Visas: Ineligibility Based on Public Charge Grounds
| Citation | 84 FR 54996 |
| Record Number | 2019-22399 |
| Published date | 11 October 2019 |
| Section | Rules and Regulations |
| Court | State Department |
Federal Register, Volume 84 Issue 198 (Friday, October 11, 2019)
[Federal Register Volume 84, Number 198 (Friday, October 11, 2019)]
[Rules and Regulations]
[Pages 54996-55015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22399]
[[Page 54995]]
Vol. 84
Friday,
No. 198
October 11, 2019
Part III Department of State-----------------------------------------------------------------------22 CFR Part 40 Visas: Ineligibility Based on Public Charge Grounds; Interim Final
Rule
Federal Register / Vol. 84 , No. 198 / Friday, October 11, 2019 /
Rules and Regulations
[[Page 54996]]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice: 10922]
RIN 1400-AE87
Visas: Ineligibility Based on Public Charge Grounds
AGENCY: State Department.
ACTION: Interim final rule; request for public comment.
-----------------------------------------------------------------------
SUMMARY: This final rule amends Department of State (``Department'')
regulations by prescribing how consular officers will determine whether
an alien is ineligible for a visa under the Immigration and Nationality
Act (``INA''), because he or she is likely at any time to become a
public charge. Aliens who seek a visa, application for admission, or
adjustment of status 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 ineligibility or if the alien obtained a
waiver. This interim final rule adds certain definitions, including
definitions of public charge, public benefit, alien's household, and
receipt of public benefit. This interim final rule reflects the
Department's interpretation of the pertinent section of the INA as it
applies to visa applicants. This rulemaking is also intended to align
the Department's standards with those of the Department of Homeland
Security, to avoid situations where a consular officer will evaluate an
alien's circumstances and conclude that the alien is not likely at any
time to become a public charge, only for the Department of Homeland
Security to evaluate the same alien when he seeks admission to the
United States on the visa issued by the Department of State and finds
the alien inadmissible on public charge grounds under the same facts.
The Department is also removing the reference to fee collection for
review and assistance with submitting an affidavit of support at
consular posts as consular posts do not collect this fee, and an
obsolete process related to bonds.
DATES: This interim final rule is effective 12 a.m., Eastern Time,
October 15, 2019. The Department of State will accept comments up to
November 12, 2019.
ADDRESSES: You may send comments, identified by [DOS-2019-0035 and/or
RIN: 1400-AE87], by the Federal eRulemaking Portal: http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Megan Herndon, Deputy Director for
Legal Affairs, Visa Services, Bureau of Consular Affairs, Department of
State, 600 19th St NW, Washington, DC 20006, (202) 485-7586,
[email protected].
SUPPLEMENTARY INFORMATION:
I. What changes are in Sec. 40.41?
This interim final rule codifies changes to 22 CFR 40.41, which is
the Department of State's (``Department'') interpretation and
implementation of the public charge ground of visa ineligibility,
section 212(a)(4) of the Immigration and Nationality Act (``INA'' or
``Act''), 8 U.S.C. 1182(a)(4). This interim final rule supersedes all
prior inconsistent guidance on the public charge visa ineligibility.
Accordingly, this supersedes all Department guidance that previously
limited the interpretation of ``likely at any time to become a public
charge'' as likely to become primarily dependent on the government
(federal, state, or local) for subsistence (previously limited to
public cash assistance for income maintenance or institutionalization
for long-term care at government expense).
The INA renders inadmissible (and therefore ineligible for a visa,
ineligible for admission to the United States, and ineligible for
adjustment of status) any alien who, in the opinion of a consular
officer (or the Departments of Homeland Security (``DHS'') or Justice
(``DOJ''), as applicable) is likely at any time to become a public
charge. The statute does not define the term ``public charge.'' The
statutory public charge provision provides that administering agencies
must ``at a minimum consider the alien's age; health; family status;
assets, resources, and financial status; and education and skills.''
The agencies may also consider any affidavit of support, under section
213A of the INA, 8 U.S.C. 1183a, (i.e., Form I-864, Affidavit of
Support Under Section 213A of the INA) submitted on the alien's behalf.
INA 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). In general, the public charge
ineligibility applies to both nonimmigrants and immigrants, although
some classes of nonimmigrants and immigrants are exempt from the
ineligibility ground. The DHS regulation at 8 CFR 212.23(a) lists the
categories of exempt aliens. This interim final rule neither alters the
classifications of aliens who are exempt from this ineligibility ground
nor bears on the classifications of visas available to aliens.
The interim final rule makes several changes to paragraph (a) Basis
for Determination of Ineligibility. First, the interim final rule adds
language from the statute, ``at any time,'' to the existing regulatory
language. Next, the interim final rule adds a reference to INA
212(a)(4)(D), 8 U.S.C. 1182(a)(4)(D), the requirement that an
employment-based immigrant whose relative filed the immigrant visa
petition or has a significant ownership interest in the entity that
filed the immigrant visa petition, is ineligible unless such relative
has executed a sufficient affidavit of support for such alien. The
interim final rule adds language indicating that the consular officer
will ``consider whether any third party'' listed in the affidavit of
support will be ``willing and able to financially support the alien
while the alien is in the United States.'' The Department is not
changing the temporal reference for the consular officer's
determination, which currently and under the interim final rule, is any
time ``after admission.''
Next, in paragraph (a), the interim final rule incorporates ``more
likely than not,'' the preponderance of the evidence standard, as the
Department's interpretation of ``likely'' relating to the standard that
consular officers will use when evaluating whether an alien is likely
to become a public charge.
Additionally in paragraph (a), the interim final rule cites to the
statutory requirement from section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), that consular officers will at the time of visa application
take into account statutory factors, including the alien's age; health;
family status; assets, resources, financial status; and education and
skills. More specifically, the interim final rule codifies Department
of State Foreign Affairs Manual (``FAM'') guidance that consular
officers must consider, at a minimum, those factors as part of the
totality of the applicant's circumstances. This interim final rule then
explains the Department's interpretation of each factor.
Age: Consular officers will consider whether the alien's age makes
the alien more likely than not to become a public charge in the
totality of the circumstances, such as by impacting the alien's ability
to work. Consular officers will consider an alien's age between 18 and
62 as a positive factor. Age will be considered a negative factor for
aliens who are under the age of 18 or over 62. However, consular
officers may consider other factors, such as the support provided to a
minor child by a parent, legal guardian, or other source, that in the
totality of the circumstances may offset the alien's age as a negative
factor. This generally restates current FAM guidance that being under
18 years old is a negative factor in the totality of the circumstances
if the visa applicant
[[Page 54997]]
is neither accompanied by a parent or guardian or following to join a
parent or guardian. The interim final rule also codifies into
regulation existing FAM guidance that an applicant's age is a negative
factor in the totality of the circumstances, if the consular officer
believes it adversely affects the person's ability to obtain or perform
work or may increase the potential for healthcare related costs that
would be borne by the public.
Health: Under the interim final rule, consular officers will
consider whether the alien's health serves as a positive or negative
factor in the totality of the circumstances, including whether the
alien has been diagnosed with a medical condition that is likely to
require extensive medical treatment or institutionalization or that
will interfere with the alien's ability to provide and care for himself
or herself, to attend school, or to work (if authorized). This new
provision clarifies current FAM guidance. The new provision adds that
consular officers will consider the report of a medical examination
performed by the panel physician where such examination is required,
including any medical conditions noted by the panel physician. A Class
B medical condition, including Class B forms of communicable diseases
of public health significance, as defined in 42 CFR part 34, will not,
standing alone, result in a finding of ineligibility for public charge.
In assessing the effect of the alien's health on a public charge
determination, the interim final rule provides that the consular
officer will consider evidence of health insurance or the ability to
pay for reasonably foreseeable medical expenses in the United States a
positive factor in the totality of the circumstances. Under this
standard, lack of health insurance alone would not make an alien more
likely than not to become a public charge at any time, but would
instead be considered in the totality of the alien's circumstances.
This standard generally reflects existing guidance that certain health
issues could increase the burden on the applicant to provide
information demonstrating the ability to pay for medical expenses in
the United States, potentially including proof of health insurance.
Family status: The interim final rule reflects that when
considering an alien's family status, consular officers will consider
the size of the alien's household, and whether the alien's household
size makes the alien likely to become a public charge at any time in
the future. The term ``alien's household'' is defined in paragraph (d).
Household size is a positive factor if the family size makes the alien
unlikely to receive public benefits at any time in the future.
Assets, resources, and financial status: The interim final rule
specifies several nonexclusive aspects of the alien's assets,
resources, and financial status consular officers will consider. First,
with regard to an alien's household gross income, the interim final
rule specifies that annual gross income for the applicant's household
size of at least 125 percent of the most recent Federal Poverty
Guidelines based on the applicant's household size (or 100 percent for
an applicant on active duty, other than training, in the Armed Forces),
is a positive factor. Second, if the applicant's annual household gross
income is less than 125 percent of the most recent Federal Poverty
Guidelines (or 100 percent for an applicant on active duty, other than
training, in the Armed Forces) based on the applicant's household size,
the applicant can submit evidence of ownership of assets, which may
affect the consular officer's determination. If the total value of the
household assets, offsetting for liabilities, is at least five times
the difference between the applicant's household gross income and 125
percent of the Federal Poverty Guidelines (or 100 percent for an
applicant on active duty, other than training, in the Armed Forces) for
the applicant's household size, then that will be considered a positive
factor. However, if the alien is the spouse or child of a U.S. citizen,
assets totaling three times the difference between the alien's
household gross income and 125 percent of the Federal Poverty
Guidelines (100 percent for those on active duty, other than training,
in the Armed Forces) for the alien's household size is a positive
factor. If the alien is a child who will be adopted in the United
States and who will likely receive citizenship under INA 320, 8 U.S.C.
1432, then assets equivalent to or greater than the difference between
the alien's household gross income and 125 percent of the Federal
Poverty Guidelines (100 percent for those on active duty, other than
training, in the Armed Forces) for the alien's household size is a
positive factor. This reflects a change from existing FAM guidance,
which recognizes income above 125 percent of the Federal Poverty
Guideline and assets in the amount of five times 125 percent of the
Federal Poverty Guideline generally as sufficient resources for
overcoming public charge concerns.
The interim final rule provides that, when considering an alien's
assets, resources, and financial status, consular officers may not
consider any income from illegal activities or sources, such as
proceeds from illegal gambling or drug sales, or income from public
benefits, as defined in the interim final rule. This policy is being
explicitly articulated for the first time. The interim final rule then
lists several specific nonexclusive factors consular officers will
consider in evaluating whether the alien's assets, resources, and
financial status make an alien likely to become a public charge. These
include the alien's household gross income; the alien's cash assets and
resources; non-cash assets and resources that can be converted into
cash within twelve months of the date of the visa application; the
alien's financial liabilities; whether the alien has applied for, been
certified to receive or approved to receive, or received, one or more
public benefits, as defined in paragraph (c) of this section on or
after October 15, 2019, or whether the alien has disenrolled or
requested to be disenrolled from such benefits; whether the alien has
received an immigration benefit fee waiver from DHS on or after the
interim final rule's effective date; and whether the applicant has
private health insurance or other financial resources sufficient to pay
for reasonably foreseeable medical costs. This interpretation
introduces two factors: past DHS fee waivers and private health
insurance or other means to cover reasonably foreseeable medical costs,
both of which have direct bearing on the visa applicant's assets,
resources, and financial status.
The interim final rule also changes how consular officers will
consider past receipt of public benefits. Current FAM guidance directs
consular officers to consider receipt of public assistance of any type
by the visa applicant or a family member in the visa applicant's
household when determining the likelihood a visa applicant would become
a public charge. The interim final rule explicitly addresses the
applicant's receipt of public benefits, and incorporates the
Department's new definition of public benefit. Consular officers will
only consider listed public benefits received on or after October 15,
2019, except that consular officers will consider as a negative factor,
but not a heavily weighted negative factor, receipt of cash assistance
for income maintenance or programs supporting institutionalization for
long term care in the United States, received, or certified for receipt
before October 15, 2019. Additionally, the current FAM guidance does
not specifically limit a consular officer's consideration to U.S. forms
of public assistance, but the interim final
[[Page 54998]]
rule only covers United States (federal, state, local, or tribal)
public assistance.
Education and skills: When considering an alien's education and
skills, consular officers will consider both positive and negative
factors associated with whether the alien has adequate education and
skills to either obtain or maintain lawful employment with an income
sufficient to avoid being likely to become a public charge. In
assessing whether the alien's level of education and skills makes the
alien likely to become a public charge, the consular officer must
consider, among other factors, the alien's history of employment,
educational level (high school diploma, or its equivalent, or a higher
educational degree), any occupational skills, certifications, or
licenses, and proficiency in English or proficiency in other languages
in addition to English. This standard provides additional detail and in
some respects changes the guidance currently given to consular officers
in the FAM. Currently, FAM guidance directs consular officers to
consider the applicant's skills, length of employment, and frequency of
job changes, and permitted consular offices to consider that work
experience is evidence of skills. The Department is superseding the
FAM's treatment of work experience as evidence of skills, by requiring
only that consular officers consider the alien's history of employment.
The Department is also introducing the new concept of whether an alien
is a primary caregiver, considering as a positive factor under the
totality of the circumstances if the alien is over 18 years of age and
has ``significant responsibility for actively caring for and managing
the well-being of a minor, elderly, ill, or disabled person residing in
the alien's household, such that the alien lacks an employment history
or current employment, or is not employed full time.''
Prospective Visa Classification: The interim final rule adds
consideration of the alien's prospective visa classification.
Affidavit of Support: The interim final rule states that a
sufficient Affidavit of Support Under Section 213A of the INA, where it
is required, is a positive factor in the totality of the circumstances
if the sponsor is likely to actually provide the alien with the
statutorily required amount of financial support and other related
considerations that may indicate the ability or willingness of the
sponsor to provide support. Department guidance has reflected this
interpretation since January 2018. Also, in paragraph (a)(7), the
Department removed reference to fee collection for review and
assistance with submitting an affidavit of support at consular posts,
as consular posts do not collect an affidavit of support fee overseas.
Heavily Weighted Factors: The interim final rule then introduces
certain factors and factual circumstances that will weigh heavily in
determining whether an alien is likely to become a public charge,
including negative and positive factors. The heavily weighted negative
factors are:
The alien is not a full-time student and is authorized to
work, but is unable to satisfy the consular officer that he or she is
currently employed, has recent employment history, or a reasonable
prospect of future employment;
The alien has received, or has been certified or approved
to receive, one or more public benefits, as defined in 22 CFR 40.41(c),
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' worth of benefits), beginning no earlier than 12 a.m.,
October 15, 2019, or 36 months prior to the adjudication of the alien's
visa application, whichever is later;
The alien has been diagnosed with a medical condition that
is likely to require extensive treatment or institutionalization or
that will interfere with the alien's ability to provide for himself or
herself, attend school, or work;
The alien has no health insurance for use in the United
States and has neither the prospect of obtaining private health
insurance, nor the financial resources to pay for reasonably
foreseeable medical costs related to such medical condition;
The alien was previously found inadmissible or deportable
on public charge grounds by an Immigration Judge or the Board of
Immigration Appeals.
The heavily weighted positive factors are:
The alien's household has income, assets, resources, or
support of at least 250 percent of the Federal Poverty Guidelines for
the alien's household size. Consular officers may not consider any
income from illegal activities, e.g., proceeds from illegal gambling or
drug sales, or any income derived from any public benefit as defined in
22 CFR 40.41(c);
The alien is authorized to work and is currently employed
with an annual income of at least 250 percent of the Federal Poverty
Guidelines for the alien's household size. Consular officers may not
consider any income from illegal activities, e.g., proceeds from
illegal gambling or drug sales; and
The alien has private health insurance (other than health
insurance obtained with premium tax credits under the Affordable Care
Act) for use in the United States covering the expected period of
admission.
Treatment of forms of public assistance received before October 15,
2019. Under this interim final rule, consular officers will consider as
a negative factor, but not as a heavily weighted negative factor as
described in paragraph (a)(8) of this section, forms of assistance
received prior to October 15, 2019 only if such assistance would have
been considered in the public charge determination between May 25, 1999
and January 2, 2018. These are limited to (1) any amount of cash
assistance for income maintenance, including Supplemental Security
Income (``SSI''), Temporary Assistance for Needy Families (``TANF''),
State and local cash assistance programs that provide benefits for
income maintenance (often called ``General Assistance'' programs), and
(2) programs (including Medicaid) supporting aliens who are
institutionalized for long-term care, received before October 15, 2019.
Short-term institutionalization for rehabilitation (including under
Medicaid), received before October 15, 2019, will not be considered in
the public charge determination under the interim final rule. Under
this interim final rule, the Department will no longer authorize
consular officers to consider other forms of public assistance,
domestic or foreign, in the totality of the circumstances public charge
calculation.
Public Charge Definition: In paragraph (b), the interim final rule
introduces a new definition of public charge. Under previous Department
guidance in effect since May 1999, consular officers considered an
applicant likely to become a public charge if the applicant is likely,
at any time after admission, to become primarily dependent on the U.S.
Government (which includes Federal, state, or local governments) for
subsistence. Public charge, for purposes of INA 212(a)(4)(A) and (B), 8
U.S.C. 1182(a)(4)(A) and (B), is defined under the interim final rule
as an alien 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 benefits in one month counts as two months'
worth of benefits).
Public Benefit Definition: In paragraph (c), the interim final rule
introduces a new definition of public benefit. Prior guidance limited
the types of benefits to receipt of public cash assistance for income
maintenance and
[[Page 54999]]
institutionalization for long-term care at U.S. Government expense. The
Department adopted this interpretation in the FAM based on the former
Immigration and Naturalization Service (``INS'') interpretation of the
public charge inadmissibility, as explained in the INS Notice, Field
Guidance on Deportability and Inadmissibility on Public Charge Grounds,
64 FR 28689 (May 26, 1999).
Under the Department's new definition, ``public benefit'' means:
Any Federal, State, local, or tribal cash assistance for
income maintenance (other than tax credits), including:
[cir] Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
[cir] Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601
et seq.;
[cir] 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);
Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C.
2011 et seq.;
Medicaid under 42 U.S.C. 1396 et seq., except for:
[cir] Benefits received for an emergency medical condition as
described in section 1903(v)(2)-(3) of Title XIX of the Social Security
Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
[cir] services or benefits funded by Medicaid but provided under
the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400
et seq.;
[cir] school-based services or benefits provided to individuals who
are at or below the oldest age eligible for secondary education as
determined under State or local law; or
[cir] benefits received by an alien under 21 years of age, or a
woman during pregnancy (and during the 60-day period beginning on the
last day of the pregnancy).
Public housing and rental assistance programs under
sections 8-9 of the Housing Act of 1937, 42 U.S.C. 1437f-g.
Exclusions from the Public Benefit Definition: Public benefit,
under the interim final rule, does not include any public benefit
received by an alien who at the time of receipt of the public benefit,
or at the time of visa application or visa adjudication, is or was:
Enlisted in the U.S. Armed Forces under the authority of
10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2) (or is the spouse or
child of such person),
serving in active duty or in the Ready Reserve component
of the U.S. Armed Forces (or is the spouse or child of such person), or
the spouse or child of an individual enlisted in the U.S.
Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C.
504(b)(2), or in the Ready Reserve component of the U.S. Armed Forces.
For the purpose of visa adjudication for which the public charge
ground of ineligibility applies, public benefit, as defined in this
section, does not include any public benefit 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 8 CFR 212.23(a), or for which the
alien received a waiver of public charge inadmissibility from DHS.
Public benefit does not include health services for immunizations and
for testing and treatment of communicable diseases, including
communicable diseases of public health significance as defined in 42
CFR part 34. Public benefits are limited to benefits received from
governmental and tribal entities in the United States and does not
include benefits from foreign governments. Public benefit also does not
include any public benefit received by:
Children of U.S. citizens whose lawful admission for
permanent residence and subsequent residence in the legal and physical
custody of their U.S. citizen parent will result automatically in the
child's acquisition of citizenship under the Child Citizenship Act of
2000, Public Law 106-395, 114 Stat. 1631 (INA section 320(a)-(b), 8
U.S.C. 1431(a)-(b) in accordance with 8 CFR part 320);
children of U.S. citizens whose lawful admission for
permanent residence will result automatically in the child's
acquisition of citizenship upon finalization of adoption, if the child
satisfies the requirements applicable to adopted children under INA
101(b)(1), 8 U.S.C. 1101(b)(1) in the United States by the U.S. citizen
parent(s) and meets other eligibility criteria as required by the Child
Citizenship Act of 2000, Public Law 106-395, 114 Stat. 16341 (INA
section 320(a)-(b), 8 U.S.C. 1431(a)-(b), in accordance with 8 CFR part
320); or
children of U.S. citizens who are entering the United
States for the purpose of attending an interview under section 322 of
the INA, 8 U.S.C. 1433, in accordance with 8 CFR part 322.
Additionally, the interim final rule makes clear that only certain
forms of public assistance received on or after 12:00 a.m., October 15,
2019 fall within the definition of ``public benefit'' for the purpose
of applying the public charge ground of ineligibility, with the
exception of cash assistance for income maintenance and programs
supporting institutionalization for long term care in the United
States, as detailed in Sec. 40.41(a)(9).
Alien's Household: The interim final rule sets out new standards to
determine the members of an ``alien's household'' at paragraph (d). One
standard applies to aliens who are twenty-one years of age or older and
also applies to married individuals under twenty-one, whereas a
separate standard applies to children, who are defined by the INA as
unmarried persons under twenty-one years of age. If the alien is
twenty-one years of age or older, or married and of any age, the
alien's household includes:
The alien;
The alien's spouse, if physically residing or intending to
physically reside with the alien in the United States;
The alien's children, as defined in 101(b)(1) of the INA,
8 U.S.C. 1101(b)(1), if physically residing or intending to physically
reside with the alien;
The alien's other children, as defined in section
101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), not physically residing or
not intending to physically reside with the alien for whom the alien
provides or is required to provide at least 50 percent of the
children's financial support, as evidenced by a child support order or
agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided by
the alien;
Any other individuals (including a spouse not physically
residing or not intending to physically reside with the alien) to whom
the alien provides, or is required to provide, at least 50 percent of
the individual's financial support or who are listed as dependents on
the alien's United States federal income tax return; and
Any individual who provides to the alien at least 50
percent of the alien's financial support, or who lists the alien as a
dependent on his or her federal income tax return.
If the alien is a child as defined in section 101(b)(1) of the INA,
8 U.S.C. 1101(b)(1), the alien's household includes the following
individuals:
The alien;
The alien's children as defined in section 101(b)(1) of
the INA, 8 U.S.C. 1101(b)(1), physically residing or intending to
physically reside with the alien;
The alien's other children as defined in section 101(b)(1)
of the INA, 8 U.S.C. 1101(b)(1), not physically residing or not
intending to physically reside with the alien, for whom the alien
provides or is required to provide
[[Page 55000]]
at least 50 percent of the children's financial support, as evidenced
by a child support order or agreement, a custody order or agreement, or
any other order or agreement specifying the amount of financial support
to be provided by the alien;
The alien's parents, legal guardians, or any other
individual providing or required to provide at least 50 percent of the
alien's financial support to the alien as evidenced by a child support
order or agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided to
the alien;
The parents' or legal guardians' other children as defined
in section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), physically
residing or intending to physically reside with the alien;
The alien's parents' or legal guardians' other children as
defined in section 101(b)(1) of the INA, 8 U.S.C. 1101(b)(1), not
physically residing or not intending to physically reside with the
alien for whom the parent or legal guardian provides or is required to
provide at least 50 percent of the other children's financial support,
as evidenced by a child support order or agreement, a custody order or
agreement, or any other order or agreement specifying the amount of
financial support to be provided by the parents or legal guardians; and
Any other individual(s) to whom the alien's parents or
legal guardians provide, or are required to provide at least 50 percent
of such individual's financial support or who is listed as a dependent
on the parent's or legal guardian's federal income tax return.
This definition varies in certain aspects from existing FAM
guidance. First, the Department is adopting different standards for
applicants who are at least 21 years of age (or married and any age),
and children. Prior guidance did not make such distinctions and placed
more focus on the alien's sponsor, if required. However, the text of
INA 212(a)(4), 8 U.S.C. 1182(a)(4), focuses on whether the visa
applicant will become a public charge and requires the Department to
consider the applicant's family status.
Receipt of Public Benefit: In paragraph (e), the interim final rule
sets out new standards for what constitutes ``receipt of public
benefit.'' Receipt of public benefit occurs when a public benefit
granting agency provides a public benefit, as defined in Sec.
40.41(c), to the visa applicant as a beneficiary, whether in the form
of cash, voucher, services, or insurance coverage. Application or
certification for a public benefit does not constitute receipt of
public benefit, but it may be considered as a factor suggesting
likelihood of future receipt. An alien's receipt of, application for,
or certification for, a public benefit solely on behalf of another
individual does not constitute receipt of, application for, or
certification for, such alien, regardless of whether the alien might
gain personally from the third party's benefit. This new standard will
help consular officers implement the new ``public charge'' definition
at paragraph (b), referring to an alien who receives one or more public
benefits, as defined in paragraph (c) of this section, for more than 12
months in the aggregate within any 36-month period. It also clarifies
that consular officers must evaluate whether the alien is likely to
receive one or more public benefits, the impact of certification for
future receipt of a public benefits, and that the relevant
consideration is the alien's future receipt, or expected receipt, of
public benefits, not an application or certification solely on behalf
of another person. Because 40.41(c) limits the definition of ``public
benefit'' to specified forms of public assistance received on or after
12 a.m., October 15, 2019, an alien will not be considered to have
received a public benefit before that date.
The paragraph in Sec. 40.41 titled Prearranged Employment,
formerly (e), is redesignated (f). The interim final rule does not
change the text of these sections. Finally, the Department is removing
Posting of a Bond, formerly (d), and Joint Sponsors, formerly paragraph
(c) and Use of the Federal Poverty Line Where INA 213A Not Applicable,
formerly paragraph (f). These paragraphs were removed because language
was not necessary; they either restated statutory requirements or were
obsolete.
II. Why is the Department promulgating this rule?
A. Background
On August 14, 2019, DHS issued a final rule outlining its new
interpretation of the public charge ground of inadmissibility. See
Inadmissibility on Public Charge Grounds, 84 FR 41292. Under DHS's
prior interpretation of ``public charge'' an alien would be
inadmissible if he or she would be ``primarily dependent on the
Government for subsistence, as demonstrated by either the receipt of
public cash assistance for income maintenance or institutionalization
for long-term care at Government expense.'' Since May 1999, Department
guidance has used the same standard. As a consequence, an alien's
reliance on or receipt of non-cash benefits such as SNAP, Medicaid,
housing vouchers and other housing subsidies, and other programs that
DHS now considers ``public benefit'' pursuant to its new definition of
``public charge'' were not previously considered by DHS or the
Department in determining whether an alien is deemed likely at any time
to become a public charge.
DHS revised its interpretation of ``public charge'' to incorporate
consideration of such benefits in order to better ensure that aliens
subject to the public charge inadmissibility ground are not dependent
on public resources to meet their needs, but rather rely on their own
capabilities, as well as the resources of family members, sponsors, and
private organizations. The DHS rule redefines the term ``public
charge'' to mean an alien who receives one or more designated public
benefits 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' worth of benefits). The DHS final rule defines
the term `public benefit' with a finite list of public benefits that
are considered for purposes of the public charge determination,
including Federal, state, local or tribal cash assistance for income
maintenance, Supplemental Security Income (``SSI''), 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. See Inadmissibility on
Public Charge Grounds, 84 FR 41292 (Aug. 14, 2019).
Because section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), renders
inadmissible aliens ineligible to receive visas and ineligible to be
admitted to the United States, the Department is also modifying its
interpretation in some respects. The Department's new standards are
intended to avoid situations where a consular officer will evaluate an
alien's circumstances and conclude that the alien is not likely at any
time to become a public charge, only for DHS to evaluate the same alien
when he seeks admission to the United States on the visa issued by the
Department of State and finds the alien inadmissible on public charge
grounds under the same facts. Although the Department has chosen to
follow DHS's approach in many respects, this interim final rule
reflects the Department's independent interpretations and policies. In
addition, some aspects of the rule may deviate from the DHS approach
due to the differing circumstances of visa applicants, who
[[Page 55001]]
reside outside the United States and typically have not spent
substantial time in the United States, as contrasted with applicants
for USCIS-administered benefits, which applicants commonly are in the
United States and have spent substantial time there.
B. Specific Provisions
In addition to the reasons cited in Section (II)(A), the Department
adopts the interpretations set forth in the interim final rule based on
the additional considerations below.
1. Basis for Determination of Ineligibility
The new reference to the Affidavit of Support provision for certain
employment-based immigrants reflects the statutory requirement that
aliens who are the beneficiary of petitions filed pursuant to section
212(a)(4)(D) of the INA, 8 U.S.C. 1182(a)(4)(D), by a relative or an
entity in which a relative has a significant ownership interest are
ineligible without an Affidavit of Support from such relative.
Significant ownership interest means 5 percent or more under existing
Department guidance. See also 8 CFR 213a.1. This addition does not
reflect a policy change. The Department is also clarifying that
consular officers will consider whether a third party is willing and
able to financial support the alien in the United States. A third party
could be the sponsor, or, for example, for a B-1/B-2 applicant, the
alien's parent or child. This clarifies current policy and is not a
policy change.
Also in paragraph (a), the interim final rule incorporates ``more
likely than not'' as the standard that consular officers will use when
evaluating whether an alien is ``likely'' to become a public charge.
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), specifies that the
public charge ground will apply to ``any alien who, in the opinion of
the consular officer . . . is likely at any time to become a public
charge''. The Department believes that the word ``likely'' could be
ambiguous to consular officers, particularly given the overall
subjective nature of the standard (``in the opinion of the consular
officer''), and that both consular officers and visa applicants would
benefit from having a more clear standard of proof and adjudicatory
framework.
The requisite degree of proof in civil matters is generally a
preponderance of the evidence, which is synonymous with ``more likely
than not.'' The standard of proof specified by the INA that must be met
by individuals applying for visas is ``to the satisfaction of the
consular officer.'' See INA 291, 8 U.S.C. 1361. However, most
provisions in section 212(a) of the INA, 8 U.S.C. 1182(a), also require
consular officers either to have a ``reason to believe'' or to evaluate
whether as a factual matter something has happened in the past (e.g.,
that a visa applicant was convicted of a particular crime or engaged in
trafficking activity). The public charge provision, like certain other
provisions, requires a consular officer to assess the likelihood of an
event happening in the future, which here serves as the sole criterion
for whether the ineligibility applies. To clarify the standard for
consular officers, the Department is interpreting ``likely'' as ``more
likely than not'' in the context of the public charge ineligibility
ground, which will eliminate ambiguity from the phrase ``likely at any
time'' by requiring a consular officer to make a finding that it is
probable, i.e., more likely than not, that an applicant will at any
time in the future become a public charge for this ground of
ineligibility to apply. Conversely, this standard makes clear to
applicants that they can avoid application of the public charge ground
of ineligibility by demonstrating that it is not more likely than not
that they will become a public charge at any time in the future.
The interim final rule also cites in paragraph (a) to the statutory
requirement from section 212(a)(4)(B) of the INA, 8 U.S.C.
1182(a)(4)(B), that consular officers will, at the time of visa
application, take into account statutory factors, including the alien's
age; health; family status; assets, resources, financial status; and
education and skills. The rule also explains that consular officers
must consider those factors, among others, as part of the totality of
the applicant's circumstances. The interim final rule then explains the
Department's interpretation of each factor. The Department's standards
will be implemented through guidance that is consistent with standards
announced in the DHS final rule, and will mitigate against the
possibility that consular officers would issue a visa to an individual
whom DHS would find inadmissible based on the same facts. However, the
Department's standards are in some ways tailored specifically for
unique aspects of visa adjudication.
a. Age
Consular officers will consider whether the alien's age makes the
alien more likely than not to become a public charge in the totality of
the circumstances, such as by impacting the alien's ability to obtain
and perform work. Consular officers will consider an alien's age
between 18 and 62 as a positive factor, which takes into consideration
``early retirement age'' for Social Security set forth in 42 U.S.C.
416(l)(2). The 18-through-62 age range is based on the ages at which
people are generally able to work full-time and prior to an
individual's general ability to retire with some social security
retirement benefits under Federal law.
Under this provision, being under 18 would be a negative factor.
The Department notes this approach reflects the common understanding of
when people are generally able to work full-time and that children
under the age of 18 generally face difficulties working full-time.
Federal laws, such as the Fair Labor Standards Act, and some state laws
place restrictions on the ability of children under the age of 18 to
work full-time. Additionally, individuals under the age of 18 may be
more likely to qualify for and receive public benefits. For example,
the U.S. Census reported that persons under the age of 18 were more
likely to receive means-tested benefits than other age groups. See
Jessica L. Semega et al., U.S. Census Bureau, Income and Poverty in the
United States: 2016, at 13 tbl.3 (Sept. 2017), available at https://www.census.gov/content/dam/Census/library/publications/2017/demo/P60-259.pdf.
However, consular officers will also review the support provided by
a parent or other source (assets, resources, and financial status) as
part of the totality of the circumstances. For example, in the case of
a 17-year old child in a United States boarding school, consular
officers would consider age to be a negative factor. However, the
alien's financial status or support, such as having education and
living expenses paid for by someone else, would be a positive factor
that in the totality of the circumstances could lead to the conclusion
that the applicant is not likely to become a public charge. Likewise,
in the case of a 17-year-old who has a credible offer of lawful
employment that would make him- or herself-sufficient, the alien's age
would be a negative factor, but a credible offer of employment that
would make the alien self-sufficient would be a positive factor.
In codifying existing FAM guidance that an applicant's age above
early retirement age is a negative factor in the totality of the
circumstances if the consular officer believes it negatively affects
the person's ability to work or may increase the potential for
healthcare related costs, the Department does not intend this standard
to imply that individuals over early retirement age are unable to work.
These factors
[[Page 55002]]
will be weighed by consular officers in analyzing the totality of the
applicant's circumstances.
b. Health
The interim final rule generally restates FAM guidance that directs
consular officers to consider a visa applicant's health when assessing
whether the applicant is likely to become a public charge. As explained
below, the rule introduces additional factors related to assets,
resources, and financial status, including whether an applicant will
have health insurance or other means to cover reasonably foreseeable
medical costs (relating to health issues existing at the time of visa
adjudication). Lack of health insurance alone would not make an alien
more likely than not to become a public charge at any time, but would
instead be considered in the totality of the alien's circumstances.
c. Family Status
Under the interim final rule, consular officers will consider
whether the alien has a household to support, or whether the alien is
being supported by another household and whether the alien's household
size makes the alien likely to become a public charge. Household size
is a positive factor if the family size makes the alien unlikely to
receive public benefits at any time in the future.
The Department notes that consular officers will frequently view
family status in connection with, among other things, the alien's
assets and resources, because the amount of assets and resources
necessary to support a larger number of people in a household is
generally greater. Thus, as described in the section below on ``Assets,
resources, and financial status,'' consular officers will consider
annual gross income for the applicant's household size of at least 125
percent of the most recent Federal Poverty Guidelines based on the
applicant's household size (or 100 percent for an applicant on active
duty, other than training, in the Armed Forces) a positive factor. The
Department also recognizes DHS analyses showing that receipt of non-
cash benefits generally increases as family size increases, and
therefore family size is relevant to assessing whether an alien is
likely to become a public charge. See Inadmissibility on Public Charge
Grounds, 83 FR 51114, 51185, Tables 16 and 17 (proposed Oct. 10, 2018).
Regardless of household size, an alien may present other factors (e.g.,
assets, resources, financial status, education, and skills) that weigh
for or against a finding that the alien is likely to become a public
charge. For instance, an alien who is part of a large household may
have his or her own income or access to additional assets and resources
that would assist in supporting the household. All of these factors
would be considered in the totality of the circumstances.
The Department notes that this approach deviates somewhat from the
DHS rule, in that the Department's approach focuses on the alien's
intended household in the United States, rather than any members of his
foreign household he or she will leave behind. This difference in
effect aligns the two Departments' approaches.
d. Assets, Resources, and Financial Status
The Department's interpretation of this factor in the interim final
rule comports with the totality of the circumstances test. Household
gross income above 125 percent of the Federal Poverty Guidelines for
the alien's household size (100 percent for an alien on active duty,
other than training, in the Armed Forces), or assets five times the
difference between the applicant's household gross income and the
Federal Poverty Guidelines for the applicant's household, is a positive
factor. However, if the alien is the spouse or child of a U.S. citizen,
assets totaling three times the difference between the alien's
household gross income and 125 percent of the Federal Poverty
Guidelines (100 percent for those on active duty, other than training,
in the Armed Forces) for the alien's household size is a positive
factor. If the alien is a child who will be adopted in the United
States and who will likely receive citizenship under INA 320, 8 U.S.C.
1432, then assets equivalent to or greater than the difference between
the alien's household gross income and 125 percent the Federal Poverty
Guidelines (100 percent for those on active duty, other than training,
in the Armed Forces) for the alien's household size is a positive
factor. This significant assets provision allows an alien whose income
is below the applicable income threshold to demonstrate assets to
support himself or herself, thereby reducing the likelihood of becoming
a public charge. This reflects a change from existing FAM guidance,
which recognizes income above 125 percent of the Federal Poverty
Guidelines and assets in the amount of five times 125 percent of the
Federal Poverty Guidelines generally as sufficient resources for
overcoming public charge concerns. This new standard is more consistent
with DHS Affidavit of Support requirements, outlined in 8 CFR
213a.2(c)(2)(iii)(B), and the framework DHS will use for public charge
inadmissibility determinations. See 8 CFR 212.22(b)(4).
It is still possible that other factors, such as an alien's health
and inability to pay for reasonably foreseeable health costs, could
mean that a consular officer could find an alien with such financial
resources likely to become a public charge. The Department recognizes
that this factor will be more relevant to immigrant visa applicants who
will reside permanently in the United States than nonimmigrant
applicants who intend to travel to the United States for a short
duration.
The interim final rule introduces two factors related to assets,
resources, and financial status: Previous DHS fee waivers and health
insurance or other means to cover foreseeable medical costs. DHS fee
waivers are based on an individual's inability to pay. 8 CFR 103.7(c).
A recently granted fee waiver is relevant to whether an applicant is
likely to become a public charge, although the factor is less relevant
if the applicant's financial status has materially improved since the
waiver was granted. Additionally, a fee waiver granted by DHS is not
considered as a factor in the public charge inadmissibility
determination if the alien applied for and was granted a fee waiver as
part of an application for a benefit request for which a public charge
inadmissibility under section 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4)
was not required.
The interim final rule's addition of private health insurance as a
factor relevant to assets, resources, and financial status reflects the
fact that medical costs can be significant and certain public benefits
are designed to help individuals with limited resources to cover
medical costs. The fact that an applicant has health insurance or other
sufficient financial resources makes it less likely that an alien will
resort to public benefits to cover medical expenses. A consular officer
will consider an alien's health insurance coverage or other financial
resources, in light of reasonably foreseeable medical costs (those
related to medical issues existing at the time of visa adjudication),
in the totality of the applicant's circumstances. Lack of health
insurance alone would not make an alien more likely than not to become
a public charge at any time, but would instead be considered in the
totality of the alien's circumstances.
The Department also considered whether to include a visa
applicant's credit score or credit report among the other factors
relevant to assets, resources, and financial status. The
[[Page 55003]]
Department is aware that the DHS final rule includes an alien's credit
history and credit score among the types of evidence USCIS adjudicators
consider. The Department did not include credit history or credit score
in this interim final rule, primarily because visa applicants generally
would not have an active or recent credit history in the United States.
The interim final rule codifies some changes to how consular
officers will consider past receipt of public benefits. Current
guidance directs consular officers to consider receipt of public
assistance of any type by the visa applicant or a family member in the
visa applicant's household when determining the likelihood a visa
applicant would become a public charge. The interim final rule revises
this by focusing on receipt of public benefits only by the applicant
and incorporates the Department's new definition of public benefit.
Both of these elements align with the DHS rule, ensure consistent
administration of the INA's public charge provisions, and minimize the
possibility of a consular officer issuing a visa to an alien who is
later found to be inadmissible by DHS on the same facts.
The Department's new definition of ``public benefit'' includes only
certain forms of public assistance received on or after 12 a.m.,
October 15, 2019, although, as explained below in Section
(II)(B)(1)(i), consular officers may consider any amount of cash
assistance for income maintenance, including Supplemental Security
Income (SSI), Temporary Assistance for Needy Families (TANF), State and
local cash assistance programs that provide benefits for income
maintenance (often called ``General Assistance'' programs), and
programs (including Medicaid) supporting aliens who are
institutionalized for long-term care, received, or certified for
receipt, before October 15, 2019 as a negative factor (but not a
heavily weighted negative factor).
e. Education and Skills
When considering an alien's education and skills, consular officers
will consider whether the alien has adequate education and skills to
either obtain or maintain lawful employment with an income sufficient
to avoid being likely to become a public charge. In assessing whether
the alien's level of education and skills makes the alien likely to
become a public charge, the consular officer must consider, among other
factors, the alien's history of employment, educational level (high
school diploma or higher educational degree), any occupational skills,
certifications or licenses, and language proficiency. Current guidance
directs consular officers to consider the applicant's skills, length of
employment, and frequency of job changes, and permitted consular
offices to consider work experience as evidence of skills. Although the
interim final rule does not treat work experience as evidence of
skills, it does require that consular officers consider the alien's
history of employment. Section 212(a)(4) of the INA, 8 U.S.C.
1182(a)(4), directs officers to consider the alien's education and
skills. The interim final rule implements Congress's directive on this
mandatory statutory factor. This formulation is also more similar to
the new DHS guidance, and is aimed to mitigate against situations where
a consular officer will issue a visa to an alien who is later found
inadmissible by DHS on the same facts.
The interim final rule introduces a requirement that consular
officers consider the following additional information relevant to
education and skills: Educational level (high school diploma, or its
equivalent, or higher educational degree), any occupational skills,
certifications or licenses, and language proficiency. Various studies
and data show that a higher level of education and skills is a positive
indicator of self-sufficiency. The U.S. Bureau of Labor Statistics
(BLS) observed in 2016 a relationship between educational level and the
unemployment rate. See U.S. Bureau of Labor Statistics, Employment
Projections, Unemployment Rates and Earnings by Educational Attainment,
2016, available at https://www.bls.gov/emp/chart-unemployment-earnings-education.htm (last updated Mar. 27, 2018). According to that report,
the unemployment rate for an individual with a doctoral degree was only
1.6 percent, compared to 7.4 percent for an individual with less than a
high school diploma. According to the U.S. Census Bureau, lower
educational attainment was associated with higher public benefit
program participation rates for people over the age of 18. See Shelley
K. Irving & Tracy A. Loveless, U.S. Census Bureau, Dynamics of Economic
Well-Being: Participation in Government Programs, 2009-2012: Who Gets
Assistance? (May 2015), available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf. That report
reflected that in 2012, 37.3 percent of people who did not graduate
from high school received means-tested benefits, compared with 21.6
percent of high school graduates and 9.6 percent of individuals with
one or more years of college.
Additionally, data suggest that people who have lower education
levels are not only more likely to receive public benefits but also
more likely to receive them for longer periods. For example, 49.4
percent of people with less than four years of high school who received
public benefits from a major means-tested program between January 2009
and December 2012 continued to participate in the benefit program for
37 to 48 months. In contrast, only 39.3 percent of high school
graduates and 29.0 percent of those with one or more years of college
who received public benefits during the same time period continued to
participate in the public benefit program for 37 to 48 months. See id.
The data suggests that a lack of education increases the likelihood of
poverty and unemployment, which may in turn increase the likelihood of
applying for, and participating in, public assistance programs.
The Department's treatment of education and skills in the interim
final rule is supported by DHS's analysis of Survey of Income and
Program Participation data, which shows a relationship between
education level and self-sufficiency. See Inadmissibility on Public
Charge Grounds, 83 FR 51114, 51190-51196 (proposed Oct. 10, 2018).
The interim final rule recognizes the implications of whether the
alien is a primary caregiver. This factor is intended to take into
consideration difficult-to-monetize contributions by aliens who may
lack current employment or an employment history due to their full-
time, unpaid care of household members. For example, a visa applicant
may care for a household member who will not travel with the visa
applicant to the United States. The visa applicant's employment history
would not accurately reflect the alien's unpaid work as a primary
caregiver. In this respect, serving as a primary caregiver could be a
positive factor in the totality of the circumstances.
f. Prospective Visa Classification
The interim final rule adds that consular officers will consider
the visa classification sought. This factor relates to the alien's
ability to financially support himself or herself and the members of
his or her household while in the United States. For example, a
consular officer's public charge analysis of an applicant for a B-1
nonimmigrant visa, who plans to attend a week-long business meeting,
would differ from a longer term nonimmigrant applicant, such as an H-1B
nonimmigrant
[[Page 55004]]
specialty worker, who would reside and work in the United States for
years at a time, and would differ even more from an immigrant visa
applicant who intends to reside permanently in the United States and
may not have pre-arranged employment. In this respect, the visa
classification, including the purpose and duration of travel, are
relevant to assessing the likelihood that an alien would avail himself
or herself of public benefits (noting that in many cases visa
applicants may not be eligible for public benefits in the United
States), and therefore consular officers must evaluate these factors on
a case-by-case basis.
That is not to say that a B-1 nonimmigrant applicant is subject to
a lower standard than an H-1B nonimmigrant or immigrant under the
statute or this interim final rule, but the immigration status sought
by the applicant will be highly relevant context for the consular
officer's totality of the circumstances determination. An applicant
with a serious chronic health condition seeking medical treatment in
the United States on a tourist visa would be expected to establish that
he or she has the means and intent to pay for all reasonably
foreseeable treatment. By demonstrating the ability to cover the
medical expenses anticipated on a short-term trip to the United States,
the applicant can demonstrate that even though health presents as a
negative factor, the applicant has financial resources that make it
unlikely the applicant would avail himself or herself of one or more
public benefits. However, an immigrant visa applicant with the same
serious chronic health condition and need for ongoing treatment would
have to satisfy a consular officer that he or she has the means to pay
for long-term care.
g. Affidavit of Support
The interim final rule provides that a properly filed, non-
fraudulent, and sufficient Affidavit of Support, in those cases where
it is required, is a positive factor in the totality of the
circumstances. In the totality of the circumstances review, the
consular officer would take into consideration the likelihood that the
sponsor actually would provide the required financial support, based on
the any available relevant information about the sponsor. Since January
2018, FAM guidance has reflected that a properly filed, non-fraudulent
Affidavit of Support, in those cases where it is required, is a
positive factor in the totality of the circumstances analysis, and that
an alien who is required to submit an Affidavit of Support but who
fails to submit a sufficient Affidavit of Support is ineligible as a
public charge. To be sufficient, an Affidavit of Support must meet the
requirements of 8 CFR part 213a. Also, in paragraph (b), the Department
removed reference to fee collection for review and assistance with
submitting an affidavit of support at consular posts because consular
posts do not collect an affidavit of support fee overseas.
h. Heavily Weighted Factors
The interim final rule provides that certain factors or factual
circumstances will weigh heavily in determining whether an alien is
likely to become a public charge. The mere presence of one of these
enumerated circumstances would not, alone, be determinative. A heavily
weighted factor could be outweighed by countervailing evidence in the
totality of the circumstances. While heavily weighted factors are
circumstances the Department considers particularly indicative of the
likelihood an alien will become a public charge, they are evaluated in
conjunction with other relevant positive and negative factors in the
totality of the alien's circumstances.
i. Heavily Weighted Negative Factors
The interim final rule provides that certain factors are weighted
as heavily negative because these factors are particularly indicative
of a likelihood that the alien would become a public charge,
particularly with regard to the alien's ability to be self-sufficient.
Heavily weighted negative factors include:
a. Lack of Recent Employment or Prospect of Future Employment
As long as an alien is not a full-time student and is authorized to
work in the alien's place of residence abroad and, if relevant, in the
United States, the interim final rule sets the absence of current
employment, employment history, or reasonable prospect of future
employment as a heavily weighted negative factor. Self-sufficiency
generally involves people being capable and willing to work and being
able to secure and maintain gainful employment. Various studies and
data show that a person's education, skills, and employment history,
are positive factors for self-sufficiency. See Section (II)(B)(1)(e),
above. In addition, the lack of positive employment history and
demonstrable marketable skills are indicative of an increased
likelihood that an individual would avail himself or herself of public
benefits. This concept is supported by two Census Bureau studies
covering 2004 to 2007 and 2009 to 2012, which show that, in each of the
covered years, individuals with full-time work were less likely to
receive means-tested benefits during the year (ranging from 4.5 percent
to 5.1 percent of full-time workers who received benefits) than those
who were unemployed (ranging from 24.8 percent to 31.2 percent of
unemployed individuals who received benefits). See Jeongsoo Kim,
Shelley K. Irving, & Tracy A. Loveless, U.S. Census Bureau, Dynamics of
Economic Well-Being: Participation in Government Programs, 2004 to 2007
and 2009--Who Gets Assistance? (July 2012), available at https://www2.census.gov/library/publications/2012/demo/p70-130.pdf; Shelley K.
Irving & Tracy A. Loveless, U.S. Census Bureau, Dynamics of Economic
Well-Being: Participation in Government Programs, 2009-2012: Who Gets
Assistance? (May 2015), available at https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf. The Department
recognizes that not everyone authorized to work needs to work and thus
the Department does not require a working age alien to have an
employment history as part of the public charge determination. Some
aliens may have sufficient assets and resources, including a household
member's income and assets, which may overcome any negative factor
related to lack of employment. For example, some student visa
applicants may have scholarships that cover the cost of education as
well as living expenses during the time of their studies. Further,
students generally acquire skills as part of their studies so that
post-education they will be able to obtain employment. Consular
officers will review those considerations in the totality of the
circumstances.
b. Current or Certain Past Receipt of Public Benefits
Under Sec. 40.41(a)(8)(i)(B), receipt of one or more public
benefits, as defined in Sec. 40.41(c), is a heavily weighted negative
factor in a consular officer's public charge determination if an alien
has received or has been certified or approved to receive one or more
public benefits for more than 12 months in the aggregate within any 36-
month period, beginning no earlier than 36 months prior to the alien's
visa application or after October 15, 2019, whichever is later. Under
this interim final rule, receipt of two benefits in one month counts as
two months' worth of benefits. Current receipt of one or more public
benefits, alone, will not always justify a finding of ineligibility on
public charge grounds. However, an alien's current
[[Page 55005]]
receipt of one or more public benefits suggests that the alien may
continue to receive one or more public benefits in the future and would
be more likely to be a public charge as defined under Sec. 40.41(b).
With regard to current receipt of public benefits, according to
U.S. Census Bureau data, the largest share of participants (43.0
percent) who benefited from one or more means-tested assistance
programs between January 2009 and December 2012 continued to receive
program benefits for between 37 and 48 months. See U.S. Census Bureau,
News Release: 21.3 Percent of U.S. Population Participates in
Government Assistance Programs Each Month (May 28, 2015), available at
https://www.census.gov/newsroom/press-releases/2015/cb15-97.html. A
separate U.S. Census Bureau study showed that an individual who
received benefits at any point during a two-year timespan was likely to
receive benefits every month during the period studied, suggesting
relatively long periods of receipt of benefits. Between January 2004
and December 2005, a greater share of the population received one or
more means-tested benefits for the entire 24-month study period (10.2
percent) than for either one to 11 months (8.5 percent) or 12 to 23
months (6.5 percent). See Jeongsoo Kim, Shelley K. Irving, & Tracy A.
Loveless, U.S. Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2004 to 2007 and 2009--Who Gets
Assistance? (July 2012), available at https://www2.census.gov/library/publications/2012/demo/p70-130.pdf. The Department views current
receipt of public benefits as a strong indicator that an alien will
continue to receive public benefits after admission to the United
States and is, therefore, likely to become a public charge. However, an
alien may be able to establish circumstances indicating that the
receipt of public benefits will stop in the near future, prior to
admission to the United States on the visa being sought.
An alien's past receipt of public benefits at any time on or after
October 15, 2019, for more than 12 months in the aggregate within the
36 months immediately preceding his or her application is a heavily
weighted negative factor in determining whether the alien is likely to
become a public charge. However, an alien's past receipt of T any
designated public benefits is considered a negative factor, even if not
a heavily weighted one. For example, the receipt of a public benefit
five years ago (assuming the evaluation was on or after October 1,
2024) would be a negative factor; however, a public benefit received
within the previous three years prior to the visa application and for
more than twelve months (assuming the twelve months occurred after
October 15, 2019 and was for more than 12 of 36 months in the
aggregate) is considered a heavily weighted negative factor. The weight
given to the receipt of public benefits will depend not only on how
long ago and for how long the alien received the benefits, but also on
whether the alien received multiple benefits.
The interim final rule makes clear that consular officers will only
consider past receipt of public benefits on or after October 15, 2019,
as a heavily weighted negative factor. The definition of ``public
benefit'' in Sec. 40.41(c) only applies to benefits received on or
after October 15, 2019.
c. Lack of Financial Means to Pay for Medical Costs
An alien presents a high risk of becoming a public charge if he or
she does not have private health insurance and also lacks the prospect
of obtaining private health insurance or the financial resources to pay
for reasonably foreseeable medical costs related to an existing medical
condition. The risk increases if the alien is likely to require
extensive medical treatment or institutionalization or the condition
will interfere with the alien's ability to provide care for him- or
herself, to attend school, or to work. If the applicant has no medical
conditions existing at the time of visa adjudication, he or she would
have no reasonably foreseeable medical costs.
Certain chronic medical conditions can be costly to treat and an
alien is a high risk of incurring significant medical costs if he or
she has such a condition. See U.S. Dep't of Health & Human Servs.,
Research In Action, Issue #19: The High Concentration of U.S. Health
Care Expenditures (June 2006), available at https://archive.ahrq.gov/research/findings/factsheets/costs/expriach/expendria.pdf; see also
https://www.cdc.gov/chronicdisease/about/costs/index.htm (costs
associated with certain chronic diseases).
Certain conditions may adversely affect an applicant's ability and
capacity to obtain and retain gainful employment. Other conditions
could result in long-term institutionalization in a health care
facility. Id. According to the Multiple Chronic Conditions Chartbook
2010 Medical Expenditure Panel Survey Data, 86 percent of the nation's
$2.7 trillion annual health care expenditures were for individuals with
chronic or mental health conditions. Id. Consular officers will learn
of medical conditions through panel physician medical examinations or
the alien's disclosure of a medical condition. If a consular officer
has reason to believe a visa applicant's medical condition will require
extensive medical treatment or institutionalization, or will interfere
with the alien's ability to provide for himself or herself, attend
school, or work, the consular officer will require the visa applicant
to explain how he or she will cover medical costs in the United States.
It is a heavily weighted negative factor if such an alien does not have
private health insurance to cover such expenses in the United States
and has neither the prospect of obtaining private health insurance to
cover medical expenses in the United States, nor the financial
resources to pay for reasonably foreseeable medical costs related to
such medical condition.
d. Prior Public Charge Inadmissibility or Deportability Finding
A prior finding by an Immigration Judge or the Board of Immigration
Appeals that the visa applicant was inadmissible under INA 212(a)(4), 8
U.S.C. 1182(a)(4), or deportable under INA 237(a)(5), 8 U.S.C.
1227(a)(5) (for having become a public charge within five years after
date of entry to the United States, not from causes affirmatively shown
to have arisen since entry) is a heavily weighted negative factor;
however, a past public charge finding is not necessarily dispositive of
whether the individual subsequently will be denied a visa on public
charge grounds. The Department recognizes that individual circumstances
can change with the passage of time. This approach aligns with the DHS
final rule.
ii. Heavily Weighted Positive Factors
The interim final rule provides that certain factors will be
weighted as heavily positive, because they strongly indicate the alien
would not become a public charge. Heavily weighted positive factors
include:
a. Alien's Household Has Income, Assets, Resources, or Support of at
Least 250 Percent of the Federal Poverty Guidelines
If the alien's household has financial assets, resources, support
or annual income of at least 250 percent of the Federal Poverty
Guidelines for the alien's household size, then that will be considered
a heavily weighted positive factor in the totality of the
circumstances. DHS's analysis of Survey of Income and Program
Participation data on income and participation in public benefit
programs shows that participation in programs that
[[Page 55006]]
administer ``public benefits,'' as defined for the purpose of this
rule, declines significantly for individuals with an income at least
250 percent of the Federal Poverty Guidelines. See Inadmissibility on
Public Charge Grounds, 83 FR 51206, (October 10, 2018) (noting, e.g.,
that use of SNAP benefits declines from a 21.2 percent participation
rate for those with income between 125-250 percent of the Federal
Poverty Guidelines to 15 percent for those with incomes between 250-400
percent of the Federal Poverty Guidelines). This approach aligns with
the DHS final rule. Accordingly, the Department will treat income,
assets, resources, or support that is at least 250 percent of the
Federal Poverty Guidelines as a heavily weighted positive factor.
b. Alien With Work Authorization Has Income of at Least 250 Percent of
the Federal Poverty Guidelines
The Department will consider an alien with work authorization and
income of at least 250 percent of the Federal Poverty Guidelines as a
heavily weighted positive factor. In addition to the reasons provided
in the prior paragraph, this level of income suggests that the alien
has obtained a level of self-sufficiency and that he or she would be
less likely to become a public charge, barring unforeseen changes in
circumstances. This aligns with the DHS final rule.
c. Alien Has Private Health Insurance
Additionally, consular officers will consider as a heavily weighted
positive factor that an alien is covered by private health insurance
(other than health insurance obtained with premium tax credits under
the Affordable Care Act) that can be used in the United States during
the entire period of the alien's anticipated stay in the United States.
This approach is supported by DHS's analysis of Survey of Income and
Program Participation data, which indicates that the fact that an alien
has health insurance is indicative of the alien's ability to be self-
sufficient. See Inadmissibility on Public Charge Grounds, 84 FR 41292,
41449 (Aug. 14, 2019). In excluding health insurance obtained with
premium tax credits under the Affordable Care Act from the category of
heavily weighted positive factors, though not from consideration as a
positive factor, the Department observes that DHS adopted this approach
in its final rule.
i. Treatment of Benefits Received Before October 15, 2019
Under the interim final rule, consular officers will consider, as a
negative factor, but not as a heavily weighted negative factor, any
amount of cash assistance for income maintenance, including
Supplemental Security Income (SSI), Temporary Assistance for Needy
Families (TANF), State and local cash assistance programs that provide
benefits for income maintenance (often called ``General Assistance''
programs), and programs (including Medicaid) supporting aliens who are
institutionalized for long-term care, received, or certified for
receipt, before October 15, 2019. This is reflective of the fact that
under previous Department guidance in effect since May 1999, consular
officers considered an applicant likely to become a public charge if
the applicant was likely, at any time after admission, to become
primarily dependent on the U.S. Government (which includes Federal,
state, or local governments) for subsistence. However, the mere receipt
of these benefits does not automatically make an alien ineligible for
the visa. Consular officers will make each determination on a case-by-
case basis in the context of the totality of the circumstances. The
Department will not consider as a negative factor any other public
assistance received, or certified for receipt, before October 15, 2019.
2. Public Charge Definition
The Department's interim final rule interprets public charge as the
receipt of one or more public benefits, as defined in paragraph (b) of
Sec. 40.41, for more than 12 months in the aggregate within any 36-
month period. Receipt of two benefits in one month counts as receiving
benefits for two months. Prior Department guidance limited the
interpretation of ``likely to become a public charge'' to ``likely to
become primarily dependent on the U.S. Government (which includes
Federal, state, or local governments) for subsistence'' (previously
meaning receipt of public cash assistance for income maintenance or
institutionalization for long-term care at U.S. Government expense).
The Department believes this new, more rigorous implementation of the
public charge visa ineligibility is consistent with section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4), and congressional objectives stated in
the Personal Responsibility and Work Opportunity Act of 1996 (PRWORA),
where Congress noted that aliens subject to the public charge visa
ineligibility should ``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.'' See 8
U.S.C. 1601(2)(A).
There is a scarcity of legislative guidance and case law
interpreting public charge. Legislative history, however, suggests a
link between public charge and the receipt of public benefits.
According to a 1950 Senate Judiciary Committee report, which led up to
passage of the INA in 1952, a Senate subcommittee highlighted concerns
raised by an immigration inspector about aliens receiving old age
assistance. The Senate subcommittee recommended against establishing a
strict statutory definition of public charge. Because the circumstances
that indicate any given individual's likelihood of becoming a public
charge vary, the subcommittee instead recommended that the
determination of whether an alien is likely to become a public charge
should rest within the discretion of consular officers and the
Commissioner. See 1950 Omnibus Report of the Senate Judiciary
Committee, S. Rep. No. 81-1515, at 349 (1950).
In setting the standard as receipt of public benefits 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'
worth of benefits) the Department recognizes that States have developed
widely varying approaches to the imposition of time limits for the
receipt of public benefits. On the Federal level, PRWORA established a
60-month time limit on the receipt of federally funded Temporary
Assistance for Needy Families (TANF) program benefits. See 42 U.S.C.
608(a)(7) and 45 CFR 264.1. Some states have adopted shorter lifetime
limits on benefit receipt; in 2017, fourteen States had lifetime limits
of less than 60 months and nine states had intermittent time limits.
See Heffernan, Christine, Benjamin Goehring, Ian Hecker, Linda
Giannarelli, and Sarah Minton (2018). Welfare Rules Databook: State
TANF Policies as of July 2017, OPRE Report 2018- 109, Washington, DC:
Office of Planning, Research, and Evaluation, Administration for
Children and Families, U.S. Department of Health and Human Services
https://wrd.urban.org/wrd/data/databooks/2017%20Welfare%20Rules%20Databook%20(final%2010%2031%2018).pdf (last
visited Sept. 13, 2019).
The Department's position is that an individual who receives public
benefits for more than 12 months, in the aggregate, during a 36-month
period is
[[Page 55007]]
neither self-sufficient nor on the road to achieving self-sufficiency,
and may appropriately be considered a public charge. The Department's
implementation deems receipt of public benefits for such a duration as
exceeding what could reasonably be defined as a nominal level of
support that merely supplements an alien's independent ability to meet
his or her basic living needs. This new definition aligns with the new
DHS rule.
3. Public Benefit
In general: As described above, the Department's prior guidance
interpreted the public charge ground of ineligibility to include only
public cash assistance for income maintenance and institutionalization
for long-term care at U.S. Government expense. Guidance on public cash
assistance for income maintenance was further clarified to include
supplemental security income (SSI); TANF cash assistance, but not
supplemental cash benefits or any non-cash benefits provided under
TANF; and state and local cash assistance programs that provide for
income maintenance (often referenced as ``state general assistance'').
This previous guidance explicitly excluded other benefits including
non-cash benefits such as the SNAP, Medicaid, housing vouchers and
other housing subsidies, and other programs. The Department adopted
this interpretation based on an INS interpretation of the public charge
inadmissibility, as explained in the INS Notice, Field Guidance on
Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689
(May 26, 1999).
The new rule broadens the Department's interpretation of ``public
benefit'' for purposes of applying the public charge ground of
ineligibility to include public cash assistance for income maintenance,
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.
The Department believes this interpretation of public benefit is
consistent with INA section 212(a)(4), 8 U.S.C. 1182(a)(4). The sparse
statutory language and legislative history allows for a wide range of
interpretations, including both the Department's previous more limited
definition of public benefit focused on cash assistance and this
broader definition.
The definition of ``public benefit'' in this interim final rule is
also consistent with PRWORA. That statute includes broad definitions of
``federal public benefit'' and ``state or local public benefit'' that
extend significantly beyond the Department's prior guidance in the
public charge context. While PRWORA allows some aliens to receive
certain benefits covered under its expansive definitions, Congress did
not exclude the lawful receipt of such benefits from consideration for
purposes of INA section 212(a)(4), 8 U.S.C. 1182(a)(4). Further, the
Department's definition of ``public benefit'' is consistent with the
Congressional goals articulated in PRWORA, specifically that aliens
subject to the public charge visa ineligibility should ``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.'' See 8 U.S.C. 1601(2)(A). The Department chose
to include the specific non-cash benefits covered under the definition
of ``public benefit'' because these benefits assist recipients in
meeting basic living requirements, namely food, housing, and medical
care. The receipt of any of the listed benefits indicates that the
recipient, rather than being self-sufficient, needs the government's
assistance to meet basic living requirements.
Since 1999, the Department, when applying the public charge
ineligibility ground, has considered only whether an alien is likely to
become primarily dependent for subsistence on the U.S. Government,
which includes Federal, state, or local governments, by resorting to
income maintenance and institutionalization for long-term care at
government expense. However, current FAM guidance says:
There are many forms of public assistance that an applicant may
have accepted in the past, or that you may reasonably believe an
applicant might receive after admission to the United States, that
are of a non-cash and/or supplemental nature and should not be
considered to be benefits when examining the applicant under INA
212(a)(4), and may only be considered as part of the totality of the
applicant's circumstances in determining whether an applicant is
likely to become a public charge.
Under the interim final rule, the Department will only treat
receipt of the specified forms of public assistance on or after 12:00
a.m., October 15, 2019 as a ``public benefit'' for the purposes of
applying the public charge ground of ineligibility, and will only
consider cash assistance for income maintenance and programs supporting
institutionalization for long term care in the United States that are
not included in the new definition of ``public benefit'' that were
received or certified for receipt prior to October 15, 2019. The
Department believes that consideration of these forms of assistance
represent an appropriately comprehensive and also readily administrable
application of the public charge ground of ineligibility. The interim
final rule will supersede the current policy, which allows consular
officers to consider past receipt of any forms of public assistance, at
any time. The Department observes that DHS proposed a similar approach
in its NPRM, but, following public comments, opted for the approach
reflected in this interim final rule when it finalized its rule. For
consistency with the DHS standard, as well as for increased
transparency and to provide a clear and helpful limitation on the scope
of review for consular officers and visa applicants, the Department is
adopting the DHS final rule's approach.
a. Exception for Certain Individuals Enlisted or Serving in the U.S.
Armed Forces, Spouse, and Children
Under the interim final rule, consular officers will not consider
receipt of public benefits by those enlisted in the U.S. Armed Forces,
or serving in active duty or in the Ready Reserve component of the U.S.
Armed Forces, and their families, when assessing whether such
individuals are likely to become a public charge. The United States
Government is profoundly grateful for the unparalleled sacrifices of
the members of our armed services and their families. The Department
recognizes that some service members, during their service, or their
family members, qualify for and receive public benefits in addition to
the salary and benefits provided by the U.S. government. Their
sacrifices, including risking life and limb, are so vital to the
public's safety and security that the Department finds this exception
warranted. The Department understands that many of the individuals who
enlist in the military are early in their careers, and therefore,
consistent with statutory pay authorities, earn relatively low salaries
that are supplemented by certain other allowances and tax advantages
provided by the U.S. government. See Inadmissibility on Public Charge
Grounds, 84 FR 41371; see also Final Rule, Inadmissibility on Public
Charge Grounds; Correction, 84 FR 52357 (Oct. 10, 2019). This approach
is consistent with the DHS rule. For these reasons, the Department's
interim final rule excludes consideration of the receipt of any public
benefits by active duty service members and their spouses and children.
[[Page 55008]]
b. Exception for Aliens Present in the United States in an Immigration
Category Exempt from the Public Charge Ground
For the purpose of immigration benefit adjudication, DHS does not
consider 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 or for
which the alien received a waiver of public charge inadmissibility. 8
CFR 212.21(b)(8). Likewise, for the purpose of adjudicating visa
applications, consular officers will not consider public benefits an
alien received during any periods in which the alien was present in the
United States in an immigration category that is exempt from the public
charge ground of visa ineligibility, or if the alien was the recipient
of a waiver of the public charge ground of ineligibility.
c. Exception for Foreign-Born Children of U.S. Citizens
In some cases, the children of U.S. citizens will acquire
citizenship upon finalization of their adoption in the United States,
under section 320 of the INA, 8 U.S.C. 1431, or the children will
naturalize upon taking the Oath of Allegiance (or having it waived)
under section 322 of the INA, 8 U.S.C. 1433. In other cases, the
children of U.S. citizens will acquire citizenship upon taking up
residence in the United States in the legal and physical custody of
their U.S. citizen parent pursuant to a lawful admission. The
definition of ``public benefits'' does not include any benefits that
were or will be received by aliens described in this paragraph.
Children of U.S. citizens eligible for automatic acquisition of
citizenship under section 320 of the INA, 8 U.S.C. 1431, are exempt
from the affidavit of support requirement. See Child Citizenship Act,
Public Law 106-395, 114 Stat. 1631 (Oct. 30, 2000); 8 CFR
213a.2(a)(2)(ii)(E). Therefore, consular officers will not require any
affidavit of support forms from sponsors of visa applicants who will
benefit from section 320 of the INA, 8 U.S.C. 1431.
Children of U.S. citizens, including those adopted abroad,
typically receive one of several types of immigrant visas as listed
below and are lawfully admitted to the United States for permanent
residence. Such children may become U.S. citizens (1) automatically,
(2) following their admission to the United States and upon the
finalization of their adoption, or (3) upon meeting other eligibility
criteria. International adoptions vary depending on the laws of the
country of origin, the laws of the U.S. State of residence, and
multiple other factors. In the majority of cases, adoptions are
finalized in the country of origin before the child enters the United
States and the child automatically acquires U.S. citizenship upon
admission to the United States. Children whose adoptions are not
finalized until after their admission or who were subject to custody
orders permitting immigration to and adoption in the United States do
not automatically acquire citizenship after admission. They may acquire
citizenship, however, upon completing an adoption in the United States
or having the foreign adoption recognized by the State where they are
permanently residing, after which they would be eligible to naturalize.
See U.S. Dep't of State, 2018 Annual Report on Intercountry Adoptions,
available at https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-publications.html.
The following categories of children acquire citizenship upon
lawful admission for permanent residence and beginning to reside in the
legal and physical custody of their U.S. citizen parent(s):
IR-2/IR-7 (Child of a U.S. citizen)--requires an approval
of a Form I-130 (Petition for Alien Relative). These children,
excluding stepchildren who have not been adopted by the U.S. citizen
parent, are generally lawfully admitted for permanent residence or
their status is adjusted to that of lawful permanent resident. The
child must then file a Form N-600 (Application for Certificate of
Citizenship) to receive the Certificate of Citizenship. The Certificate
generally uses the date the child was lawfully admitted for permanent
residence.
IR-3/IR-8 (Orphan adopted abroad by a U.S. citizen)--
requires an approval of the Form I-600 (Petition to Classify Orphan as
an Immediate Relative). These children are generally admitted for
permanent residence, and USCIS will send a Certificate of Citizenship
to the child without a Form N-600 being filed or adjudicated.
IH-3 (Hague Convention orphan adopted abroad by a U.S.
citizen)--requires an approval of the Form I-800 (Petition to Classify
Convention Adoptee as an Immediate Relative). These children are
generally admitted for permanent residence and USCIS will send a
Certificate of Citizenship to the child without a Form N-600 being
filed or adjudicated.
The following categories of children are lawfully admitted for
permanent residence for finalization of adoption:
IR-4/IR-9 (Orphan to be adopted by a U.S. citizen).
Generally, the parent(s) must complete the adoption in the United
States. However, the child will also be admitted as an IR-4 if the
foreign adoption was obtained without either parent having seen the
child during the adoption proceedings, or when the parent(s) must
establish that they have either ``readopted'' the child or obtained
recognition of the foreign adoption in the State of residence (this
requirement can be waived if there is a statute or precedent decision
that clearly shows that the foreign adoption is recognized in the State
of residence). See 8 CFR 320.1.
IH-4 (Hague Convention Adoptee to be adopted by a U.S.
citizen). These children are lawfully admitted for permanent residence
and the parent(s) must complete the adoption in the United States. INA
section 101(b)(1), 8 U.S.C. 1101(b).
Furthermore, children of U.S. citizens, who are residing outside of
the United States and are eligible to naturalize under section 322 of
the INA, 8 U.S.C. 1433, must apply for an immigrant or nonimmigrant
visa to enter the United States before they naturalize. These children
are generally issued a B-2 nonimmigrant visa in order to complete the
process for naturalization through an interview and take the Oath of
Allegiance under section 322 of the INA, 8 U.S.C. 1433. Congress has
enacted numerous laws over the last two decades to ensure that foreign-
born children of U.S. citizens are not subject to adverse immigration
consequences in the United States on account of their foreign birth.
Most notably, the Child Citizenship Act of 2000 provides that children,
including adopted children, of U.S. citizen parents automatically
acquire U.S. citizenship if certain conditions are met. See Dep't of
State, FAQ: Child Citizenship Act of 2000, available at https://travel.state.gov/content/travel/en/Intercountry-Adoption/adopt_ref/adoption-FAQs/child-citizenship-act-of-2000.html (last visited July 30,
2019). See also 8 CFR part 320. The same year, Congress passed the
Intercountry Adoption Act of 2000 (IAA), 42 U.S.C. 14901-14954, to
implement the Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, which established
international standards of practices for intercountry adoptions. The
United States signed the Convention in 1994, and the Convention entered
into force for the United States
[[Page 55009]]
on April 1, 2008. Deposit of Instrument of Ratification by the United
States of the Hague Convention on Protection of Children and Co-
operation in Respect of Intercountry Adoption, 72 FR 71730 (Dec. 18,
2007). The full text of the Convention is available at https://www.hcch.net/en/instruments/conventions/full-text/?cid=69 (last visited
July 30, 2019). The IAA protects the rights of children, birth
families, and adoptive parents, and improves the Government's ability
to assist U.S. citizens seeking to adopt children from abroad. IAA
section[thinsp]2, 42 U.S.C. 14901(a). See also Hague Convention on
Intercountry Adoption; Intercountry Adoption Act of 2000; Accreditation
of Agencies; Approval of Persons, 71 FR 8064 (Feb. 15, 2006).
Many U.S. citizens seek to adopt children with disabilities or
serious medical conditions, and a significant proportion of children
adopted abroad by U.S. citizens have special medical needs. U.S.
citizens seeking to adopt foreign-born children abroad generally must
undergo a rigorous home study that includes a detailed assessment of
finances, emotional, mental, and physical health, and other factors to
determine their eligibility and suitability as prospective adoptive
parents. See 8 CFR 204.3(e), 204.311(g)(3). Accordingly, such parents
generally will have sufficient financial resources to provide for the
child. See 8 CFR 204.311(h) (financial considerations); see also USCIS,
Home Study Information, available at https://www.uscis.gov/adoption/home-study-information (last visited July 30, 2019).
Nevertheless, many U.S. citizens who have adopted or are in the
process of adopting foreign-born children with special medical needs
may seek Medicaid for their children. See Public Law 97-248, 96 Stat.
324. Medicaid programs vary by State, and may be based on the child's
disability alone rather than financial means of the parents, or have
higher income eligibility thresholds. As enrollment in Medicaid
programs by children who are under 21 years of age will not be
considered a ``public benefit'' for the purposes of this interim final
rule, and because the adoptive parents have been found to have
sufficient resources to meet the needs of their adoptive child, these
visa applicants will not be considered likely to become public charges.
Specifically, Congress has already imposed a requirement on adoptees
under INA sections 101(b)(1)(F) or (G), 8 U.S.C. 1101(b)(1)(F) or (G),
that requires their parents to demonstrate to the government that
``proper care will be furnished the child if admitted to the United
States.'' Federal regulations already require submission of a home
study in cases involving the proposed adoption of children with special
needs. The home studies in those cases must assess the adoptive
parents' ``preparation, willingness, and ability'' to provide proper
care for such children. 8 CFR 204.3(e)(4) and 204.311(p). The
Department believes that Congress, by imposing a parental suitability
determination that must be satisfied before an immigrant petition may
be approved or a visa may be granted, has frontloaded aspects of the
public charge determination for certain adoptive children and conveyed
a preference that concerns directly related to public charge for
adoptive families be assessed at early stages of the immigration
process, rather than waiting until the time of the visa application at
the very end of the process. Additionally, excluding consideration of
the receipt of public benefits by such children is consistent with
Congress' strong interest in supporting U.S. citizens seeking to adopt
and welcome foreign-born children into their families, as reflected in
the IAA section[thinsp]2, 42 U.S.C. 14901(a). See also 146 Cong. Rec.
S8938-01, S8938 (daily ed. Sept. 21, 2000) (statement by Sen. Landrieu)
(``I have said it before and I believe it rings true here, adoption
brings people, whether they are Republican, Democrat, conservative,
liberal, American, Russian or Chinese, together. United by the belief
that all children deserve to grow in the love of a permanent family.
Adoption breaks down barriers and helps build families.''). See also
Public Law 106-139, 113 Stat. 1696 (1999) (amending the definition of
``child'' in section 101(b)(1)(E) of the INA, 8 U.S.C. 1101(b)(1)(E), a
change that allowed children adopted abroad to maintain their familial
relationship with their natural siblings, making it easier for siblings
to be adopted together).
Furthermore, because these children are being brought to the United
States by their U.S. citizen parents (including adoptive parents) and
will generally become U.S. citizens upon or after admission, and
because the adoptive families have been found to have the resources to
care for them, such an interpretation is not at odds with Congress'
concerns in enacting PRWORA, or as reflected in concurrent immigration
legislation restating the public charge ground of visa ineligibility
noting that aliens should rely on their own capabilities and the
resources of their families, their sponsors, and private organizations;
and that the availability of public benefits should not constitute an
incentive for immigration to the United States. 8 U.S.C. 1601.
This provision also aligns with the DHS final rule. Accordingly,
the interim final rule excludes receipt of benefits by foreign-born
children of United States citizens from its interpretation of ``public
benefits,'' as explained in Section I, above.
4. Alien's Household
The federal poverty guidelines do not define how to determine
household size, and different agencies and programs have different
requirements. See Annual Update of the HHS Poverty Guidelines, 84 FR
1167 (Feb. 1, 2019). Public benefit-granting agencies generally
consider an applicant's income for purposes of public benefit
eligibility and either use the household size or family size to
determine the income threshold needed to qualify for a public benefit.
Each federal program administrator or State determines the general
eligibility requirements needed to qualify for the public benefits and
how to determine whose income is included for purposes of determining
income based eligibility thresholds. For example, SNAP uses the term
``household'' to include ``individuals who live together and
customarily purchase food and prepare meals together for home
consumption.'' 7 U.S.C. 2012(m)(1). The Department did not incorporate
the SNAP definition because an alien may have significant financial
obligations to children who do not reside in the same residence.
Instead, the standard in the interim final rule takes into account
individuals for whom the alien or the alien's parent(s) or legal
guardian(s) or other individual is providing at least 50 percent of
financial support because such expenditure would have significant
bearing on whether the alien has sufficient assets, resources, and
financial status in the context of a public charge determination.
The U.S. Department of Housing and Urban Development (HUD) uses the
term ``families,'' which includes:
[F]amilies with children and, in the cases of elderly families,
near-elderly families, and disabled families, means families whose
heads (or their spouses), or whose sole members, are elderly, near-
elderly, or persons with disabilities, respectively. The term
includes, in the cases of elderly families, near-elderly families,
and disabled families, 2 or more elderly persons, near-elderly
persons, or persons with disabilities living together, and 1 or more
such persons living with 1 or more persons determined under the
public housing agency plan to be essential to their care or well-
being.
[[Page 55010]]
42 U.S.C. 1437a(b)(3). The U.S. Housing Act of 1937 (the 1937 Act), 42
U.S.C. 1437 to 1437zz-10, requires that dwelling units assisted under
it must be rented only to families who are low-income[thinsp]at the
time of their initial occupancy. Section 3 of the 1937 Act also defines
income, with respect to a family, as:
[I]ncome received from all sources by each member of the
household who is 18 years of age or older or is the head of
household or spouse of the head of the household, plus unearned
income by or on behalf of each dependent who is less than 18 years
of age, as determined in accordance with the criteria prescribed by
the Secretary [of Housing and Urban Development], in consultation
with the Secretary of Agriculture [. . .].
42 U.S.C. 1437a(b)(4), as amended by the Housing Opportunity Through
Modernization Act of 2016, Public Law 114-201, section 102, 130 Stat.
782, 787 (2016). Beyond the statutory framework defining families, and
as provided by the 1937 Act, HUD allows public housing agencies the
discretion to determine particularities related to family composition,
as determined under each public housing agency's plan.
``Alien's household,'' under paragraph (e) of the interim final
rule, encompasses many of the individuals identified in various HUD
definitions of ``family,'' including spouses and children as defined
under the INA. The definition of child in INA section 101(b), 8 U.S.C.
1101(b), generally includes unmarried persons under 21 years of age who
are born in or out of wedlock, stepchildren, legitimated children,
adopted children if adopted under the age of 16 or the age of 18 if
natural siblings of another adopted child. In addition, the
Department's interpretation focuses on both individuals who the alien
anticipates will live in the alien's home or physically reside with the
alien in the United States, as well as individuals not living in the
alien's home but for whom the alien and/or the alien's parent(s)/legal
guardian(s) is providing or is required to provide at least 50 percent
of financial support, whether in the United States or abroad.
The IRS defines ``dependent'' to include a qualifying child or a
qualifying relative. See 26 U.S.C. 152; see also IRS Publication 501
(Jan 2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf.
These tests generally include some type of relationship to the person
filing (including step and foster children and their children) whether
or not the dependent is living with the person filing and the amount of
support being provided by the person filing (over 50 percent). IRS
Publication 501 (Jan 2, 2018), available at https://www.irs.gov/pub/irs-pdf/p501.pdf. In general, the dependent must also be a U.S. citizen
or lawful permanent resident in order to qualify as a dependent for tax
purposes. Id.
The IRS definition of ``dependent'' would generally exclude
nonresident aliens. However Sec. 40.41(d) does not. This will result
in a larger number of people being included than if the Department
tracked the IRS's definition of ``dependent'' in order to more
accurately capture the alien's actual financial obligations. As used in
paragraph (d), ``alien's household'' also considers those individuals
who are supported by the alien and are themselves aliens, or those who
may be contributing to the alien's income, in order to determine
whether the alien's financial resources are sufficient to support the
alien and other members of the alien's household. For example, if an
alien resides with a younger sibling who is attending school and the
alien provides 50 percent or more financial support for the younger
sibling, that sibling is a part of the alien's household, even though
the younger sibling may be earning some wages from a part-time job.
Those part-time wages would be counted toward the requisite income
threshold. Similarly, if the alien has an older sibling who is
providing 50 percent or more of financial support to the alien but not
residing with the alien, that older sibling would also be included in
the alien's household and his/her income counted toward the requisite
income threshold along with any income earned by the alien.
As used in Sec. 40.41(d), ``alien's household'' adopts the IRS
standard of the amount of support being provided to the individual (50
percent) as the standard for deeming an individual part of the
household in the public charge determination. See Internal Revenue
Serv., Dependency Exemptions, available at https://apps.irs.gov/app/vita/content/globalmedia/4491_dependency_exemptions.pdf (last visited
Jul. 30, 2019); see also Internal Revenue Serv., Table 2: Dependency
Exemption for Qualifying Relative, available at https://apps.irs.gov/app/vita/content/globalmedia/table_2_dependency_exemption_relative_4012.pdf (last visited Jul. 30,
2019). The Department believes that the ``at least 50 percent of
financial support'' standard used by the IRS is reasonable to apply to
the determination of who is a member of an alien's household, without
regard to whether these individuals physically reside in the alien's
home. This would include those individuals the alien may not have a
legal responsibility to support but may nonetheless be supporting. For
example, this could include a parent, sibling, or a grandparent living
with the alien, or an adult child, sibling, or any other adult who the
alien may be supporting or required to support or who contributes to
the alien's financial support.
5. Receipt of Public Benefits
The interim final rule clarifies that receipt of public benefits
occurs when a public benefit-granting agency provides a public benefit,
as defined in Sec. 40.41(c), to the visa applicant as a beneficiary,
whether in the form of cash, voucher, services, or insurance coverage.
The Department clarifies that application or certification for a public
benefit does not constitute receipt of public benefits, but it may be
considered as a factor suggesting likelihood of future receipt.
Likewise, certification for future receipt of a public benefit does not
constitute receipt of public benefits, although it may suggest a
likelihood of future receipt. An alien's receipt of, application for,
or certification for, public benefits solely on behalf of another
individual does not constitute receipt of, application for, or
certification for, such alien. This standard will help consular
officers implement the new ``public charge'' definition at Sec.
40.41(b) as an alien who receives one or more public benefits, as
defined in paragraph (c) of Sec. 40.41, 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' worth of benefits).
It also clarifies that consular officers must evaluate whether the
alien is likely to receive one or more public benefits, the impact of
certification for future receipt of public benefits, and that the
relevant consideration is the alien's receipt of public benefits, not
application or certification solely on behalf of another person.
6. Deletion of Posting of Bond
The Department removed the provision in former 22 CFR 40.41(d),
which said that a consular officer may issue a visa to an alien who is
within the purview of INA 212(a)(4), 8 U.S.C. 1182(a)(4), upon receipt
of notice from DHS of the giving of a bond, and provided the consular
officer is satisfied that the giving of such bond removes the
likelihood that the alien will become a public charge. The Department
is removing this provision because it reflects an obsolete process.
[[Page 55011]]
7. Deletion of Use of the Federal Poverty Line Where INA 213A Not
Applicable
The Department removed the discussion in former 22 CFR 40.41(f),
which stated that an immigrant visa applicant, not subject to the
requirements of INA 213A, 8 U.S.C. 1183a, and relying solely on
personal income to establish eligibility under INA 212(a)(4), 8 U.S.C.
1182(a)(4), who does not demonstrate an annual income above the Federal
poverty line, as defined in INA 213A(h), 8 U.S.C. 1183a(h), and who is
without other adequate financial resources, shall be presumed
ineligible under INA 212(a)(4), 8 U.S.C. 1182(a)(4). The new language
in sections (a) through (g) provide the framework consular officers
will use to assess the public charge visa ineligibility, including for
immigrant visa applicants who are subject to the public charge ground
of ineligibility, but not the Affidavit of Support requirement. Instead
of retaining a second framework for one subset of individuals subject
to the public charge ground, the Department will apply this standard
uniformly.
8. Deletion of Joint Sponsor
The Department removed the discussion in former 22 CFR 40.41(g),
which stated that submission of one or more additional affidavits of
support by a joint sponsor is required if the relative sponsor's income
and assets and the immigrant's assets do not meet the Federal poverty
requirements. This language has been deleted as it merely restates
statutory requirements of INA 213A, 8 U.S.C. 1183a, and as such is not
necessary in the 22 CFR 40.41.
Regulatory Findings
Administrative Procedure Act
The Department has concluded that the good cause exceptions in 5
U.S.C. 553(b)(B) and (d)(3) apply to this rule, as the delay associated
with notice and comment rulemaking would be impracticable, unnecessary,
or contrary to the public interest. 5 U.S.C. 553(b)(3)(B); 5 U.S.C.
553(d)(3). Those exceptions relieve agencies of the notice-and-comment
requirement in emergency situations, or in circumstances where ``the
delay created by the notice and comment requirements would result in
serious damage to important interests.'' Woods Psychiatric Inst. v.
United States, 20 Cl. Ct. 324, 333 (1990), aff'd, 925 F.2d 1454 (Fed.
Cir. 1991); see also United States v. Dean, 604 F.3d 1275, 1279 (11th
Cir. 2010); Nat'l Fed'n of Federal Emps. v. Nat'l Treasury Emps. Union,
671 F.2d 607, 611 (D.C. Cir. 1982).
Notice and comment on this rule, along with a 30-day delay in its
effective date, would be impracticable and contrary to the public
interest. On August 14, 2019, DHS published a final rule on
inadmissibility on public charge grounds of inadmissibility. 84 FR
41292. That rule, which will be effective October 15, 2019, changes how
DHS interprets the public charge ground of inadmissibility, section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4). Coordination of Department
and DHS implementation of the public charge inadmissibility ground is
critical to the Department's interest in preventing inconsistent
adjudication standards and different outcomes between determinations of
visa eligibility and determinations of admissibility at a port of
entry. If implementation of the rule is delayed pending completion of
notice and comment, consular officers would apply public charge-related
ineligibility standards differing from those applied by DHS and,
consequently, might issue visas to applicants who would later arrive at
a port of entry and be found inadmissible by U.S. Customs and Border
Protection under the new DHS public charge standards, based on the same
information that was presented to the adjudicating consular officer.
This inconsistency between the two agencies' adjudications would create
a public harm and would significantly disrupt the Department's interest
in issuing visas only to individuals who appear to qualify for
admission to the United States. The Department has determined that the
need to minimize the occurrence of situations in which visa holders
arrive at a port of entry and are found inadmissible under the new DHS
public charge standards supports a finding of good cause under 5 U.S.C.
553.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Because this interim final rule is exempt from notice-and-comment
rulemaking under 5 U.S.C. 553, it is exempt from the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Nonetheless, consistent with
the Regulatory Flexibility Act, the Department certifies that this rule
will not have a significant economic impact on a substantial number of
small entities because this rule only regulates individual visa
applicants and does not regulate any small entities or businesses.
Small Business Regulatory Enforcement Fairness Act of 1996
The Office of Information and Regulatory Affairs has determined
that this is not a major rule as defined by 5 U.S.C. 804.
Executive Orders 12866, 13563, and 13771
The new public charge standards will impose additional costs on
many individuals, by requiring applicants to provide detailed
information about their age, health, family status, finances, and
education and skills. These costs are analyzed in the notice required
under the Paperwork Reduction Act of a new form, the DS-5540, Public
Charge Questionnaire, which certain categories of applicants will be
required to complete to help inform the consular officer's public
charge assessment. The Department is separately seeking OMB approval of
a new information collection (form) for this purpose. The Department
estimates 12,736,034 visa applicants per year will be affected by this
interim final rule based on the average number of visa applicants
subject to the public charge ineligibility ground for the years 2017
and 2018. Specifically, in 2017, 624,317 immigrant visa applications
were subject to the public charge ineligibility ground. The number was
630,340 in 2018. In 2017, 12,356,864 nonimmigrant visa applications
were in categories subject to the public charge ineligibility, and
11,860,545 in 2018. While the Department estimates 12,736,034 visa
applicants will be affected by this interim final rule per year, the
Department estimates that only 450,000 applicants per year will be
asked to submit this information; given that the majority of
nonimmigrant visa applicants would not overcome 214(b) if they were
also deemed likely to be a public charge and thus would be refused as
such. The average burden per response is estimated to be 60 minutes.
The Department estimates that the annual hour burden to visa applicants
posed by the additional questions is 450,000 hours (450,000 applicants
x 60 minutes). The weighted wage hour cost burden for this collection
is $15,737,400 based on the calculation of $24.98 \1\ (average hourly
wage) x 1.4 (weighted wage multiplier) x 450,000 hours.
---------------------------------------------------------------------------
\1\ Source: Data from the U.S. Bureau of Labor Statistics' May
2018 National Occupational Employment and Wage Estimates for all
occupations (http://www.bls.gov/oes). Retrieved September 10, 2019.
---------------------------------------------------------------------------
The Department believes the benefits of rigorously applying the
public charge ineligibility ground, informed by relevant information
that can only be provided by applicants, outweighs the costs associated
with the new rule. Visa applicants and their representatives will
already need to adjust to the new DHS
[[Page 55012]]
public charge inadmissibility standard, so the information requested
for the purpose of enforcing the Department's new rule substantially
overlaps with the information requested by DHS when the applicant
applies for admission or other immigration-related benefits in the
United States. Most importantly, this interpretation seeks to mitigate
against the possibility that consular officers would issue a visa to an
individual who DHS would find inadmissible and deny U.S. entry, based
on the same facts. This benefits applicants by preventing the
investment of time and expenditure of personal funds on travel to the
United States in the event that DHS ultimately finds them inadmissible.
This rule is an E.O. 13771 regulatory action.
Executive Orders 12372 and 13132: Federalism
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or the distribution of power and responsibilities among the
various levels of government. The Department does not expect that this
interim final rule will impose substantial direct compliance costs on
State and local governments, or preempt State law. The rule will not
have federalism implications warranting the application of Executive
Orders 12372 and 13132.
Executive Order 12988: Civil Justice Reform
The Department has reviewed the regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize litigation, establish clear legal standards, and reduce
burden.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department has determined that this rulemaking will not have a
substantial direct effect on one or more Indian tribes, will not impose
substantial direct compliance costs on Indian tribal governments, 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, and will not pre-empt tribal law.
Accordingly, the requirements of Section 5 of Executive Order 13175 do
not apply to this rulemaking.
Paperwork Reduction Act
This rule imposes a new information collection requirements under
the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
The Department is separately seeking OMB approval of a new form, which
certain applicants will be required to complete to assist with the
consular officer's public charge assessment.
List of Subjects in 22 CFR Part 40
Administrative practice and procedure, foreign relations, passports
and visas, aliens.
For the reasons stated in the preamble, the Department amends 22
CFR part 40 as follows:
PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
0
1. The authority citation for part 40 is revised to read as follows:
Authority: 8 U.S.C. 1104, 1182, 1183a, 1641
0
2. Section 40.41 is revised to read as follows:
Sec. 40.41 Public charge.
(a) Basis for determination of ineligibility. Any determination
that an alien is ineligible under INA 212(a)(4) must be predicated upon
circumstances indicating that, taking into account any Affidavit of
Support under section 213A of the INA that may have been filed on the
alien's behalf, the alien is likely at any time to become a public
charge after admission, or, if applicable, that the alien has failed to
submit a sufficient Affidavit of Support Under Section 213A of the INA
as set forth in either INA 212(a)(4)(C) or 212(a)(4)(D). Consular
officers will consider whether any identified third party is willing
and able to financially support the alien while the alien is in the
United States. When considering the likelihood of an alien becoming a
public charge at any time through receipt of public benefits, as
defined in paragraph (c) of this section, consular officers will use a
more likely than not standard and take into account the totality of the
alien's circumstances at the time of visa application, including at a
minimum: The alien's age; health; family status; assets, resources, and
financial status; and education and skills. No one enumerated factor
alone, apart from the lack of a sufficient Affidavit of Support under
section 213A of the Act where required, will make the alien more likely
than not to become a public charge. For immigration classifications
exempt from the public charge ground of ineligibility, see 8 CFR
212.23(a).
(1) The alien's age. Consular officers will consider whether the
alien's age makes the alien more likely than not to become a public
charge in the totality of the circumstances, such as by impacting the
alien's ability to work. Consular officers will consider an alien's age
between 18 and early retirement age as defined in 42 U.S.C. 416(l)(2)
as a positive factor. Age is a negative factor for aliens who are under
the age of 18. However, consular officers may consider other factors,
such as the support provided to a minor child by a parent, legal
guardian, or other source, that in the totality of the circumstances
may offset the alien's age as a negative factor. An alien's age above
early retirement age is a negative factor in the totality of the
circumstances, if the consular officer believes it adversely affects
the alien's ability to obtain or perform work, or may increase the
potential for healthcare related costs that would be borne by the
public.
(2) The alien's health. Consular officers will consider whether the
alien's health is a positive or negative factor in the totality of the
circumstances, including whether the alien, has been diagnosed with a
medical condition that is likely to require extensive medical care or
institutionalization, or that will interfere with the alien's ability
to provide and care for himself or herself, to attend school, or to
work, if authorized. Consular officers will consider the report of a
medical examination performed by the panel physician where such
examination is required, including any medical conditions noted by the
panel physician. An individual with a Class B medical condition,
including Class B forms of communicable diseases of public health
significance, as defined in 42 CFR part 34, is not alone a
determinative factor for public charge purposes. The medical condition
will be taken into consideration with all factors under the totality of
circumstances. In assessing the effect of the alien's health on a
public charge ineligibility determination, the consular officer will
consider evidence of health insurance or the ability to pay for
reasonably foreseeable medical expenses in the United States a positive
factor in the totality of the circumstances.
(3) The alien's family status. When considering an alien's family
status, consular officers will consider the size of the alien's
household, as defined in paragraph (e) of this section, and whether the
alien's household size is a positive or negative factor in the totality
of the circumstances.
(4) The alien's assets, resources, and financial status--(i) In
general. Consular
[[Page 55013]]
officers will consider, among other relevant factors, the following
aspects of an alien's assets, resources, and financial status:
(A) If the alien's annual gross income for the alien's household
size is at least 125 percent of the most recent Federal Poverty
Guidelines based on the alien's household size (or 100 percent for an
alien on active duty, other than training, in the Armed Forces),
consular officers will consider the alien's income a positive factor;
(B) If the alien's annual household gross income is less than 125
percent of the most recent Federal Poverty Guidelines (100 percent for
those on active duty, other than training, in the Armed Forces) based
on the alien's household size, consular officers will consider a total
value of the household assets and resources that is at least five times
the difference between the alien's household gross income and 125
percent of the Federal Poverty Guidelines for the alien's household
size as a positive factor. However, if the alien is the spouse or child
of a U.S. citizen, assets totaling three times the difference between
the alien's household gross income and 125 percent of the Federal
Poverty Guidelines (100 percent for those on active duty, other than
training, in the Armed Forces) for the alien's household size is a
positive factor. If the alien is a child who will be adopted in the
United States and who will likely receive citizenship under section 320
of the INA, then assets equivalent to or greater than the difference
between the alien's household gross income and 125 percent the Federal
Poverty Guidelines (100 percent for those on active duty, other than
training, in the Armed Forces) for the alien's household size is a
positive factor.
(ii) Factors to consider. When considering an alien's assets,
resources, and financial status, consular officers must consider
assets, resources, and financial status including:
(A) The alien's household annual gross income;
(B) The alien's cash assets and resources;
(C) Non-cash assets and resources that can be converted into cash
within twelve months of the visa application;
(D) The alien's financial liabilities;
(E) Whether the alien has applied for, been certified to receive,
been approved to receive, or received one or more public benefits, as
defined in paragraph (c) of this section on or after October 15, 2019,
or whether the alien has disenrolled or requested to be disenrolled
from such public benefits.
(F) Whether the alien has received an immigration benefit fee
waiver from DHS on or after October 15, 2019, unless the fee waiver was
applied for or granted as part of an application for which a public
charge inadmissibility under section 212(a)(4) of the Act was not
required; and
(G) Whether the alien has private health insurance or other
financial resources sufficient to cover reasonably foreseeable costs
related to a medical condition in the United States.
(iii) Income from illegal activities or sources. Consular officers
may not consider any income from illegal activities or sources, such as
proceeds from illegal gambling or drug sales, or income from any public
benefit listed in paragraph (c) of this section.
(5) The alien's education and skills. When considering an alien's
education and skills, consular officers will consider both positive and
negative factors associated with whether the alien has adequate
education and skills to either obtain or maintain lawful employment
with an income sufficient to avoid being likely to become a public
charge. In assessing whether the alien's level of education and skills
makes the alien likely to become a public charge, the consular officer
must consider, among other factors, the alien's history of employment,
educational level (high school diploma, or its equivalent, or higher
educational degree), any occupational skills, certifications or
licenses, and English language proficiency or proficiency in languages
in addition to English. Consular officers will take into positive
consideration an alien who is a primary caregiver 18 years of age or
older who has significant responsibility for actively caring for and
managing the well-being of a minor, elderly, ill, or disabled person
residing in the alien's household, such that the alien lacks an
employment history or current employment, or is not employed full time.
Only one alien within a household can be considered a primary caregiver
of the same individual within the household.
(6) Prospective visa classification. When considering the
likelihood at any time of an alien becoming a public charge, consular
officers will consider the visa classification sought.
(7) Affidavit of Support Under Section 213A of the Act. Any alien
seeking an immigrant visa under INA 201(b)(2), 203(a), or 203(b), based
upon a petition filed by a relative of the alien (or in the case of a
petition filed under INA 203(b) by an entity in which a relative has a
significant ownership interest), shall be required to present to the
consular officer an Affidavit of Support Under Section 213A of the INA
on a form that complies with terms and conditions established by the
Secretary of Homeland Security. A properly filed, non-fraudulent,
sufficient Affidavit of Support Under Section 213A of the INA, in those
cases where it is required, is a positive factor in the totality of the
circumstances if the sponsor is likely to actually provide the alien
with the statutorily-required amount of financial support and other
related considerations.
(8) Heavily weighted factors. The factors below will weigh heavily
in an ineligibility determination based on public charge.
(i) Heavily weighted negative factors. The following factors will
weigh heavily in favor of a finding that an alien is likely at any time
in the future to become a public charge:
(A) The alien is not a full-time student and is authorized to work
in his or her country of residence or the United States, as
appropriate, but is unable to satisfy the consular officer that he or
she is currently employed, has recent employment history, or a
reasonable prospect of future employment;
(B) The alien has received or has been certified or approved to
receive one or more public benefits, as defined in paragraph (c) of
this section, 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' worth of benefits), beginning no earlier
than October 15, 2019, or for more than 12 months in the aggregate
within the 36 month period prior to the adjudication of the alien's
visa application, whichever is later.
(C)(1) The alien has been diagnosed with a medical condition that
is likely to require extensive medical treatment or
institutionalization or that will interfere with the alien's ability to
provide for himself or herself, attend school, or work; and
(2) The alien has no health insurance for use in the United States
and has neither the prospect of obtaining private health insurance for
use in the United States, nor the financial resources to pay for
reasonably foreseeable medical costs related to such medical condition;
(D) The alien was previously found inadmissible or deportable on
public charge grounds by an Immigration Judge or the Board of
Immigration Appeals.
(ii) Heavily weighted positive factors. The following factors will
weigh heavily in favor of a finding that an alien is not likely at any
time to become a public charge:
(A) The alien's household has income, assets, resources, or support
of at least
[[Page 55014]]
250 percent of the Federal Poverty Guidelines for the alien's household
size. Consular officers may not consider any income from illegal
activities, e.g., proceeds from illegal gambling or drug sales, or any
income derived from any public benefit as defined in paragraph (c) of
this section;
(B) The alien is authorized to work and is currently employed with
an annual income of at least 250 percent of the Federal Poverty
Guidelines for the alien's household size. Consular officers may not
consider any income from illegal activities, e.g., proceeds from
illegal gambling or drug sales;
(C) The alien has private health insurance (other than health
insurance obtained with premium tax credits under the Affordable Care
Act) for use in the United States covering the expected period of
admission.
(9) Treatment of benefits received before October 15, 2019. When
considering whether an alien is more likely than not to become a public
charge under this section, consular officers will consider, as a
negative factor, but not as a heavily weighted negative factor as
described in paragraph (a)(8) of this section, any amount of cash
assistance for income maintenance, including Supplemental Security
Income (SSI), Temporary Assistance for Needy Families (TANF), State and
local cash assistance programs that provide benefits for income
maintenance (often called ``General Assistance'' programs), and
programs (including Medicaid) supporting aliens who are
institutionalized for long-term care, received, or certified for
receipt, before October 15, 2019.
(b) Public charge. Public charge means, for the purpose of INA
212(a)(4)(A) and (B), an alien who receives one or more public
benefits, as defined in paragraph (c) of this section, 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'
worth of benefits).
(c) Public benefit. (1) Public benefit means any of the following
forms of assistance received on or after October 15, 2019:
(i) Any Federal, State, local, or tribal cash assistance for income
maintenance (other than tax credits), including:
(A) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
(B) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601
et seq.;
(C) 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); and
(ii) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C.
2011 et seq.;
(iii) Housing Choice Voucher Program, as authorized under section
8(o) of the United States Housing Act of 1937 (42 U.S.C. 1437f);
(iv) Project-Based Rental Assistance (including Moderate
Rehabilitation) authorized under section 8 of the United States Housing
Act of 1937 (42 U.S.C. 1437f);
(v) Medicaid under 42 U.S.C. 1396 et seq., except for:
(A) Benefits received for an emergency medical condition as
described in section 1903(v)(2)-(3) of Title XIX of the Social Security
Act, 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(B) Services or benefits funded by Medicaid but provided under the
Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et
seq.;
(C) School-based services or benefits provided to individuals who
are at or below the oldest age eligible for secondary education as
determined under State or local law; and
(D) Benefits received by an alien under 21 years of age, or a woman
during pregnancy (and during the 60-day period beginning on the last
day of the pregnancy).
(vi) Public Housing under section 9 of the U.S. Housing Act of 1937
(42 U.S.C. 1437g).
(2) Public benefit, as defined in this section, does not include
any form of assistance listed in paragraphs (c)(1)(i) through (vi) of
this section received by an alien who at the time of receipt of the
public benefit, or at the time of visa application or visa
adjudication, is or was:
(i) Enlisted in the U.S. Armed Forces under the authority of 10
U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(ii) Serving in active duty or in the Ready Reserve component of
the U.S. Armed Forces, or
(iii) Is the spouse or child as defined in INA101(b), of an
individual described in paragraph (c)(2)(i) or (ii) of this section, or
of a citizen of the United States described in paragraph (c)(2)(i) or
(ii).
(3) Public benefit, as defined in this section, does not include
any form of assistance listed in paragraphs (c)(1)(i) through (vi) of
this section 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 8 CFR
212.23(a), or for which the alien received a waiver of public charge
inadmissibility from DHS. Public benefit does not include health
services for immunizations and for testing and treatment of
communicable diseases, including communicable diseases of public health
significance as defined in 42 CFR part 34.
(4) Public benefit, as defined in this section, does not include
any form of assistance listed in paragraphs (c)(1)(i) through (vi) of
this section that were or will be received by:
(i) Children of U.S. citizens whose lawful admission as permanent
residents and subsequent residence in the legal and physical custody of
their U.S. citizen parent will result automatically in the child's
acquisition of citizenship;
(ii) Children of U.S. citizens whose lawful admission as permanent
residents will result automatically in the child's acquisition of
citizenship upon finalization of adoption; or
(iii) Children of U.S. citizens who are entering the United States
for the purpose of attending an interview under INA 322 in accordance
with 8 CFR part 322.
(d) Alien's household. For purposes of public charge ineligibility
determinations under INA 212(a)(4):
(1) If the alien is 21 years of age or older, or under the age of
21 and married, the alien's household includes:
(i) The alien;
(ii) The alien's spouse, if physically residing or intending to
physically reside with the alien in the United States;
(iii) The alien's children, as defined in INA 101(b)(1), if
physically residing or intending to physically reside with the alien in
the United States;
(iv) The alien's other children, as defined in INA 101(b)(1), not
physically residing or not intending to physically reside with the
alien for whom the alien provides or is required to provide at least 50
percent of financial support, as evidenced by a child support order or
agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided by
the alien;
(v) Any other individuals (including a spouse not physically
residing or intending to physically reside with the alien) to whom the
alien provides, or is required to provide, at least 50 percent of the
individual's financial support or who are listed as dependents on the
alien's United States federal income tax return; and
(vi) Any individual who provides to the alien at least 50 percent
of the alien's financial support, or who lists the alien as a dependent
on his or her federal income tax return.
[[Page 55015]]
(2) If the alien is a child as defined in INA 101(b)(1), the
alien's household includes the following individuals:
(i) The alien;
(ii) The alien's children as defined in INA 101(b)(1), physically
residing or intending to physically reside with the alien in the United
States;
(iii) The alien's other children as defined in INA 101(b)(1) not
physically residing or intending to physically reside with the alien
for whom the alien provides or is required to provide at least 50
percent of the children's financial support, as evidenced by a child
support order or agreement, a custody order or agreement, or any other
order or agreement specifying the amount of financial support to be
provided by the alien;
(iv) The alien's parents, legal guardians, or any other individual
providing or required to provide at least 50 percent of the alien's
financial support to the alien as evidenced by a child support order or
agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided to
the alien;
(v) The alien's parents' or legal guardians' other children as
defined in INA 101(b)(1), physically residing or intending to
physically reside with the alien in the United States;
(vi) The alien's parents' or legal guardians' other children as
defined in INA 101(b)(1), not physically residing or intending to
physically reside with the alien for whom the parent or legal guardian
provides or is required to provide at least 50 percent of the other
children's financial support, as evidenced by a child support order or
agreement, a custody order or agreement, or any other order or
agreement specifying the amount of financial support to be provided by
the parents or legal guardians; and
(vii) Any other individual to whom the alien's parents or legal
guardians provide, or are required to provide at least 50 percent of
each individual's financial support, or who is listed as a dependent on
the parent's or legal guardian's federal income tax return.
(e) Receipt of public benefit. Receipt of public benefit occurs
when a public benefit-granting agency provides a public benefit, as
defined in paragraph (c) of this section, to the alien as a
beneficiary, whether in the form of cash, voucher, services, or
insurance coverage. Application or certification for a public benefit
does not constitute receipt of public benefit, but it may be considered
as a factor suggesting likelihood of future receipt. An alien's receipt
of, application for, or certification for public benefit solely on
behalf of another individual does not constitute receipt of,
application for, or certification for such alien.
(f) Prearranged employment. An immigrant visa applicant relying on
an offer of prearranged employment to establish eligibility under INA
212(a)(4), other than an offer of employment certified by the
Department of Labor pursuant to INA 212(a)(5)(A), must provide written
confirmation of the relevant information sworn and subscribed to before
a notary public by the employer or an authorized employee or agent of
the employer. The signer's printed name and position or other
relationship with the employer must accompany the signature.
Carl C. Risch,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2019-22399 Filed 10-10-19; 8:45 am]
BILLING CODE 4710-06-P
