Public Charge Ground of Inadmissibility

Published date23 August 2021
Citation86 FR 47025
Record Number2021-17837
SectionProposed rules
CourtU.s. Citizenship And Immigration Services
Federal Register, Volume 86 Issue 160 (Monday, August 23, 2021)
[Federal Register Volume 86, Number 160 (Monday, August 23, 2021)]
                [Proposed Rules]
                [Pages 47025-47032]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-17837]
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                Proposed Rules
                 Federal Register
                ________________________________________________________________________
                This section of the FEDERAL REGISTER contains notices to the public of
                the proposed issuance of rules and regulations. The purpose of these
                notices is to give interested persons an opportunity to participate in
                the rule making prior to the adoption of the final rules.
                ========================================================================
                Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 /
                Proposed Rules
                [[Page 47025]]
                DEPARTMENT OF HOMELAND SECURITY
                U.S. Citizenship and Immigration Services
                8 CFR Part 212
                [CIS No. 2696-21; DHS Docket No. USCIS-2021-0013]
                RIN 1615-AC74
                Public Charge Ground of Inadmissibility
                AGENCY: U.S. Citizenship and Immigration Services, DHS.
                ACTION: Advance notice of proposed rulemaking and notice of virtual
                public listening sessions.
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                SUMMARY: Under provisions of the Immigration and Nationality Act, the
                Department of Homeland Security (DHS) administers the public charge
                ground of inadmissibility as it pertains to applicants for admission
                and adjustment of status. DHS is publishing this advance notice of
                proposed rulemaking (ANPRM) to seek broad public feedback on the public
                charge ground of inadmissibility that will inform its development of a
                future regulatory proposal. DHS intends to propose a rule that will be
                fully consistent with law; that will reflect empirical evidence to the
                extent relevant and available; that will be clear, fair, and
                comprehensible for officers as well as for noncitizens and their
                families; that will lead to fair and consistent adjudications and thus
                avoid unequal treatment of the similarly situated; and that will not
                otherwise unduly impose barriers on noncitizens seeking admission to or
                adjustment of status in the United States. DHS also intends to ensure
                that its regulatory proposal does not cause undue fear among immigrant
                communities or present other obstacles to immigrants and their families
                accessing public services available to them, particularly in light of
                the COVID-19 pandemic and the resulting long-term public health and
                economic impacts in the United States. DHS welcomes input from
                individuals, organizations, government entities and agencies, and all
                other interested members of the public. Comments will be most helpful
                if they clearly identify the questions to which they are responding,
                offer concrete proposals, and/or articulate support or opposition to
                current or prior DHS public charge policies, and cite to relevant laws,
                regulations, data, and/or studies. DHS is also providing notice of
                public virtual listening sessions on the public charge ground of
                inadmissibility and this ANPRM.
                DATES: Written comments and related material must be submitted on or
                before October 22, 2021.
                 Listening Sessions Dates and Themes: The virtual public listening
                sessions (which will be opportunities for the public to speak directly
                to DHS on the questions raised in this ANPRM) will be held on--
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                 Date/time Theme
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                September 14, 2021 at 2:00 pm ET.......... Listening Session for the
                 General Public.
                October 5, 2021 at 2:00 pm ET............. State, Territorial, Local,
                 and Tribal Benefits
                 Granting Agencies and
                 Nonprofit Organizations
                 Only.
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                 Registration to comment date: For an opportunity to provide oral
                comments during the virtual public listening sessions, you must
                register by 12:00 p.m. (noon) Eastern Time (ET) on the Sunday before
                the listening session in question. For registration instructions, see
                the Public Participation section below.
                ADDRESSES: You may submit comments on this ANPRM, 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 DHS or U.S. Citizenship and
                Immigration Services (USCIS) officials, will not be considered comments
                on the ANPRM and may not be considered by DHS in informing future
                rulemaking. 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. Background
                 A. Legal Authority
                 B. Regulatory History
                III. Request for Information
                 A. Purpose and Definition of Public Charge
                 B. Prospective Nature of the Public Charge Inadmissibility
                Determination
                 C. Statutory Factors
                 D. Affidavit of Support Under Section 213A of the INA
                 E. Other Factors to Consider
                 F. Public Benefits Considered
                 G. Previous Rulemaking Efforts
                 H. Bond and Bond Procedures
                 I. Specific Questions for State, Territorial, Local, and Tribal
                Benefit Granting Agencies and Nonprofit Organizations
                Table of Abbreviations
                AFM--USCIS Adjudicator's Field Manual
                ANPRM--Advance Notice of Proposed Rulemaking
                BIA--Board of Immigration Appeals
                CFR--Code of Federal Regulations
                DHS--Department of Homeland Security
                DOS--Department of State
                DOJ--Department of Justice
                FAM--Department of State Foreign Affairs Manual
                HCV--Housing Choice Voucher
                HSA--Homeland Security Act
                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
                [[Page 47026]]
                NPRM--Notice of Proposed Rulemaking
                PRWORA--Personal Responsibility and Work Opportunity Reconciliation
                Act of 1996
                SNAP--Supplemental Nutrition Assistance Program
                SSI--Supplemental Security Income
                USCIS--U.S. Citizenship and Immigration Services
                I. Public Participation
                 DHS invites all interested parties to submit written data, views,
                comments, and arguments on all aspects of this ANPRM. Comments must be
                submitted in English, or an English translation must be provided. DHS
                welcomes comments on any aspects discussed in this ANPRM and has
                identified in Section ``III. Request for Information'' of this document
                the matters on which DHS will find public comments most helpful to its
                future rulemaking.
                 Registration for listening sessions: To register and receive
                information on how to attend the virtual public listening sessions,
                please go to: https://www.uscis.gov/outreach/upcoming-national-engagements.
                 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. Background
                A. Legal Authority
                 The authority of the Secretary of Homeland Security (Secretary) for
                issuing regulations 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). \1\ 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. 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.
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                 \1\ See Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 101 et seq.
                (Nov. 25, 2002).
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                 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 he or she is likely at any time to become a public
                charge. The public charge ground of inadmissibility, therefore, applies
                to anyone applying for a visa to come to the United States temporarily
                or permanently, for admission to the United States, or for adjustment
                of status to that of a lawful permanent resident.\2\ 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.\3\
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                 \2\ See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
                 \3\ See INA section 245(j), 8 U.S.C. 1255(j); 8 CFR 245.11; INA
                section 245(h)(2)(B), 8 U.S.C. 1255(h)(2)(B); INA 212(d)(3)(A), 8
                U.S.C. 1182(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.\4\ Additionally, section 212(a)(4)(B)(ii) of the
                INA, 8 U.S.C. 1182(a)(4)(B)(ii), permits the consular officer or the
                immigration officer to consider any Affidavit of Support Under Section
                213A of the INA submitted on the applicant's behalf when determining
                whether the applicant is likely at any time to become a public
                charge.\5\ Most noncitizens seeking family-based immigrant visas or
                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 under section 212(a)(4) of the INA, 8 U.S.C.
                1182(a)(4).\6\
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                 \4\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
                 \5\ When required, the applicant must submit an Affidavit of
                Support Under Section 213A of the INA (Form I-864 or Form I-864EZ).
                 \6\ See INA section 212(a)(4)(C), (D), 8 U.S.C. 1182(a)(4)(C),
                (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.\7\ The purpose of issuing a
                public charge bond is to ensure that the noncitizen will not become a
                public charge in the future.\8\ Since the introduction of the Affidavit
                of Support Under Section 213A of the INA, the use of public charge
                bonds has decreased, and USCIS does not currently administer a public
                charge bond process.\9\
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                 \7\ See INA section 213, 8 U.S.C. 1183.
                 \8\ See Matter of Viado, 19 I&N Dec. 252 (BIA 1985).
                 \9\ See Adjudicator's Field Manual (AFM) Ch. 61.1(b), available
                at https://www.uscis.gov/sites/default/files/document/policy-manual-afm/afm61-external.pdf (last visited June 4, 2021).
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                 Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of
                applicants for admission, including admissibility 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. Regulatory History
                 The public charge ground of inadmissibility has been the subject of
                numerous judicial and administrative decisions, as well as
                administrative guidance and regulations. On May 26, 1999, soon after
                enactment of the Illegal Immigration Reform and Immigrant
                Responsibility Act of 1996 (IIRIRA), which amended the public charge
                ground of inadmissibility,\10\ INS issued Interim Field Guidance on
                Deportability and Inadmissibility on Public Charge Grounds (1999
                Interim Field Guidance).\11\ This guidance identified
                [[Page 47027]]
                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)(4), 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). INS proposed promulgating these policies as
                regulations in a proposed rule issued on May 26, 1999, but no final
                rule was issued.\12\ The Department of State (DOS) also issued a cable
                to its consular officers at that time implementing similar guidance for
                visa adjudications, and similarly updated its Foreign Affairs Manual
                (FAM).\13\ Until 2019, INS and later, USCIS, followed the 1999 Interim
                Field Guidance in their adjudications. DOS followed its public charge
                guidance as set forth in the FAM.\14\
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                 \10\ Public Law 104-208, div. C, 110 Stat 3009-546. DHS notes
                that a few months after IIRIRA was enacted, Congress enacted the
                Personal Responsibility and Work Opportunity Reconciliation Act of
                1996 (PRWORA), Public Law 104-193, 11 Stat. 2105, which included a
                statement of national policy regarding immigration and welfare
                generally. The statement provides, among other things, that ``it
                continues to be the immigration policy of the United States that
                aliens within the Nation's borders not depend on public resources to
                meet their needs, but rather rely on their own capabilities and the
                resources of their families, their sponsors, and private
                organizations, and the availability of public benefits not
                constitute an incentive for immigration to the United States.'' See
                8 U.S.C. 1601.
                 \11\ 64 FR 28689 (May 26, 1999). Due to a printing error, the
                Federal Register version of the field guidance appears to be dated
                ``March 26, 1999'' even though the guidance was actually signed May
                20, 1999, became effective May 21, 1999 and was published in the
                Federal Register on May 26, 1999.
                 \12\ See Inadmissibility and Deportability on Public Charge
                Grounds, 64 FR 28676 (May 26, 1999).
                 \13\ See 9 FAM 40.41.
                 \14\ See 9 FAM 302.8-2(B)(2), Determining ``Totality of
                Circumstances,'' (g) Public Charge Bonds, available at https://fam.state.gov/fam/09fam/09fam030208.html. Note that on January 3,
                2018, DOS amended its FAM guidance, which retained the definitions
                and framework from the prior guidance, but changed the manner in
                which DOS evaluated the Affidavit of Support Under Section 213A of
                the INA as well as how it considered the receipt of non-cash
                benefits by applicants, sponsors, and family members.
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                 In August 2019, DHS issued a final rule titled Inadmissibility on
                Public Charge Grounds (2019 Final Rule).\15\ 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 months in the aggregate within any 36-month period (such that,
                for instance, receipt of two benefits in one month counts as two
                months).'' \16\ 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.\17\ The
                applicability of some provisions of the 2019 Final Rule was limited in
                certain ways, including with respect to active duty military members
                and their spouses and children, and for children in certain
                contexts.\18\
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                 \15\ See 84 FR 41292 (Aug. 14, 2019); see also 84 FR 52357 (Oct.
                2, 2019) (making corrections). In October 2019, DOS issued a
                conforming rule. See 84 FR 54996 (Oct. 11, 2019).
                 \16\ See 84 FR 41292 (Aug. 14, 2019).
                 \17\ See 84 FR 41292 (Aug. 14, 2019).
                 \18\ See 84 FR 41292 (Aug. 14, 2019). For example, under that
                rule, public benefits did not include benefits received by a person
                who, at the time of receipt, filing the application for admission or
                adjustment of status, or adjudication, was enlisted in the U.S.
                Armed Forces, serving in active duty or in the Ready Reserve
                component of the U.S. Armed Forces, or benefits received by the
                spouse or child of such a service member. Moreover, 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.
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                 The 2019 Final Rule also established an evidentiary framework for
                USCIS' consideration of public charge inadmissibility and explained how
                DHS would interpret the minimum statutory factors for determining
                whether, ``in the opinion of'' \19\ 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, that collected information from
                applicants relevant to the 2019 Final Rule's approach to the statutory
                factors.\20\
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                 \19\ See INA section 212(a)(4)(A), 8 U.S.C. 1182(a)(4)(A).
                 \20\ The Declaration of Self-Sufficiency requirement only
                applied to adjustment of status applicants and not to applicants for
                admission at a port of entry.
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                 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.\21\
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                 \21\ See 84 FR 41292 (Aug. 14, 2019). The 2019 Final Rule also
                contained provisions that would render certain nonimmigrants
                ineligible for extension of stay or change of status if they
                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 change.
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                 The 2019 Final Rule was preliminarily enjoined by U.S. district
                courts in the Southern District of New York, District of Maryland,
                Northern District of California, Eastern District of Washington, and
                Northern District of Illinois.\22\ Following a series of stays of the
                preliminary injunctions,\23\ DHS began applying the Final Rule on
                February 24, 2020. Since that time, preliminary injunctions against the
                Final Rule were affirmed by the Second, Seventh, and Ninth Circuit
                Courts of Appeals.\24\ On November 2, 2020, the U.S. District Court for
                the Northern District of Illinois issued a Rule 54(b) judgment vacating
                the rule on the merits.\25\ On November 3, 2020, the Seventh Circuit
                granted an administrative stay of the district court's judgment and, on
                November 19, 2020, the Seventh Circuit granted a stay pending appeal.
                On March 9, 2021, DHS moved to dismiss its appeal before the Seventh
                Circuit, the Seventh Circuit dismissed the appeal, and the Rule 54(b)
                judgment went into effect.
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                 \22\ See City and Cnty. of San Francisco v. USCIS, 408 F. Supp.
                3d 1057 (N.D. Cal. 2019); Cook County, Ill. v. McAleenan, 417 F.
                Supp. 3d 1008 (N.D. Ill. 2019); Casa de Md. v. Trump, 414 F. Supp.
                3d 760 (D. Md. 2019) Make the Road New York v. Cuccinelli, 419 F.
                Supp. 3d 647 (S.D.N.Y. 2019); Wash. v. DHS, 408 F. Supp. 3d 1191
                (E.D. Wash. 2019).
                 \23\ See Wolf v. Cook County, 140 S. Ct. 681 (2020) (staying
                preliminary injunction from the Northern District of Illinois); DHS
                v. New York, 140 S. Ct. 599 (2020) (staying preliminary injunctions
                from the Southern District of New York); City and Cnty. of San
                Francisco v. USCIS, 944 F.3d 773 (9th Cir. 2019) (staying
                preliminary injunctions from the Eastern District of Washington and
                Northern District of California); CASA de Md. v. Trump, No. 19-2222
                (4th Cir. Dec. 9, 2019) (staying preliminary injunction from the
                District of Maryland).
                 \24\ See New York v. DHS, 969 F.3d 42 (2d Cir. 2020); Cook
                County, Ill. v. Wolf, 962 F.3d 208 (7th Cir. 2020); City and Cnty.
                of San Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2020); see also
                Casa de Md. v. Trump, 981 F.3d 311 (4th Cir. 2020) (granting en banc
                review and vacating a panel opinion that had reversed a preliminary
                injunction). In July 2020, the Southern District of New York issued
                a second preliminary injunction against the Final Rule for reasons
                related to the COVID-19 pandemic, which the Second Circuit later
                stayed. See New York v. DHS, 475 F. Supp. 3d 208 (S.D.N.Y. 2020),
                injunction stayed, 974 F.3d 210 (2d Cir. 2020).
                 \25\ See Cook County, Ill. v. Wolf, No. 19-C-6334, 2020 WL
                6393005 (N.D. Ill. Nov. 2, 2020).
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                 As a result of the judgment, DHS ceased to apply the 2019 Final
                Rule and instead reverted to the policy that was in effect prior to
                that rule, i.e., the 1999 Interim Field Guidance. DHS also removed the
                regulatory text that DHS had promulgated in the 2019 Final Rule and
                that had been vacated by the district court, thereby restoring the
                regulatory text to appear as it did prior to the 2019 Final Rule's
                issuance.\26\
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                 \26\ 86 FR 14221 (Mar. 15, 2021).
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                 DHS notes that on February 2, 2021, President Biden issued
                Executive Order 14012, Restoring Faith in Our Legal Immigration System
                and Strengthening Integration and Inclusion Efforts for New
                Americans.\27\ In the Executive Order, the President declared a
                national policy ``to ensure that our laws and policies encourage full
                participation by immigrants, including refugees, in our civic life;
                that immigration processes and other benefits are delivered effectively
                and efficiently; and that the Federal Government eliminates sources of
                fear and other barriers that prevent immigrants from accessing
                government services available to them.'' \28\ The President also
                specifically directed a review of public charge policies by the
                Secretary of State, the Attorney General, and the Secretary of Homeland
                Security, in consultation with the heads of relevant agencies.
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                 \27\ 86 FR 8277 (Feb. 5, 2021).
                 \28\ 86 FR 8277 (Feb. 5, 2021).
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                [[Page 47028]]
                III. Request for Information
                 DHS is publishing this ANPRM to seek broad public feedback on the
                public charge ground of inadmissibility that will inform DHS's
                consideration of further rulemaking action. DHS is in the process of
                preparing a regulatory proposal that will be fully consistent with law;
                that will reflect empirical evidence to the extent relevant and
                available; that carefully considers public comments; that will be
                clear, fair, and comprehensible for officers as well as for noncitizens
                and their families; that will lead to fair and consistent adjudications
                and thus avoid unequal treatment of similarly situated individuals; and
                that will not otherwise unduly impose barriers for noncitizens seeking
                admission or adjustment of status in the United States.\29\ DHS also
                intends to ensure that any regulatory proposal does not unduly
                interfere with the receipt of public benefits by applicants and their
                families, particularly in light of the COVID-19 pandemic and the
                resulting long-term public health and economic impacts in the United
                States.\30\
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                 \29\ See Executive Order 14012 (Restoring Faith in Our Legal
                Immigration System and Strengthening Integration and Inclusion
                Efforts for New Americans), 86 FR 8277 (Feb. 5, 2021).
                 \30\ See, e.g., International Labor Organization, Food and
                Agricultural Organization of the United Nations, International Fund
                for Agricultural Development, and World Health Organization Joint
                Statement, ``Impact of COVID-19 on people's livelihoods, their
                health and our food systems'' (2020), https://www.who.int/news/item/13-10-2020-impact-of-covid-19-on-people's-livelihoods-their-health-
                and-our-food-systems (last visited Jul. 14, 2021); Pew Research
                Center, A Year Into the Pandemic, Long-Term Financial Impact Weighs
                Heavily on Many Americans (2021), https://www.pewresearch.org/social-trends/wp-content/uploads/sites/3/2021/03/PSD_03.05.21.covid_.impact_fullreport.pdf (last visited Jul. 14,
                2021); Health Affairs, Spillover Effects of the COVID-19 Pandemic
                Could Drive Long-Term Health Consequences for Non-COVID-19 Patients
                (2020), https://www.healthaffairs.org/do/10.1377/hblog20201020.566558/full/ (last visited Jul. 14, 2021).
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                 DHS welcomes and will carefully consider public input on all
                aspects of public charge inadmissibility in its ongoing rulemaking
                efforts in this area, consistent with its broad authority to administer
                the U.S. immigration system. In addition to inviting written comments,
                DHS is providing the public with the opportunity to participate in
                virtual public listening sessions. For information about those
                sessions, please see the Public Participation and Dates sections of
                this document.
                A. Purpose and Definition of Public Charge
                1. Background
                 As noted, the INA does not define the term ``public charge,'' but
                specifies that consular and immigration officers must, at a minimum,
                consider the noncitizen's age; health; family status; assets,
                resources, and financial status; and education and skills when making
                public charge inadmissibility determinations.\31\
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                 \31\ See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
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                 As part of this rulemaking, DHS expects to codify a definition of
                public charge that (1) is consistent with law; (2) is easily
                understood; (3) is straightforward to apply in a fair, consistent, and
                predictable manner; (4) reflects consideration of relevant national
                policies; and (5) will not unduly impose barriers for noncitizens
                seeking admission or adjustment of status in the United States.
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic described
                above, and would particularly benefit from commenters addressing one or
                more of the following questions, including the reasoning, data, and
                information behind their comments:
                 1. How should DHS define the term ``public charge''?
                 2. What data or evidence is available and relevant to how DHS
                should define the term ``public charge''?
                 3. How might DHS define the term ``public charge'', or otherwise
                draft its rule, so as to minimize confusion and uncertainty that could
                lead otherwise-eligible individuals to forgo the receipt of public
                benefits?
                 4. What national policies, including the policies referenced
                throughout this ANPRM, policies related to controlling paperwork
                burdens on the public, and policies related to promoting the public
                health and general well-being, should DHS consider when defining the
                term ``public charge'' and administering the statute more generally?
                 5. What potentially disproportionate negative impacts on
                underserved communities (e.g., people of color, persons with
                disabilities) could arise from the definition of ``public charge'' and
                how could DHS avoid or mitigate them?
                 6. What tools and approaches can DHS use to ensure that future
                rulemaking is appropriately informed by available evidence? \32\
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                 \32\ Consistent with Executive Orders 12866 and 13563, DHS is
                committed to evidence-based policymaking. DHS is aware of at least
                one recent attempt to use available data and machine-learning tools
                to estimate the probability of a noncitizen becoming a public charge
                (as that term was defined under the 2019 Final Rule). See Mitra
                Akhtari et al., Estimating the Likelihood of Becoming a ``Public
                Charge,'' N.Y.U. J. Legis. & Pub. Pol'y Quorum (Aug. 2, 2021),
                https://nyujlpp.org/quorum/estimating-the-empirical-likelihood-of-becoming-a-public-charge/ (accessed Aug. 4, 2021). DHS welcomes
                comments on the approach described in that paper; alternative
                approaches that may appropriately leverage available evidence and
                tools; and the potential implications of such approaches for this
                rulemaking.
                ---------------------------------------------------------------------------
                B. Prospective Nature of the Public Charge Inadmissibility
                Determination
                1. Background
                 As noted in the 1999 Interim Field Guidance, the existing test for
                adjudicating public charge inadmissibility ``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. These
                decisions and regulations, and section 212(a)(4) itself, create a
                `totality of the circumstances' test.'' \33\ The vacated 2019 Final
                Rule also required that the public charge inadmissibility determination
                ``be based on 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 receive one or more public benefits.''
                \34\ Under the vacated 2019 Final Rule, at a minimum, officers were to
                consider all of the mandatory factors set forth in the statute, as well
                as the noncitizen's prospective immigration status and expected period
                of admission, and (where applicable) a sufficient Affidavit of Support
                Under Section 213A of the INA.\35\
                ---------------------------------------------------------------------------
                 \33\ See 64 FR 28689, 28690 (May 26, 1999).
                 \34\ See 84 FR 41292, 41502 (Aug. 14, 2019).
                 \35\ See 84 FR 41292, 41423 (Aug. 14, 2019).
                ---------------------------------------------------------------------------
                 Through a future rulemaking, DHS may seek to clarify how officers
                should consider a noncitizen's past and present circumstances in
                determining the likelihood that they will become a public charge at any
                time in the future.
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic described
                above, but would particularly benefit from commenters addressing one or
                more of the following questions, including the reasoning, data, and
                information that inform their comments:
                [[Page 47029]]
                1. To the extent that DHS considers a noncitizen's past or current
                receipt of public benefits, for what period of time before the public
                charge inadmissibility determination should DHS consider the
                noncitizen's receipt of public benefits? Why is that time period
                relevant?
                C. Statutory Factors
                1. Background
                 Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), states
                that DHS must, at a minimum, consider the noncitizen's age; health;
                family status; assets, resources, and financial status; and education
                and skills.\36\ DHS may also consider any Affidavit of Support under
                Section 213A of the INA, which is described below in Section D.\37\
                ---------------------------------------------------------------------------
                 \36\ See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i).
                 \37\ See INA section 212(a)(4)(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, as well as any
                Affidavit of Support Under Section 213A of the INA submitted, and that
                ``[e]very denial order based on public charge must reflect
                consideration of each of these factors and specifically articulate the
                reasons for the officer's determination.'' \38\ The guidance suggested
                that factors would be either positive or negative,\39\ but did not
                explain what evidence 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.\40\
                ---------------------------------------------------------------------------
                 \38\ See 64 FR 28689, 28689-90 (May 26, 1999).
                 \39\ See 64 FR 28689, 28689-90 (May 26, 1999).
                 \40\ See 64 FR 28689, 28689-90 (May 26, 1999). As explained more
                fully elsewhere in this document, 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 vacated 2019 Final Rule, DHS also required officers to
                consider the mandatory statutory factors, as well as a sufficient
                Affidavit of Support Under Section 213A of the INA, if submitted, in
                the totality of the circumstances, when assessing an applicant's
                likelihood of becoming a public charge at any time in the future.\41\
                That rule provided certain standards for officers to use in assessing
                each factor and also identified evidence that USCIS deemed relevant for
                the consideration of these factors.\42\
                ---------------------------------------------------------------------------
                 \41\ See 84 FR 41307. As explained more fully elsewhere, the
                rule also required consideration of an additional factor not
                referenced in the statute.
                 \42\ See 84 FR 41292 (Aug. 14, 2019).
                ---------------------------------------------------------------------------
                 Through a future rulemaking, DHS may seek to clarify how officers
                should consider the statutory factors in making a public charge
                inadmissibility determination, as well as any other factors relevant to
                assessing an applicant's likelihood of becoming a public charge at any
                time.
                2. Questions for the Public
                 DHS welcomes public comment on the topic described above, but would
                particularly benefit from commenters addressing one or more of the
                following questions including the reasoning, data, and information
                behind their comments:
                 1. Which factors (whether statutory factors or any other relevant
                factors identified by the commenter) are most predictive of whether a
                noncitizen is likely (or is not likely) to become a public charge? To
                the extent that data exist on this question, how can DHS use such data
                to improve public charge policymaking and adjudication?
                 2. How can DHS address the potential for perceived or actual
                unfairness or discrimination in public charge inadmissibility
                adjudications, whether due to cognitive, racial, or other biases;
                arbitrariness; variations in outcomes across cases with similar facts;
                or other reasons?
                 3. What kinds of tools (in regulation or policy guidance) could DHS
                provide to the public and adjudicators to make the totality of the
                circumstances determination more predictable and less subject to
                variation in different cases presenting similar facts?
                 4. Should DHS give any more or less consideration to any one or
                more of the statutory factors, the Affidavit of Support Under Section
                213A of the INA, or any additional factors DHS may add through the
                rulemaking process in a public charge inadmissibility determination?
                 5. In the adjustment of status context, how should DHS request the
                necessary information to consider the mandatory statutory factors for
                each adjudication, without imposing undue paperwork burdens on the
                public and adjudicators?
                a. Age
                 1. How should an applicant's age be considered as part of the
                public charge inadmissibility determination?
                b. Health
                 1. How should DHS define health for the purposes of a public charge
                inadmissibility determination?
                 2. Should DHS consider disabilities and/or chronic health
                conditions as part of the health factor? If yes, how should DHS
                consider these conditions and why?
                 3. How should the Rehabilitation Act of 1973's prohibition of
                discrimination on the basis of disability be considered in DHS's
                analysis of the health factor? \43\
                ---------------------------------------------------------------------------
                 \43\ Note that under Executive Order 12250, DOJ is charged with
                coordinating the implementation and enforcement by Executive
                agencies of Section 504 of the Rehabilitation Act.
                ---------------------------------------------------------------------------
                 4. How should DHS consider the Report of Medical Examination and
                Vaccination Record, Form I-693, as part of the health factor?
                 5. Should DHS account for social determinants of health to avoid
                unintended disparate impacts on historically disadvantaged groups? If
                yes, how should DHS consider this limited access and why?
                c. Family Status
                 1. How should DHS define and consider family status for the
                purposes of a public charge inadmissibility determination?
                 2. How should an applicant's household size be considered as part
                of the family status factor? What definition of an applicant's
                household size should DHS use for the public charge inadmissibility
                determination?
                d. Assets, Resources, and Financial Status
                 1. What types of assets and resources are relevant to a public
                charge inadmissibility determination?
                 2. Whose assets and resources should be considered as part of this
                factor?
                 3. How should DHS define financial status for the purposes of a
                public charge inadmissibility determination?
                 4. How should DHS address the challenges faced by those not served
                by a bank or similar financial institution in demonstrating their
                assets, resources, and financial status?
                 5. Should DHS consider an applicant's financial obligations (such
                as child or spousal support), debt, or bankruptcy in a public charge
                inadmissibility determination? If yes, how should DHS consider an
                applicant's debt, bankruptcy, or financial obligations when evaluating
                an applicant's financial status and why?
                 6. Should DHS address its assessment of the relationship between
                the applicant's assets, resources, and financial status in the context
                of his or her particular circumstances (e.g., costs of living in the
                applicant's geographic location) in its rulemaking? If yes, how so?
                [[Page 47030]]
                 7. What data sources and criteria should DHS use to assess the
                sufficiency of the applicant's assets, resources, and financial status?
                 8. Should DHS consider the varied economic opportunities afforded
                to applicants to avoid unintended disparate impacts? If yes, how should
                DHS consider these limited opportunities and why?
                e. Education and Skills
                 1. How should DHS consider an applicant's education and skills in
                making a public charge inadmissibility determination?
                 2. What education and skills should DHS consider in making a public
                charge inadmissibility determination?
                 3. Should DHS consider the varied access to educational
                opportunities afforded to applicants to avoid disparate impacts? If
                yes, how should DHS consider this limited access and why?
                D. Affidavit of Support Under Section 213A of the INA
                1. Background
                 Most family-based and some employment-based applicants for
                adjustment of status are required to submit an Affidavit of Support
                Under Section 213A of the INA, Form I-864 or Form I-864EZ, executed by
                a sponsor, which is usually the U.S. citizen or LPR who filed the
                immigrant visa petition on the adjustment applicant's behalf.\44\ The
                absence of a sufficient Affidavit of Support Under Section 213A of the
                INA, where required, will result in a finding of inadmissibility under
                section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), without
                consideration of the mandatory statutory factors.\45\ Under section
                212(a)(4)(B)(ii) of the INA, 8 U.S.C. 1182(a)(4)(B)(ii), DHS may
                consider a sufficient Affidavit of Support Under Section 213A of the
                INA \46\ for the purposes of determining the applicant's likelihood of
                becoming a public charge at any time.
                ---------------------------------------------------------------------------
                 \44\ See INA sections 212(a)(4)(C), (D) and 213A, 8 U.S.C.
                1182(a)(4)(C) and (D).
                 \45\ See INA sections 212(a)(4)(C), (D) and 213A, 8 U.S.C.
                1182(a)(4)(C) and (D).
                 \46\ A sufficient Affidavit of Support Under Section 213A of the
                INA is one in which the sponsor has demonstrated that he or she has
                enough income and/or assets to maintain the sponsored noncitizen and
                the rest of the sponsor's household at 125% of the Federal Poverty
                Guidelines (FPG) for that household size (or at 100 percent of the
                FPG if the sponsor is active duty in the U.S. Armed Forces or U.S.
                Coast Guard). See INA section 213A, 8 U.S.C. 1183a.
                ---------------------------------------------------------------------------
                 The 1999 Interim Field Guidance did not specifically address how
                officers should consider the Affidavit of Support Under Section 213A of
                the INA for the purposes of the totality of the circumstances
                determination as set forth in section 212(a)(4)(B)(ii) of the INA, 8
                U.S.C. 1182(a)(4)(B)(ii), focusing instead on how a sponsor's receipt
                of means-tested public benefits was considered for the purposes of
                determining the sufficiency of the affidavit.\47\ However, in the
                vacated 2019 Final Rule, DHS described how officers would consider a
                sufficient Affidavit of Support Under Section 213A of the INA.\48\ In
                that rule, DHS provided that adjudicators would consider the likelihood
                that the sponsor would actually provide the statutorily required amount
                of financial support to the noncitizen as part of the totality of the
                circumstances determination.\49\
                ---------------------------------------------------------------------------
                 \47\ See 64 FR 28689, 28693 (May 26, 1999).
                 \48\ See 84 FR 41292, 41440 (Aug. 14, 2019).
                 \49\ See 84 FR 41292, 41504 (Aug. 14, 2019).
                ---------------------------------------------------------------------------
                 In a future rulemaking, DHS may seek to address the manner in which
                a sufficient Affidavit of Support Under Section 213A of the INA is
                considered as part of a public charge inadmissibility determination.
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic described
                above, but would particularly benefit from commenters addressing one or
                more of the following questions, including the reasoning, data, and
                information behind their comments:
                 1. How should DHS consider a sufficient Affidavit of Support Under
                Section 213A of the INA in the public charge inadmissibility
                determination?
                 2. What weight should DHS give to a sufficient Affidavit of Support
                Under Section 213A of the INA in comparison to the mandatory statutory
                factors in the public charge inadmissibility determination?
                E. Other Factors To Consider
                1. Background
                 Section 212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), states
                that DHS must, at minimum, consider the individual's age; health;
                family status; assets, resources, and financial status; and education
                and skills. DHS may also consider any Affidavit of Support Under
                Section 213A of the INA, which is described above in Section D. The
                statute's inclusion of the words ``at minimum'' suggests that other
                factors, beyond those listed and the Affidavit of Support Under Section
                213A of the INA, may be considered when determining whether an
                individual is likely to become a public charge.
                 While the 1999 Interim Field Guidance suggests that there are other
                factors besides the mandatory factors and the Affidavit of Support
                Under Section 213A of the INA that are considered in the totality of
                the circumstances, that guidance did not specify or explain those other
                factors.\50\ The vacated 2019 Final Rule, however, promulgated one
                additional factor apart from the factors set forth in section
                212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B)--the noncitizen's
                prospective immigration status and expected period of admission.\51\
                ---------------------------------------------------------------------------
                 \50\ See 64 FR 28689, 28690 (May 26, 1999).
                 \51\ See 84 FR 41292, 41423 (Aug. 14, 2019).
                ---------------------------------------------------------------------------
                 In a future rulemaking, DHS may seek to address whether there are
                factors other than those identified in section 212(a)(4)(B) of the INA,
                8 U.S.C. 1184(a)(4)(B), that should be considered as part of a public
                charge inadmissibility determination.
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic described
                above, but would particularly benefit from commenters addressing the
                following questions including the reasoning, data, and information
                behind their comments:
                 1. What other factors, if any, should DHS consider as part of the
                public charge inadmissibility determination and why?
                 2. How, if at all, should DHS account for the fact that there are
                differences in the duration of time noncitizens are authorized to stay
                in the United States, and that many noncitizens subject to the public
                charge ground of inadmissibility are expected to remain in the United
                States for only a brief period of time?
                 3. What data or evidence is available and relevant to the question
                above?
                F. Public Benefits Considered
                1. Background
                 The former INS, in the 1999 Interim Field Guidance, recognized a
                link between public charge and the receipt of public benefits by
                defining public charge in terms of primary dependence on the government
                for subsistence, and in directing officers to consider the receipt of
                public cash assistance for income maintenance or institutionalization
                for long-term care at government expense.\52\ In tying the receipt of
                cash assistance for income maintenance to public charge, the former INS
                believed it would be able to ``identify those who are primarily
                dependent on the government for subsistence without inhibiting access
                to non-cash benefits that serve important public interests.'' \53\ The
                former INS's focus on cash assistance for income maintenance reflected
                the determination
                [[Page 47031]]
                that receipt of benefits under these programs was more reflective of
                poverty or dependence, while such was not the case for most non-cash
                benefits, which (with the exception of institutionalization for long-
                term care at government expense) were not considered.\54\ Finally, the
                former INS also tried to address the negative impacts on public health
                and general welfare caused by individuals forgoing the receipt of such
                non-cash benefits to avoid negative immigration consequences.\55\
                ---------------------------------------------------------------------------
                 \52\ See 64 FR 28689, 28692 (May 26, 1999).
                 \53\ See 64 FR 28689, 28692 (May 26, 1999).
                 \54\ See 64 FR 28689, 28692 (May 26, 1999).
                 \55\ See 64 FR 28689, 28692 (May 26, 1999).
                ---------------------------------------------------------------------------
                 In the vacated 2019 Final Rule, DHS also recognized a link between
                public charge and receipt of public benefits, but determined ``that
                neither the wording of section 212(a)(4) of the Act, 8 U.S.C.
                1182(a)(4), nor case law examining public charge inadmissibility,
                mandates the `primarily dependent' standard [set forth in the 1999
                Interim Field Guidance] . . . .'' \56\ Emphasizing the policy
                statements contained in PRWORA,\57\ the vacated 2019 Final Rule
                expanded the types of public benefits considered as part of a public
                charge inadmissibility determination to include not only public cash
                assistance for income maintenance but also certain designated public
                non-cash benefits.\58\
                ---------------------------------------------------------------------------
                 \56\ See 84 FR 41292, 41349 (Aug. 14, 2019).
                 \57\ See 8 U.S.C. 1601.
                 \58\ See 84 FR 41292, 41439 (Aug. 14, 2019).
                ---------------------------------------------------------------------------
                 In a future rulemaking, DHS may seek to clarify whether and which
                public benefits should be considered as part of a public charge
                inadmissibility determination.
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic discussed
                above, but would particularly benefit from commenters addressing one or
                more of the following questions including the reasoning, data, and
                information behind their comments:
                 1. Should DHS consider the receipt of public benefits (past and/or
                current) in the public charge inadmissibility determination? If yes,
                how should DHS consider the receipt of public benefits and why?
                 2. Which public benefits should be considered as part of a public
                charge inadmissibility determination?
                 3. Which public benefits, if any, should not be considered as part
                of a public charge inadmissibility determination?
                 4. How should DHS 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? What data and information should DHS
                consider about the direct and indirect effects of past public charge
                policies in this regard?
                G. Previous Rulemaking Efforts
                1. Background
                 DHS and its predecessor, INS, engaged in two previous rulemaking
                efforts as discussed in greater detail above in Part II, Section C. On
                May 26, 1999, INS issued a NPRM, which proposed how the agency would
                determine if a noncitizen is likely at any time to become a public
                charge under section 212(a)(4) of the INA, 8 U.S.C. 1182(a), for
                admission and adjustment of status purposes, and whether a noncitizen
                in and admitted to the United States has become a public charge within
                5 years after the date of entry for causes not affirmatively shown to
                have arisen since entry under section 237(a)(5) of the INA, 8 U.S.C.
                1227(a)(5).\59\ That NPRM, and the related 1999 Interim Field Guidance,
                provided a definition for public charge, specified the public benefits
                that would and would not be considered as part of a public charge
                determination, established a prospective totality of the circumstances
                framework that considered the factors set forth in section 212(a)(4)(B)
                of the INA, 8 U.S.C. 1182(a)(4)(B), and clarified how the Affidavit of
                Support Under Section 213A of the INA is used. INS and later DHS never
                finalized the 1999 NPRM.
                ---------------------------------------------------------------------------
                 \59\ See Inadmissibility and Deportability on Public Charge
                Grounds, 64 FR 28676 (May 26, 1999).
                ---------------------------------------------------------------------------
                 On August 14, 2019, DHS issued a final rule addressing the public
                charge ground of inadmissibility.\60\ The rule provided a new
                definition for public charge; specified the public benefits that would
                be considered as part of a public charge inadmissibility determination;
                established a prospective totality of the circumstances framework that
                required consideration of all of the factors set forth in section
                212(a)(4)(B) of the INA, 8 U.S.C. 1182(a)(4)(B), as well as one
                additional factor; specified the standards and evidence that would be
                considered in the public charge inadmissibility determination; created
                a new Form I-944 for public charge inadmissibility determinations in
                the adjustment of status context; and changed the regulations for
                public charge bonds.\61\
                ---------------------------------------------------------------------------
                 \60\ See 84 FR 41292 (Aug. 14, 2019), as amended by
                Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357
                (Oct. 2, 2019).
                 \61\ See 84 FR 41292 (Aug. 14, 2019), as amended by
                Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357
                (Oct. 2, 2019).
                ---------------------------------------------------------------------------
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic described
                above, but would particularly benefit from commenters addressing one or
                more of the following questions including the reasoning, data, and
                information behind their comments:
                 1. What aspects of the 1999 Interim Field Guidance, if any, should
                be included in a future public charge inadmissibility rulemaking and
                why?
                 2. What aspects of the 1999 NPRM, if any, should be included in a
                future public charge inadmissibility rulemaking and why?
                 3. What aspects of the vacated 2019 Final Rule, if any, should be
                included in a future public charge inadmissibility rulemaking and why?
                 4. What data are available to estimate any potential direct and
                indirect effects, economic or otherwise, of the public charge ground of
                inadmissibility, the 1999 Interim Field Guidance, or the vacated 2019
                Final Rule? For instance, what data are available to estimate any
                potential direct and indirect effects, economic or otherwise, on
                individuals, social service organizations, hospitals, businesses, and
                other persons and entities?
                H. Bond and Bond Procedures
                1. Background
                 If a noncitizen is determined to be inadmissible based on the
                public charge ground, but is otherwise admissible, the person may be
                admitted in the discretion of the Secretary of Homeland Security upon
                the giving of a suitable and proper bond under section 213 of the INA,
                8 U.S.C. 1183. That section authorizes the Secretary to establish the
                amount and conditions of such bond. Regulations implementing the public
                charge bond were promulgated in 1964 and 1966,\62\ and are currently
                found at 8 CFR 103.6 and 8 CFR 213.1.
                ---------------------------------------------------------------------------
                 \62\ See Miscellaneous Amendments to Chapter, 29 FR 10579 (July
                30, 1964); Miscellaneous Edits to Chapter, 31 FR 11713 (Sept. 7,
                1966).
                ---------------------------------------------------------------------------
                 The 1999 Interim Field Guidance noted that the agency had the
                discretionary authority to offer public charge bonds, but did not
                otherwise explain the manner in which the agency would exercise that
                discretion.\63\ In the vacated 2019 Final Rule, DHS established a
                framework to offer public charge bonds under section 213 of the
                [[Page 47032]]
                INA, 8 U.S.C. 1183, to adjustment of status applicants inadmissible
                only on the public charge ground, which included the minimum bond
                amount, conditions under which a bond was breached, and when a public
                charge bond would be cancelled.\64\
                ---------------------------------------------------------------------------
                 \63\ See 64 FR 28689, 28693 (May 26, 1999).
                 \64\ See 84 FR 41292, 41299 (Aug. 14, 2019).
                ---------------------------------------------------------------------------
                 In a future rulemaking, DHS may seek to establish a public charge
                bond process.
                2. Questions for the Public
                 DHS welcomes public comment on all aspects of the topic described
                above, but would particularly benefit from commenters addressing one or
                more of the following questions including the reasoning, data, and
                information behind their comments:
                 1. What standard should DHS use to determine whether to exercise
                its discretion and authorize a noncitizen inadmissible only under the
                public charge ground to submit a public charge bond?
                 2. Should DHS establish a minimum bond amount? If yes, how should
                DHS establish that minimum bond amount and how should DHS adjust that
                minimum bond amount over time?
                 3. What factors should DHS consider in establishing a bond amount
                for a particular inadmissible noncitizen?
                 4. Under what circumstances should DHS consider a public charge
                bond breached?
                 5. Under what circumstances should DHS consider a public charge
                bond cancelled?
                I. Specific Questions for State, Territorial, Local, and Tribal Benefit
                Granting Agencies and Nonprofit Organizations
                1. Background
                 DHS acknowledges that benefit granting agencies and nonprofit
                organizations may have valuable information and data regarding the
                receipt of public benefits and how benefit use intersects with the
                public charge ground of inadmissibility. DHS intends to formally
                consult with relevant Federal agencies, including benefits granting
                agencies, in connection with future rulemaking actions addressing the
                public charge ground of inadmissibility. As part of this ANPRM, DHS is
                specifically seeking feedback from state, territorial, local, and
                tribal benefit granting agencies, as well as nonprofit organizations.
                2. Questions for State, Territorial, Local, and Tribal Benefit Granting
                Agencies and Nonprofit Organizations
                 DHS welcomes public comment on all aspects of the topic described
                above, but would particularly benefit from commenters addressing one or
                more of the following questions including the reasoning, data, and
                information behind their comments:
                 1. What costs, if any, has your agency or organization incurred in
                order to implement changes in public charge policy, such as revising
                enrollment procedures and public-facing materials? Please provide
                relevant data.
                 2. What costs, if any, has your agency or organization incurred as
                a result of reduction in enrollment, or disenrollment in public
                benefits programs generally? Please provide relevant data.
                 3. What costs, if any, has your agency or organization incurred as
                a result of disenrollment or reduction in enrollment in public benefits
                programs caused by the public charge ground of inadmissibility, the
                1999 Interim Field Guidance, or the vacated 2019 Final Rule? Please
                provide relevant data.
                 4. With respect to the specific types of public benefits overseen
                by your agency, under what circumstances is the receipt of such
                benefits relevant, if at all, to assessing whether or not an individual
                is likely at any time to become a public charge?
                 5. What, if any, specific concerns does your agency or organization
                have about how DHS applies the public charge ground of inadmissibility
                and how should DHS address those concerns?
                 6. What data does your agency or organization have that can be
                shared to demonstrate any potential impact of the public charge ground
                of inadmissibility, the 1999 Interim Field Guidance, or the vacated
                2019 Final Rule on applications for or disenrollment from public
                benefits by individuals who are eligible for such benefits?
                 7. What information, data, or studies does your agency or
                organization have that can be shared that would help DHS identify
                factors or patterns of benefit use (e.g., duration, frequency, or
                extent of benefits use) that suggest whether and to what extent
                individuals would be likely to use public benefits in the future?
                 8. How should DHS reduce the possibility that individuals who are
                eligible for public benefits overseen by your agency would decide to
                forgo the receipt of those benefits out of concern that receipt of such
                benefits will make them (or a family member or household member)
                inadmissible on public charge grounds, even if receipt of such a
                benefit would not be considered by DHS in a public charge
                determination, or would not be a decisive factor in a public charge
                inadmissibility determination?
                Alejandro N. Mayorkas,
                Secretary of Homeland Security.
                [FR Doc. 2021-17837 Filed 8-20-21; 8:45 am]
                BILLING CODE 9111-97-P
                

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