. 1182(d)(5).
---------------------------------------------------------------------------

    <bullet> An alien whose deportation is being withheld under section 
243(h) \56\ of the INA or section 241(b)(3) of the INA, as amended.\57\
---------------------------------------------------------------------------

    \56\ As in effect immediately before the effective date of 
section 307 of division C of Public Law 104-208, 110 Stat. 3009-546.
    \57\ 8 U.S.C. 1641(b)(5).
---------------------------------------------------------------------------

    <bullet> An alien who is granted conditional entry under section 
203(a)(7) of the INA as in effect before April 1, 1980.\58\
---------------------------------------------------------------------------

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

    <bullet> An alien who is a Cuban and Haitian entrant as defined in 
section 501(e) of the Refugee Education Assistance Act of 1980.\59\
---------------------------------------------------------------------------

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

    <bullet> An individual who lawfully resides in the United States in 
accordance with the Compacts of Free Association between the Government 
of the United States and the Governments of the Federated States of 
Micronesia, the Republic of the Marshall Islands, and the Republic of 
Palau referred to in 8 U.S.C. 1612(b)(2)(G) (but only with respect to 
Medicaid).\60\
---------------------------------------------------------------------------

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

    <bullet> An alien who has been battered or subjected to extreme 
cruelty in the United States by a spouse or a parent or by a member of 
the spouse or parent's family residing in the same household as the 
alien and the spouse or parent consented to, or acquiesced in, such 
battery or cruelty but only if (in the opinion of the agency providing 
such benefits) there is a substantial connection between such battery 
or cruelty and the need for the benefits to be provided, and the alien 
has been approved or has a petition pending that sets forth a prima 
facie case for status under section 204(a)(1)(A)(i)-(iv), or 
classification pursuant to section 204(a)(1)(B)(i)-(iii) of the INA, or 
suspension of deportation under section 244(a)(3) of the INA, or 
cancellation of removal pursuant to INA sec. 240A(b)(2).\61\
---------------------------------------------------------------------------

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

    <bullet> An alien whose child has been battered or subjected to 
extreme cruelty in the United States by a spouse or a parent of the 
alien (without active participation by the alien in such battery or 
cruelty), or by a member of the spouse or parent's family residing in 
the same household as the alien and the spouse or parent consented to, 
or acquiesced to such battery or cruelty (and the alien did not 
actively participate in such battery or cruelty), but only if (in the 
opinion of the agency providing such benefits) there is a substantial 
connection between such battery or cruelty and the need for the 
benefits to be provided, and the alien has been approved or has a 
petition pending which sets forth a prima facie case for status under 
section 204(a)(1)(A)(i)-(iv), or classification pursuant to section 
204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under 
section 244(a)(3) of the INA, or cancellation of removal pursuant to 
INA section 240A(b)(2).\62\
---------------------------------------------------------------------------

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

    <bullet> An alien child who resides in the same household as a 
parent who has been battered or subjected to extreme cruelty in the 
United States by that parent's spouse or by a member of the spouse's 
family residing in the same household as the parent, and the spouse 
consented to, or acquiesced to such battery or cruelty, but only if (in 
the opinion of the agency providing such benefits) there is a 
substantial connection between such battery or cruelty and the need for 
the benefits to be provided, and the alien has been approved or has a 
petition pending which sets forth a prima facie case for status under 
section 204(a)(1)(A)(i)-(iv), or classification pursuant to section 
204(a)(1)(B)(i)-(iii) of the INA, or suspension of deportation under 
section 244(a)(3) of the INA, or cancellation of removal pursuant to 
INA section 240A(b)(2).\63\
---------------------------------------------------------------------------

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

    <bullet> An alien who has been granted nonimmigrant status under 
section 101(a)(15)(T) of the INA or who has a pending application that 
sets forth a prima facie case for eligibility for such nonimmigrant 
status.\64\
---------------------------------------------------------------------------

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

    There are additional categories of noncitizens who may be eligible 
for certain benefits notwithstanding limitations set under PRWORA. For 
instance, the following noncitizens are treated as though they are 
refugees for benefits eligibility purposes, under other provisions of 
law:
    <bullet> An alien who is a victim of a severe form of trafficking 
in persons, or an

[[Page 10582]]

alien classified as a nonimmigrant under 8 U.S.C. 
1101(a)(15)(T)(ii).\65\
---------------------------------------------------------------------------

    \65\ 22 U.S.C. 7105(b)(1)(A).
---------------------------------------------------------------------------

    <bullet> An Iraqi or Afghan alien granted special immigrant status 
under section 8 U.S.C. 101(a)(27).\66\
---------------------------------------------------------------------------

    \66\ Public Law 111-118, Div. A., Tit. VIII., sec. 8120, 123 
Stat. 3409, 3457 (2009).
---------------------------------------------------------------------------

    <bullet> A citizen or national of Afghanistan (or a person with no 
nationality who last habitually resided in Afghanistan) paroled into 
the United States after July 31, 2021, who meets certain requirements, 
until March 31, 2023, or the term of parole granted, whichever is 
later.\67\
---------------------------------------------------------------------------

    \67\ Public Law 117-43, sec. 2502(b) (Sept. 30, 2021).
---------------------------------------------------------------------------

    In addition, in the Medicaid context, States may also elect to 
provide medical assistance under Title XIX of the Social Security Act 
to cover all lawfully residing children under age 21 or pregnant 
individuals.\68\
---------------------------------------------------------------------------

    \68\ See sections 1903(v)(4) of the Social Security Act (42 
U.S.C. 1396b(v)(4)).
---------------------------------------------------------------------------

    Under PRWORA, States may enact their own legislation to provide 
State and local public benefits to certain noncitizens not lawfully 
present in the United States.\69\ Some States and localities have 
funded public benefits for some noncitizens who may not be eligible for 
Federal public benefits.\70\
---------------------------------------------------------------------------

    \69\ See 8 U.S.C. 1621(d).
    \70\ See, e.g., U.S. Dep't of Health & Human Servs. (HHS), 
Office of the Assistant Sec'y for Planning & Evaluation, Overview of 
Immigrants Eligible for SNAP, TANF, Medicaid and CHIP (Mar. 27, 
2012), available at http://aspe.hhs.gov/hsp/11/ImmigrantAccess/Eligibility/ib.shtml.
---------------------------------------------------------------------------

    While PRWORA allows certain noncitizens to receive certain public 
benefits (e.g., Medicaid limited to treatment of an emergency medical 
condition (all noncitizens); \71\ Supplemental Nutrition Assistance 
Program (SNAP) (``qualified alien'' children under 18)), Congress, 
except in very limited circumstances,\72\ did not prohibit DHS from 
considering the receipt of such benefits in a public charge 
inadmissibility determination under section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4), or direct DHS to do so.
---------------------------------------------------------------------------

    \71\ See 8 U.S.C. 1611(b)(1)(A).
    \72\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------

    The following table presents a list of the major categories of 
noncitizens eligible for SSI, TANF, or Medicaid who would be subject to 
a public charge inadmissibility determination were they later to apply 
for adjustment of status or admission to the United States, unless 
another statutory exemption applies that is particular to their 
individual circumstances.\73\ The table is provided for background 
purposes only and should not be used to determine benefits eligibility.
---------------------------------------------------------------------------

    \73\ A list of statutory exemptions to the public charge ground 
of inadmissibility can be found in the Applicability section of this 
preamble and in proposed 8 CFR 212.23.
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BILLING CODE 9111-97-P

[[Page 10583]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.011


[[Page 10584]]


[GRAPHIC] [TIFF OMITTED] TP24FE22.012

BILLING CODE 9111-97-C
    DHS welcomes comments on the table, including proposed 
clarifications or corrections, and may update the table as appropriate 
in the preamble to a final rule.
3. Changes Under IIRIRA
    Congress, in IIRIRA,\74\ codified in the public charge 
inadmissibility statute the following minimum factors that must be 
considered when making public charge inadmissibility determinations: 
\75\
---------------------------------------------------------------------------

    \74\ Public Law 104-208, div. C, 110 Stat 3009-546 (1996).
    \75\ See Public Law 104-208, div. C, sec. 531, 110 Stat. 3009-
546, 3009-674 (1996) (amending INA sec. 212(a)(4), 8 U.S.C. 
1182(a)(4)).
---------------------------------------------------------------------------

    <bullet> Age;
    <bullet> Health;
    <bullet> Family status;
    <bullet> Assets, resources, and financial status; and
    <bullet> Education and skills.\76\
---------------------------------------------------------------------------

    \76\ See INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
---------------------------------------------------------------------------

    Section 531(a) of IIRIRA amended section 212(a)(4) of the INA, 8 
U.S.C. 1182(a)(4), to require an enforceable affidavit of support under 
newly added section 213A of the INA, 8 U.S.C. 1183a,\77\ for certain 
noncitizens to avoid a finding of inadmissibility under that 
section.\78\ The law required submission of an Affidavit of Support 
Under Section 213A of the INA for most family-based immigrants and 
certain employment-based immigrants and provided that these noncitizens 
are inadmissible under section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4), unless a sufficient affidavit is filed on their behalf.\79\ 
Congress also permitted, but did not require, consular and immigration 
officers to consider the Affidavit of Support Under Section 213A of the 
INA as a factor in the public charge inadmissibility determination.\80\ 
In the House Conference Report on IIRIRA, the committee indicated that 
the amendments to section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), 
were designed to ``expand'' the public charge ground of inadmissibility 
by requiring DHS to find inadmissible those who lack a sponsor willing 
to support them.\81\
---------------------------------------------------------------------------

    \77\ Section 551 of IIRIRA created INA sec. 213A, 8 U.S.C. 
1183a, and specified the requirements for a sponsor's affidavit, 
including making it enforceable. See INA sec. 213A, 8 U.S.C. 1183a; 
sec. 551 of IIRIRA, Public Law 104-208, 110 Stat. 3009 (1996).
    \78\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D). See INA sec. 213A, 8 U.S.C. 1183a.
    \79\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D).
    \80\ See INA sec. 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
    \81\ See H.R. Rep. No. 104-828, at 240-41 (1996) (Conf. Rep.); 
see also H.R. Rep. No. 104-469(I), at 143-45 (1996).
---------------------------------------------------------------------------

    DHS may appropriately consider the policy goals articulated in 
PRWORA and IIRIRA when administratively implementing the public charge 
ground of inadmissibility, and may also consider other important goals 
including, but not limited to, clarity, fairness, and administrability. 
DHS acknowledges the potential tension between the availability of 
public benefits to some noncitizens as set forth in PRWORA and 
statutory provisions that deny visa issuance, admission, and adjustment 
of status to noncitizens who are likely to become a public charge. 
Congress, in enacting PRWORA and IIRIRA very close in time, made 
certain public benefits available to a small number of noncitizens who 
are also subject to the public charge ground of inadmissibility, even 
though receipt of some such benefits could influence a determination of 
whether the noncitizen is inadmissible as likely at any time to become 
a public charge.
    Under the statute crafted by Congress, noncitizens generally would 
not be issued visas, admitted to the United States, or permitted to 
adjust status if they are likely at any time to become a public charge. 
Congress nonetheless recognized that certain noncitizens present in the 
United States who are subject to the public charge ground of 
inadmissibility might reasonably find themselves in need of public 
benefits that, if obtained, could influence a determination of whether 
they are inadmissible as likely at any time to become a public charge. 
Consequently, in PRWORA, Congress allowed certain noncitizens to be 
eligible for some

[[Page 10585]]

public benefits even though they may later seek a visa, admission, or 
adjustment of status and thereby be subject to the public charge ground 
of inadmissibility. However, Congress, except in very limited 
circumstances,\82\ did not prohibit DHS from considering the receipt of 
such benefits in a public charge inadmissibility determination under 
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). In other words, 
although a noncitizen may obtain public benefits for which they are 
eligible, the receipt of those benefits may be considered for public 
charge inadmissibility determination purposes.
---------------------------------------------------------------------------

    \82\ See INA sec. 212(s), 8 U.S.C. 1182(s).
---------------------------------------------------------------------------

4. INS 1999 Notice of Proposed Rulemaking and Interim Field Guidance
    On May 26, 1999, INS issued a proposed rule, Inadmissibility and 
Deportability on Public Charge Grounds \83\ (1999 NPRM), and on that 
same day issued interim Field Guidance on Deportability and 
Inadmissibility on Public Charge Grounds (1999 Interim Field 
Guidance).\84\
---------------------------------------------------------------------------

    \83\ 64 FR 28676 (May 26, 1999).
    \84\ 64 FR 28689 (May 26, 1999). Due to a printing error, the 
Federal Register version of the 1999 Interim Field Guidance appears 
to be dated ``March 26, 1999,'' even though the guidance was 
actually signed May 20, 1999; became effective May 21, 1999; and was 
published in the Federal Register on May 26, 1999, along with the 
NPRM.
---------------------------------------------------------------------------

    In the 1999 proposed rule, INS proposed to ``alleviate growing 
public confusion over the meaning of the currently undefined term 
`public charge' in immigration law and its relationship to the receipt 
of Federal, State, or local public benefits.'' \85\ INS sought to 
reduce negative public health and nutrition consequences generated by 
that confusion and to provide noncitizens, their sponsors, health care 
and immigrant assistance organizations, and the public with better 
guidance as to the types of public benefits that INS considered 
relevant to the public charge determination.\86\ INS also sought to 
address the public's concerns about immigrants' fears of accepting 
public benefits for which they remained eligible, specifically in 
regards to medical care, children's immunizations, basic nutrition, and 
treatment of medical conditions that may jeopardize public health.\87\
---------------------------------------------------------------------------

    \85\ See 64 FR 28676, 28676 (May 26, 1999).
    \86\ See 64 FR 28676, 28676-77 (May 26, 1999).
    \87\ See 64 FR 28676, 28676 (May 26, 1999).
---------------------------------------------------------------------------

    When developing the proposed rule, INS consulted with Federal 
benefit-granting agencies such as the U.S. Department of Health and 
Human Services (HHS), the Social Security Administration (SSA), and the 
Department of Agriculture (USDA). The Deputy Secretary of HHS, whose 
Department administers Temporary Assistance for Needy Families (TANF), 
Medicaid, the Children's Health Insurance Program (CHIP), and other 
benefits, advised that the best evidence of whether an individual is 
relying primarily on the government for subsistence is either the 
receipt of public cash benefits for income maintenance purposes or 
institutionalization for long-term care at government expense.\88\ The 
Deputy Commissioner for Disability and Income Security Programs at SSA 
agreed that the receipt of Supplemental Security Income (SSI) ``could 
show primary dependence on the government for subsistence fitting the 
INS definition of public charge.'' \89\ Furthermore, the USDA's Under 
Secretary for Food, Nutrition and Consumer Services advised that 
``neither the receipt of food stamps nor nutrition assistance provided 
under the Special Nutrition Programs administered by USDA should be 
considered in making a public charge determination.'' \90\ While these 
letters supported the approach taken in the 1999 proposed rule and 
Interim Field Guidance, the letters specifically focused on the 
reasonableness of a given INS interpretation (i.e., primary dependence 
on the government for subsistence). The letters did not foreclose the 
agency from adopting a different definition consistent with statutory 
authority.
---------------------------------------------------------------------------

    \88\ See 64 FR 28676, 28686-87 (May 26, 1999).
    \89\ See 64 FR 28676, 28687 (May 26, 1999).
    \90\ See 64 FR 28676, 28688 (May 26, 1999).
---------------------------------------------------------------------------

    INS defined public charge in the 1999 proposed rule, as well as in 
the 1999 Interim Field Guidance, to mean, for purposes of admission and 
adjustment of status, ``an alien who is likely to become . . . 
primarily dependent \91\ on the government for subsistence, as 
demonstrated by either (i) the receipt of public cash assistance for 
income maintenance or (ii) institutionalization for long-term care at 
government expense.'' \92\ The 1999 proposed rule provided that non-
cash benefits, as well as ``supplemental, special-purpose cash benefits 
should not be considered'' for public charge purposes, in light of 
INS's decision to define public charge by reference to primary 
dependence on public benefits.\93\ Ultimately, however, INS did not 
publish a final rule conclusively addressing these issues.
---------------------------------------------------------------------------

    \91\ Former INS defined ``primarily dependent'' as ``the 
majority'' or ``more than 50 percent.''
    \92\ See 64 FR 28676, 28681 (May 26, 1999); 64 FR 28689 (May 26, 
1999). The proposed rule also defined public charge to mean, ``for 
purposes of removal as a deportable alien means an alien who has 
become primarily dependent on the Government for subsistence as 
demonstrated by either: (i) The receipt of public cash assistance 
for income maintenance purposes, or (ii) Institutionalization for 
long-term care at Government expense (other than imprisonment for 
conviction of a crime).'' 64 FR 28676, 28684 (May 26, 1999).
    \93\ See 64 FR 28676, 28692-93 (May 26, 1999).
---------------------------------------------------------------------------

    The 1999 Interim Field Guidance was issued as an attachment to the 
1999 proposed rule in order to ``provide additional information to the 
public on the Service's implementation of the public charge provisions 
of the immigration laws . . . in light of the recent changes in law.'' 
\94\ The 1999 Interim Field Guidance explained how the agency would 
determine if a person is likely to become a public charge under section 
212(a)(4) of the INA, 8 U.S.C. 1182(a), for admission and adjustment of 
status purposes, and whether a person is deportable as a public charge 
under section 237(a)(5) of the INA, 8 U.S.C. 1227(a)(5).\95\ The 1999 
Interim Field Guidance also was intended to stem the fears that were 
causing noncitizens to refuse certain supplemental public benefits, 
such as transportation vouchers and childcare assistance, that were 
intended to help recipients become better able to obtain and retain 
employment and establish self-sufficiency.\96\
---------------------------------------------------------------------------

    \94\ See 64 FR 28689, 28689 (May 26, 1999).
    \95\ See 64 FR 28689, 28692-93 (May 26, 1999).
    \96\ See 64 FR 28689 (May 26, 1999).
---------------------------------------------------------------------------

    The Department of State (DOS) also issued a cable to its consular 
officers at that time implementing similar guidance for visa 
adjudications, and its Foreign Affairs Manual (FAM) was similarly 
updated.\97\ Until both agencies published new regulations and policy 
guidance, including changes to the FAM, in 2018 and 2019, USCIS had 
continued to follow the 1999 Interim Field Guidance in its 
adjudications, and DOS had continued following the public charge 
guidance set forth in the FAM in 1999.\98\
---------------------------------------------------------------------------

    \97\ See 64 FR 28676, 28680 (May 26, 1999).
    \98\ See 9 FAM 302.8, https://fam.state.gov/fam/09fam/09fam030208.html (accessed Dec. 12, 2021).
---------------------------------------------------------------------------

5. DHS Inadmissibility on Public Charge Grounds Notice of Proposed 
Rulemaking and 2019 Final Rule
    In August 2019, DHS issued a final rule, Inadmissibility on Public 
Charge Grounds (2019 Final Rule). The 2019 Final Rule (that is no 
longer in effect), changed DHS's public charge standards and 
procedures.\99\ The 2019 Final Rule redefined the term public charge to 
mean ``an alien who receives one or more public benefits, as defined in 
[the 2019 Final Rule], for more than 12

[[Page 10586]]

months in the aggregate within any 36-month period (such that, for 
instance, receipt of two benefits in one month counts as two months).'' 
\100\ It also defined the term public benefit to include cash 
assistance for income maintenance (other than tax credits), SNAP, most 
forms of Medicaid, Section 8 Housing Assistance under the Housing 
Choice Voucher (HCV) Program, Section 8 Project-Based Rental 
Assistance, and certain other forms of subsidized housing.\101\ DHS 
tailored the 2019 Final Rule to limit the rule's effects in certain 
ways, such as with respect to the consideration of public benefits 
received by active duty military members and their spouses and 
children, and consideration of public benefits received by children in 
certain contexts.\102\
---------------------------------------------------------------------------

    \99\ See 84 FR 41292 (Aug. 14, 2019), as amended by 
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 
(Oct. 2, 2019).
    \100\ See 84 FR 41292 (Aug. 14, 2019).
    \101\ Ibid.
    \102\ See 84 FR 41292 (Aug. 14, 2019). For example, under that 
rule, public benefits did not include public benefits received by 
those who, at the time of receipt, filing the application for 
admission or adjustment of status, or adjudication, is enlisted in 
the U.S. Armed Forces, serving in active duty or in the Ready 
Reserve component of the U.S. Armed Forces, or the spouse of 
children of such service members. Also under that rule, public 
benefits did not include benefits received by children of U.S. 
citizens whose lawful admission for permanent residence would result 
in automatic acquisition of U.S. citizenship.
---------------------------------------------------------------------------

    The 2019 Final Rule also provided an evidentiary framework under 
which USCIS would determine public charge inadmissibility and explained 
how DHS would interpret the statutory minimum factors for determining 
whether ``in the opinion of'' \103\ the officer, a noncitizen is likely 
at any time to become a public charge. Specifically, for adjustment of 
status applications before USCIS, DHS created a new Declaration of 
Self-Sufficiency, Form I-944, which collected information from 
applicants relevant to the 2019 Final Rule's approach to the statutory 
factors and other factors identified in the rule that would be 
considered in the totality of the circumstances.\104\
---------------------------------------------------------------------------

    \103\ See INA sec. 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
    \104\ The Declaration of Self-Sufficiency requirement only 
applied to adjustment applicants and not applicants for admission at 
a port of entry.
---------------------------------------------------------------------------

    The 2019 Final Rule also contained a list of negative and positive 
factors that DHS would consider as part of this inadmissibility 
determination, and directed officers to consider these factors ``in the 
totality of the circumstances.'' \105\ These positive or negative 
factors, as well as the ``heavily weighted'' positive and negative 
factors, operated as guidelines to help the officer determine whether 
the noncitizen was likely at any time to become a public charge.\106\ 
In the 2019 Final Rule, DHS indicated that apart from a lack of an 
Affidavit of Support Under Section 213A of the INA, where required, the 
presence of a single positive or negative factor, or heavily weighted 
negative or positive factor, would never, on its own, create a 
presumption that an applicant was inadmissible as likely at any time to 
become a public charge or determine the outcome of the public charge 
inadmissibility determination.\107\ Rather, a public charge 
inadmissibility determination would be based on the totality of the 
circumstances presented in an applicant's case.\108\
---------------------------------------------------------------------------

    \105\ See 84 FR 41292 (Aug. 14, 2019).
    \106\ Ibid.
    \107\ Ibid.
    \108\ See 84 FR 41292 (Aug. 14, 2019).
---------------------------------------------------------------------------

    Additionally, the 2019 Final Rule added provisions that rendered 
certain nonimmigrants ineligible for extension of stay or change of 
status if they received one or more public benefits, as defined in the 
rule, for more than 12 months in the aggregate within any 36-month 
period since obtaining the nonimmigrant status they wished to extend or 
change.\109\
---------------------------------------------------------------------------

    \109\ Ibid.
---------------------------------------------------------------------------

    The 2019 Final Rule also revised DHS regulations governing the 
Secretary's discretion to accept a public charge bond under section 213 
of the INA, 8 U.S.C. 1183, for those seeking adjustment of status.\110\
---------------------------------------------------------------------------

    \110\ Ibid.
---------------------------------------------------------------------------

    The 2019 Final Rule did not interpret or change DHS's 
implementation of the public charge ground of deportability.\111\
---------------------------------------------------------------------------

    \111\ See INA sec. 237(a)(5), 8 U.S.C. 1227(a)(5). See 84 FR 
41292, 41295 (Aug. 14, 2019).
---------------------------------------------------------------------------

6. Litigation History and Vacatur of DHS 2019 Final Rule
    The 2019 Final Rule was set to take effect on October 15, 2019, 
but, before it did, numerous Plaintiffs filed suits challenging the 
2019 Final Rule in five district courts, across four circuits.\112\ All 
five district courts preliminarily enjoined the 2019 Final Rule. 
Although differing in some particulars, all five concluded that the 
2019 Final Rule's definition was contrary to the INA because the term 
``public charge'' had a long-settled definition with which the 2019 
Final Rule conflicted. Some courts also concluded that the 2019 Final 
Rule was likely arbitrary and capricious, and that the 2019 Final Rule 
likely violated the Rehabilitation Act.\113\
---------------------------------------------------------------------------

    \112\ CASA de Maryland, Inc., et al., v. Trump, 19-cv-2715 (D. 
Md.); City and County of San Francisco, et al., v. DHS, et al., 19-
cv-04717 (N.D. Ca.); City of Gaithersburg, et al. v. Trump, et al., 
19-cv-02851 (D. Md.); Cook County et al. v. McAleenan et al., 19-cv-
06334 (N.D. Ill.); La Clinica De La Raza, et al., v. Trump, et 
al.,19-cv-4980 (N.D. Ca.); Make the Road New York, et al. v. 
Cuccinelli, et al., 19-cv-07993 (S.D.N.Y.); New York, et al. v. DHS, 
et al., 19-cv-07777 (S.D.N.Y.); State of California, et al., v. DHS, 
et al., 19-cv-04975 (N.D. Cal.); State of Washington, et al. v. DHS, 
et al., 19-cv-05210 (E.D. Wa.).
    \113\ Cook County. v. Wolf, 962 F.3d 208, 228 (7th Cir. 2020).
---------------------------------------------------------------------------

    The cases took differing paths through the courts of appeals. The 
Ninth and Fourth Circuits granted the government's requests for stays 
pending appeal.\114\ The Second and Seventh Circuits declined to grant 
stays; however, the Supreme Court subsequently granted stays in those 
cases, pending final resolution by the Court of the government's 
appeals.\115\ The 2019 Final Rule was ultimately implemented on 
February 24, 2020.
---------------------------------------------------------------------------

    \114\ See, City and County of San Francisco, et al. v. DHS, 944 
F.3d 773 (9th Cir. Dec. 5, 2019), City and County of San Francisco, 
et al. v. DHS, No. 19-17213 (9th Cir. Jan. 20, 2021); CASA de 
Maryland, Inc. et al. v. Trump, No. 19-2222 (4th Cir. Dec 9, 2019).
    \115\ See DHS v. New York, 140 S. Ct. 599 (2020); Wolf v. Cook 
County, 140 S. Ct. 681 (2020).
---------------------------------------------------------------------------

    On June 10, 2020, the Seventh Circuit affirmed the lower court's 
preliminary injunction.\116\
---------------------------------------------------------------------------

    \116\ See Cook County v. Wolf, 962 F.3d 208 (7th Cir. 2020) 
(then-Judge Barrett dissenting).
---------------------------------------------------------------------------

    On July 29, 2020, the United States District Court for the Southern 
District of New York entered a second preliminary injunction 
prohibiting enforcement of the 2019 Final Rule nationwide during the 
pendency of the COVID-19 public-health emergency.\117\ On August 12, 
2020, the Second Circuit issued an order staying the second preliminary 
injunction outside of the States within the Second Circuit. Then, on 
September 11, 2020, the Second Circuit stayed the second preliminary 
injunction in its entirety.\118\
---------------------------------------------------------------------------

    \117\ See New York v. DHS, 475 F. Supp. 3d 208 (S.D.N.Y. 2020).
    \118\ See New York v. DHS, 974 F.3d 210 (2d Cir. 2020).
---------------------------------------------------------------------------

    Meanwhile, on August 4, 2020, the Second Circuit issued a decision 
affirming the original Fall 2019 injunctions on appeal before that 
court.\119\
---------------------------------------------------------------------------

    \119\ See New York v. Department of Homeland Security, 969 F.3d 
42 (2d Cir. 2020).
---------------------------------------------------------------------------

    One day later, on August 5, 2020, the Fourth Circuit reversed the 
Maryland district court's injunction.\120\ Plaintiffs filed a timely 
motion for en banc rehearing, and on December 3, 2020, the Fourth 
Circuit granted that motion. By ordering en banc rehearing, the Fourth 
Circuit vacated the prior panel decision.
---------------------------------------------------------------------------

    \120\ See CASA de Maryland v. Trump, 971 F.3d 220 (4th Cir. 
2020).
---------------------------------------------------------------------------

    On October 7, 2020, the government filed petitions for writ of 
certiorari in

[[Page 10587]]

the Second and Seventh Circuit cases.\121\ The government urged the 
Court to grant certiorari in the Second Circuit case, and to hold the 
Seventh Circuit case pending its resolution of the Second Circuit case.
---------------------------------------------------------------------------

    \121\ See Department of Homeland Security v. New York, No. 20-
449 (S. Ct.); Wolf v. Cook County, No. 20-450 (S. Ct.).
---------------------------------------------------------------------------

    On November 2, 2020, the United States District Court for the 
Northern District of Illinois entered a partial final judgment in favor 
of Plaintiffs in the Cook County case and vacated the 2019 Final Rule 
nationwide.\122\ The Seventh Circuit stayed the judgment pending the 
Supreme Court's resolution of the government's certiorari petition in 
the preliminary injunction appeal.
---------------------------------------------------------------------------

    \122\ See Cook County v. Wolf, 2020 WL 6393005 (N.D. Ill. Nov. 
2, 2020).
---------------------------------------------------------------------------

    On December 2, 2020, the Ninth Circuit affirmed preliminary 
injunctions entered by the U.S. district courts in California and 
Washington.\123\
---------------------------------------------------------------------------

    \123\ See City & County of San Francisco v. USCIS, 981 F.3d 742 
(9th Cir. 2020).
---------------------------------------------------------------------------

    On January 19, 2021, the government submitted a petition for writ 
of certiorari in the Ninth Circuit case, which asked the Court to hold 
the petition until it decided the New York case.\124\
---------------------------------------------------------------------------

    \124\ See USCIS v. City & County of San Francisco, No. 20-962 
(S. Ct.). The petition was submitted on January 19, 2021, and 
docketed on January 21, 2021.
---------------------------------------------------------------------------

    On February 2, 2021, President Biden directed the Secretary, along 
with the Attorney General, the Secretary of State, and other relevant 
agency heads, to ``review all agency actions related to implementation 
of the public charge ground of inadmissibility . . . and the related 
ground of deportability.'' \125\ The President ordered the agencies to 
complete that review within 60 days.\126\
---------------------------------------------------------------------------

    \125\ See Exec. Order No. 14012, sec. 4, 86 FR 8277, 8278.
    \126\ Ibid.
---------------------------------------------------------------------------

    On February 22, 2021, the Supreme Court granted the government's 
petition for writ of certiorari in DHS v. New York, No. 20-449, in 
order to review the preliminary injunctions issued in October 2019 by 
the United States District Court for the Southern District of New York.
    Approximately 2 weeks later, DHS announced its determination that 
continuing to defend the 2019 Final Rule before the Supreme Court and 
in the lower courts would not be in the public interest or an efficient 
use of government resources. Consistent with that determination, the 
government filed stipulations with the Supreme Court dismissing DHS v. 
New York, No. 20-449; Mayorkas v. Cook County, No. 20-450; and USCIS v. 
City & County of San Francisco, No. 20-962.
    The government likewise filed motions to dismiss public charge 
related appeals in the lower courts. The Seventh Circuit granted the 
government's motion and dismissed the appeal. As a consequence, the 
vacatur ordered by the United States District Court for the Northern 
District of Illinois became effective. The government subsequently 
published a notice in the Federal Register formally removing the 2019 
Final Rule from the Code of Federal Regulations.\127\
---------------------------------------------------------------------------

    \127\ See Inadmissibility on Public Charge Grounds; 
Implementation of Vacatur, 86 FR 14221, 14221 (Mar. 15, 2021).
---------------------------------------------------------------------------

    On March 11, 2021, the United States Court of Appeals for the 
Fourth Circuit granted DHS's unopposed motion to dismiss the appeal and 
issued a mandate making the order dismissing the appeal effective. On 
the same day, a group of States filed motions in the Fourth and Seventh 
Circuits to intervene and recall the respective mandates. On March 15, 
2021, the Seventh Circuit motion was denied. On March 18, 2021, the 
Fourth Circuit motion was denied.
    On March 19, 2021, the same collection of States filed with the 
Supreme Court an application to intervene and to stay the vacatur 
judgment of the United States District Court for the Northern District 
of Illinois.\128\ That application was denied on April 26, 2021.
---------------------------------------------------------------------------

    \128\ See Texas, et al. v. Cook County, Illinois, et al., 
20A150.
---------------------------------------------------------------------------

    On March 10, 2021, a different collection of States filed a motion 
to intervene in the Ninth Circuit case.\129\ On April 8, 2021, that 
motion was denied.
---------------------------------------------------------------------------

    \129\ See City and County of San Francisco, et al., v. USCIS, et 
al., 19-17213.
---------------------------------------------------------------------------

    On April 30, 2021, the same collection of States filed a motion for 
leave to intervene in the Supreme Court in order to pursue further 
review of the Ninth Circuit's judgment.\130\ On June 1, 2021, the Court 
ordered that the matter be held in abeyance to permit the prospective 
intervenors an opportunity to file a petition for writ of certiorari 
from the denial of their motion to intervene in the United States Court 
of Appeals for the Ninth Circuit.
---------------------------------------------------------------------------

    \130\ See Arizona, et al. v. City and County of San Francisco, 
et al., 20M81.
---------------------------------------------------------------------------

    On June 18, 2021, the same collection of States filed a petition 
for writ of certiorari with the Supreme Court, in which the States 
presented three questions.\131\
---------------------------------------------------------------------------

    \131\ See Arizona, et al. v. City and County of San Francisco, 
et al., 20-1775. The questions presented were: (1) Whether States 
with interests should be permitted to intervene to defend a rule 
when the United States ceases to defend; (2) whether the rule is 
contrary to law or arbitrary and capricious; and (3) alternatively, 
whether the decision below as to the rule should be vacated as moot 
under Munsingwear.
---------------------------------------------------------------------------

    On October 29, 2021, the Supreme Court granted the petition limited 
to the question of whether the States should be permitted to intervene.
7. Consideration of Chilling Effects
    In this proposed rule, DHS gives more thorough consideration to the 
potential chilling effects of promulgating regulations governing the 
public charge inadmissibility determination. In considering such 
effects, DHS took into account the former INS's approach to chilling 
effects in the 1999 Interim Field Guidance and 1999 NPRM, the 2019 
Final Rule's discussion of chilling effects, judicial opinions on the 
role of chilling effects, evidence of chilling effects following the 
2019 Final Rule, and public comments on chilling effects following the 
August 2021 Advance Notice of Proposed Rulemaking (ANPRM).
a. Discussion of Chilling Effects in the 1999 NPRM and 1999 Interim 
Field Guidance
    The 1999 NPRM and accompanying 1999 Interim Field Guidance 
specifically cited public confusion regarding the meaning of the 
statutorily undefined term ``public charge,'' and the potential 
negative public health consequences, as creating a need for urgent 
action to provide ``better guidance as to the types of public benefits 
that will and will not be considered in public charge determinations.'' 
\132\ The 1999 NPRM explained that, following the enactment of PRWORA 
and its restrictions on the eligibility of certain noncitizens for many 
Federal, State, and local public benefits,
---------------------------------------------------------------------------

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

numerous legal immigrants and other aliens are choosing not to apply 
for . . . benefits [for which Congress expressly made them eligible] 
because they fear the negative immigration consequences of 
potentially being deemed a `public charge.' This tension between the 
immigration and welfare laws is exacerbated by the fact that `public 
charge' has never been defined in statute or regulation. Without a 
clear definition of the term, noncitizens have no way of knowing 
which benefits they may safely access without risking deportation or 
inadmissibility.\133\
---------------------------------------------------------------------------

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

    The INS went on to note that, according to Federal and State 
---------------------------------------------------------------------------
benefit-granting agencies,

this growing confusion is creating significant, negative public 
health consequences across

[[Page 10588]]

the country. This situation is becoming particularly acute with 
respect to the provision of emergency and other medical assistance, 
children's immunizations, and basic nutrition programs, as well as 
the treatment of communicable diseases. Immigrants' fears of 
obtaining these necessary medical and other benefits are not only 
causing them considerable harm, but are also jeopardizing the 
general public. For example, infectious diseases may spread as the 
numbers of immigrants who decline immunization services 
increase.\134\
---------------------------------------------------------------------------

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

    For these reasons, and following on-the-record consultation with 
HHS, USDA, and SSA, as well as consideration of the historical 
understandings of the term ``public charge,'' the INS proposed (and in 
the 1999 Interim Field Guidance, implemented) a clear definition of 
``public charge'' that excluded from consideration non-cash benefits 
(other than institutionalization for long-term care at government 
expense).\135\
---------------------------------------------------------------------------

    \135\ See 64 FR 28677, 28678-28686 (May 26, 1999).
---------------------------------------------------------------------------

b. Discussion of Chilling Effects in the 2019 Final Rule
    In the 2019 Final Rule, DHS adopted a markedly different approach 
to chilling effects as compared to the former INS's approach in the 
1999 NPRM and 1999 Interim Field Guidance. In the 2019 Final Rule, DHS 
acknowledged that the rule could result in a chilling effect with 
respect to the use of public benefits by noncitizens, even among 
individuals who were not subject to the rule, and with respect to 
public benefits that are not covered by the rule.\136\ DHS received a 
significant number of detailed public comments regarding the chilling 
effects of that rule.\137\ Commenters pointed to past studies regarding 
the effects of PRWORA \138\ on public benefits eligibility for 
noncitizens.\139\ Some commenters discussed chilling effects that 
resulted from confusion and fear regarding the 2018 NPRM that preceded 
that 2019 Final Rule.\140\ Some commenters reported direct knowledge of 
such effects.\141\ In response to the comments, although DHS did not 
dispute the studies cited by commenters, DHS made three arguments 
regarding its approach in the 2019 Final Rule.
---------------------------------------------------------------------------

    \136\ See, e.g., 84 FR 41292, 41310 et seq. (Aug. 14, 2019).
    \137\ See, e.g., 84 FR 41292, 41310 (Aug. 14, 2019) 
(``Commenters said that the rule's disenrollment effect would have 
lasting impacts on the health and safety of our communities and that 
immigrant families are experiencing significant levels of fear and 
uncertainty that has a direct impact on the health and well-being of 
children. Citing studies and research, many commenters asserted that 
the chilling effect will increase hunger, food insecurity, 
homelessness and poverty. They added that the chilling effect will 
also decrease educational attainment and undermine workers' ability 
to acquire new skills for in-demand occupations. Many commenters 
stated that negative public health, social, and economic outcomes 
(e.g., hunger, food insecurity, decreased nutrition, unmet physical 
and mental health needs, unimmunized individuals, disease, decreased 
school attendance and performance, lack of education, poverty, 
homelessness) collectively damage the prosperity and health of our 
communities, schools, and country. Several commenters said that the 
rule would drive up uncompensated care costs, increase use of 
medical emergency departments, increase healthcare costs, endanger 
maternal and infant health, and heighten the risk of infectious 
disease epidemics. One commenter indicated that the rule would make 
child poverty worse and harm communities as well as infrastructure 
that serves all of us.'').
    \138\ See Public Law 104-193, title IV, 110 Stat. 2260 (1996).
    \139\ One commenter wrote that ``[a] U.S. Department of 
Agriculture analysis found that welfare reform's restrictions on 
legal immigrants' ability to receive food stamps appears to have 
deterred participation by their children, many of whom retained 
their eligibility.'' Another wrote that ``[r]esearch shows that 
following PRWORA, enrollment declined both in programs whose 
eligibility PRWORA did not change and among individuals and families 
that remained eligible (that is, who were unaffected by the 
eligibility changes but were fearful of receiving benefits).'' 
(emphasis in original.)
    \140\ A commenter reported that ``just months after the first 
leaks of the executive order, a Los Angeles-based health care 
provider serving a largely Latino community reported a 20 percent 
drop in SNAP enrollment and a 54 percent drop in Medicaid enrollment 
among children, as well as an overall 40 percent decline in program 
re-enrollments.'' Another reported that ``community providers have 
already reported changes in healthcare use, including decreased 
participation in Medicaid and WIC in the wake of the release of the 
draft proposal.''
    \141\ A commenter stated that ``[a]s the Intake Coordinator, I 
have spoken with several families whose children are in dire need of 
mental health services (experiencing depression, anxiety, grief, 
trauma, disruptive behaviors), but the caregivers are afraid to 
utilize their child's Medi-Cal insurance. As a result, these 
children are not receiving the services they need.''). Another 
stated that ``[l]ast year when there were early press accounts about 
a change in the public charge test, the health center's WIC program 
experienced a sudden drop off in attendance based on rumors in the 
immigrant community that it was no longer safe to participate in 
WIC.''
---------------------------------------------------------------------------

    First, DHS emphasized that the government's interest, as stated in 
8 U.S.C. 1601, in reducing noncitizens' incentive to immigrate to or 
adjust status in the United States due to the availability of public 
benefits, and in promoting the self-sufficiency of noncitizens within 
the United States, was ``a sufficient basis to move forward.'' \142\ 
DHS also cited its ``authority to take past, current, and likely future 
receipt of public benefits into account, even where it may ultimately 
result in discouraging aliens from receiving public benefits.'' \143\ 
Accordingly, DHS stated that it expected noncitizens seeking lawful 
permanent resident status or nonimmigrant status in the United States 
to ``make purposeful and well-informed decisions commensurate with the 
immigration status they are seeking.'' \144\ Although DHS acknowledged 
that individuals subject to the 2019 Final Rule may decline to enroll 
in, or choose to disenroll from, public benefits for which they are 
eligible under PRWORA to avoid the 2019 Final Rule's negative 
consequences, DHS stated that it would not ``limit the effect of the 
rulemaking to avoid the possibility that individuals subject to this 
rule may disenroll or choose not to enroll, as self-sufficiency is the 
rule's ultimate aim.'' \145\
---------------------------------------------------------------------------

    \142\ See 84 FR 41292, 41312 (Aug. 14, 2019).
    \143\ Ibid.
    \144\ 84 FR 41292, 41312 (Aug. 14, 2019).
    \145\ Ibid.
---------------------------------------------------------------------------

    Second, DHS stated that it was ``difficult to predict the rule's 
disenrollment impacts with respect to the regulated population, 
although DHS has attempted to do so in the . . . Final Regulatory 
Impact Analysis'' that accompanied the 2019 Final Rule.\146\ DHS stated 
that ``data limitations [have impeded DHS from developing] a precise 
count [or a] reasonable estimate of the number of aliens who are both 
subject to the public charge ground of inadmissibility and are eligible 
for public benefits in the United States.'' \147\ But DHS also 
acknowledged that there is little overlap between the population 
regulated by the 2019 Final Rule and the public benefits considered in 
public charge inadmissibility determinations under the 2019 Final Rule:
---------------------------------------------------------------------------

    \146\ 84 FR 41292, 41312 (Aug. 14, 2019). The Final Regulatory 
Impact Analysis (RIA) did not contain any estimates that took into 
account the regulated population's actual eligibility for the 
covered benefits.
    \147\ DHS also wrote that the difficulty in producing an 
estimate ``is compounded by the fact that most applicants subject to 
the public charge ground of inadmissibility and therefore this rule 
are generally unlikely to suffer negative consequences resulting 
from past receipt of public benefits because they will have been 
residing outside of the United States and therefore, ineligible to 
have ever received public benefits.'' 84 FR at 41292, 41313 (Aug. 
14, 2019).
---------------------------------------------------------------------------

    <bullet> ``Aliens who are unlawfully present and nonimmigrants 
physically present in the United States . . . are generally barred from 
receiving federal public benefits other than emergency assistance''; 
\148\
---------------------------------------------------------------------------

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

    <bullet> ``[A]pplicants for admission and adjustment of status . . 
. are generally ineligible for SNAP benefits and therefore, would not 
need to disenroll from SNAP to avoid negative consequences''; \149\ and
---------------------------------------------------------------------------

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

---------------------------------------------------------------------------

[[Page 10589]]

    <bullet> ``[C]ertain lawfully present children and pregnant women 
in certain states and the District of Columbia [are eligible for 
Medicaid, but] this final rule exempts receipt of Medicaid by such 
persons.'' \150\
---------------------------------------------------------------------------

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

    Third, DHS wrote that it was ``difficult to predict the rule's 
disenrollment impacts with respect to people who are not regulated by 
this rule, such as people who erroneously believe themselves to be 
affected.'' \151\ DHS wrote that
---------------------------------------------------------------------------

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

because DHS will not consider the receipt of public benefits by U.S. 
citizens and aliens not subject to public charge inadmissibility . . 
. it would be unwarranted for U.S. citizens and aliens exempt from 
public charge inadmissibility to disenroll from a public benefit 
program or forgo enrollment in response to this rule when such 
individuals are not subject to this rule. DHS will not alter this 
rule to account for such unwarranted choices.\152\
---------------------------------------------------------------------------

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

    Instead, DHS committed itself to ``issue clear guidance that 
identifies the groups of individuals who are not subject to this 
rule,'' \153\ and noted that DHS had excluded multiple public benefits 
from consideration.
---------------------------------------------------------------------------

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

c. Judicial Opinions Regarding Chilling Effects
    Several courts have considered the appropriate role of chilling 
effects in public charge inadmissibility determinations. All the cases 
challenging the 2019 Final Rule involved allegations that DHS failed to 
adequately consider the potential chilling effects of the 2019 Final 
Rule. In a June 2020 opinion, the Seventh Circuit reasoned that the 
rule's chilling effects were foreseeable and, in some respects, 
represented a rational response by immigrants to the 2019 Final Rule, 
insofar as the 2019 Final Rule did not create a predictable framework 
for weighing past receipt of designated public benefits, and did not 
foreclose DHS from designating additional public benefits for 
consideration in the future.\154\ The court held that DHS failed to 
adequately grapple with ``the collateral consequences of . . . 
disenrollments'' resulting from the rule, including ``reduce[d] access 
to vaccines and other medical care, resulting in an increased risk of 
an outbreak of infectious disease among the general public.'' \155\ The 
court also held that DHS failed to adequately consider ``the added 
burden on states and local governments, which must disentangle their 
purely state-funded programs from covered federal programs,'' and noted 
that notwithstanding the rule's potential effects on State and local 
governments, DHS had also concluded that the rule would not have 
``substantial direct effects on the States, on the relationship between 
the Federal Government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' \156\
---------------------------------------------------------------------------

    \154\ See Cook County Ill. v. Wolf, 962 F.3d 208, 230-31 (7th 
Cir. 2020).
    \155\ See Cook County Ill., 962 F.3d at 230-31.
    \156\ See Cook County Ill., 962 F.3d at 230-31.
---------------------------------------------------------------------------

    In a December 2019 opinion that stayed multiple preliminary 
injunctions against the 2019 Final Rule, a panel of the Ninth Circuit 
Court of Appeals reasoned that DHS's ``only mandate is to regulate 
immigration and naturalization, not to secure transfer payments to 
state governments or ensure the stability of the health care industry. 
Any effects on those entities are indirect and well beyond DHS's charge 
and expertise.'' \157\ But a later decision by the Ninth Circuit took 
an opposing view. The later panel emphasized the substantial evidence 
in the record regarding chilling effects and characterized the 2019 
Final Rule's response to comments regarding chilling effects as ``a 
generality coupled with an expression of uncertainty.'' \158\ The court 
found that, although ``[t]he record before DHS was replete with 
detailed information about, and projections of, disenrollment and 
associated financial costs to state and local governments . . . . DHS 
made no attempt to quantify the financial costs of the Rule or critique 
the projections offered.'' \159\ The court concluded that DHS likely 
failed to satisfy its duty to ``examine the relevant data.'' \160\ 
Similarly, with respect to the financial impacts of the 2019 Final 
Rule's public health consequences, the court found that ``DHS itself 
repeatedly acknowledged that hospitals might face financial harms as a 
result of the Rule, but DHS repeatedly declined to quantify, assess, or 
otherwise deal with the problem in any meaningful way.'' The court also 
observed that
---------------------------------------------------------------------------

    \157\ See City & Co. of San Francisco v. USCIS et al., 944 F.3d 
773, 804 (9th Cir. 2019).
    \158\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d 
742, 759 (9th Cir. 2020).
    \159\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d 
742, 759 (9th Cir. 2020).
    \160\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d 
742, 759 (9th Cir. 2020).

DHS insisted that vaccines would ``still be available'' to Medicaid-
disenrolled individuals because ``local health centers and state 
health departments'' would pick up the slack . . . despite 
objections voiced by such local health centers and state health 
departments themselves showing that the Rule will put the 
populations they serve--citizens and non-citizens alike--in 
danger.\161\
---------------------------------------------------------------------------

    \161\ See City & Co. of San Francisco v. USCIS et al., 981 F.3d 
742, 759 (9th Cir. 2020).

    Finally, in the Second Circuit, a panel that upheld a preliminary 
injunction against the rule cited the plaintiffs' allegations of 
chilling effects as being sufficient to establish standing.\162\ 
However, the panel did not cite such chilling effects in its evaluation 
of the merits of the policy.\163\
---------------------------------------------------------------------------

    \162\ See New York v. DHS, 969 F.3d 42, 59-61 (2020).
    \163\ A few days prior to the panel's decision, a court in the 
Southern District of New York had issued a second preliminary 
injunction against the 2019 Final Rule, based primarily on a range 
of alleged harms associated with the rule's chilling effects during 
the COVID-19 pandemic. See New York v. DHS, 475 F. Supp. 3d 208, 
226-30 (S.D.N.Y 2020). The Second Circuit later stayed that second 
preliminary injunction, ``based primarily on the district court's 
apparent lack of jurisdiction to issue the preliminary injunction 
during the appeal of its prior, virtually identical injunction 
(coupled with DHS's showing of irreparable harm resulting from its 
inability to enforce its regulation).'' See New York v. DHS, 974 
F.3d 210 (2d Cir. 2020).
---------------------------------------------------------------------------

d. Evidence of Chilling Effects Related to the 2019 Final Rule
    DHS is aware of evidence that the 2019 Final Rule, and the 
rulemaking process that preceded it, resulted in significant 
disenrollment effects among noncitizens and U.S. citizens in immigrant 
families. For instance, in February 2021, the Urban Institute published 
a report describing the following survey findings:
    <bullet> ``In 2020, almost one in seven adults in immigrant 
families (13.6 percent) reported that they or a family member avoided a 
noncash government benefit program, such as Medicaid, the Children's 
Health Insurance Program, the Supplemental Nutrition Assistance 
Program, or housing assistance, because of concerns about future green 
card applications. This `chilling effect' was most significant in 
families more likely to be directly affected by the rule, those in 
which one or more members do not have a green card (27.7 percent).'' 
\164\
---------------------------------------------------------------------------

    \164\ See Bernstein, H., Dulce Gonzalez, Michael Karpman, & 
Stephen Zuckerman (2021), Immigrant Families Continued Avoiding the 
Safety Net during the COVID-19 Crisis 1 (The Urban Institute), 
available at https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis 
(accessed Feb. 13, 2021).
---------------------------------------------------------------------------

    <bullet> ``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)

[[Page 10590]]

reported these broader chilling effects.'' \165\
---------------------------------------------------------------------------

    \165\ Ibid.
---------------------------------------------------------------------------

    <bullet> ``Immigrant families avoided public benefits and supports 
not only because of perceived risks of how the public charge rule might 
affect their ability to secure a green card but because of broader 
immigration concerns, such as the risk of information being shared with 
immigration enforcement authorities or the deportation of family 
members.'' \166\
---------------------------------------------------------------------------

    \166\ Ibid.
---------------------------------------------------------------------------

    These findings were generally consistent with the findings 
described in prior reports, which documented similar chilling effects 
and confusion in the aftermath of the 2018 NPRM on public charge 
inadmissibility and after implementation of the 2019 Final Rule.\167\
---------------------------------------------------------------------------

    \167\ See Bernstein, H., Dulce Gonzalez, Michael Karpman, and 
Stephen Zuckerman (2020), Amid Confusion over the Public Charge 
Rule, Immigrant Families Continued Avoiding Public Benefits in 2019 
(Urban Institute) (accessed Jan. 26, 2022); Bernstein, H., Dulce 
Gonzalez, Michael Karpman, & Stephen Zuckerman (2019), One in Seven 
Adults in Immigrant Families Reported Avoiding Public Benefit 
Programs in 2018 (Urban Institute).).
---------------------------------------------------------------------------

    Similarly, in December 2020, the Migration Policy Institute 
published an analysis showing that from 2017 to 2019,

participation in [Temporary Assistance for Needy Families (TANF)], 
SNAP, and Medicaid declined twice as fast among noncitizens as 
citizens . . . . Between 2016 and 2019, the number of low-income 
noncitizens participating in SNAP fell by 37 percent, as did the 
number using TANF or similar cash assistance programs . . . . At the 
same time, Medicaid participation by low-income noncitizens fell by 
20 percent. Across all the programs, the decline in participation 
for U.S.-born citizens was far smaller, decreasing only about half 
as much as for noncitizens and with even smaller drops for 
naturalized citizens.\168\
---------------------------------------------------------------------------

    \168\ See Randy Capps et al., Migration Policy Institute, 
Anticipated ``Chilling Effects'' of the Public-Charge Rule Are Real: 
Data Reflect Steep Decline in Benefits Use by Immigrant Families 
(Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (accessed Jan. 26, 
2022).

    The analysis also showed notable declines ``among low-income U.S.-
citizen children under age 18 with noncitizens in the household, as 
their program participation dropped almost as rapidly as that of 
noncitizens themselves . . . . Participation in [SNAP, TANF, and 
Medicaid] fell about twice as fast over the 2016 to 2019 period for 
U.S.-citizen children with noncitizens in the household as for those 
with only citizens in the household.'' \169\
---------------------------------------------------------------------------

    \169\ See Randy Capps et al., Migration Policy Institute, 
Anticipated ``Chilling Effects'' of the Public-Charge Rule Are Real: 
Data Reflect Steep Decline in Benefits Use by Immigrant Families 
(Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (accessed Jan. 26, 
2022).
---------------------------------------------------------------------------

    Similar outcomes were described in an October 2019 report regarding 
immigrant communities in San Diego and San Francisco issued by the 
Kaiser Family Foundation. That report relayed qualitative assertions 
from various social and legal services providers that ``an increasing 
number of families are disenrolling themselves and their children from 
programs, including Medi-Cal (California's Medicaid program), and not 
renewing or not enrolling in programs even though they or their 
children are eligible and are not directly affected by the policy 
changes.'' \170\ For instance, a family services provider is quoted as 
saying, ``they're scared to apply for certain much needed funding 
whether it's Calfresh [food assistance] or it's Medi-Cal, to get them 
the health insurance.'' \171\ A health provider is quoted as stating 
that ``we had a patient who had a breast mass. Our physician had told 
her to go see a specialist. And because she had heard about public 
charge, she did not want to go see the specialist.'' \172\
---------------------------------------------------------------------------

    \170\ See Samantha Artiga et al., Kaiser Family Foundation, 
Issue Brief: Addressing Health and Social Needs of Immigrant 
Families: Lessons from Local Communities at 7 (Oct. 28, 2019), 
available at https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/ (accessed Jan. 26, 2022).
    \171\ See Samantha Artiga et al., Kaiser Family Foundation, 
Issue Brief: Addressing Health and Social Needs of Immigrant 
Families: Lessons from Local Communities at 7 (Oct. 28, 2019), 
available at https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/ (accessed Jan. 26, 2022).
    \172\ See Samantha Artiga et al., Kaiser Family Foundation, 
Issue Brief: Addressing Health and Social Needs of Immigrant 
Families: Lessons from Local Communities at 8 (Oct. 28, 2019), 
available at https://www.kff.org/report-section/addressing-health-and-social-needs-of-immigrant-families-lessons-from-local-communities-issue-brief/ (accessed Feb. 12, 2021).
---------------------------------------------------------------------------

    An October 2019 Kaiser Family Foundation report described similar 
results, as follows:
    <bullet> ``Based on findings from the health center survey, nearly 
half (47%) of health centers reported that many or some immigrant 
patients declined to enroll themselves in Medicaid in the past year . . 
. . In addition, nearly one-third (32%) said that many or some 
immigrant patients disenrolled from or declined to renew Medicaid 
coverage.'' \173\
---------------------------------------------------------------------------

    \173\ Jennifer Tolbert et al., Kaiser Family Foundation, Issue 
Brief: Impact of Shifting Immigration Policy on Medicaid Enrollment 
and Utilization of Care among Health Center Patients at 2 (Oct. 15, 
2019), available at https://www.kff.org/medicaid/issue-brief/impact-of-shifting-immigration-policy-on-medicaid-enrollment-and-utilization-of-care-among-health-center-patients/ (accessed Feb. 14, 
2021).
---------------------------------------------------------------------------

    <bullet> ``Health centers also report enrollment declines among 
children in immigrant families. More than a third of (38%) health 
centers reported that many or some immigrant patients were declining to 
enroll their children in Medicaid over the past year, while nearly 
three in ten (28%) reported many or some immigrant patients were 
disenrolling or deciding not to renew Medicaid coverage for their 
children.'' \174\
---------------------------------------------------------------------------

    \174\ Id. at 2-3.
---------------------------------------------------------------------------

    <bullet> ``Follow-up interviews with health center staff are 
consistent with these survey findings of declining Medicaid enrollment 
among immigrant patients and their families . . . . In addition, 
enrollment staff who assist patients in applying for Medicaid and other 
coverage have access to this information as part of the application 
process. At some health centers interviewed, these changes were 
widespread with many patients dropping Medicaid while at others, the 
changes were occurring among only a small number of patients.'' \175\
---------------------------------------------------------------------------

    \175\ Id. at 3.
---------------------------------------------------------------------------

    <bullet> ``Health center respondents reported that immigrant 
patients are increasingly afraid to disclose personal information. 
Interview respondents across all health centers reported that some 
immigrant patients have become reluctant to disclose any personal 
information out of fear that the health center would share that 
information with authorities.'' \176\
---------------------------------------------------------------------------

    \176\ Ibid.
---------------------------------------------------------------------------

    <bullet> ``Health center interview respondents reported that the 
patients disenrolling or declining to enroll in Medicaid are a broader 
group of immigrants than those targeted by the public charge rule . . . 
. Respondents also reported that patients have expressed concerns that 
enrolling their children in these programs, even if their children were 
born in the United States, may jeopardize their status or the status of 
family members. In addition, although pregnant women are categorically 
eligible for Medicaid and would be unaffected by public charge if they 
enroll in Medicaid, health center respondents reported that pregnant 
women are declining to enroll in Medicaid or disenrolling, in some 
cases out of fear of risking future opportunities for residency or 
citizenship.'' \177\
---------------------------------------------------------------------------

    \177\ Id. at 5.

---------------------------------------------------------------------------

[[Page 10591]]

    <bullet> ``Fear of public charge implications extends beyond 
Medicaid to other health and social service programs, including some 
that are not included in the public charge rule . . . . Several 
respondents noted that their WIC caseloads are down and attributed the 
trend to public charge fears. Respondents in California and Missouri 
also noted that immigrant patients are declining to enroll in or accept 
referrals for state and local food assistance programs, even though 
these programs are not subject to public charge. A health center 
serving New York City reported that patients with HIV or AIDS are 
hesitating to enroll in or are disenrolling from the city-run HIV/AIDS 
Services Administration (HASA) program out of fear that the program's 
services fall under the public charge rule.'' \178\
---------------------------------------------------------------------------

    \178\ Ibid.
---------------------------------------------------------------------------

    The Kaiser Family Foundation report, like the other reports 
described in this section, raises critical questions about the chilling 
effects of the 2019 Final Rule on noncitizens and citizens alike, 
including pregnant women and children.
e. Comments on Chilling Effects in Response to the 2021 ANPRM
    On August 23, 2021, DHS issued an ANPRM on the public charge ground 
of inadmissibility.\179\ In the ANPRM, DHS asked the public how it 
should address the possibility that individuals who are eligible for 
public benefits, including U.S. citizen relatives of noncitizens, would 
forgo the receipt of those benefits as a result of DHS's consideration 
of certain public benefits in the public charge inadmissibility 
determination. DHS asked for any data and information it should 
consider about the direct and indirect effects of past public charge 
policies in this regard. In addition, DHS asked about data that it 
could use to estimate any potential direct and indirect effects, 
economic or otherwise, of the public charge ground of inadmissibility 
related to the 2019 Final Rule. DHS also specifically sought 
information from State, territorial, local, and Tribal benefit granting 
agencies regarding impacts of the 2019 Final Rule on the application 
for or disenrollment from public benefit programs, including how DHS 
could reduce the likelihood that individuals would forgo public 
benefits out of concern over immigration consequences of such receipt. 
Commenters overwhelmingly confirmed the existence of chilling effects 
and cited to studies and data regarding the same.
---------------------------------------------------------------------------

    \179\ Public Charge Ground of Inadmissibility; Advance Notice of 
Proposed Rulemaking and Notice of Virtual Public Listening Sessions, 
86 FR 47025 (Aug. 23, 2021).
---------------------------------------------------------------------------

    For example, a group of 21 Attorneys General urged DHS to weigh and 
avoid chilling effects when crafting future public charge policies. 
These commenters stated that, as a consequence of the 2019 Final Rule, 
increasing numbers of immigrants disenrolled from or declined to enroll 
in public benefits programs, including programs not covered by the 
rule. This may have led, for instance, to a ``nationwide decrease of 
approximately 260,000 enrollees in child Medicaid and 21,000 
enrollees'' in the Special Supplemental Nutrition Program for Women, 
Infants, and Children (WIC), neither of which would have been 
considered under the 2019 Final Rule in any event.\180\ The commenters 
stated that, according to State benefit granting agencies, because the 
public charge inadmissibility formula in the 2019 Final Rule was so 
complex and layered, it was extraordinarily difficult for immigrants 
and service providers to understand whether or how it applied to them. 
Those commenters said that many immigrants avoided benefits out of fear 
and confusion. To underscore the severity of the impact, commenters 
noted that these immigrants even avoided important benefits like 
medical care during a pandemic.
---------------------------------------------------------------------------

    \180\ Alma Guerrero, M.D., M.P.H, et al., Forgoing Healthcare in 
a Global Pandemic: The Chilling Effects of the Public Charge Rule on 
Health Access Among Children in California, UCLA Latino Policy & 
Politics Initiative (Apr. 07, 2021), https://latino.ucla.edu/research/public-charge-ca-children/; Leslie Berestein Rojas, 
Thousands Of LA Immigrant Families Are No Longer Enrolled In Public 
Benefits. A Pending Trump Rule Could Be Why, LAist (Aug. 02, 2019), 
https://laist.com/news/thousands-of-la-immigrant-families-are-no-longer-enrolled-in-public-benefits-a-pending-trump-rule-co.
---------------------------------------------------------------------------

    With respect to health effects, in particular, the American Medical 
Association (AMA) commented that the potential wide-reaching effect of 
the 2019 Final Rule was anticipated and acknowledged in the 2019 Final 
Rule and that those predictions were proven to be true, stating that 
half of the immigrant families surveyed said they had avoided using 
Medicaid, CHIP, or SNAP.\181\ But the commenter acknowledged that most 
of the individuals who chose not to access non-cash benefits were not 
subject to the 2019 Final Rule.\182\ Like other commenters, the AMA 
highlighted the amplified chilling effects during the pandemic, stating 
that ``the lead up to, and short-term change of, the public charge rule 
had a far-reaching chilling effect on the immigrant population and 
caused eligible individuals to not access benefits during a time when 
they were most needed, the COVID-19 public health emergency.'' \183\ 
The AMA stated that researchers using Census Bureau data have found 
that, during the public health emergency, ``the public charge policy 
likely caused 2.1 million essential workers and household members to 
forgo Medicaid and 1.3 million to forgo SNAP'' \184\ during a time when 
41.4 percent of low-income immigrant families were experiencing food 
insecurity and 52.1 percent were worried about being able to pay for 
medical costs.\185\
---------------------------------------------------------------------------

    \181\ Bernstein, H., Dulce Gonzalez, Michael Karpman, and 
Stephen Zuckerman (2020), Amid Confusion over the Public Charge 
Rule, Immigrant Families Continued Avoiding Public Benefits in 2019 
(Urban Institute). https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_2.pdf 
(accessed Jan 26, 2022).
    \182\ Shaw, April. The Public Charge Rule and Public Health 
(Apr. 6, 202), Network for Public Health Law, https://www.networkforphl.org/resources/the-public-charge-rule-and-public-health/ (accessed Jan. 18, 2022).
    \183\ Barofsky, Jeremy et al. Spreading Fear: The Announcement 
of The Public Charge Rule Reduced Enrollment in Child Safety-Net 
Programs (Oct. 2020); Health Affairs Vol. 39, No.10: Children's 
Health https://www.healthaffairs.org/doi/10.1377/hlthaff.2020.00763 
(accessed Jan. 18, 2022).
    \184\ Touw, Sharon, McCormack, Grace, Himmelstein, David, 
Woolhandler, Steffie, and Zallman, Leah. ``Immigrant Essential 
Workers Likely Avoided Medicaid And SNAP Because Of A Change To The 
Public Charge Rule,'' (Jul. 2021) Health Affairs, https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2021.00059 (accessed 
Jan. 18, 2022).
    \185\ Bernstein, H., Dulce Gonzalez, Michael Karpman, and 
Stephen Zuckerman (2021), Adults in Low-Income Immigrant Families 
Were Deeply Affected by the COVID-19 Crisis yet Avoided Safety Net 
Programs in 2020, (The Urban Institute), available at https://www.urban.org/research/publication/adults-low-income-immigrant-families-were-deeply-affected-covid-19-crisis-yet-avoided-safety-net-programs-2020 (accessed Jan. 26, 2022).
---------------------------------------------------------------------------

    Similarly, another commenter noted that while chilling effects 
would have been damaging under any circumstances, they were 
particularly devastating when the COVID-19 pandemic struck in the 
United States. The commenter cited to recent evidence that the chilling 
effect is still impacting many immigrant communities, even though DHS 
stopped applying the 2019 Final Rule in March 2021.\186\
---------------------------------------------------------------------------

    \186\ Protecting Immigrant Families (PIF), Research Documents 
Harm of Public Charge Policy During the COVID-19 Pandemic, (Aug. 
2021), https://protectingimmigrantfamilies.org/wp-content/uploads/2022/01/PIF-Research-Document_Public-Charge_COVID-19_Jan2022.pdf.
---------------------------------------------------------------------------

    A Latino civil rights and advocacy group cited to a Kaiser Family 
Foundation study, which found that 35 percent of Latino respondents, 
and 63 percent in the case of potentially undocumented Latino adults, 
cited

[[Page 10592]]

concerns that receiving the COVID-19 vaccine would negatively affect 
either their own or a family member's immigration status, or both.\187\ 
Similarly, a poll conducted by the commenter found that 14 percent of 
parents are concerned that getting their child vaccinated against 
COVID-19 might cause immigration problems for themselves or their 
family.\188\
---------------------------------------------------------------------------

    \187\ Hamel, Liz et al., KFF COVID-19 Vaccine Monitor: COVID-19 
Vaccine Access, Information, and Experiences Among Hispanic Adults 
in the U.S., Kaiser Family Foundation (May 13, 2021), https://www.kff.org/coronavirus-covid-19/poll-finding/kff-covid-19-vaccine-monitor-access-information-experiences-hispanic-adults/.
    \188\ UnidosUS, ``National Survey of Latino Parents: Economic 
Concerns and Vaccine Access for Children,'' (Washington DC: 
UnidosUS, September 14, 2021), https://www.unidosus.org/publications/national-survey-of-latino-parents-economic-concerns-and-vaccine-access-for-children/
---------------------------------------------------------------------------

    A State agency wrote that, following issuance of the 2019 Final 
Rule, the agency

spoke to numerous noncitizens who were afraid to apply for public 
benefits for their U.S. citizen children. This was particularly 
apparent when [the agency] began its Pandemic-Electronic Benefit 
Transfer (EBT) program for children. The [agency] program 
automatically provided food assistance in the form of an EBT card to 
families in Chicago with children enrolled in the Chicago Public 
Schools and provided ready to go meals at schools during the height 
of the pandemic. Many parents did not utilize the assistance for 
fear of being deemed a public charge in the future.

    The same agency expressed concern that ``if [medical or nutrition 
benefits] are included in a new public charge rule or if the new final 
rule is as cumbersome and untenable'' as was the 2019 Final Rule, the 
rule would ``likely increase demand for other state-funded social 
services, such as non-Medicaid behavioral health services, emergency 
food assistance, and other safety net resources.''
    When addressing how DHS could reduce or minimize chilling effects 
when issuing rules addressing public charge inadmissibility, commenters 
had a number of suggestions, including:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> Clearly define which public benefits would not be 
considered in a public charge inadmissibility determination (e.g., 
SNAP, CHIP, Medicaid, and Affordable Care Act premium subsidies for 
health coverage through an exchange).
    In addition, commenters emphasized the importance of simple, 
streamlined, and easy to communicate rules, and encouraged DHS and 
other Federal agencies to provide outreach to immigrant communities 
about the relief afforded by any revised rules.
    DHS appreciates that the consideration of past and current benefit 
receipt has resulted and may continue to result in chilling effects, 
notwithstanding that few categories of noncitizens are actually subject 
to the public charge ground of inadmissibility, and these categories of 
noncitizens would likely not have received such benefits to begin with. 
As discussed elsewhere in this preamble, however, DHS nonetheless 
believes that it is important to consider a noncitizen's past or 
current receipt of certain benefits, to the extent that such receipt 
occurs, as part of the public charge inadmissibility determination.
    DHS remains interested in public comment regarding ways to shape 
public communications around the final rule to mitigate chilling 
effects among U.S. citizens and among the great majority of noncitizens 
who are either ineligible for the public benefits covered by this rule 
prior to admission or adjustment of status or are exempt from a public 
charge determination under section 212(a)(4) of the INA, 8 U.S.C. 
1182(a)(4). Although such communications materials are not part of the 
rulemaking, DHS is keenly aware of the established effects of its 
actions in this policy area and wishes to ensure that the final rule 
faithfully applies the public charge statute without causing undue 
confusion among the public.
8. Other Burdens of the 2019 Final Rule
    The 2019 Final Rule imposed a range of burdens separate and apart 
from the chilling effects described above. Commenters responding to the 
ANPRM, as well as those participating in the listening sessions, 
expressed concerns regarding those burdens. These comments echoed 
concerns raised in response to the 2018 NPRM. DHS briefly describes the 
most recent public input here.
    Some commenters focused on the information collection and 
evidentiary burdens associated with the rule. Many commenters objected 
to the burden of collecting documentation for and completing the Form 
I-944. The Form I-944, together with its instructions, spanned 30 pages 
and requested a wide range of information on the statutory minimum 
factors, some of which was duplicative of other filings. Information 
and supporting documentation included, for instance, an accounting of 
all liabilities and debts; a list of all assets that can be converted 
into cash within 12 months; account statements, evidence of real estate 
value, and other evidence of the value of assets; credit report, if 
available (or documentation showing that no such report is available); 
proof of health insurance; and copies of W-2s and income tax returns.
    One commenter, a professional association, noted that the scope and 
burden of the Form I-944

created a variety of practical problems. The first is one of simple 
adjudicative inefficiency. Instead of an adjustment of status 
application consisting of completed forms and a reasonable number of 
supporting documents, filings would include hundreds or even 
thousands of pages of supporting financial documents. USCIS was then 
charged with maintaining and organizing this voluminous 
documentation simply to reach the obvious conclusion that an 
employment-based immigrant, many of whom are offered employment at 
high salaries well above the poverty line, [is] unlikely to become a 
public charge.

    The commenter also noted that the form's scope and burden forced 
applicants to choose between seeking adjustment of status and 
collecting and then transmitting, first to an attorney and then to 
USCIS, a wide range of sensitive financial documents. The commenter 
encouraged USCIS to limit information collection regarding financial 
status from employment-based immigrants who have an approved immigrant 
visa petition containing a valid labor certification or (for an

[[Page 10593]]

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\
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    \189\ See Wang, Chen et al., Comment: A Novel Coronavirus 
Outbreak of Global Health Concern, The Lancet (Jan. 24, 2020), 
available at https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(20)30185-9/fulltext.
    \190\ See WHO, Statement on the second meeting of the 
International Health Regulations (2005) Emergency Committee 
regarding the outbreak of novel coronavirus (2019-nCoV) (Jan. 30, 
2020), available at https://www.who.int/news/item/30-01-2020-statement-on-the-second-meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-outbreak-of-
novel-coronavirus-(2019-ncov) and WHO, Listing of WHO's Response to 
COVID-19, https://www.who.int/news/item/29-06-2020-covidtimeline.
    \191\ Determination of Public Health Emergency, 85 FR 7316 (Feb. 
7, 2020). See also HHS Renewal of Determination That A Public Health 
Emergency Exists, https://aspr.hhs.gov/legal/PHE/Pages/COVID19-14Jan2022.aspx (Jan. 14, 2022). The determination that a public 
health emergency exists due to COVID-19 has 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.
    \192\ Proclamation 9994 of Mar. 13, 2020, Declaring a National 
Emergency Concerning the Coronavirus Disease (COVID-19) Outbreak, 85 
FR 15337 (Mar. 18, 2020).
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    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\
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    \193\ See 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/prevent-getting-sick/how-covid-spreads.html (accessed Jan. 25, 2022).
    \194\ See 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).
    \195\ See 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).
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    The COVID-19 pandemic's effects have been vast, including within 
the United States, and they are ongoing. As

[[Page 10594]]

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.
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    \196\ See 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).
    \197\ See CDC, Daily Trends in Number of COVID-19 Deaths in The 
United States Reported to CDC, available at https://covid.cdc.gov/covid-data-tracker/#trends_dailydeaths (accessed Feb. 10, 2022).
    \198\ See 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).
    \199\ See U.S. Bureau of Labor Statistics, Graphics for Economic 
News Releases: Civilian Unemployment Rate, available at https://www.bls.gov/charts/employment-situation/civilian-unemployment-rate.htm (accessed Feb. 9, 2022).
    \200\ Id.
    \201\ Id.
    \202\ The 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.
    \203\ See CNN, Three key numbers that explain America's labor 
shortage (Dec. 25, 2021), https://www.cnn.com/2021/12/25/economy/labor-shortage-early-retirement-charts/index.html (accessed Jan. 18, 
2021).
    \204\ See 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-other-states-as-it-takes-root-across-the-us-.html (accessed Dec. 10, 
2021).
    \205\ On 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.
    \206\ See, 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-supply-chains-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.'').
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    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 
pre-pandemic 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\
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    \207\ U.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).
    \208\ U.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).
    \209\ See 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/supplemental-nutrition-assistance-program-snap (accessed Feb. 11, 2021).
    \210\ See 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).
    \211\ See 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).
    \212\ See 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).
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    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\
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    \213\ See 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.
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    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

[[Page 10595]]

that year, or $54 billion taking into account certain Federal 
funding.\217\
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    \216\ See 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).
    \217\ See 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-covid-19-hospital-outlook-remainder-2021 (accessed Jan. 26, 2022).
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b. Nationwide Vaccination Effort
    The COVID-19 vaccination effort in the United States began in mid-
December 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\
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    \218\ See, 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).
    \219\ See CDC, COVID-19 Vaccinations in the United States, 
https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total (accessed Feb. 9, 2022).
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    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\
---------------------------------------------------------------------------

    \220\ See CDC, CDC Recommends Pfizer Booster at 5 Months, 
Additional Primary Dose for Certain Immunocompromised Children 
[verbar] CDC Online Newsroom (Jan. 4, 2022), https://www.cdc.gov/media/releases/2022/s0104-Pfizer-Booster.html (accessed Jan. 18, 
2022).
    \221\ See 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).
    \222\ See CDC, COVID-19 Vaccinations in the United States (Jan. 
15, 2022), https://covid.cdc.gov/covid-data-tracker/#vaccinations_vacc-total-admin-rate-total (accessed Feb. 9, 2022).
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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\
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    \223\ See 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).
    \224\ See 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).
---------------------------------------------------------------------------

    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\
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    \225\ See 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).
    \226\ See 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).
    \227\ See Kaiser Family Foundation, Health Coverage of 
Immigrations (Mar. 18, 2020), available at https://www.kff.org/racial-equity-and-health-policy/fact-sheet/health-coverage-of-immigrants/ (accessed Jan. 27, 2022).
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    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 non-Hispanic American Indian/Alaska Native, 
non-Hispanic Black, and non-Hispanic 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\
---------------------------------------------------------------------------

    \228\ See CDC, Deaths by Race/Ethnicity--All Age Groups, 
available at https://covid.cdc.gov/covid-data-tracker/#demographics 
(accessed Feb. 1, 2022).
    \229\ Ibid.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \230\ See 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-public-charge-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-hispanic-workers-are-much-less-likely-to-be-able-to-work-from-home/ (accessed Jan. 27, 2022)).

    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

[[Page 10596]]

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.
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    \231\ With 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 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-covid-19-pandemic-on-immigrants-and-their-children-e7cbb7de/ (accessed Feb. 11, 2021).
    \232\ See 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-critical-infrastructure-workforce (accessed Jan. 
27, 2022).
    \233\ See, 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).
---------------------------------------------------------------------------

    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 non-Hispanic 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\
---------------------------------------------------------------------------

    \234\ See 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/#vaccination-demographics-trends (accessed Feb. 10, 2022).
    \235\ See 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-by-race-ethnicity/# (accessed Jan. 27, 2022). See also 
CDC, Race/Ethnicity of People Fully Vaccinated, available at https://covid.cdc.gov/covid-data-tracker/#vaccination-demographic (accessed 
Feb. 10, 2022).
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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\
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    \236\ See 84 FR 41292, 41384 (Aug. 14, 2019).
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    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.
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    \237\ Ibid.
    \238\ 84 FR 41292, 41501 (Aug. 14, 2019).
    \239\ See 84 FR 41292, 41385 (Aug. 14, 2019).
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    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 non-exhaustive 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.
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    \240\ See USCIS Policy Manual, Part G--Public Charge Ground of 
Inadmissibility (accessed Jan. 31, 2022). To find historical 
guidance, click on the ``Appendices'' tab.
    \241\ USCIS 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-g-chapter-10.
    \242\ Ibid.
    \243\ Ibid.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \244\ See USCIS, Public Charge; Alert, available at https://www.uscis.gov/archive/public-charge (last Reviewed/updated Sep. 22, 
2020).

    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.
---------------------------------------------------------------------------

    \245\ Cf., 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.'').
---------------------------------------------------------------------------

    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

[[Page 10597]]

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\
---------------------------------------------------------------------------

    \246\ See INA sec. 213, 8 U.S.C. 1183. See 8 CFR 103.6; see also 
8 CFR 213.1.
    \247\ See INA sec. 213, 8 U.S.C. 1183; Matter of Viado, 19 I&N 
Dec. 252, 253 (BIA 1985).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \248\ See, 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).
    \249\ See 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).
    \250\ See 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/history-and-genealogy/our-history/agency-history/origins-federal-immigration-service 
(accessed June 4, 2021).
    \251\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \252\ See Act of February 20, 1907, ch. 1134, sec. 26, 34 Stat. 
898, 907.
    \253\ See Public Law 91-313, 84 Stat. 413, 413 (1970); see also 
116 Cong. Rec. S9957 (daily ed. June 26, 1970).
    \254\ See Public Law 91-313, 84 Stat. 413, 413 (1970).
    \255\ See 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.
    \256\ See Miscellaneous Amendments to Chapter, 29 FR 10579 (July 
30, 1964); see also Miscellaneous Edits to Chapter, 31 FR 11713 
(Sept. 7, 1966).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \257\ See 64 FR 28689 (May 26, 1999).
    \258\ See 84 FR 41292, 41595 (Aug. 14, 2019).
    \259\ See 84 FR 41292, 41299 (Aug. 14, 2019).
---------------------------------------------------------------------------

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

[[Page 10598]]

of other groups. The slight majority of all unique submissions were 
provided by organizations. Commenter types included:
[GRAPHIC] [TIFF OMITTED] TP24FE22.013

    While commenters provided thoughtful responses relating to most 
topics raised by DHS in the ANPRM, the 10 topics with the most comments 
were:
[GRAPHIC] [TIFF OMITTED] TP24FE22.014


[[Page 10599]]


    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:
---------------------------------------------------------------------------

    \260\ See Listening Session I Transcript.
    \261\ See Listening Session II Transcript.
---------------------------------------------------------------------------

    <bullet> Disenrollment effects associated with the 2019 Final Rule 
and how to reduce potential disenrollment effects in future rulemaking 
through policy choices and communication strategy;
    <bullet> The definition of public charge and which public benefits, 
if any, are relevant to that definition;
    <bullet> How DHS should apply the health factor, particularly for 
noncitizens who may have disabilities;
    <bullet> Better communication concerning which populations of 
noncitizens are subject to the public charge ground of inadmissibility;
    <bullet> Consistency between DOS and DHS approaches to public 
charge inadmissibility;
    <bullet> The totality of the circumstances approach to public 
charge inadmissibility determinations;
    <bullet> Concerns relating to the heavy burden of information 
collection and required evidence associated with the 2019 Final Rule; 
and
    <bullet> 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.
---------------------------------------------------------------------------

    \262\ See 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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \263\ See proposed 8 CFR 212.20 through 212.23.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \265\ Certain 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \266\ See INA secs. 221 and 222, 8 U.S.C. 1201 and 1202; 8 CFR 
204.
---------------------------------------------------------------------------

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

[[Page 10600]]

proposed rule will not address public charge inadmissibility 
determinations made by DOS.\269\
---------------------------------------------------------------------------

    \267\ See 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.
    \269\ On 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \271\ See 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.
    \272\ See INA sec. 291, 8 U.S.C. 1361.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \273\ See 8 CFR 214.1(a)(3)(i).
    \274\ See 8 CFR 214.1(c)(5).
    \275\ See generally INA sec. 214(a)(1), 8 U.S.C. 1184(a)(1); 8 
CFR 214.1(a)(3)(i).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \276\ See INA sec. 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a).
    \277\ See INA sec. 248(a), 8 U.S.C. 1258(a).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \278\ See 84 FR 41292 (Aug. 14, 2019).
    \279\ See 84 FR 41292, 41330 (Aug. 14, 2019); 83 FR 51114, 
51135-36 (Oct. 10, 2018).
    \280\ See 84 FR 41292, 41329 (Aug. 14, 2019).
    \281\ See 83 FR 51114, 51135 (Oct. 10, 2018).

---------------------------------------------------------------------------

[[Page 10601]]

    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 self-support 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.
---------------------------------------------------------------------------

    \282\ See, 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).
    \283\ See 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-the-united-states/students-and-exchange-visitors/students-and-employment (accessed Feb. 10, 2022).
    \284\ See 84 FR 41292 (Aug. 14, 2019).
    \285\ See 84 FR 41292, 41330-41331 (Aug. 14, 2019).
---------------------------------------------------------------------------

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.

[[Page 10602]]



 Table 6--Applicability of INA Sec. 212(a)(4) to Family-Based Adjustment
                      of Status Applications \286\
------------------------------------------------------------------------
                                                      INA sec. 213A and
                                                         Affidavit of
                                                        Support under
            Category               Subject to INA    section 213A of the
                                   sec. 212(a)(4)?    INA (Form I-864)--
                                                     required or exempt?
                                                            \287\
------------------------------------------------------------------------
Immediate Relatives of U.S.      Yes, per INA sec.   Required, per INA
 citizens, including spouses,     212(a)(4)(A).       sec. 212(a)(4)(C).
 children, and parents \288\.
Unmarried sons and daughters of  Yes, per INA sec.   Required, per INA
 U.S. citizens and their          212(a)(4)(A).       sec. 212(a)(4)(C).
 children (family-sponsored 1st
 preference) \289\.
Spouses, children, and           Yes, per INA sec.   Required, per INA
 unmarried sons and daughters     212(a)(4)(A).       sec. 212(a)(4)(C).
 of noncitizen residents
 (family-sponsored 2nd
 preference) \290\.
Married sons and daughters of    Yes, per INA sec.   Required, per INA
 U.S. citizens and their          212(a)(4)(A).       sec. 212(a)(4)(C).
 spouses and children (family-
 sponsored 3rd preference)
 \291\.
Brothers and sisters of U.S.     Yes, per INA sec.   Required, per INA
 citizens (at least 21 years of   212(a)(4)(A).       sec. 212(a)(4)(C).
 age) and their spouses and
 children (family-sponsored 4th
 preference) \292\.
Fianc[eacute]s of U.S. citizens  Yes, per INA sec.   Required, per INA
 (admitted as a K-1 or K-2        212(a)(4)(A).       sec. 212(a)(4)(C).
 nonimmigrant) \293\.
Amerasians based on preference   Yes, per INA sec.   Exempt, per
 category, born between           212(a)(4)(A).       Amerasian Act,
 December 31, 1950, and October                       Public Law 97-359
 22, 1982 \294\.                                      (Oct. 22, 1982).
Amerasians, born in Vietnam      No. (Form I-360     Exempt, per section
 between January 1, 1962, and     and adjustment of   584 of the Foreign
 January 1, 1976.                 status) Section     Operations, Export
Immediate Relative: AM-6, AR-6    584 of the          Financing, and
 Children.                        Foreign             Related Programs
Amerasians under Amerasian        Operations,         Appropriations Act
 Homecoming Act, Public Law 100-  Export Financing,   of 1988, Public
 202 (Dec. 22, 1987) \295\ born   and Related         Law 100-202.
 between January 1, 1962, and     Programs
 January 1, 1976.                 Appropriations
                                  Act of 1988,
                                  Public Law 100-
                                  202.
Spouses, widows, or widowers of  Yes, per INA sec.   Exempt, per 8 CFR
 U.S. citizens (IW-6).            212(a)(4).          204.2 and 71 FR
                                                      35732 (June 21,
                                                      2006).
Immediate relative VAWA          No, per INA sec.    Exempt, per INA
 applicants, including spouses    212(a)(4)(E) and    sec. 212(a)(4)(E).
 and children \296\.              INA sec.
                                  212(a)(4)(C)(i).
1st preference VAWA applicants,  No, per INA sec.    Exempt, per INA
 including B-16 Unmarried sons/   212(a)(4)(C)(i).    sec.
 daughters of U.S. citizens,                          212(a)(4)(C)(i).
 self-petitioning B-17 Children
 of B-16.
2nd preference VAWA applicants,  No, per INA sec.    Exempt, per INA
 including spouses and children   212(a)(4)(C)(i).    sec.
 \297\.                                               212(a)(4)(C)(i).
3rd Preference VAWA Married son/ No, per INA sec.    Exempt, per INA
 daughters of U.S. citizen,       212(a)(4)(C)(i).    sec.
 including spouses and children                       212(a)(4)(C)(i).
 \298\.
------------------------------------------------------------------------


    Table 7--Applicability of INA Sec. 212(a)(4) to Employment-Based
                    Adjustment of Status Applications
------------------------------------------------------------------------
                                                      INA sec. 213A, and
                                                          Form I-864,
                                                         Affidavit of
            Category                Subject to INA       Support under
                                    sec. 212(a)(4)?     section 213A of
                                                       the INA, required
                                                          or exempt?
------------------------------------------------------------------------
First Preference: Priority        Yes, in             Exempt, unless
 workers \299\.                    general,\300\ per   qualifying
                                   INA sec.            relative or
                                   212(a)(4).          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  Yes, in             Exempt, unless
 with advanced degrees or          general,\302\ per   qualifying
 noncitizens of exceptional        INA sec.            relative or
 ability.                          212(a)(4).          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         Yes, in             Exempt, unless
 workers, professionals, and       general,\304\ per   qualifying
 other workers \303\.              INA sec.            relative or
                                   212(a)(4).          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       Yes, per INA sec.   Not
 \305\.                            212(a)(4).          applicable.\306\
------------------------------------------------------------------------


    Table 8--Applicability of INA Sec. 212(a)(4) to Special Immigrant
                    Adjustment of Status Applications
------------------------------------------------------------------------
                                                      INA sec. 213A, and
                                                          Form I-864,
                                                         Affidavit of
            Category                Subject to INA       Support under
                                    sec. 212(a)(4)?     section 213A of
                                                       the INA, required
                                                          or exempt?
------------------------------------------------------------------------
Religious Workers \307\.........  Yes, per INA sec.   Not
                                   212(a)(4).          applicable.\308\
International employees of U.S.   Yes, per INA sec.   Not
 government abroad \309\.          212(a)(4).          applicable.\310\
Employees of Panama Canal \311\.  Yes, per INA sec.   Not
                                   212(a)(4).          applicable.\312\
Foreign Medical School Graduates  Yes, per INA sec.   Not
 \313\.                            212(a)(4).          applicable.\314\
Retired employees of              Yes, per INA sec.   Not
 International Organizations,      212(a)(4).          applicable.\317\
 including G-4 International
 Organization Officer \315\.
International Organizations (G-
 4s international organization
 officer/Retired G-4 Employee)
 \316\.
SL-6 Juvenile court dependents..  No, per INA sec.    Not applicable,
                                   245(h).             per INA sec.
                                                       245(h)
U.S. Armed Forces Personnel       Yes, per INA sec.   Not
 \318\.                            212(a)(4).          Applicable.\319\
International Broadcasters \320\  Yes, per INA sec.   Not
                                   212(a)(4).          Applicable.\321\

[[Page 10603]]

 
Special immigrant interpreters    No, per section     Exempt, per
 who are nationals of Iraq or      1059(a)(2) of the   section 602(b)(9)
 Afghanistan \322\.                National Defense    of the Afghan
                                   Authorization Act   Allies Protection
                                   for Fiscal Year     Act of 2009,
                                   2006, as amended,   title VI of
                                   Public Law 109-     Public Law 111-8,
                                   162 (Jan. 6,        123 Stat. 807,
                                   2005), section      809 (Mar. 11,
                                   1244(a)(3) of the   2009).\323\
                                   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).
------------------------------------------------------------------------


  Table 9--Applicability of INA Sec. 212(a)(4) to Refugee, Asylee, and
                Parolee Adjustment of Status Applications
------------------------------------------------------------------------
                                                      INA sec. 213A, and
                                                          Form I-864,
                                                         Affidavit of
            Category                Subject to INA       Support under
                                    sec. 212(a)(4)?     section 213A of
                                                       the INA, required
                                                          or exempt?
------------------------------------------------------------------------
Asylees \324\...................  No, per INA sec.    Exempt, per INA
                                   209(c).             sec. 209(c).
Indochinese Parolees from         No, per section     Exempt, per
 Vietnam, Cambodia, and Laos.      586 of Public Law   section 586 of
IC-6 Indochinese refugees (Pub.    106-429 (Nov. 6,    Public Law 106-
 L. 95-145 of 1977).               2000).              429 (Nov. 6,
                                                       2000).
IC-7 Spouses or children of
 Indochinese refugees not
 qualified as refugees on their
 own.
Polish and Hungarian Parolees     No, per title VI,   Exempt, per title
 (Nationals of Poland or Hungary   subtitle D,         VI, subtitle D,
 who were paroled into the         section 646(b),     section 646(b),
 United States from November 1,    Public Law 104-     Public Law 104-
 1989, to December 31, 1991)       208 (Sept. 30,      208 (Sept. 30,
 \325\.                            1996); 8 CFR        1996); 8 CFR
                                   245.12.             245.12.
Refugees \326\..................  No, per INA sec.    Exempt, per INA
                                   207(c)(3) and INA   sec. 207 and INA
                                   sec. 209(c).        sec. 209(c).
Cuban-Haitian Entrant under IRCA  No, per section     Exempt, per
 \327\.                            202 of Public Law   section 202 of
                                   99-603, 100 Stat.   Public Law 99-
                                   3359 (Nov. 6,       603, 100 Stat.
                                   1986) (as           3359 (Nov. 6,
                                   amended), 8         1986) (as
                                   U.S.C. 1255a.       amended), 8
                                                       U.S.C. 1255a.
HRIFA: Principal HRIFA Applicant  No, per section     Exempt, per
 who applied for asylum before     902 of Public Law   section 902 of
 December 31, 1995 \328\.          105-277, 112        Public Law 105-
                                   Stat. 2681 (Oct.    277, 112 Stat.
                                   21, 1998), 8        2681 (Oct. 21,
                                   U.S.C. 1255.        1998), 8 U.S.C.
                                                       1255.
------------------------------------------------------------------------


    Table 10--Applicability of INA Sec. 212(a)(4) to Other Applicants
------------------------------------------------------------------------
                                                      INA sec. 213A, and
                                                          Form I-864,
                                                         Affidavit of
            Category                Subject to INA       Support under
                                    sec. 212(a)(4)?     section 213A of
                                                       the INA, required
                                                          or exempt?
------------------------------------------------------------------------
Diplomats Section 13............  Yes, per Section    Exempt, by
                                   13 of Public Law    statute, as they
                                   85-316 (Sept. 11,   are not listed in
                                   1957), as amended   INA sec.
                                   by Public Law 97-   212(a)(4) as a
                                   116 (Dec. 29,       category that
                                   1981); 8 CFR        requires Form I-
                                   245.3.              864.
Persons Born in the United        Yes, per INA sec.   Exempt, per 8 CFR
 States under Diplomatic Status    212(a)(4).          101.3.
 (NA-3), as described in 8 CFR
 101.3.
Diversity immigrant, spouse, and  Yes, per INA sec.   Exempt, by
 child \329\.                      212(a)(4).          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   Yes, per INA sec.   Exempt, by
 1, 1982 \331\.                    212(a)(4), INA      statute, as they
                                   sec.                are not listed in
                                   245A(b)(1)(C)(i),   INA sec.
                                   and INA sec.        212(a)(4) as a
                                   245A(a)(4)(A)       category that
                                   \332\.              requires Form I-
                                                       864.
T-nonimmigrants.................  No, per INA sec.    Exempt, by
                                   212(a)(4)(E).       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  No, per INA sec.    Exempt, per INA
 Canada.                           289.                sec. 289.
Certain Syrian asylees adjusting  No, per former 8    Exempt, by
 under Public Law 106-378.         CFR 245.20(c)       statute, as they
                                   (2011) \334\.       are not listed in
                                                       INA sec.
                                                       212(a)(4) as a
                                                       category that
                                                       requires Form I-
                                                       864.
Texas Band of Kickapoo Indians    No, per Public Law  Exempt, per Public
 of the Kickapoo Tribe of          97-429 (Jan. 8,     Law 97-429 (Jan.
 Oklahoma, Public Law 97-429       1983).              8, 1983).
 (Jan. 8, 1983).
S (noncitizen witness or          Yes, per INA sec.   Exempt, per INA
 informant).                       212(a)(4) \335\.    sec. 245(j); INA
                                                       sec.
                                                       101(a)(15)(S); 8
                                                       CFR 214.2(t)(2);
                                                       8 CFR 1245.11.
Private Immigration Bill          Dependent on the    Dependent on the
 providing for noncitizen's        text of the         text of the
 adjustment of status.             Private Bill.       Private Bill.
Nicaraguan Adjustment and         No, per section     Exempt, per
 Central American Relief Act       202(a) of Public    section 202(a) of
 (NACARA) sec. 202 \336\.          Law 105-100, 111    Public Law 105-
                                   Stat. 2193 (Nov.    100, 111 Stat.
                                   19, 1997), as       2193 (Nov. 19,
                                   amended, 8 U.S.C.   1997), as
                                   1255.               amended, 8 U.S.C.
                                                       1255.
NACARA sec. 203 \337\...........  No, per section     Exempt, per
                                   203 of Public Law   section 203 of
                                   105-11, 111 Stat.   Public Law 105-
                                   2193 (Nov. 19,      11, 111 Stat.
                                   1997), as           2193 (Nov. 19,
                                   amended, 8 U.S.C.   1997), as
                                   1255.               amended, 8 U.S.C.
                                                       1255.
Lautenberg, LA-6 \338\..........  No, per section     Exempt, per
                                   599E of Public      section 599E of
                                   Law 101-167, 103    Public Law 101-
                                   Stat. 1195 (Nov.    167, 103 Stat.
                                   21, 1989), 8        1195 (Nov. 21,
                                   U.S.C.A. 1255.      1989), 8 U.S.C.A.
                                                       1255.
Registry, Z-66: Noncitizens who   No, per INA sec.    Exempt, per INA
 entered the United States prior   249 and 8 CFR       sec. 249 and 8
 to January 1, 1972, and who       part 249.           CFR part 249.
 meet the other conditions.
U-1 Crime Victim, spouse,         No, per INA sec.    Exempt, per INA
 children and parents, and         212(a)(4)(E).       sec.
 siblings under INA sec. 245(m).                       212(a)(4)(E).

[[Page 10604]]

 
Temporary Protected Status (TPS)  No, per 8 CFR       Exempt, per 8 CFR
                                   244.3(a) \339\.     244.3(a).\340\
Liberian Refugee Immigration      No, per section     Exempt, by
 Fairness (LRIF) \341\.            7611(b)(2) of the   statute, as they
                                   National Defense    are not listed in
                                   Authorization Act   INA sec.
                                   (NDAA) 2020,        212(a)(4) as a
                                   Public Law 116-     category that
                                   92, 113 Stat.       requires Form I-
                                   1198, 2310 (Dec.    864 \342\
                                   20, 2019).
------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \286\ Applicants 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).
    \287\ Some 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, self-petitioning 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 fianc[eacute](e), adjustments conditional; IF-1 Spouses, entered 
as fianc[eacute](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, self-petitioning; IB-8 Children of IB-1 
or IB-6; IB-0 Parents battered or abused, of U.S. citizens, self-
petitioning.
    \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, 
self-petitioning; 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).
    \301\ Relative 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 
for-profit 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 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.
    \306\ Fifth 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.
    \308\ For 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.
    \310\ For 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.
    \312\ For 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.
    \314\ For 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 for-profit 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.
    \317\ For 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 for-profit 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.
    \319\ For 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 for-profit 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.
    \321\ For 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 for-profit 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.
    \323\ Sections 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.
    \325\ Note 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.
    \327\ Note 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.
    \332\ Certain 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).
    \333\ Adjustment of status based on T-nonimmigrant 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.
    \335\ S-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.
    \338\ Note 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).
    \340\ See 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 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.
    \342\ Adjustment 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).

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[[Page 10606]]

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.
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    \343\ See 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).
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    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 self-sufficiency.'' \350\
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    \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).
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    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.
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    \351\ See 86 FR 47025, 47028 (Aug. 23, 2021).
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    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.
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    \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).
---------------------------------------------------------------------------

    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

[[Page 10607]]

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 means-tested 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\
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    \353\ See 84 FR 41292, 41490 (Aug. 14, 2019) (citing 8 U.S.C. 
1601(2)).
    \354\ At 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.'').
    \355\ USCIS Field Operations Directorate (June 2021); USCIS 
Office of Performance and Quality (June 2021).
---------------------------------------------------------------------------

    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

[[Page 10608]]

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\
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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).
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    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\
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    \359\ Although 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).
    \360\ See 64 FR 28689, 28690 (May 26, 1999) and 64 FR 28676, 
28677 (May 26, 1999).
    \361\ See 64 FR 28689, 28692 (May 26, 1999).
    \362\ See 64 FR 28689, 28692 (May 26, 1999).
    \363\ See 64 FR 28689, 28692-28693 (May 26, 1999).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \364\ For 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/report-highlights/index.html 
(accessed Feb. 10, 2022).
    \365\ Center 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-public-charge-rules-would-close-the-door-to-us-to-immigrants (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 non-cash 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.
---------------------------------------------------------------------------

    Cash assistance programs, on the other hand, are often reserved for 
individuals with few if any other sources of income.\367\ In addition,

[[Page 10609]]

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.
---------------------------------------------------------------------------

    \367\ See, 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-and-financial-circumstances-tanf-recipients-fiscal-year-2010 (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 
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)).
    \368\ See, e.g., Center on Budget and Policy Priorities, Policy 
Basics: Supplemental Security Income (Feb. 8, 2021), https://www.cbpp.org/research/social-security/supplemental-security-income 
(``Over 60 percent of SSI recipients also get SNAP (food stamps) and 
about one-quarter receive housing assistance.'') (accessed Jan. 26, 
2022).
---------------------------------------------------------------------------

    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 benefit-granting 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\
---------------------------------------------------------------------------

    \369\ As 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.''
    \370\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \371\ See 64 FR 28689, 28692 (May 26, 1999).
    \372\ Ibid.
    \373\ See 64 FR 28689, 28692 (May 26, 1999).
    \374\ Ibid.
    \375\ See 64 FR 28676, 28677-28678 (May 26, 1999) and 64 FR 
28689, 28692 (May 26, 1999).
---------------------------------------------------------------------------

    In formulating such a conclusion, the former INS relied heavily on 
the expertise of HHS and other benefit-granting 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 non-cash 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 non-cash 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 non-cash benefits 
(except institutionalization for long-term care at government expense) 
should not be relevant in public charge determinations.
---------------------------------------------------------------------------

    \376\ See HHS letter in 64 FR 28676, 28686-28687 (May 26, 1999).
    \377\ See HHS letter in 64 FR 28676, 28686 (May 26, 1999).
    \378\ See HHS letter in 64 FR 28676, 28686 (May 26, 1999). While 
the SSA letter did not address non-cash 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).
    \379\ See HHS letter in 64 FR 28676, 28686 (May 26, 1999).
---------------------------------------------------------------------------

    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--
---------------------------------------------------------------------------

    \380\ See 84 FR 41292 (Aug. 14, 2019), as amended by 
Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 
(Oct. 2, 2019).

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

[[Page 10610]]

to aliens who are not likely to be self-sufficient.\381\
---------------------------------------------------------------------------

    \381\ See 84 FR 41292, 41314 (Aug. 14, 2019).

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \384\ See 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-of-economic-downturn-and-work-requirements-appendix-2/ (accessed Feb. 15, 2022).
---------------------------------------------------------------------------

    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 non-cash 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

[[Page 10611]]

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\
---------------------------------------------------------------------------

    \385\ Health 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/immigrant-health-equity-brief.pdf (accessed Feb. 2, 2022).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \386\ See CDC, Demographic Trends of COVID-19 cases and deaths 
in the U.S. reported to CDC, available at https://covid.cdc.gov/covid-data-tracker/#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).
    \387\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \388\ See 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-continued-avoiding-safety-net-during-covid-19-crisis 
(accessed Feb. 13, 2021).
    \389\ See Randy Capps et al., Migration Policy Institute, 
Anticipated ``Chilling Effects'' of the Public-Charge Rule Are Real: 
Data Reflect Steep Decline in Benefits Use by Immigrant Families 
(Dec. 2020), https://www.migrationpolicy.org/news/anticipated-chilling-effects-public-charge-rule-are-real (accessed Jan. 26, 
2022). 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).
---------------------------------------------------------------------------

    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 non-cash 
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

[[Page 10612]]

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-of-living 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\
---------------------------------------------------------------------------

    \390\ See 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).
    \391\ See SSA Handbook section 2101 (accessed Jan. 31, 2022).
    \392\ See SSA Handbook section 2103 (accessed Jan. 31, 2022).
    \393\ See SSA Handbook section 2103 (accessed Jan. 31, 2022).
    \394\ See 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).
    \395\ See SSA Handbook section 2113.1.
    \396\ See SSI Federal Payment Amounts for 2022, https://www.ssa.gov/oact/cola/SSI.html (accessed Jan. 31, 2022).
    \397\ See SSA Handbook, Ch. 21, section 2128, https://www.ssa.gov/OP_Home/handbook/handbook.21/handbook-toc21.html 
(accessed Jan. 31, 2022).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \398\ See 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).
    \399\ See 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 two-
parent families.).
    \400\ See 42 U.S.C. 612.
    \401\ See Office of Family Assistance, Help for Families, 
available at https://www.acf.hhs.gov/ofa/map/about/help-families 
(accessed Jan. 31, 2022).
    \402\ See, 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \403\ See 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.
    \405\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \406\ See 64 FR 28689, 28692-28693 (May 26, 1999).
    \407\ See 42 U.S.C. 8621, et seq.
    \408\ See 42 U.S.C. 5174.
---------------------------------------------------------------------------

    Federal, State, Tribal, territorial, and local governments provided 
pandemic-related cash assistance in response to

[[Page 10613]]

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\
---------------------------------------------------------------------------

    \409\ See 64 FR 28676, 28678-28679 (May 26, 1999).
---------------------------------------------------------------------------

    DHS has clarified above that special-purpose 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.
---------------------------------------------------------------------------

    \410\ Section 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.
---------------------------------------------------------------------------

    As suggested by HHS in its on-the-record 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, long-term 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 long-term care services. In such a case, all of that 
individual's basic subsistence needs are assumed by the 
institution.\412\
---------------------------------------------------------------------------

    \411\ See 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.
    \412\ See HHS letter in 64 FR 28676, 28687 (May 26, 1999).
---------------------------------------------------------------------------

    ``Long-term institutionalization'' would be the only category of 
Medicaid-funded 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

[[Page 10614]]

submission of data on lengths of stay for long-term care in a range of 
institutional settings.\414\
---------------------------------------------------------------------------

    \413\ Defined as institutional services under sec. 1905(a) of 
the Social Security Act.
    \414\ However, 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.
---------------------------------------------------------------------------

    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 community-based services (HCBS),\415\ even 
if those are offered at public expense, including through Medicaid.
---------------------------------------------------------------------------

    \415\ HCBS 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/home-community-based-services/index.html (accessed Dec. 28, 2021).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \416\ See Kaiser Family Foundation, Medicaid Beneficiaries Who 
Need Home and Community-Based Services (Mar. 2014), available at 
https://www.kff.org/wp-content/uploads/2014/03/8568-medicaid-beneficiaries-who-need-home-and-community-based-servcies.pdf 
(accessed Feb. 1, 2022).
    \417\ See https://www.medicaid.gov/medicaid/long-term-services-supports/employment-initiatives/employment-hcbs/index.html 
(describing Medicaid HCBS supports for employment) (accessed Jan. 
26, 2021); See also https://www.macpac.gov/wp-content/uploads/2018/07/The-Role-of-Medicaid-in-Supporting-Employment.pdf (accessed Jan. 
26, 2021).
    \418\ See, 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/mfp-rtc.pdf (accessed 
Jan. 27, 2022) (``On average, per-beneficiary 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-home-and-community-based-services-enrollment-and-spending/.
---------------------------------------------------------------------------

    This approach is also supported by HHS. In its on-the-record 
consultation letter, HHS encouraged DHS to ``consider clarifications to 
its public-charge 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 anti-discrimination 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.
---------------------------------------------------------------------------

    \420\ See 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).
    \422\ For 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-services-supports/downloads/ltss-rebalancing-toolkit.pdf.
    \423\ See proposed 8 CFR 212.22(a)(3).
---------------------------------------------------------------------------

    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,

[[Page 10615]]

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.
---------------------------------------------------------------------------

    \424\ See proposed 8 CFR 212.21(d), (a), (b) and (c), 
respectively.
    \425\ See 84 FR 41292, 41502 (Aug. 14, 2019).
    \426\ See 64 FR 28676, 28683 (May 26, 1999). See 64 FR 28689, 
28691-28692 (May 26,1999).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \427\ See 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.''
    \428\ See proposed 8 CFR 212.21(e).
---------------------------------------------------------------------------

    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 benefits-granting 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

[[Page 10616]]

dependent on the government for subsistence.'' \431\
---------------------------------------------------------------------------

    \429\ 64 FR 28676, 28681 (May 26, 1999).
    \430\ 64 FR 28689, 28692 (May 26, 1999); 64 FR 28676, 28676 (May 
26, 1999).
    \431\ 64 FR 28689, 28689 (May 26, 1999).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \432\ See 84 FR 41292 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \433\ See 64 FR 28689, 28692 (May 26, 1999).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \434\ See, e.g., USCIS-2021-0013-0182, USCIS-2021-0013-0148, and 
USCIS-2021-0013-0080.
    \435\ See 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).
---------------------------------------------------------------------------

    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 means-tested 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.
---------------------------------------------------------------------------

    \436\ See proposed 8 CFR 212.21(e).
    \437\ See 8 U.S.C. 1601(4).
---------------------------------------------------------------------------

    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

[[Page 10617]]

also welcomes comments on any other definitions needed to explain or 
clarify the public charge inadmissibility determination.
---------------------------------------------------------------------------

    \438\ See proposed 8 CFR 212.21(a); 84 FR 41292, 41501 (Aug. 14, 
2019).
    \439\ See proposed 8 CFR 212.21(b); 64 FR 28689, 28692 (May 26, 
1999); 64 FR 28676, 28682 (May 26, 1999).
    \440\ See proposed 8 CFR 212.21(d); 84 FR 41292, 41502 (Aug. 14, 
2019).
    \441\ See 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).
    \443\ See 64 FR 28676, 28681 (May 26, 1999).
    \444\ See 84 FR 41292, 41501 (Aug. 14, 2019).
    \445\ See 84 FR 41292, 41501-02 (Aug. 14, 2019).
    \446\ See 84 FR 41292, 41502 (Aug. 14, 2019).
    \447\ See proposed 8 CFR 212.21.
    \448\ See 64 FR 28676, 28681 (May 26, 1999).
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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.
---------------------------------------------------------------------------

    \449\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \450\ See 64 FR 28689, 28690 (May 26, 1999).
    \451\ See 64 FR 28689, 28689-90 (May 26, 1999).
    \452\ See 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.
---------------------------------------------------------------------------

    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\
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    \453\ See 84 FR 41292, 41307 (Aug. 14, 2019).
    \454\ See 84 FR 41292 (Aug. 14, 2019).
    \455\ See 84 FR 41292, 41507 (Aug. 14, 2019).
    \456\ As 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).
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    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.
---------------------------------------------------------------------------

    \457\ See, e.g., 84 FR 41292, 41315 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \458\ See 8 CFR 103.2(b)(8).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 10618]]

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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \464\ INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
    \465\ See 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 10619]]

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.
---------------------------------------------------------------------------

    \475\ 84 FR 41114, 41198 (Aug. 14, 2019).
    \476\ See 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \477\ See 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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \478\ See proposed 8 CFR 212.22(a)(2).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \483\ See 84 FR 41292, 41503-14504 (Aug. 14, 2019).
    \484\ See 84 FR 41292, 41503 (Aug. 14, 2019).
    \485\ See 84 FR 41292, 41504 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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

[[Page 10620]]

previously experienced long-term institutionalization may not need 
long-term 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.
---------------------------------------------------------------------------

    \486\ See proposed 8 CFR 212.22(a)(3).
    \487\ For 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 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-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \488\ See proposed 8 CFR 212.22(a)(3).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \489\ See 64 FR 28689 (May 26, 1999).
    \490\ See 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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \491\ See proposed 8 CFR 212.22(a)(4).
    \492\ One 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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).
    \496\ Sch. 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).
---------------------------------------------------------------------------

    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

[[Page 10621]]

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\
---------------------------------------------------------------------------

    \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.
    \499\ See 84 FR 41292, 41502 (Aug. 14, 2019).
    \500\ Section 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).
    \501\ See 84 FR 41292, 41504 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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 self-sufficiency is inconsistent with 
Congress' purpose.
---------------------------------------------------------------------------

    \502\ Cook County, 962 F.3d at 227-228 (7th Cir. 2020).
    \503\ Cook County, 962 F.3d at 227-228 (7th Cir. 2020).
    \504\ Cook County, 962 F.3d at 227-228 (7th Cir. 2020).
    \505\ Cook 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.'').
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \506\ 86 FR 47025, 47029 (Aug. 23, 2021).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \507\ Proposed 8 CFR 212.22(b).
    \508\ Ibid.
    \509\ Ibid.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \510\ Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B).
    \511\ See 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).
    \512\ See, 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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \514\ 84 FR 41292, 41502 (Aug. 14, 2019).
    \515\ 84 FR 41292, 41295 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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

[[Page 10622]]

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\
---------------------------------------------------------------------------

    \516\ 84 FR 41292, 41400 (Aug. 14, 2019).
    \517\ Ibid.
    \518\ For more information about SIPP, see https://www.census.gov/programs-surveys/sipp/about.html (accessed Jan. 18, 
2022).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \519\ INA sec. 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \520\ See 64 FR 28689 (May 26, 1999).
    \521\ See 84 FR 41292, 41502 (Aug. 14, 2009).
    \522\ 8 CFR 103.3(a)(1)(i).
    \523\ 8 CFR 103.3(a)(1)(i).
---------------------------------------------------------------------------

    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-by-case basis in light of 
the totality of the circumstances.
---------------------------------------------------------------------------

    \524\ See proposed 8 CI212.22(c).
    \525\ See 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \526\ See 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).
---------------------------------------------------------------------------

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

[[Page 10623]]

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\
---------------------------------------------------------------------------

    \527\ See 84 FR 41292, 41501 (Aug. 14, 2019).
    \528\ Ibid.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \529\ See proposed 8 CFR 212.21(a), 212.21(a)(3).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \530\ See 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.'').
    \531\ See, e.g., 84 FR 41379-80 (Aug. 14, 2019) (discussing the 
exclusion of individuals under 21 and pregnant women).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \532\ See 8 U.S.C. 1611, 1621, and 1641.
    \533\ See 8 U.S.C. 1641.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \534\ See 84 FR 41292, 41501 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \535\ See INA sec. 103, 8 U.S.C. 1103.
---------------------------------------------------------------------------

    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

[[Page 10624]]

while in a status that is exempt from the public charge ground of 
inadmissibility.
---------------------------------------------------------------------------

    \536\ For example, refugees, asylees, Afghans and Iraqis 
employed by the U.S. government, special immigrant juveniles, 
Temporary Protected Status recipients, and trafficking and crime 
victims.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \537\ See proposed 8 CFR 212.22(a) and (c).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
    \545\ See proposed 8 CFR 212.23(a)(1) and (2).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \546\ On 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).
    \547\ See section 2502(b) of the Extending Government Funding 
and Delivering Emergency Assistance Act, Public Law 117-43 (Sept. 
30, 2021).
    \548\ These 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).
    \549\ See 22 U.S.C. 7105(b)(1)(A).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \550\ See proposed 8 CFR 212.22(e).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \552\ See Sec. 102(b), Victims of Trafficking and Violence 
Protection Act of 2000, Public Law 106-386.
---------------------------------------------------------------------------

    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

[[Page 10625]]

waivers of the inadmissibility ground for certain other groups.
---------------------------------------------------------------------------

    \553\ See proposed 8 CFR 212.23(a).
---------------------------------------------------------------------------

    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\
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    \554\ See 64 FR 28676, 28683 (May 26, 1999).
    \555\ See 64 FR 28676, 28684 (May 26, 1999).
    \556\ See 84 FR 41292, 41504-41505 (Aug. 14, 2019).
    \557\ See 84 FR 41292, 41505 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \558\ See 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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \559\ Adjustment 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.
---------------------------------------------------------------------------

    <bullet> 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;
    <bullet> 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;
    <bullet> 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);
    <bullet> 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\
---------------------------------------------------------------------------

    \561\ See Matter of Mesa, 12 I&N Dec. 432, 437 (Dep. Act. 
Comm'r. 1967).
---------------------------------------------------------------------------

    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> Special immigrant juveniles, pursuant to section 245(h) of 
the INA, 8 U.S.C. 1255(h);
    <bullet> 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;
    <bullet> 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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> 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);
    <bullet> 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);
    <bullet> 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);
---------------------------------------------------------------------------

    \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 Non-
recognized 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.
---------------------------------------------------------------------------

    <bullet> Nonimmigrants classifiable as a NATO (North Atlantic 
Treaty Organization) representative and related categories,\564\ 
pursuant to 22 CFR 41.21(d);
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    <bullet> Individuals who have a pending application that sets forth 
a prima facie

[[Page 10626]]

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;
    <bullet> 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);
    <bullet> 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;
    <bullet> Aliens who are VAWA self-petitioners 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);
    <bullet> ``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);
    <bullet> 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);
    <bullet> Noncitizen American Indians Born in Canada, pursuant to 
section 289 of the INA, 8 U.S.C. 1359
    <bullet> Noncitizen members of the Texas Band of Kickapoo Indians 
of the Kickapoo Tribe of Oklahoma pursuant to Public Law 97-429 (Jan. 
8, 1983);
    <bullet> Nationals of Vietnam, Cambodia, and Laos adjusting status, 
pursuant to section 586 of Public Law 106-429 (Nov. 1, 2000);
    <bullet> 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;
    <bullet> Certain Syrian nationals adjusting status under Public Law 
106-378;
    <bullet> 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
    <bullet> 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).
---------------------------------------------------------------------------

    \565\ This 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).
    \566\ Section 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).
    \567\ See, 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).
---------------------------------------------------------------------------

    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:
    <bullet> S (alien witness or informant) nonimmigrants described in 
section 101(a)(15)(S) of the INA, 8 U.S.C. 1101(a)(15)(S);
    <bullet> 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
    <bullet> 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\
---------------------------------------------------------------------------

    \568\ See, 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).
---------------------------------------------------------------------------

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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    \569\ See 84 FR 41292, 41505-41507 (Aug. 14, 2019).
    \570\ See 64 FR 28689, 28693 (May 26, 1999). See 64 FR 28676, 
28684 (May 26, 1999).

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[[Page 10627]]

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.<SUP>571 572</SUP> 
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.
---------------------------------------------------------------------------

    \571\ See proposed 8 CFR 212.21(a).
    \572\ As 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.
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    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\
---------------------------------------------------------------------------

    \573\ Calculations: Total annual net costs ($12,856,152) = Total 
annual costs ($12,871,511)-Total annual savings ($15,359).
---------------------------------------------------------------------------

    Over the first 10 years of implementation, DHS estimates the total 
net costs of the proposed rule would be approximately $128,561,520 
(undiscounted). In addition, DHS estimates that the 10-year discounted 
total net costs of this proposed rule would be about $109,665,584 at a 
3-percent discount rate and about $90,296,232 at a 7-percent discount 
rate.
    DHS expects the primary benefit of this proposed rule to be the 
non-quantified 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 Pre-Guidance Baseline, respectively.
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    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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    \574\ See OMB. ``Circular A-4.'' September 17, 2003. Available 
at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
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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\
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    \575\ See INA sec. 212(a)(4); 8 U.S.C. 1182(a)(4).
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    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

[[Page 10638]]

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\
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    \576\ See INA sec. 212(a)(4)(B)(i); 8 U.S.C. 1182(a)(4)(B)(i).
    \577\ See 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.
    \578\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D).
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    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.
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    \579\ See INA sec. 212(a)(4), 8 U.S.C. 1182(a)(4).
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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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[[Page 10639]]


    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\
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    \580\ USCIS 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).
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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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    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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    \581\ Calculation 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.
    \582\ Calculation of total population subject to public charge 
review for inadmissibility for fiscal year 2018: 704,407--180,179 = 
524,228.

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[[Page 10643]]

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    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\
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    \583\ See INA sec. 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) 
and (D).
    \584\ See INA sec. 212(a)(4)(C) and (D), 213A(a), 8 U.S.C. 
1182(a)(4)(C) and (D), 1183a(a).
    \585\ See INA sec. 213A(a) and (b), 8 U.S.C. 1183a(a) and (b).
---------------------------------------------------------------------------

    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.

[[Page 10644]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.030

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 non-paid 
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.
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    \586\ See ``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-highest-minimum-wage.html (accessed 
Jan. 10, 2022).
    \587\ USCIS analysis of data provided by USCIS, Policy and 
Research Division (Dec. 2021).
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    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\
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    \588\ The 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).
    \589\ The 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.
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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.
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    \590\ See ``Inadmissibility and Deportability on Public Charge 
Grounds,'' Proposed Rule,'' 64 FR 28676 (May 26, 1999).
    \591\ See ``Field Guidance on Deportability and Inadmissibility 
on Public Charge Grounds,'' 64 FR 28689 (May 26, 1999). Due to a 
printing error, the Federal Register version of the Field Guidance 
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.
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    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 sub-regulatory 
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

[[Page 10645]]

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.
[GRAPHIC] [TIFF OMITTED] TP24FE22.031

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\
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    \592\ Calculation: 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.
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    DHS estimates the time burden of completing Form I-485 is 6.42 
hours per response, including the time for reviewing instructions, 
gathering the

[[Page 10646]]

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\
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    \593\ 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 1/12/
2022).
    \594\ Calculation for opportunity cost of time for filing Form 
I-485: ($17.11 per hour * 6.42 hours) = $109.85 (rounded) per 
applicant.
    \595\ Calculation: 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.
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    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\
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    \596\ Calculation: 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.
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    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 biometrics-related 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\
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    \597\ See 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).
    \598\ Source 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).
    \599\ Calculation 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.
    \600\ Calculation: 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.
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    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\
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    \601\ See 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-rates-etc/privately-owned-vehicle-pov-mileage-reimbursement-rates 
(accessed Jan. 7, 2022).
    \602\ Calculation: (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.
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    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.
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    \603\ Calculation: $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.
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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

[[Page 10647]]

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\
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    \604\ Source for immigration medical examination cost range: 
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.
    \605\ Source 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.
    \606\ Calculation: (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.
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    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\
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    \607\ Source 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).
    \608\ Calculation for immigration medical examination 
opportunity cost of time: ($17.11 per hour * 2.5 hours) = $42.78 per 
applicant.
    \609\ Calculation: (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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \610\ Calculation: $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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.

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[[Page 10648]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.032

    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\
---------------------------------------------------------------------------

    \612\ Source 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).
    \613\ Calculation for fee waiver opportunity cost of time: 
($17.11 per hour * 1.17 hours) = $20.02 (rounded).
    \614\ Calculation: (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.
---------------------------------------------------------------------------

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 family-based 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\
---------------------------------------------------------------------------

    \615\ Source 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \616\ 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 Dec. 17, 
2021).
---------------------------------------------------------------------------

    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

[[Page 10649]]

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.
---------------------------------------------------------------------------

    \617\ Calculation 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.
    \618\ Calculation: (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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \619\ Source 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).
    \620\ Calculation 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \621\ Source 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).
    \622\ Calculation 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \623\ Source 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).
    \624\ Calculation opportunity cost of time for completing and 
submitting Form I-864W: ($39.55 per hour * 1.0 hours) = $39.55.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \625\ To 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.
---------------------------------------------------------------------------

    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.

[[Page 10650]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.033

    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\
---------------------------------------------------------------------------

    \626\ Source: 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).
    \627\ Calculation for opportunity cost of time for filing Form 
I-485: ($17.11 per hour * 1.5 hours) = $25.67 (rounded) per 
applicant.
    \628\ Calculation: 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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \629\ See Public Law 113-4, 127 Stat. 54 (Mar. 7, 2013).
---------------------------------------------------------------------------

    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.
[GRAPHIC] [TIFF OMITTED] TP24FE22.034


[[Page 10651]]


    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\
---------------------------------------------------------------------------

    \630\ Source: 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).
    \631\ Calculation: (Form I-601, time burden) * (Estimated annual 
applicants for Form I-601) * (Hourly wage) = 1.75 * 16 *$17.11= 
$479.08 (rounded) per applicant.
    \632\ Calculation: Filing fee* Estimated annual applicants for 
Form I-601 = $930*16=$14,880.
    \633\ Calculation: Total savings ($15,359) 
=$479.08+$14,880=$15,359 (rounded).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \634\ Calculation: (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).
---------------------------------------------------------------------------

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

[[Page 10652]]

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.
---------------------------------------------------------------------------

    \635\ See OMB. Circular A-4. September 17, 2003. Available at 
https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
[GRAPHIC] [TIFF OMITTED] TP24FE22.035

    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.
[GRAPHIC] [TIFF OMITTED] TP24FE22.036

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

[[Page 10653]]

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.
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    \636\ Office 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.
---------------------------------------------------------------------------

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 pre-statutory 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.
---------------------------------------------------------------------------

    \637\ See OMB. Circular A-4, pp. 15-16. September 17, 2003. 
Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
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    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 Pre-Guidance 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 Pre-Guidance 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.<SUP>638 639 640</SUP> 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.
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    \638\ Fix, 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.
    \639\ Bell, S.H. (2001). Why are welfare caseloads falling? The 
Urban Institute. https://www.urban.org/sites/default/files/publications/61341/310302-Why-Are-Welfare-Caseloads-Falling-.pdf.
    \640\ Lofstrom, 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.
---------------------------------------------------------------------------

    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
---------------------------------------------------------------------------

    \641\ See 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-analysis-caseload-changes-1994-1997 (accessed Jan. 27, 2022).

    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\
---------------------------------------------------------------------------

    \642\ Id. at 2-3.

    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

[[Page 10654]]

``[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\
---------------------------------------------------------------------------

    \643\ See 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/trends-noncitizens-and-citizens-use-public-benefits-following-welfare-reform (accessed Jan. 
27, 2022).
    \644\ Id. at 1-2.
    \645\ Id.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \646\ 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).
---------------------------------------------------------------------------

    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

[[Page 10655]]

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 Pre-Guidance 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.
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    \647\ See ``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.
---------------------------------------------------------------------------

    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 Self-Sufficiency, 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\
---------------------------------------------------------------------------

    \649\ Cost 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.
    \650\ Cost 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).
    \651\ Cost 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).
    \652\ Cost 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).
    \653\ Cost 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).
    \654\ Cost 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).
    \655\ Cost 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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \657\ Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen 
Zuckerman (2021), Immigrant Families Continued Avoiding the Safety 
Net during the COVID-19 Crisis 1 (The Urban Institute), available at 
https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (accessed Feb. 
13, 2021). 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).
---------------------------------------------------------------------------

    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

[[Page 10656]]

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\
---------------------------------------------------------------------------

    \658\ Calculation, 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 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).
    \659\ Calculation, 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).
---------------------------------------------------------------------------

    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.<SUP>660 661</SUP> 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 mixed-status 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\
---------------------------------------------------------------------------

    \660\ Capps, 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/anticipated-chilling-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.
    \661\ Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen 
Zuckerman (2021), Immigrant Families Continued Avoiding the Safety 
Net during the COVID-19 Crisis 1 (The Urban Institute), available at 
https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (accessed Feb. 
13, 2021).
    \662\ Capps, 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/anticipated-chilling-effects-public-charge-rule-are-real (accessed Jan. 19, 2022).
    \663\ See, e.g., Capps, R., Fix, M., & Batalova, J. 
``Anticipated ``Chilling Effects'' of the Public-Charge 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-are-real (accessed 
Feb. 10, 2022).
---------------------------------------------------------------------------

    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

[[Page 10657]]

those with only citizens in the household.
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    \664\ Ibid. Capps, R., Fix, M., & Batalova, J. (2020).
    \665\ Sommers, B., Allen, H. Bhanja, A., Blendon, R., Orav, J., 
and Epstein, A., (2020). Assessment of Perceptions of the Public 
Charge Rule Among Low-Income Adults in Texas, JAMA Network.
    \666\ Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen 
Zuckerman, One in Seven Adults in Immigrant Families Reported 
Avoiding Public Benefit Programs in 2018 (Urban Institute, 2019).
    \667\ Haley, 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-in-immigrant-families-with-children-reported-chilling-effects-on-public-benefit-receipt-in-2019.pdf.
    \668\ Babey, 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-policybrief-mar2021.pdf.
    \669\ Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen 
Zuckerman, One in Seven Adults in Immigrant Families Reported 
Avoiding Public Benefit Programs in 2018 (Urban Institute, 2019).
    \670\ Haley, 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-in-immigrant-families-with-children-reported-chilling-effects-on-public-benefit-receipt-in-2019.pdf.
    \671\ Capps, 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/anticipated-chilling-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).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \674\ 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), 
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).
    \675\ 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), available at https://www.urban.org/sites/default/files/publication/102221/amid-confusion-over-the-public-charge-rule-immigrant-families-continued-avoiding-public-benefits-in-2019_3.pdf 
(accessed Feb. 13, 2021).
    \676\ Bernstein, H., Dulce Gonzalez, Michael Karpman, & Stephen 
Zuckerman (2021), Immigrant Families Continued Avoiding the Safety 
Net during the COVID-19 Crisis 1 (The Urban Institute), available at 
https://www.urban.org/research/publication/immigrant-families-continued-avoiding-safety-net-during-covid-19-crisis (accessed Feb. 
13, 2021).
---------------------------------------------------------------------------

    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.

[[Page 10658]]

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.<SUP>678 679</SUP> 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.<SUP>680 681</SUP>
---------------------------------------------------------------------------

    \678\ See U.S. Census Bureau. American Community Survey 2020 
Subject Definitions. Available at https://www2.census.gov/programs-surveys/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.
    \679\ To 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 Foreign-born Populations 2018 American Community Survey (ACS) 5-
year Estimates.'' Available at https://data.census.gov/cedsci 
(accessed Jan. 13, 2022).
    \680\ See 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \682\ See U.S. Census Bureau 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).
    \683\ Ibid. Calculation: [22,289,490 (Foreign-born noncitizens)/
322,903,030 (Total U.S. population)] * 100 = 6.9 percent.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \684\ See U.S. Census Bureau 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).
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BILLING CODE 9111-97-P

[[Page 10659]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.037


[[Page 10660]]


[GRAPHIC] [TIFF OMITTED] TP24FE22.038

    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.
---------------------------------------------------------------------------

    \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.

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[[Page 10661]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.039

    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

[[Page 10662]]

federally-funded public benefits program under the Alternative.
[GRAPHIC] [TIFF OMITTED] TP24FE22.040

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

[[Page 10663]]

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.
---------------------------------------------------------------------------

    \686\ As 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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \687\ See 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).
    \688\ Total 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).
    \689\ State 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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \690\ From 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).
    \691\ See USDA, Characteristics of Supplemental Nutrition 
Assistance Program Households: Fiscal Year 2019 at 1, available at 
https://fns-prod.azureedge.net/sites/default/files/resource-files/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://fns-prod.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.
    \692\ See 45 CFR 263.13(a)(i).
    \693\ See SSI information available at https://www.ssa.gov/policy/docs/statcomps/supplement/2018/ssi.html.
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BILLING CODE 9111-97-P

[[Page 10664]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.041

    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.

[[Page 10665]]

[GRAPHIC] [TIFF OMITTED] TP24FE22.042

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.<SUP>694 695</SUP>
---------------------------------------------------------------------------

    \694\ USCIS Field Operations Directorate (June 2021); USCIS 
Office of Performance and Quality (June 2021).
    \695\ USCIS, Field Office Directorate, October 18, 2021.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \696\ 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).
---------------------------------------------------------------------------

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

[[Page 10666]]

``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:
---------------------------------------------------------------------------

    \697\ See, 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.
    \698\ See 84 FR at 41381.
    \699\ See 84 FR at 41493.
---------------------------------------------------------------------------

    <bullet> Worse health outcomes, including increased prevalence of 
obesity and malnutrition, especially for pregnant or breastfeeding 
women, infants, or children, and reduced prescription adherence;
    <bullet> Increased use of emergency rooms and emergent care as a 
method of primary health care due to delayed treatment;
    <bullet> Increased prevalence of communicable diseases, including 
among members of the U.S. citizen population who are not vaccinated;
    <bullet> Increases in uncompensated care in which a treatment or 
service is not paid for by an insurer or patient;
    <bullet> Increased rates of poverty and housing instability; and
    <bullet> Reduced productivity and educational attainment.'' \700\
---------------------------------------------------------------------------

    \700\ See 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/USCIS-2010-0012-63741 (accessed Jan. 27, 2022).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \701\ Id. at 6.

    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\
---------------------------------------------------------------------------

    \702\ 84 FR 41292, 41493 (Aug. 14, 2019).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \703\ Leighton 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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \704\ 5 U.S.C. Ch. 6.
    \705\ Public Law 104-121, tit. II, 110 Stat. 847 (5 U.S.C. 601 
note).
    \706\ A 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).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \707\ 5 U.S.C. 601(6).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \708\ See 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.
---------------------------------------------------------------------------

    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

[[Page 10667]]

private sector (except as a condition of Federal assistance or a duty 
arising from participation in a voluntary Federal program).\711\
---------------------------------------------------------------------------

    \709\ See 2 U.S.C. 1502(1), 658(6).
    \710\ 2 U.S.C. 658(5).
    \711\ 2 U.S.C. 658(7).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \712\ See 2 U.S.C. 1502(1), 658(6).
---------------------------------------------------------------------------

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

[[Page 10668]]

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

0
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.

0
2. Amend Sec.  212.18 by revising paragraphs (b)(2) and (3) to read as 
follows:


Sec.  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.
0
3. Add Sec. Sec.  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.

[[Page 10669]]

Sec.  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 Sec.  212.23(a), the 
provisions of this section through Sec.  212.23 apply to an applicant 
for admission or adjustment of status to that of a lawful permanent 
resident.


Sec.  212.21  Definitions.

    For the purposes of Sec. Sec.  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.


Sec.  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 Sec.  
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 Sec.  
212.23(a), or for which the alien received a waiver of public charge 
inadmissibility, as set forth in Sec.  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).


Sec.  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;

[[Page 10670]]

    (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 Sec.  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 Sec.  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

[[Page 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

0
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.

0
5. In Sec.  245.23, revise paragraph (c)(3) to read as follows:


Sec.  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