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DEPARTMENT OF HOMELAND in this rule, by certain members of the B. Current Public Charge Standards SECURITY U.S. Armed Forces and their families; C. Final Rule certain international adoptees; and III. Public Comments on the Proposed Rule 8 CFR Parts 103, 212, 213, 214, 245 and receipt of in certain contexts, A. Summary of Public Comments 248 B. Requests To Extend Comment Period especially by aliens under the age of 21, C. Comments Expressing General Support pregnant women (and women for up to [CIS No. 2637–19; DHS Docket No. USCIS– for the NPRM 2010–0012] 60 days after giving birth), and for D. Comments Expressing General certain services funded by Medicaid Opposition to the NPRM RIN 1615–AA22 under the Individuals with Disabilities 1. Purpose of the Rule and Self Sufficiency Education Act (IDEA) or in a school 2. Requests for Reconsideration and Inadmissibility on Public Charge setting. Aliens who might qualify for Withdrawal of NPRM Grounds these exemptions should study the rule 3. Alternatives to the 4. Discrimination and Disparate Impact AGENCY: U.S. Citizenship and carefully to understand how the 5. Potential Disenrollment Impacts Immigration Services, DHS. exemptions work. • Choice Between Public Benefits and This final rule also clarifies that DHS Immigration Status ACTION: Final rule. will only consider public benefits • General Assertions as to Effects • Housing Benefit-Related Effects SUMMARY: received directly by the alien for the This final rule amends DHS • Food and Nutrition Benefit-Related regulations by prescribing how DHS alien’s own benefit, or where the alien is a listed beneficiary of the public Effects will determine whether an alien • benefit. DHS will not consider public Health Benefit-Related Effects applying for admission or adjustment of • Effects on Vulnerable Populations status is inadmissible to the United benefits received on behalf of another. • Effects on U.S. Citizens States under section 212(a)(4) of the DHS also will not attribute receipt of a • Increased Costs to Health Care Providers, Immigration and Nationality Act (INA public benefit by one or more members States, and Localities or the Act), because he or she is likely of the alien’s household to the alien 6. Inconsistent With American Values and unless the alien is also a listed Historic Commitment to Immigrants at any time to become a public charge. 7. Contributions to American Society and The final rule includes definitions of beneficiary of the public benefit. This final rule supersedes the 1999 Consideration of Self-Sufficiency certain terms critical to the public Interim Field Guidance on Deportability 8. Adjudication and Processing charge determination, such as ‘‘public 9. Privacy Concerns and Inadmissibility on Public Charge charge’’ and ‘‘public benefit,’’ which are E. General Comments Regarding Legal Grounds. not defined in the statute, and explains Authority and Statutory Provisions the factors DHS will consider in the DATES: This final rule is effective at 1. Lack of Statutory Authority/Inconsistent With Congressional Intent totality of the circumstances when 12:00 a.m. Eastern Time on October 15, 2019. DHS will apply this rule only to 2. Additional Legal Arguments making a public charge inadmissibility a. Allegations That the Rule Is Arbitrary determination. The final rule also applications and petitions postmarked and Capricious addresses USCIS’ authority to issue (or, if applicable, submitted b. Alternatives public charge bonds under section 213 electronically) on or after the effective c. Retroactivity of the Act in the context of applications date. Applications and petitions already d. Due Process/Vagueness and Equal for adjustment of status. Finally, this pending with USCIS on the effective Protection rule includes a requirement that aliens date of the rule (i.e., were postmarked e. Coordination With Other Federal Agencies seeking an extension of stay or change before the effective date of the rule and were accepted by USCIS) will not be f. International Law and Related Issues of status demonstrate that they have not, g. Contract Law since obtaining the nonimmigrant status subject to the rule. F. Applicability of the Public Charge they seek to extend or change, received FOR FURTHER INFORMATION CONTACT: Ground of Inadmissibility, and the public benefits over the designated Mark Phillips, Residence and Public Benefit Condition to Extension of threshold, as defined in this rule. Naturalization Division Chief, Office of Stay and Change of Status This rule does not create any penalty Policy and Strategy, U.S. Citizenship 1. Applicability of the Public Charge or disincentive for past, current, or and Immigration Services, Department Ground of Inadmissibility Generally of Homeland Security, 20 Massachusetts 2. Applicability and Content of the Public future receipt of public benefits by U.S. Benefits Condition citizens or aliens whom Congress has NW, Washington, DC 20529–2140; a. Nonimmigrant Students and Exchange exempted from the public charge telephone 202–272–8377. Visitors ground of inadmissibility. This rule SUPPLEMENTARY INFORMATION: b. Workers does not apply to U.S. citizens, even if d. Compact of Free Association Migrants Table of Contents the U.S. citizen is related to an alien 3. Exemptions and Waivers With Respect subject to the public charge ground of I. Executive Summary to the Rule Generally inadmissibility. The rule also does not A. Purpose of the Regulatory Action a. General Comments B. Legal Authority b. Special Immigrant Juvenile apply to aliens whom Congress c. Certain Employment Based Preference exempted from the public charge C. Summary of the Proposed Rule D. Summary of Changes in the Final Rule Categories, or National Interest Waiver ground of inadmissibility (such as 1. Definitions d. Violence Against Women Act, T, and U asylees, refugees, or other vulnerable 2. Public Benefits 4. Summary of Applicability, Exemptions, populations listed as exempt in this 3. Applicability to Nonimmigrants and Waivers final rule). Nor does this rule apply to 4. Totality of the Circumstances G. Definitions aliens for whom DHS has statutory Determination 1. Public Charge discretion to waive this ground of 5. Public Charge Bond for Adjustment of a. Threshold Standard inadmissibility, if DHS has exercised Status Applicants ‘‘Primarily dependent’’ Based on Cash 6. Other Changes Public Benefit Receipt or Long-Term such discretion. E. Summary of Costs and Benefits Institutionalization at Government In addition, this includes special II. Background Expense provisions for how DHS will consider A. Public Charge Inadmissibility and b. Standards for Monetizable and Non- the receipt of public benefits, as defined Public Charge Bonds Monetizable Benefits

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Numerical Percentage Threshold 2. Current Receipt of One of More Public Regulatory Review), and Valuation Benefit 13771 (Reducing and Alternatives to the Duration Standard 3. Receipt of Public Benefits Within 36 Controlling Regulatory Costs) Combination Standard Months Before Filing 1. Summary 2. Public Benefits 4. Financial Means To Pay for Medical B. Regulatory Flexibility Act a. Specific Groups and Public Benefits Costs 1. Final Regulatory Flexibility Analysis Individuals With Disabilities 5. Alien Previously Found Inadmissible or a. A Statement of the Need for, and Vulnerable Populations Deportable Based on Public Charge Objectives of, the Rule Receipt of Public Benefits by Children R. Heavily Weighted Positive Factors b. A statement of the significant issues b. Supplemental Security Income 1. Proposed Standard raised by the public comments in c. Temporary Assistance for Needy 2. Additional Positive Heavily Weighted response to the initial regulatory Families Factors flexibility analysis, a statement of the d. State, Local and Tribal Cash Assistance a. Affidavit of Support assessment of the agency of such issues, e. Supplemental Nutrition Assistance b. Family Relationships and a statement of any changes made in Program c. English Ability the proposed rule as a result of such CalFresh d. Education comments. f. Housing e. Private Health Insurance c. The response of the agency to any g. Institutionalization f. Work History comments filed by the Chief Counsel for h. Medicaid g. Receipt of Grants, Contracts, and Advocacy of the Small Business Individuals With Disabilities Education Licensures Administration in response to the Act h. Caregivers proposed rule, and a detailed statement Emergency Services Exclusion i. Ability To Work in the Future of any change made to the proposed rule Vaccinations S. Public Charge Bonds for Adjustment of in the final rule as a result of the Substance Abuse Status Applicants comments. i. Medicare, Medicare Part D Low Income 1. Standard d. A description of and an estimate of the Subsidy 2. Bond Amount number of small entities to which the j. Additional Considerations 3. Public Charge Bond Cancellation rule will apply or an explanation of why Exhaustive List 4. Breach of Public Charge Bond no such estimate is available. Additional Programs T. Effective Date(s) e. A description of the projected reporting, Dependents Benefits Received Before Effective Date and recordkeeping, and other compliance Tax Credits Previously Excluded Benefits requirements of the rule, including an Special Supplemental Nutrition Program U. Other Comments estimate of the classes of small entities for Women, Infants, and Children V. Public Comments and Responses to the that will be subject to the requirement School Breakfast/Lunch Programs NPRM’s Statutory and Regulatory and the type of professional skills State and Local Benefits Requirements Section necessary for preparation of the report or Head Start 1. Comments on Costs and Benefits record. Healthy Start, The Emergency Food a. Population Seeking Extension of Stay or f. Description of the steps the agency has Assistance Program, and Similar Change of Status taken to minimize the significant Programs b. Other Comments on Affected Population economic impact on small entities Pell Grants c. Determination of Inadmissibility Based consistent with the stated objectives of Children’s Health Insurance Program on Public Charge Grounds applicable statutes, including a Disaster Supplemental Nutrition d. Other Comments on Baseline Estimates statement of factual, policy, and legal Assistance e. Costs to Applicants To Adjust Status reasons for selecting the alternative Social Security Disability Insurance f. Lack of Clarity adopted in the final rule and why each 3. Likely at Any Time To Become a Public g. Other Comments on Costs to Applicants one of the other significant alternatives Charge h. Costs Related to Public Charge Bond to the rule considered by the agency 4. Household i. Costs Related to Program Changes and which affect the impact on small entities H. Public Charge Inadmissibility Public Inquiries was rejected. Determination Based on Totality of j. Costs Related to States and Local C. Congressional Review Act Circumstances Governments, and Public Benefit- D. Unfunded Mandates Reform Act I. Age Granting Agencies E. Executive Order 13132 (Federalism) 1. Standard k. Regulatory Familiarization Costs F. Executive Order 12988 (Civil Justice 2. Age Discrimination l. Costs to the Federal Government Reform) J. Health m. Costs to Non-Citizens and Their G. Executive Order 13175 Consultation and 1. Standard Communities Coordination With Indian Tribal 2. Health and Disability Discrimination n. Healthcare-Related Costs Governments K. Family Status o. Housing and Homelessness-Related H. Family Assessment L. Assets, Resources, and Financial Status Costs I. National Environmental Policy Act 1. Income Standard p. Economic Costs (NEPA) 2. Evidence of Assets and Resources r. Economic Impact and Job Loss J. Paperwork Reduction Act 3. Public Benefits s. Economic Impact on Healthcare System V. List of Subjects and Regulatory 4. Fee Waivers for Immigration Benefits t. Impact on U.S. Workforce Amendments 5. Credit Report and Score u. Economic Impacts Related to Nutrition Table of Abbreviations 6. Financial Means To Pay for Medical Programs Costs v. Other Economic Impacts AAO—Administrative Appeals Office M. Education and Skills w. DHS Estimates of Discounted Direct ACA—Affordable Care Act 1. Education Costs and Reduced Transfer Payments ACTC—Additional Child Tax Credit 2. Language Proficiency x. Benefits of Proposed Regulatory Changes AFM—Adjudicator’s Field Manual 3. Skills y. Cost Benefit Analysis Issues ASEC—Annual Social and Economic 4. Employment 2. Federalism Comments Supplement of the Current Population N. Affidavit of Support 3. Family Assessment Comments Survey O. Additional Factors To Consider 4. Paperwork Reduction Act Comments BIA—Board of Immigration Appeals P. Heavily Weighted Factors General IV. Statutory and Regulatory Requirements BLS—U.S. Bureau of Labor Statistics Comments A. Executive Order 12866 (Regulatory CDC—Centers for Disease Control and Q. Heavily Weighted Negative Factors Planning and Review), Executive Order Prevention 1. Lack of Employability 13563 (Improving Regulation and CBP—U.S. Customs and Border Protection

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CFR—Code of Federal Regulations ICE—U.S. Immigration and Customs is likely at any time to become a public CHIP—Children’s Health Insurance Program Enforcement charge.4 The statute does not define the CNMI—Commonwealth of the Northern IEFA—Immigration Examinations Fee term ‘‘public charge,’’ but in a related Mariana Islands Account statute, Congress has articulated a DACA—Deferred Action for Childhood IIRIRA—Illegal Immigration Reform and Arrivals Immigrant Responsibility Act of 1996 national policy that (1) ‘‘aliens within DD Act—The Developmental Disabilities INA—Immigration and Nationality Act the Nation’s borders not depend on Assistance and Bill of Rights Act of 2000 INS—Immigration and Naturalization Service public resources to meet their needs, but DHS—U.S. Department of Homeland IRCA—Immigration Reform and Control Act rather rely on their own capabilities and Security of 1986 the resources of their families, their DOJ—U.S. Department of Justice IRS— sponsors, and private organizations,’’ DOS—U.S. Department of State LIHEAP—Low Income Home Energy and (2) ‘‘the availability of public EITC—Earned Income Tax Credit Assistance Program benefits not constitute an incentive for LIS—Medicare Part D Low Income Subsidy E.O.—Executive Order immigration to the United States.’’ 5 In EOIR—Executive Office for Immigration LPR—Lawful Permanent Resident Review NEPA—National Environmental Policy Act addition, the public charge statute FAM— FCRA—Fair of 1969 provides that in making the Credit Reporting Act NHE—National Health Expenditure inadmissibility determination, FPG—Federal Poverty Guidelines NOID—Notice of Intent to Deny administering agencies must ‘‘at a FPL—Federal Poverty Level NPRM—Notice of Proposed minimum consider the alien’s age; Form DS–2054—Medical Examination for PRA—Paperwork Reduction Act health; family status; assets, resources, Immigrant or Refugee Applicant PTC—Premium Tax Credit and financial status; and education and Form I–129—Petition for a Nonimmigrant PRWORA—Personal Responsibility and skills.’’ 6 The agencies may also consider Work Opportunity Reconciliation Act of Worker any affidavit of support under section Form I–129CW—Petition for a CNMI-Only 1996 Nonimmigrant Transitional Worker RFE—Request for Evidence 213A of the Act, 8 U.S.C. 1183a, i.e., Form I–130—Petition for Alien Relative RFRA—Religious Freedom Restoration Act Form I–864, Affidavit of Support Under Form I–140—Immigrant Petition for Alien SAVE—Systematic Alien Verification for Section 213A of the INA, submitted on Workers Entitlements Secretary—Secretary of the alien’s behalf.7 Form I–290B—Notice of Appeal or Motion Homeland Security Since 1999, the prevailing approach Form I–356—Request for Cancellation of SIPP—Survey of Income and Program to public charge inadmissibility has Public Charge Bond Participation been dictated primarily by the May 26, Form I–407—Record of Abandonment of SNAP—Supplemental Nutrition Assistance 1999, Field Guidance on Deportability Lawful Permanent Resident Status Program SORN—System of Records Notice and Inadmissibility on Public Charge Form I–485—Application to Register Grounds (1999 Interim Field Guidance), Permanent Residence or Adjust Status SSA—Social Security Administration SSI—Supplemental Security Income issued by the former Immigration and Form I–539—Application to Extend/Change 8 Nonimmigrant Status TANF—Temporary Assistance for Needy Naturalization Service (INS). Under Form I–539A—Supplemental Information for Families Application to Extend/Change TPS—Temporary Protected Status inadmissibility, each in a different context or Nonimmigrant Status USDA—U.S. Department of Agriculture contexts. DHS primarily applies the public charge U.S.C.— ground of inadmissibility at ports of entry and Form I–600—Petition to Classify Orphan as when adjudicating certain applications for an Immediate Relative USCIS—U.S. Citizenship and Immigration Services adjustment of status. This rule amends the Form I–601—Application for Waiver of standards applicable to those contexts, and also sets VAWA—Violence Against Women Act Grounds of Inadmissibility forth evidentiary requirements applicable to the Form I–693—Report of Medical Examination VAWA 2013—Violence Against Women adjustment of status context. and Vaccination Record Form Reauthorization Act of 2013 DOS Consular officers are responsible for I–800—Petition to Classify Convention WAP—Weatherization Assistance Program applying the public charge ground of WIC—Special Supplemental Nutrition Adoptee as an Immediate Relative inadmissibility as part of the visa application Program for Women, Infants, and Children process and for determining whether a visa Form I–864—Affidavit of Support Under applicant is ineligible for a visa on public charge Section 213A of the INA I. Executive Summary grounds. This rule does not directly revise DOS Form I–864A—Contract Between Sponsor standards or processes. DHS is working with DOS and Household Member A. Purpose of the Regulatory Action to ensure that the Foreign Affairs Manual Form I–864EZ—Affidavit of Support Under This rule changes how the appropriately reflects the standards in this rule. Section 213A of the Act Department of Homeland Security DOJ is responsible for applying the public charge Form I–864P—HHS Poverty Guidelines for ground of inadmissibility in immigration court, Affidavit of Support (DHS) interprets and implements the where DHS may bring and prosecute the charge Form I–864W—Request for Exemption for public charge ground of against certain inadmissible aliens. Immigration Intending Immigrant’s Affidavit of Support inadmissibility.1 The Immigration and judges adjudicate matters in removal proceedings, and the Board of Immigration Appeals and in some Form I–912—Request for Fee Waiver Nationality Act (INA or the Act) renders cases the Attorney General adjudicate appeals Form I–94—Arrival/Departure Record inadmissible and therefore (1) ineligible arising from such proceedings. This rule does not Form I–944—Declaration of Self-Sufficiency for a visa, (2) ineligible for admission directly revise DOJ standards or processes. DHS Form I–945—Public Charge Bond and (3) ineligible for adjustment of understands that the DOJ plans to conduct Form N–600—Application for Certificate of status, any alien 2 who, in the opinion rulemaking to ensure that the standards applied in Citizenship immigration court are consistent with the standards of the DHS (or the Departments of State in this rule. Form N–600K—Application for Citizenship 3 and Issuance of Certificate Under Section (DOS) or Justice (DOJ), as applicable), 4 See INA section 212(a)(4)(A), 8 U.S.C. 322 1182(a)(4)(A). 5 GA—General Assistance 1 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). See 8 U.S.C. 1601(2). 6 GAO—U.S. Government Accountability 2 Congress has by statute exempted certain See INA section 212(a)(4)(B)(i), 8 U.S.C. 1182(a)(4)(B)(i). Office categories of aliens, such as asylees and refugees, from the public charge ground of inadmissibility. 7 See INA section 212(a)(4)(B)(ii), 8 U.S.C. HHS—U.S. Department of Health and Human See, e.g., INA sections 207(c)(3) and 209(c), 8 U.S.C. 1182(a)(4)(B)(ii). Services 1157(c)(3), 1159(c). A full list of exemptions is 8 See Field Guidance on Deportability and HOPWA—Housing Opportunities for Persons included in this rule. Inadmissibility on Public Charge Grounds, 64 FR with AIDS 3 Three different agencies are responsible for 28689 (May 26, 1999). Due to a printing error, the HCV—Housing Choice Voucher applying the public charge ground of Federal Register version of the field guidance

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that approach, ‘‘public charge’’ has been with respect to the statutory factor for accordance with section 212(a)(4)(C) or interpreted to mean a person who is the alien’s age, DHS would generally (D), must generally submit Form I–944 ‘‘primarily dependent on the consider it to be a negative factor if the with the Form I–485. Failure to submit Government for subsistence, as alien is younger than 18 or older than each form, where required, may result demonstrated by either the receipt of 61, and a positive factor if the alien is in a rejection or a denial of the Form I– public cash assistance for income between the ages of 18 and 61. These 485 without a prior issuance of a maintenance or institutionalization for positive or negative factors operate as Request for Evidence or Notice of Intent long-term care at Government guidelines to help the officer determine to Deny.12 expense.’’ 9 As a consequence, an alien’s whether the alien is likely at any time This rule also revises DHS regulations reliance on or receipt of non-cash to become a public charge, i.e., is more governing the discretion of the Secretary benefits such as the Supplemental likely than not at any time in the future of Homeland Security (Secretary) to Nutrition Assistance Program (SNAP), to receive one or more designated public accept a public charge bond under or food stamps; Medicaid; and housing benefits for more than 12 months in the section 213 of the Act, 8 U.S.C. 1183, for vouchers and other housing subsidies aggregate within any 36-month period. those seeking adjustment of status. are not currently considered by DHS in The rule also contains lists of heavily Additionally, this rule contains determining whether an alien is deemed weighted negative factors and heavily additional provisions that will render likely at any time to become a public weighted positive factors. For example, certain nonimmigrants ineligible for charge. the rule includes a heavily weighted extension of stay or change of status if DHS is revising its interpretation of negative factor for an alien who is not she or he received one or more public ‘‘public charge’’ to incorporate a full-time student and is authorized to benefits for more than 12 months in the consideration of such benefits, and to work, but is unable to demonstrate aggregate within any 36-month period better ensure that aliens subject to the current employment, recent since obtaining the status he or she public charge inadmissibility ground are employment history, or a reasonable wishes to extend or change. self-sufficient, i.e., do not depend on prospect of future employment. DHS Finally, DHS notes that the INA also public resources to meet their needs, but believes that these circumstances contains a separate public charge rather rely on their own capabilities, as should be accorded heavy negative ground of deportability.13 This rule does well as the resources of family members, weight in a public charge not interpret or change DHS’s sponsors, and private organizations.10 inadmissibility determination because, implementation of the public charge This rule redefines the term ‘‘public as discussed in the preamble to the ground of deportability. charge’’ to mean an alien who receives NPRM and in the preamble to this final B. Legal Authority one or more designated public benefits rule, the presence of these for more than 12 months in the circumstances suggests a greater DHS’s authority for making public aggregate within any 36-month period likelihood that the alien will become a charge inadmissibility determinations (such that, for instance, receipt of two public charge than other negative factors and related decisions is found in several benefits in one month counts as two suggest. The presence of a single statutory provisions. Section 102 of the months). This rule defines the term positive or negative factor, or heavily Homeland Security Act of 2002,14 6 ‘‘public benefit’’ to include cash benefits weighted negative or positive factor, U.S.C. 112, and section 103 of the Act, for income maintenance, SNAP, most will never, on its own, create a 8 U.S.C. 1103, charge the Secretary with forms of Medicaid, Section 8 Housing presumption that an applicant is the administration and enforcement of Assistance under the Housing Choice inadmissible as likely to become a the immigration and naturalization laws Voucher (HCV) Program, Section 8 public charge or determine the outcome of the United States. In addition to Project-Based Rental Assistance, and of the public charge inadmissibility establishing the Secretary’s general certain other forms of subsidized determination. Rather, a public charge authority for the administration and housing. DHS has tailored the rule to inadmissibility determination must be enforcement of immigration laws, limit its effects in certain ways, such as based on the totality of the section 103 of the Act, 8 U.S.C. 1103, for active duty military members and circumstances presented in an enumerates various related authorities, their families, and children in certain applicant’s case. including the Secretary’s authority to contexts. With respect to applications for establish regulations and prescribe such This rule also explains how DHS will adjustment of status in particular, this forms of bond as are necessary for interpret the minimum statutory factors rule also provides a more carrying out such authority. Section 212 for determining whether ‘‘in the opinion comprehensive evidentiary framework of the Act, 8 U.S.C. 1182, establishes of’’ 11 the officer, the alien is likely at under which U.S. Citizenship and classes of aliens that are ineligible for any time to become a public charge. Immigration Services (USCIS) will visas, admission, or adjustment of Specifically, the rule contains a list of consider public charge inadmissibility. status; paragraph (a)(4) of that section negative and positive factors that DHS Under this rule, applicants for establishes the public charge ground of will consider as part of this adjustment of status who are subject to inadmissibility, including the minimum determination, and directs officers to the public charge ground of factors the Secretary must consider in consider these factors in the totality of inadmissibility must file a Declaration making a determination that an alien is the alien’s circumstances. For instance, of Self-Sufficiency (Form I–944) with likely to become a public charge. their Application to Register Permanent Section 212(a)(4) of the Act, 8 U.S.C. appears to be dated ‘‘March 26, 1999’’ even though Residence or Adjust Status (Form I–485) 1182(a)(4), also establishes the the guidance was actually signed May 20, 1999, to demonstrate they are not likely to enforceable affidavit of support became effective May 21, 1999 and was published become a public charge. The Form I–944 requirement, as applicable, to certain in the Federal Register on May 26, 1999. only applies to adjustment applicants family-based and employment-based 9 See Field Guidance on Deportability and and not applicants for admission at a Inadmissibility on Public Charge Grounds, 64 FR 28689, 28692 (May 26, 1999). port of entry. 12 See 8 CFR 103.2(a)(7), (b)(8)(ii). 10 See 8 U.S.C. 1601(1), (2)(A). In addition, applicants required to 13 See INA section 237(a)(5), 8 U.S.C. 1227(a)(5). 11 See INA section 212(a)(4)(A), 8 U.S.C. submit Form I–864, Affidavit of Support 14 Public Law 107–296, 116 Stat. 2135, 2142–44 1182(a)(4)(A). Under Section 213A of the INA, in (Nov. 25, 2002).

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immigrants, and exempts certain aliens benefits is quite large, and that some months in the aggregate within a 36- from both the public charge ground of benefits are more commonly used, at month period. inadmissibility and the affidavit of greater taxpayer expense, than others. In • DHS also proposed a threshold to support requirement. Section 213 of the seeking to provide clear notice of the address circumstances where an alien Act, 8 U.S.C. 1183, provides the effects of the rule, and to limit certain receives a combination of monetizable Secretary with discretion to admit into indirect costs that may be associated benefits equal to or below the 15 percent the United States an alien who is with the rule, DHS elected to limit the threshold, together with one or more determined to be inadmissible as a number and types of non-cash public benefits that cannot be monetized. In public charge under section 212(a)(4) of benefits that it would designate. DHS such cases, DHS proposed that the the Act, 8 U.S.C. 1182(a)(4), but is therefore proposed to designate just a threshold for duration of receipt of the otherwise admissible, upon the giving of few means-tested non-cash benefits non-monetizable benefits would be a proper and suitable bond. That section related to food and nutrition, housing, more than 9 months in the aggregate authorizes the Secretary to establish the and healthcare, which bear directly on within a 36-month period. amount and conditions of such bond. the recipient’s self-sufficiency and DHS expressly sought comment on Section 213A of the Act, 8 U.S.C. 1183a, together account for significant federal these proposed thresholds, including sets out requirements for the sponsor’s expenditures on low-income whether DHS should consider an alien’s affidavit of support, including individuals. DHS’s proposed list of receipt of benefits below any given reimbursement of government expenses public benefits included cash benefits threshold, as part of DHS’s totality of where the sponsored alien received for income maintenance, the circumstances determination. As means-tested public benefits. Section institutionalization for long-term care at noted below, this final rule adopts a 214 of the Act, 8 U.S.C. 1184, addresses government expense, SNAP, most forms single threshold for all designated requirements for the admission of of Medicaid, Premium and Cost Sharing public benefits (including those that nonimmigrants, including authorizing Subsidies for Medicare Part D (Medicare were considered ‘‘monetizable’’ under the Secretary to prescribe the conditions Part D LIS), Section 8 Housing the proposed rule): More than 12 of such admission through regulations Assistance under the HCV Program, months in the aggregate within a 36- and when necessary, establish a bond to Section 8 Project-Based Rental month period. And this final rule ensure that those admitted as Assistance, and certain other forms of authorizes officers to consider receipt of nonimmigrants or who change their subsidized housing. DHS also sought benefits below that threshold, to the nonimmigrant status under section 248 comment on the potential inclusion of extent relevant in the totality of the of the Act, 8 U.S.C. 1258, depart if they other public benefits programs. As circumstances. violate their nonimmigrant status or noted below, this final rule designates Second, DHS proposed to tailor its after such status expires. Section 245 of each of the above-referenced public rule to limit its effects in certain ways, the Act, 8 U.S.C. 1255, generally benefits, except for institutionalization for a range of reasons. For instance, DHS establishes eligibility criteria for for long-term care at government proposed to not consider the receipt of adjustment of status to lawful expense and Medicare Part D LIS. DHS public benefits by certain aliens who, at permanent residence. Section 248 of the is not designating any additional the time of receipt, filing, or Act, 8 U.S.C. 1258, authorizes the programs. adjudication, are enlisted in the U.S. Secretary to prescribe conditions under DHS proposed to limit its Armed Forces, serving in active duty or which an alien may change his or her consideration of an alien’s receipt of in the Ready Reserve, or if received by status from one nonimmigrant these designated public benefits in two such an individual’s spouse or children. classification to another. The Secretary main ways, each of which DHS DHS also proposed to not consider promulgates the changes in this rule incorporated into the definition of emergency Medicaid or Medicaid under all of these authorities. public benefit. First, DHS proposed to received for services provided under the Individuals with Disabilities Education C. Summary of the Proposed Rule establish ‘‘thresholds’’ for the amount or duration of public benefits that the alien Act (IDEA), and to not consider any On October 10, 2018, DHS published must receive, before DHS will consider school-based benefits provided to a Notice of Proposed Rulemaking the alien to have received a public individuals who are at or below the (NPRM) entitled Inadmissibility on benefit. In other words, DHS proposed maximum eligible age for secondary Public Charge Grounds.15 The NPRM that it would not consider an alien’s education, as determined under State identified the groups of individuals receipt of a given public benefit at all, law. Lastly, DHS proposed to exempt generally subject to, or exempt from, the unless the alien received the benefit in from consideration Medicaid benefits public charge inadmissibility ground. an amount, or for a duration, that met received by children of U.S. citizens Further, DHS proposed definitions for an applicable threshold. Specifically, whose lawful admission for permanent the terms ‘‘public charge,’’ ‘‘likely at any DHS proposed the following thresholds: residence and subsequent residence in time to become a public charge,’’ the custody of U.S. citizen parents will • For public benefits that are ‘‘public benefit,’’ and ‘‘alien’s result automatically in the child’s ‘‘monetizable’’ (such as cash benefits, household.’’ acquisition of citizenship, or upon SNAP, and housing vouchers and rental As part of the definition of public finalization of adoption in the United assistance), DHS proposed a threshold benefit, DHS proposed to designate an States by the U.S. citizen parents (or of 15 percent of the Federal Poverty exhaustive list of public benefits that upon meeting eligibility criteria) or Guidelines (FPG) for a household of one would be considered for purposes of a children entering the United States for within a period of 12 consecutive public charge inadmissibility the prime purpose of attending a months. determination, as well as for purposes of citizenship interview under the Child • For public benefits that cannot be extension of stay and change of Citizenship Act of 2000.16 As noted monetized (such as Medicaid, Medicare nonimmigrant status applications. DHS below, this final rule revises these recognized that the universe of public Part D LIS, subsidized housing, and institutionalization for long-term care at 16 See Public Law 106–395, 114 Stat. 1631, 1631– 15 Inadmissibility on Public Charge Grounds, 83 government expense), DHS proposed a 33 (Oct. 30, 2000) (codified at INA 320(a)–(b), 8 FR 51114 (proposed Oct. 10, 2018). threshold of receipt during more than 12 U.S.C. 1431(a)–(b)).

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provisions in certain ways, and also all benefits with a single duration-based be currently employed or have includes an additional provision standard (i.e., the proposed standard for employment history but are nonetheless exempting Medicaid receipt by aliens non-monetizable benefits). DHS has also contributing to their households by under the age of 21 and pregnant incorporated the single duration caring for others. DHS defines primary women (including women for 60 days standard into the definition of ‘‘public caregiver as an alien who is 18 years of after the last day of pregnancy). charge,’’ rather than the definition of age or older and has significant In addition to proposing new ‘‘public benefit.’’ Consequently, under responsibility for actively caring for and definitions, DHS proposed a regulatory this simplified duration standard, a managing the well-being of a child or an framework for analyzing the public charge is an alien who receives elderly, ill, or disabled person in the aforementioned statutory factors that one or more public benefit for more than alien’s household. must be considered for purposes of the 12 months in the aggregate within any 2. Public Benefits public charge inadmissibility 36-month period (such that, for determination. DHS also proposed to instance, receipt of two public benefits • Medicaid Received by Aliens Under amend its existing regulations in one month counts as two months). Age 21 and Pregnant Women. Following addressing public charge bonds. In • Consideration of Receipt of Public receipt of public comments addressing addition, DHS proposed to require Benefits below the Threshold, in the the nature of the Medicaid benefit for applicants seeking an extension of stay Totality of the Circumstances. Under the children and pregnant women. DHS has or change of nonimmigrant status to proposed rule, DHS would not have revised provisions under which DHS demonstrate that they have not received considered the receipt of benefits below would have considered an alien’s and are not currently receiving, nor are the applicable threshold in the totality receipt of Medicaid, regardless of the they likely to receive public benefits, as of the circumstances. As a consequence, alien’s age. For purposes of this final defined in the regulation, for the USCIS would have been unable to rule, DHS has excluded consideration of duration of their stay. Again, as noted consider an alien’s past receipt of public the receipt of Medicaid by aliens under below, this final rule revises these benefits below the threshold at all, even the age of 21 and pregnant women provisions in certain ways. if such receipt was indicative, to some during pregnancy and during the 60-day degree, of the alien’s likelihood of period after pregnancy. DHS received 266,077 comments on • the proposed rule, the vast majority of becoming a public charge at any time in Medicare Part D Low-Income which opposed the rule. The preamble the future. Under this final rule, Subsidy. The NPRM’s definition for to this final rule includes summaries of adjudicators will consider and give public benefit included Medicare Part D the significant issues raised by the appropriate weight to past receipt of LIS. Following receipt of public comments, and includes responsive public benefits below the single comment regarding the nature of the explanations, and policy changes. durational threshold described above in Medicare Part D LIS, which is part of an the totality of the circumstances.18 overall benefit scheme that contains D. Summary of Changes in the Final • Receipt of Public Benefits. DHS has extensive work requirements, DHS has Rule added a definition of ‘‘receipt’’ of public decided to exclude an alien’s receipt of Following careful consideration of benefits, consistent with the explanation such subsidies from the public benefit public comments received and relevant in the proposed rule preamble. The new definition for purposes of the public definition clarifies that an application or charge inadmissibility determination. data provided by stakeholders, DHS has • made several changes to the regulatory certification for benefits does not Benefits Received by Military text proposed in the NPRM.17 As constitute receipt, although it may serve Servicemembers and their Spouses and discussed in detail elsewhere in this as evidence of the alien’s likelihood of Children. The NPRM’s definition for preamble, the changes in this final rule receiving public benefits in the future. public benefit excluded the include the following: It also clarifies that when an alien consideration of public benefits receives, applies for, or obtains a received by an alien who at the time of 1. Definitions certification for public benefits solely on receipt of the public benefit, filing, or • Definitions of ‘‘Public Charge’’ and behalf of another person, DHS does not adjudication, is enlisted in the U.S. ‘‘Public Benefit.’’ DHS has revised the consider the alien to have received the Armed Forces, serving in the active duty definition of ‘‘public charge’’ and benefit. or in the Ready Reserve component of ‘‘public benefit’’ to clarify the threshold • Likely at Any Time to Become a the U.S. Armed Forces, or is the spouse of public benefit receipt that renders an Public Charge. DHS has amended the or child of such servicemember. The alien a public charge. As noted above, definition of ‘‘likely at any time to NPRM did not make clear what the proposed rule defined a public become a public charge’’ to clarify that immigration benefit types this provision charge as an alien who receives one or an alien is likely at any time to become applies to. DHS has revised the public more public benefits as defined in the a public charge if the alien is more benefit definition to clarify that this proposed rule. The proposed rule likely than not at any time in the future provision applies with respect to incorporated the threshold concept into to become a public charge, as applications for admission, adjustment the definition of public benefit, and determined based on the totality of the of status, and extension of stay or proposed different thresholds for alien’s circumstances. change of status. • ‘‘monetizable’’ and ‘‘non-monetizable’’ • Primary Caregiver. DHS has Benefits Received while in a Status benefits. Following receipt of public included a new definition of ‘‘primary that is Exempt from the Public Charge comments regarding a variety of issues, caregiver’’ to account for a new Ground of Inadmissibility. DHS has including the complexity of the consideration in the totality of the revised the public benefit definition to proposed standard for monetizing circumstances for aliens who may not clarify that DHS will not consider any certain public benefits, DHS has revised public benefits received by an alien the definitions for public charge and 18 As stated in the Benefits Received Before during periods in which the alien was Effective Date and Previously Excluded Benefits present in the United States in a public benefits, and will now evaluate section of this rule, DHS will not apply this rule to benefits received before the effective date of the classification that is exempt from the 17 See Inadmissibility on Public Charge Grounds, rule, except for those benefits that would have been public charge ground of inadmissibility 83 FR 51114 (proposed Oct. 10, 2018). considered under the 1999 Interim Field Guidance. or for which the alien received a waiver

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of the public charge inadmissibility future-looking requirement. DHS will • VAWA 2013 Public Charge ground. only consider whether the alien has Exemptions and the Affidavit of • Public Benefits Received by received designated benefits for more Support Requirement for Certain Children Eligible for Acquisition of than 12 months in the aggregate within Employment-Based Petitions. DHS has Citizenship. DHS has revised the a 36-month period since obtaining the revised several regulatory provisions proposed definition of public benefit nonimmigrant status they wish to relating to T nonimmigrants, U that excluded from consideration extend or change, up until the time of nonimmigrants, VAWA self-petitioners, Medicaid received by children of U.S. adjudication of the extension of stay or and qualified aliens as described in 8 citizens whose lawful admission for change of status request. U.S.C. 1641(c). The proposed rule was permanent residence and subsequent • Victim of Severe Form of silent on the applicability of section residence in the legal and physical Trafficking in Persons (T) 212(a)(4)(D) of the INA, 8 U.S.C. custody of their U.S. citizen parent will Nonimmigrants Exemption. DHS has 1182(a)(4)(D), which requires an result automatically in the child’s revised several regulatory provisions affidavit of support as described in acquisition of citizenship, or whose relating to individuals who have a section 213A of the INA, 8 U.S.C. 1183a, lawful admission for permanent pending application setting forth a for certain employment-based residence will result automatically in prima facie case for eligibility for T immigrant petitions. DHS has modified the child’s acquisition of citizenship nonimmigrant status, or who are present the exemption provisions at 8 CFR upon finalization of adoption in the in the United States in valid T 212.23(a) with respect to T United States by the U.S. citizen nonimmigrant status. In the proposed nonimmigrants, U nonimmigrants, parent(s) or, upon meeting other rule, DHS provided that T VAWA self-petitions, and certain eligibility criteria as required.19 DHS nonimmigrants applying for adjustment qualified aliens to accurately reflect has changed this provision to clarify of status were subject to the public changes codified by Congress in VAWA 21 that public benefits, as defined in the charge inadmissibility ground and could 2013. An alien who falls under one of rule, do not include any public benefits request a waiver of inadmissibility. DHS the VAWA 2013 exemptions from that were or will be received by such has modified the provisions with public charge inadmissibility would not children. respect to T nonimmigrants to need to demonstrate that he or she is not • Benefits Provided for accurately reflect changes codified by likely at any time to become a public Institutionalization. The NPRM’s Congress in the Violence Against charge, but would need to submit a definition of public benefit included Women Reauthorization Act of 2013 sufficient affidavit of support described benefits for long-term (VAWA 2013).20 DHS has revised the in 213A of the INA, 8 U.S.C. 1183a, if institutionalization at government public charge inadmissibility exemption adjusting under an employed-based expense. Following receipt of public provision proposed in the NPRM and category that requires one by statute. comment regarding specific benefits created new provisions to align these 4. Totality of the Circumstances considered to provide for regulations with the changes to the law Determination institutionalization, DHS has removed made by VAWA 2013. T nonimmigrants • The Alien is a Primary Caregiver for the reference to long-term applying for adjustment of status will no Household Member as a Consideration institutionalization within the longer need to submit a waiver of in the Education and Skills Factor: DHS definition of public benefit, as the long- inadmissibility for public charge has added a provision that would take term institutionalization benefits that purposes. into consideration whether an alien is a DHS has in the past considered, and • Victims of Criminal Activity (U) primary caregiver of another in the intends to consider under this rule, are Nonimmigrants Exemption. DHS has alien’s household, for example a child already part of the public benefit revised the regulatory provisions or elderly relative. This factor is definition, i.e., Temporary Assistance relating to the exemption from public intended to take into consideration for Needy Families (TANF), charge inadmissibility for individuals difficult-to-monetize contributions by Supplemental Security Income (SSI), who have a pending application for U aliens who may lack current and Medicaid. nonimmigrant status, or who are granted employment or an employment history 3. Applicability to Nonimmigrants U nonimmigrant status, to align these due to their full time, unpaid care of regulations with the changes to the law • ‘‘Likely to Receive’’ Public Benefits household members. made by VAWA 2013. In the proposed • Heavily Weighted Negative Factor and ‘‘Currently Receiving’’ Public rule, U nonimmigrant petitioners or for Receipt of Public Benefits above the Benefits Condition. Following receipt of those granted U nonimmigrant status Threshold. Under the proposed rule, in public comments addressing the public were exempted from the public charge conducting the public charge benefit condition for nonimmigrants inadmissibility ground for purposes of inadmissibility determination, there seeking extension of stay or change of U nonimmigrant status or for purposes were two separate heavily weighted status, DHS has revised this provision. of adjustment of status under section factors related to the receipt of public Under the proposal, DHS would have 245(m) of the Act, 8 U.S.C. 1255(m). benefits: (1) The alien is currently considered whether such an alien has DHS has clarified that, in general, U visa receiving or is currently certified or received, is currently receiving, or is petitioners and those granted U approved to receive one or more public likely to receive public benefits in nonimmigrant status are exempt from a benefits and (2) an alien has received excess of the designated thresholds public charge inadmissibility one or more public benefits above the since obtaining the nonimmigrant status determination in any future immigration applicable threshold within the 36- the alien seeks to attend or from which benefit request that requires a finding of months immediately preceding the the alien seeks to change. DHS has admissibility, not only adjustment of alien’s application for a visa, admission modified the provision by removing the status under section 245(m) of the Act, or adjustment of status. DHS has 8 U.S.C. 1255(m). 19 See Child Citizenship Act of 2000, Public Law consolidated these factors within one 106–395, 114 Stat. 1631, 1631–33 (Oct. 30, 2000) (codified at section 320(a)–(b) of the Act, 8 U.S.C. 20 See Public Law 113–4, 127 Stat. 54 (Mar. 7, 21 See Public Law 113–4, 127 Stat. 54 (Mar. 7, 1431(a)–(b)), in accordance with 8 CFR part 320. 2013). 2013).

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heavily weighted negative factor. The of the most recent FPG for the alien’s ineligibility for a given benefit would factor will apply in cases where the household size, and not 125 percent of not be outcome-determinative, USCIS alien has received or has been certified the FPG for the alien’s household size, will consider the information in the or approved to receive one or more as proposed in the NPRM, in order to totality of the circumstances. public benefits for more than 12 months serve as a positive factor in the public • Education and Skills. To clarify within any 36-month period, beginning charge inadmissibility determination. additional types of documentation that no earlier than 36 months prior to the • Household Income and Public establish a steady employment history, alien’s application for admission or Benefits. DHS has revised the rule to DHS has revised the evidentiary adjustment of status. clarify that the applicant’s gross considerations for the education and • Heavily Weighted Positive Factor household income does not include any skills factor, to require that applicants for Private Health Insurance. In this household income from public benefits, submit, with their adjustment of status final rule DHS added a new heavily as defined in this rule. applications, federal tax return weighted positive factor for when the • Household Income from Illegal transcripts for the previous three years alien has private health insurance Activities. DHS has revised the rule to or, if such transcripts are unavailable, appropriate for the expected period of clarify that household income from other credible and probative evidence, admission, and for which the alien does illegal activity or sources will not be including an explanation of the not receive subsidies in the form of considered as part of the income, assets, unavailability of such transcripts. premium tax credits (including advance or resources factor in the public charge 5. Public Charge Bond for Adjustment of premium tax credits) under the ACA. inadmissibility determination. DHS has Status Applicants This heavily weighted positive factor is also consolidated the consideration of in addition to the positive factor that income from sources other than • Breach of Bonds and Threshold of would apply in circumstances where an household members into a single Public Benefit Receipt. In the NPRM, alien has sufficient household assets provision. DHS proposed that a public charge bond and resources (including health • Household Income and Evidentiary is considered breached if the bonded insurance not considered to be a public Considerations. DHS amended the rule alien had used public benefits in the benefit under 8 CFR 212.22(b)) to cover to clarify that when assessing the alien’s amount or for the duration established reasonably foreseeable medical costs, annual gross household income, DHS as the threshold in the proposed public including costs related to a medical considers the most recent federal tax- benefits definition. In this final rule, condition that is likely to require year transcripts from the United States DHS has modified the threshold to a extensive medical treatment or Internal Revenue Service (IRS) for each single duration-based threshold and has institutionalization or that will interfere household member whose income will moved that threshold from the proposed with the alien’s ability to provide care be considered. Additionally, DHS also public benefits definition into the for himself or herself, to attend school, clarified that if the most recent tax-year public charge definition. To ensure that or to work. transcripts from the IRS are unavailable, the bond breach conditions remain the • Evidence of the Alien’s Health. In DHS will consider other credible and same in this final rule, DHS has revised response to concerns regarding the probative evidence of the household the rule, and incorporated the single qualifications of USCIS adjudicators to member’s income, including an duration threshold ‘‘for more than 12 evaluate the alien’s health, DHS has explanation why the evidence is not months in the aggregate within any 36- revised the rule to clarify that, if the available. month period (such that, for instance, alien is required to undergo an • Fee Waivers and Categories receipt of two benefits in one month immigration medical examination from Excluded from Public Charge. DHS has counts as two months)’’ in the bond a civil surgeon or panel physician, DHS revised the rule to state that a fee waiver breach determination. will generally defer to the immigration request or receipt would not be • Substitution. DHS has revised medical examination report when considered for purposes of determining proposed 8 CFR 213.1 to indicate that assessing whether the alien is more public charge inadmissibility if the fee DHS will only offer public charge bonds likely than not at any time in the future waiver was applied for, or granted, as of unlimited duration. Correspondingly, to become a public charge on account of part of an application for which a public DHS has removed text that references a diagnosed medical condition unless charge inadmissibility determination bonds of limited durations or provisions there is evidence that the report is was not required. that addressed the substitution of a incomplete. DHS, however, continues to • Public Benefit Disenrollment and bond of limited duration. DHS has permit the use of other documentation Eligibility. DHS has clarified in the rule retained, however, the general bond regarding the alien’s medical how USCIS will consider past public substitution provision. conditions, as proposed in the NPRM, to benefits receipt, in the totality of the • Cancellation on the basis of assess whether the alien’s health makes circumstances. USCIS will consider Permanent Departure from the United the alien more likely than not to become whether an alien has disenrolled or States. DHS has clarified that an alien a public charge at any time in the future. requested to be disenrolled from the is only considered to have voluntarily • Household Assets. DHS has revised public benefit(s). USCIS will also lost lawful permanent resident status for the rule to clarify that DHS considers an consider, as part of the totality of the the purposes of bond cancellation based alien’s ownership of significant assets circumstances, any evidence that the on a permanent departure when the similar to the standards in the affidavit alien submits from a Federal, State, alien has submitted a record of of support regulations under 8 CFR local, or tribal agency administering a abandonment of lawful permanent 213a.2(c)(2)(iii)(B). public benefit, that the alien has resident status on the form prescribed • Household Income and specifically identified as showing that by DHS and in accordance with the Servicemembers of the Armed Forces. the alien does not qualify or would not form’s instructions, while the alien is DHS has revised the rule to clarify that qualify for such public benefit by virtue outside of the United States. if the applicant is on active duty, other of, for instance, the alien’s annual gross • Discretionary Cancellation. DHS than training, in the Armed Forces of household income or prospective has added language to this final rule to the United States, the applicant’s gross immigration status, or length of stay. clarify that DHS retains discretion to household income may be 100 percent While an alien’s prospective cancel a public charge bond,

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notwithstanding an absence of a written complete a separate Form I–539A, and Forms I–485, I–129, I–129CW, and I– request from the obligor or alien, if DHS provide information regarding the 539, and for requesting or cancelling a determines that an alien otherwise derivative beneficiary’s applications for, public charge bond using Form I–945 meets the applicable eligibility or receipt of, public benefits, except and Form I–356, respectively. requirements. where the nonimmigrant classification Over the first 10 years of • Bond Amount. In response to that the derivative beneficiary seeks to implementation, DHS estimates the total public comment, DHS has revised extend, or to which the alien seeks to quantified new direct costs of the final proposed 8 CFR 213.1 to reduce the change, is exempted from the public rule will be about $352,026,980 minimum amount in which a public charge ground of inadmissibility. (undiscounted). In addition, DHS charge bond may be offered to $8,100, estimates that the 10-year discounted E. Summary of Costs and Benefits annually adjusted for inflation based on total direct costs of this final rule will the Consumer Price Index for All Urban This rule will impose new costs on be about $300,286,154 at a 3 percent Consumers (CPI–U), and rounded up to the population applying to adjust status discount rate and about $247,249,020 at the nearest dollar. using Form I–485 that are subject to the a 7 percent discount rate. • Bond Breach and Public Benefits public charge ground of inadmissibility. Simultaneously, DHS is eliminating Received while in a Status that is DHS will now require any adjustment the use and consideration of the Request Exempt from the Public Charge Ground applicants subject to the public charge for Exemption for Intending Immigrant’s of Inadmissibility. DHS has revised this ground of inadmissibility and who are Affidavit of Support (Form I–864W), rule to clarify that DHS will not applying for adjustment of status on or currently applicable to certain classes of consider, as part of a public charge bond after the effective date of this final rule aliens. In lieu of Form I–864W, the alien breach determination, any public to submit a Form I–944 with their Form will indicate eligibility for the benefits received by an alien during I–485 to demonstrate they are not likely exemption of the affidavit of support periods for which the alien received a to become a public charge. Failure to requirement on Form I–485. waiver of the public charge submit the form, where required, may The final rule will also potentially inadmissibility ground. In the NPRM, result in a rejection or a denial of the impose new costs on obligors DHS had already proposed that public Form I–485 without a prior issuance of (individuals or companies) if an alien benefits received while in a public a Request for Evidence or Notice of has been determined to be likely at any charge exempt status following the Intent to Deny.22 Additionally, the time in the future to become a public initial grant of status as a lawful associated time burden estimate for charge and will be permitted to submit permanent resident, and any public completing Form I–485 will increase. a public charge bond, for which USCIS benefits received after the alien obtained The rule will also impose additional will use the new Form I–945. DHS U.S. citizenship, would not be counted costs for those seeking extension of stay estimates the total cost to file Form I– towards the bond breach determination. or change of status by filing a Petition 945 will be, at minimum, about $34,166 These exemptions remain unchanged in for a Nonimmigrant Worker (Form I– annually.23 this final rule. 129); Petition for a CNMI-Only Moreover, the final rule will Nonimmigrant Transitional Worker potentially impose new costs on aliens 6. Other Changes (Form I–129CW); or Form I–539 and • or obligors who submit Form I–356 as Prospective Application of the Rule. Form I–539A, as applicable. The part of a request to cancel the public DHS clarified in 8 CFR 212.20, 214.1, associated time burden estimate for charge bond. DHS estimates the total and 248.1 that this final rule applies completing these forms will increase cost to file Form I–356 would be prospectively to applications and because these applicants will be approximately $824 annually.24 petitions postmarked (or, if applicable, required to demonstrate that they have The final rule will also result in a submitted electronically) on or after the not received, since obtaining the reduction in transfer payments from the effective date. (DHS retained and further nonimmigrant status that they seek to Federal Government to individuals who refined provisions addressing how it extend or from which they seek to may choose to disenroll from or forego will consider receipt of public benefits change, and through the adjudication, enrollment in a public benefits program. before the effective date of this rule.) public benefits as described in final 8 • Individuals who might choose to Technical Changes. DHS has also CFR 212.21(b) for more than 12 months disenroll from or forego future made miscellaneous technical edits to in the aggregate within any 36-month enrollment in a public benefits program reduce redundancy and improve period (such that, for instance, receipt of include foreign-born non-citizens, as readability and clarity. two benefits in one month counts as two well as U.S. citizens who are members • Changes to Form I–539A. DHS has months). Moreover, the rule will impose of mixed-status households,25 who may made non-substantive changes to new costs associated with the new otherwise be eligible for public benefits. Supplemental Information for public charge bond process, including DHS estimates that the total reduction Application to Extend/Change new costs for completing and filing a in transfer payments from the Federal Nonimmigrant Status (Form I–539A), Public Charge Bond (Form I–945), and and State governments will be which collects biographical information Request for Cancellation of Public about derivative beneficiaries named on Charge Bond (Form I–356). 23 Calculation: $35.59 (cost per obligor to file an applicant’s Application to Extend/ DHS estimates that the additional Form I–945) * 960 (estimated annual population Change Nonimmigrant Status (Form I– total cost of the rule will be who would file Form I–945) = $34,166.40 = $34,166 539). Form I–539A was published as a approximately $35,202,698 annually. (rounded) annual total cost to file Form I–945. new form on March 8, 2019, to replace This cost includes the population 24 Calculation: $33.00 (cost per obligor to file Form I–356) * 25 (estimated annual population who Supplement A of Form I–539. In light of applying to adjust status who are also would file Form I–356) = $825.00 annual total cost the creation of Form I–539A, DHS has required to file Form I–944, the to file Form I–356. moved the information collection opportunity costs of time associated 25 DHS uses the term ‘‘foreign-born non-citizen’’ regarding public benefits received by with such filings, as well the increased since it is the term the Census Bureau uses. DHS generally interprets this term to mean alien in this the derivative beneficiaries from Form time burden estimates for completing analysis. In addition, DHS notes that the Census I–539 to Form I–539A. Each derivative Bureau publishes much of the data used in this beneficiary of a Form I–539 will need to 22 See 8 CFR 103.2(a)(7), (b)(8)(ii). analysis.

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approximately $2.47 billion annually result in reduced revenues for $729.40 per individual who must read due to disenrollment or foregone healthcare providers participating in and review the final rule. enrollment in public benefits programs Medicaid, companies that manufacture The final rule will produce some by foreign-born non-citizens who may medical supplies or pharmaceuticals, quantified benefits due to the regulatory be receiving public benefits. DHS grocery retailers participating in SNAP, changes DHS is making. The final rule estimates that the 10-year discounted agricultural producers who grow foods will produce some benefits for T federal and state transfer payments that are eligible for purchase using nonimmigrants applying for adjustment reduction of this final rule will be SNAP benefits, or landlords of status based on their T nonimmigrant approximately $21.0 billion at a 3 participating in federally funded status, as this population will no longer percent discount rate and about $17.3 housing programs. need to submit Application for Waiver billion at a 7 percent discount rate. Additionally, the final rule will have of Grounds of Inadmissibility (Form I– However, DHS notes there may be new direct and indirect impacts on 601) seeking a waiver of the public additional reductions in transfer various entities and individuals payments that we are unable to associated with regulatory charge ground of inadmissibility. DHS familiarization with the provisions of estimates the total benefit for this quantify. 28 There also may be additional the rule. Familiarization costs involve population is $15,176 annually. reductions in transfer payments from the time spent reading the details of a The primary benefit of the final rule states to individuals who may choose to rule to understand its changes. A would be to better ensure that aliens disenroll from or forego enrollment in foreign-born non-citizen (such as those who are admitted to the United States, public benefits program. For example, contemplating disenrollment or seek extension of stay or change of the Federal Government funds all SNAP foregoing enrollment in a public status, or apply for adjustment of status food expenses, but only 50 percent of benefits program) might review the rule will be self-sufficient, i.e., will rely on allowable administrative costs for to determine whether he or she is their own financial resources, as well as regular operating expenses.26 Similarly, subject to the provisions of the final rule the financial resources of the family, Federal Medical Assistance Percentages and may incur familiarization costs. To sponsors, and private organizations.29 (FMAP) in some U.S. Department of the extent that an individual or entity DHS also anticipates that the final rule Health and Human Services (HHS) directly regulated by the rule incurs will produce some benefits from the programs, like Medicaid, can vary from familiarization costs, those elimination of Form I–864W. The between 50 percent to an enhanced rate familiarization costs are a direct cost of elimination of this form will potentially of 100 percent in some cases.27 Since the rule. In addition to those individuals reduce the number of forms USCIS the state share of federal financial or entities the rule directly regulates, a would have to process. DHS estimates participation (FFP) varies from state to wide variety of other entities would the amount of cost savings that will state, DHS uses the average FMAP likely choose to read and understand accrue from eliminating Form I–864W across all states and U.S. territories of 59 the rule and, therefore, would incur would be about $36.47 per petitioner.30 percent to estimate the amount of state familiarization costs. For example, However, DHS is unable to determine transfer payments. Therefore, the 10- immigration lawyers, immigration the annual number of filings of Form I– year undiscounted amount of state advocacy groups, health care providers 864W and, therefore, currently is unable transfer payments of the provisions of of all types, non-profit organizations, to estimate the total annual cost savings this final rule is about $1.01 billion non-governmental organizations, and of this change. Additionally, a public annually. The 10-year discounted religious organizations, among others, charge bond process will also provide amount of state transfer payments of the may need or want to become familiar benefits to applicants as they potentially provisions of this final rule would be with the provisions of this final rule. will be given the opportunity for approximately $8.63 billion at a 3 DHS believes such non-profit adjustment if otherwise admissible, at percent discount rate, and about $7.12 organizations and other advocacy the discretion of DHS, after a billion at a 7 percent discount rate. groups might choose to read the rule to determination that he or she is likely to Finally, DHS recognizes that reductions provide information to those foreign- become a public charge. in federal and state transfers under born non-citizens that might be affected federal benefit programs may have by a reduction in federal and state Table 1 provides a more detailed impacts on state and local economies, transfer payments. Familiarization costs summary of the final provisions and large and small businesses, and incurred by those not directly regulated their impacts. individuals. For example, the rule might are indirect costs. 28 Calculation: $14,880 (Filing fees for Form DHS estimates the time that would be I–601) + $296.48 (Opportunity cost of time for Form 26 Per section 16(a) of the Food and Nutrition Act necessary to read this final rule would I–601) = $15,176.48 = $15,176 (rounded) total of 2008, Public Law 110–234, tit. IV, 122 Stat. 923, be approximately 16 to 20 hours per current estimated annual cost for filing T 1092 (May 22, 2008) (codified as amended at 7 person depending on an individual’s nonimmigrants filing Form I–601 seeking a waiver U.S.C. 2025). See also USDA, FNS Handbook 901, of grounds of inadmissibility. Therefore, the at p. 41 (2017). Available at: https://fns- average reading speed and level of estimated total benefits of the final rule for T prod.azureedge.net/sites/default/files/apd/FNS_ review, resulting in opportunity costs of nonimmigrants applying for adjustment of status HB901_v2.2_internet_Ready_Format.pdf, (last visited July 26, 2019). time. An entity, such as a non-profit or using Form I–601 seeking a waiver on grounds of inadmissibility will equal the current cost to file 27 See Dep’t of Health and Human Servs. Notice, advocacy group, may have more than Form I–601 for this population. Federal Financial Participation in State Assistance one person that reads the rule. Using the Expenditures; Federal Matching Shares for average total rate of compensation as 29 See 8 U.S.C. 1601(1), (2)(A). 30 Medicaid, the Children’s Health Insurance Program, $36.47 per hour for all occupations, Calculation of savings from opportunity cost of and Aid to Needy Aged, Blind, or Disabled Persons time for no longer having to complete and submit for October 1, 2016 through September 30, 2017, 80 DHS estimates that the opportunity cost Form I–864W: ($36.47 per hour * 1.0 hours) = FR 73779 (Nov. 25, 2015). of time will range from about $583.52 to $36.47.

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TABLE 1—SUMMARY OF MAJOR PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE

Provision Purpose Expected impact of final rule

Revising 8 CFR 212.18. Application for To clarify that T nonimmigrants seeking Quantitative: Waivers of Inadmissibility in connection adjustment of status are not subject Benefits: with an application for adjustment of to public charge ground of inadmis- • Benefits of $15,176 annually to T nonimmigrants apply- status by T nonimmigrant status hold- sibility. ing for adjustment of status who will no longer need to ers. submit Form I–601 seeking a waiver on public charge Revising 8 CFR 245.23. Adjustment of grounds of inadmissibility. aliens in T nonimmigrant classification. Costs: • None.

Adding 8 CFR 212.20. Purpose and ap- To define the categories of aliens that Quantitative: plicability of public charge inadmis- are subject to the public charge de- Benefits: sibility. termination. • Benefits of $36.47 per applicant from no longer having to Adding 8 CFR 212.21. Definitions ...... To establish key definitions, including complete and file Form I–864W. Adding 8 CFR 212.22. Public charge de- ‘‘public charge,’’ ‘‘public benefit,’’ Costs: termination. ‘‘likely to become a public charge,’’ • DHS anticipates a likely increase in the number of deni- ‘‘household,’’ and ‘‘receipt of public als for adjustment of status applicants based on public benefits.’’ charge inadmissibility determinations due to formalizing Clarifies that evaluating public charge and standardizing the criteria and process for inadmis- is a prospective determination based sibility determinations. on the totality of the circumstances. Quantitative: Outlines minimum and additional fac- Benefits: tors considered when evaluating • Better ensure that aliens who are seeking admission to whether an alien immigrant is inad- the United States or apply for adjustment of status are missible based on the public charge self-sufficient through an improved review process of the ground. Positive and negative factors mandatory statutory factors. are weighed to determine an individ- ual’s likelihood of becoming a public charge at any time in the future. Adding 8 CFR 212.23. Exemptions and Outlines exemptions and waivers for in- waivers for public charge ground of in- admissibility based on the public admissibility. charge ground.

Adding 8 CFR 214.1(a)(3)(iv) and To provide, with limited exceptions, that Quantitative: amending 8 CFR 214.1(c)(4)(iv). Non- an application for extension of stay Costs: immigrant general requirements. or change of nonimmigrant status will • $6.1 million annually for an increased time burden for Amending 8 CFR 248.1(a) and adding 8 be denied unless the applicant dem- completing and filing Form I–129; CFR 248.1(c)(4). Change of non- onstrates that he or she has not re- • $0.12 million annually for an increased time burden for immigrant classification eligibility. ceived public benefits since obtaining completing and filing Form I–129CW; the nonimmigrant status that he or • $2.4 million annually for an increased time burden for she is seeking to extend or change, completing and filing Form I–539. as defined in final 8 CFR 212.21(b), Quantitative: for 12 months, in the aggregate, Benefits: within a 36 month period. • Better ensures that aliens who are seeking to extend or change to a status that is not exempt from the section 212(a)(4) inadmissibility ground who apply for extension of stay or change of status continue to be self-sufficient during the duration of their nonimmigrant stay.

Amending 8 CFR 245. Adjustment of sta- To outline requirements that aliens Quantitative: tus to that of person admitted for lawful submit a declaration of self-suffi- Direct Costs: permanent residence. ciency on the form designated by • Total annual direct costs of the final rule will range from DHS and any other evidence re- about $45.5 to $131.2 million, including: quested by DHS in the public charge • $25.8 million to applicants who must file Form I– inadmissibility determination. 944; • $0.69 million to applicants applying to adjust status using Form I–485 with an increased time burden; • $0.34 million to public charge bond obligors for filing Form I–945; and • $823.50 to filers for filing Form I–356. • Total costs over a 10-year period will range from: • $352.0 million for undiscounted costs; • $300.1 million at a 3 percent discount rate; and • $247.2 million at a 7 percent discount rate. Transfer Payments • Total annual transfer payments of the final rule would be about $2.47 billion from foreign-born non-citizens and their households who disenroll from or forego enrollment in public benefits programs. The federal-level share of annual transfer payments will be about $1.46 billion and the state-level share of annual transfer payments will be about $1.01 billion.

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TABLE 1—SUMMARY OF MAJOR PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE—Continued

Provision Purpose Expected impact of final rule

• Total transfer payments over a 10-year period, including the combined federal- and state-level shares, will be: • $24.7 billion for undiscounted costs; • $21.0 billion at a 3 percent discount rate; and • $17.3 billion at a 7 percent discount rate. Quantitative: Benefits: • Potential to make USCIS’ in the review of public charge inadmissibility more effective. Costs: • DHS anticipates a likely increase in the number of deni- als for adjustment of status applicants based on public charge inadmissibility determinations due to formalizing and standardizing the criteria and process for public charge determination. • Costs to various entities and individuals associated with regulatory familiarization with the provisions of the final rule. Costs will include the opportunity cost of time to read the final rule and subsequently determine applica- bility of the final rule’s provisions. DHS estimates that the time to read this final rule in its entirety would be 16 to 20 hours per individual. DHS estimates that the oppor- tunity cost of time will range from about $583.52 to $729.40 per individual who must read and review the final rule. However, DHS cannot determine the number of individuals who will read the final rule.

Public Charge Bond Provisions

Amending 8 CFR 103.6. Public charge To set forth the Secretary’s discretion Quantitative: bonds. to approve bonds, cancellation, bond Costs: schedules, and breach of bond, and • $34,166 annually to obligors for submitting Public to move principles governing public Charge Bond (Form I–945); and charge bonds to final 8 CFR 213.1. • $823.50 annually to filers for submitting Request for Cancellation of Public Charge Bond (Form I–356). Amending 8 CFR 103.7. Fees ...... To add fees for new Form I–945, Pub- • Fees paid to bond companies to secure public charge lic Charge Bond, and Form I–356, bonds. Fees could range from 1–15 percent of the public Request for Cancellation of Public charge bond amount based on an individual’s credit Charge Bond. score. Amending 8 CFR 213.1. Admission or In 8 CFR 213.1, to add specifics to the Quantitative: adjustment of status of aliens on giving public charge bond provision for Benefits: of a public charge bond. aliens who are seeking adjustment of • Potentially enable an alien who was found inadmissible status, including the discretionary only on the public charge ground to adjust his or her sta- availability and the minimum amount tus by posting a public charge bond with DHS. required for a public charge bond. Source: USCIS analysis.

DHS has prepared a full analysis of adjustment of status to that of a lawful skills, at a minimum.33 Some immigrant this rule according to Executive Orders permanent resident.31 Section 212(a)(4) and nonimmigrant categories are (E.O.) 12866 and 13563. This analysis of the Act, 8 U.S.C. 1182(a)(4) does not exempt from the public charge can be found in the docket for this directly apply to nonimmigrants seeking inadmissibility ground and other rulemaking or by searching for RIN extension of stay or change of status,32 applicants may apply for a waiver of the 1615–AA22 on www.regulations.gov. because extension of stay and change of public charge inadmissibility ground.34 status applications are not applications Additionally, section 212(a)(4) of the II. Background for a visa, admission, or adjustment of Act, 8 U.S.C. 1182(a)(4), permits the A. Public Charge Inadmissibility and status. consular officer, immigration officer, or Public Charge Bonds The INA does not define ‘‘public an immigration judge to consider any charge.’’ It does specify that when affidavit of support submitted under Under section 212(a)(4) of the Act, 8 determining if an alien is likely at any section 213A of the Act, 8 U.S.C. 1183a, U.S.C. 1182(a)(4), an alien who is an time to become a public charge, on the applicant’s behalf when applicant for a visa, admission, or consular officers and immigration determining whether the applicant may adjustment of status is inadmissible if officers must consider the alien’s age; become a public charge.35 In fact, with he or she is likely at any time to become health; family status; assets, resources, a public charge. The public charge and financial status; and education and 33 See INA section 212(a)(4)(B)(i), 8 U.S.C. ground of inadmissibility, therefore, 1182(a)(4)(B)(i). 34 See proposed 8 CFR 212.23. applies to any alien applying for a visa 31 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 35 See INA section 212(a)(4)(B)(ii), 8 U.S.C. to come to the United States temporarily 32 See INA section 214 and 248, 8 U.S.C. 1184 and 1182(a)(4)(B)(ii). When required, the applicant must or permanently, for admission, or for 1258. Continued

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very limited exceptions, aliens seeking similarly updated.43 USCIS has III. Public Comments on the Proposed family-based immigrant visas and continued to follow the 1999 Interim Rule adjustment of status, and a limited Field Guidance in its adjudications, and A. Summary of Public Comments number of employment-based DOS has continued following the public immigrant visas and adjustment of charge guidance set forth in the FAM.44 On October 10, 2018, DHS, USCIS status, must have a sufficient affidavit of published a proposed rule in docket In the 1999 Interim Field Guidance, support or will be found inadmissible as USCIS–2010–0012. The comment public charge is defined to mean an likely to become a public charge.36 period associated with the proposed In general, if DHS has determined that alien who is likely to become primarily rule closed at the end of December 10, 45 an alien is inadmissible based on public dependent on the government for 2018. DHS received a total of 266,077 charge, but is otherwise admissible, subsistence, as demonstrated by either: public comment submissions in Docket DHS may admit the alien at DHS’s • Receipt of public cash assistance for USCIS–2010–0012 in response to the discretion upon the alien posting a income maintenance; or proposed rule. The majority of comment submissions were from individual or suitable and proper bond as determined • Institutionalization for long-term 37 anonymous commenters. Other by DHS. The purpose of issuing a care at government expense. public charge bond is to ensure that the commenters included healthcare alien will not become a public charge in Under the 1999 Interim Field providers; research institutes and the future.38 Guidance, DHS did not consider receipt universities; law firms and individual of non-cash, supplemental and certain attorneys; federal, state, local, and tribal B. Current Public Charge Standards limited cash, and special purpose elected officials; State and local As discussed in the NPRM,39 DHS benefits. Similarly, DHS did not government agencies; religious and currently makes public charge consider institutionalization for short community organizations; advocacy determinations in accordance with the periods of rehabilitation because it does groups; unions; Federal Government 1999 Interim Field Guidance.40 This not constitute primary dependence.46 officials; and trade and business guidance explains how the agency As discussed in the NPRM, the use of organizations. While some commenters provided support for the rule, the vast determines if a person is likely at any public charge bonds has decreased since majority of commenters opposed the time to become a public charge under the introduction of enforceable rule. section 212(a)(4) of the Act, 8 U.S.C. affidavits of support in section 213A of 1182(a), for admission and adjustment the Act, 8 U.S.C. 1183a.47 B. Requests To Extend Comment Period of status purposes, and whether a person has become a public charge C. Final Rule Comment: Some commenters within five years of entry from causes requested that DHS extend the comment not affirmatively shown to have arisen Following careful consideration of period. An individual commenter said since entry, and therefore deportable public comments received, DHS has the 60-day comment period is not under section 237(a)(5) of the Act, 8 made modifications to the regulatory enough time for such a drastic policy U.S.C. 1227(a)(5).41 On May 26, 1999, text proposed in the NPRM, as and asserted it would be unfair to INS issued a proposed rule that would described above. The rationale for the American people to proceed with the have codified these policies in proposed rule and the reasoning proposed changes. Another individual regulation. Ultimately, however, INS provided in the background section of commenter asked USCIS to extend the did not publish a final rule conclusively that rule remain valid, except as notice and comment period for an addressing these issues.42 DOS also described in this regulatory preamble. additional 90 days. A commenter wrote that the 60-day comment period issued a cable to its consular officers at Section III of this preamble includes a provided inadequate time for its that time, implementing similar detailed summary and analysis of the members to meaningfully comment on guidance for visa adjudications, and its public comments. Comments may be Foreign Affairs Manual (FAM) was the proposed rule, and requested a reviewed at the Federal Docket further 60-day extension. Another Management System (FDMS) at http:// commenter urged that DHS consider submit an Affidavit of Support Under Section 213A www.regulations.gov, docket number of the INA (Form I–864). extending the notice and comment 36 See INA section 212(a)(4)(C), (D), 8 U.S.C. USCIS–2010–0012. period for the docket until all interested 1182(a)(4)(C), (D). A sufficient affidavit of support individuals have the opportunity to is one in which the sponsor has demonstrated that 43 See Inadmissibility and Deportability on Public provide input. The commenter said it is he or she has enough income and/or assets to Charge Grounds, 64 FR 28676, 28680 (proposed maintain the sponsored alien and the rest of the standard practice for an agency to May 26, 1999). sponsor’s household at 125% of the FPG for that extend a notice and comment period 44 household size (or at 100 percent of the FPG if the See Children’s Health Insurance Program when circumstance suggest that sponsor is active duty in the U.S. Armed Forces or Reauthorization Act of 2009, Public Law 111–3, sec. 214, 123 Stat. 8, 56 (Feb. 4, 2009); 9 FAM 302.8– additional input may be beneficial. U.S. Coast Guard). Response: DHS believes that the 60- 37 See INA section 213, 8 U.S.C. 1183; see also 8 2(B)(2), Determining ‘‘Totality of Circumstances,’’ CFR 103.6; 8 CFR 213.1. (g) Public Charge Bonds, https://fam.state.gov/fam/ day comment period provided an 38 Matter of Viado, 19 I&N Dec. 252, 253 (BIA 09fam/09fam030208.html (last visited July 26, adequate opportunity for public input, 1985). 2019). Note, on July 10, 2018, DOS amended 9 FAM and declines to extend the comment 39 See Inadmissibility on Public Charge Grounds, 302.8. period. The Administrative Procedure 83 FR 51114, 51133 (proposed Oct. 10, 2018). 45 Former INS defined ‘‘primarily dependent’’ as Act (APA) is silent regarding the 40 See 64 FR 28689 (May 26, 1999). ‘‘the majority’’ or ‘‘more than 50 percent.’’ 41 duration of the public comment period, See 64 FR 28689 (May 26, 1999). In addition 46 Similar to DHS, DOS has been making public and does not establish a minimum to the 1999 Interim Field Guidance, INS proposed charge inadmissibility determinations using the promulgating these policies through rulemaking, duration.48 However, the 60-day same legal framework, as reflected in the FAM. See which was never concluded. See Inadmissibility 9 FAM 302.8, Public Charge—INA 212(a)(4), comment period is in line with E.O. and Deportability on Public Charge Grounds, 64 FR 12866, which encourages agencies to 28676 (proposed May 26, 1999). https://fam.state.gov/FAM/09FAM/ 42 See Inadmissibility and Deportability on Public 09FAM030208.html (last visited July 26, 2019). provide at least 60 days for the public Charge Grounds, 64 FR 28676 (proposed May 26, 47 See Inadmissibility on Public Charge Grounds, 1999). 83 FR 51114, 51219 (proposed Oct. 10, 2018). 48 See 5 U.S.C. 553(c).

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to comment on economically significant 1182(a)(4), including the changes to this the United States. Rather, the purpose of rules. The sufficiency of the 60-day ground made in 1996.49 DHS, however, this rule is to implement the public comment period provided in this rule is disagrees with comments suggesting charge ground of inadmissibility supported by the over 266,000 public that this rule addresses, or should consistent with the principles of self- comments received. The public, address, eligibility for government sufficiency set forth by Congress, and to including attorneys; federal, state, local, benefits programs. DHS also disagrees minimize the incentive of aliens to and tribal elected officials; and that the rule addresses eligibility for attempt to immigrate to, or to adjust advocacy organizations provided a great public benefits by certain specified status in, the United States due to the number of detailed and informative groups, such as aliens unlawfully availability of public benefits.50 While comments. In addition, DHS notes that present, or DACA recipients. Neither the the rule may result in reductions in the proposed rule had been listed in the public charge ground of inadmissibility overall alien enrollment in certain publicly available Unified Agenda of nor this final rule govern eligibility for public benefit programs, improve the Federal Regulatory and Deregulatory public benefits; they govern which ability of U.S. citizens to obtain public Actions since the Fall 2017 publication. aliens are inadmissible or ineligible for benefits for which they are eligible, or Given the quantity and quality of admission or adjustment of status. This otherwise benefit the U.S. economy, this comments received in response to the final rule does not address the rule does not directly regulate these proposed rule, and other publicly government’s responsibility to care for matters. available information regarding the rule, foreign nationals and does not address Comment: Some commenters stated DHS believes that the 60-day comment which aliens are, or should be, eligible that there should be more stringent period has been sufficient. to receive public benefits. DHS also disagrees with suggestions immigration standards generally and C. Comments Expressing General reductions in the number of immigrants Support for the NPRM that this rule is aimed at making sure poor people are not able to enter the in the United States. Some commenters Comment: Many commenters stated United States. As noted previously, the stated that immigrants are ‘‘abusing’’ the that immigrants should be self- rule aims to ensure that aliens subject to U.S. welfare system. Other commenters sufficient. Many commenters stated that the public charge ground of offered general support for the NPRM aliens should not be permitted to accept inadmissibility are self-sufficient. An without further explanation. government benefits or depend on U.S. alien’s assets, resources, and financial Response: DHS does not intend this taxpayer money to support themselves if status is one factor that is considered in rule to reduce overall immigration they want to obtain green cards. the totality of the circumstances when levels to the United States. Instead, this Commenters stated that immigrants making a public charge inadmissibility rule is an exercise of DHS’s authority to should be productive members of determination and is not outcome interpret the public charge ground of society to gain admission to the United determinative. inadmissibility. Fraud or abuse in alien States and should not be a burden on Comment: Some commenters stated enrollment in public benefits programs the state. One commenter said that that the rule will have a positive impact is of course problematic, but the public migrants should not be able to obtain on the U.S. economy and job creation, charge ground of inadmissibility applies welfare unless they have a minimum and will protect the social safety net. to an alien who is likely at any time to working record in the United States. Numerous commenters mentioned that become a public charge, regardless of Another commenter supported the rule public assistance should be reserved for whether such alien is likely to and said that illegal immigration needs U.S. citizens who need help and not fraudulently obtain public benefits or to stop. One commenter said that this immigrants who arrive unable to country does not need more poor abuse the public benefits system. With contribute to the nation’s well-being. respect to comments about an alien people. A commenter said that Other commenters stated that as more immigrants who cannot support receiving public benefits for which he or immigrants look to come to the United she was not eligible, DHS notes that to themselves should not come to the States, the proposed public charge rule United States. Other commenters said the extent that an alien obtains such a is needed to preserve the ‘‘American benefit by falsely claiming to be a U.S. that the United States should not be Dream’’ for future generations and to responsible for taking care of people citizen, the alien may be inadmissible prevent the current generation from for falsely claiming U.S. citizenship from other countries. One commenter having to shoulder the financial burden noted that this rule will address the (section 212(a)(6)(C)(ii) of the Act, 8 of paying for foreign nationals who U.S.C. 1182(a)(6)(C)(ii)), depending on problem of public assistance use by cannot provide for themselves. unauthorized aliens seeking to legalize the circumstances by which he or she Response: This rule does not aim to received the benefits improperly. their status, DACA recipients, and any address the U.S. economy, job creation, other immigrants who want to legalize Additionally, to the extent that an protection of the social safety net or the applicant who has obtained public their status but who are unable to ‘‘American dream,’’ curtail spending on support themselves or their families. benefits through fraud or public assistance, or ensure that public misrepresentation subsequently applies Another commenter indicated that the assistance will be reserved for U.S. rule will encourage immigrants to work for an immigration benefit for which a citizens. This rule also does not attempt favorable exercise of discretion is hard and become self-sufficient. to curtail efforts to address broader Response: DHS agrees that applicants required, the fraud or misrepresentation economic and health problems, can be considered in deciding whether for admission and adjustment of status including with respect to people outside who are subject to the public charge to favorably exercise that discretion. However, public benefits that an alien ground of inadmissibility should be self- 49 See IIRIRA, Public Law 104–208, div. C, sec. sufficient and should not depend on the 531, 110 Stat. 3009–546, 3009–674 (Sept. 30, 1996) obtains unlawfully are outside of the government to meet their needs, and (amending INA section 212(a)(4), 8 U.S.C. scope of this rulemaking, which only this rule seeks to better ensure self- 1182(a)(4)); H.R. Rep. No. 104–828 at 240–41 (1996) addresses inadmissibility based on the (Conf. Rep.) (‘‘This section amends INA section public charge ground of inadmissibility. sufficiency. DHS firmly believes that 212(a)(4) to expand the public charge ground of this was Congress’ intent in enacting inadmissibility.... Self-reliance is one of the section 212(a)(4) of the Act, 8 U.S.C. most fundamental principles of immigration law.’’). 50 See 8 U.S.C. 1601.

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D. Comments Expressing General 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), individual alien, who is seeking to be Opposition to the NPRM including as recently as 1996.52 DHS admitted to the United States or who is agrees with the commenter that applying for adjustment of status, is 1. Purpose of the Rule and Self immigration laws and policies serve likely to become a public charge at any Sufficiency many purposes, including goals such as time in the future. This determination is Comment: Commenters stated that the family unity, diversity, humanitarian made following consideration of the proposed rule represented an ineffective assistance. However, U.S. immigration totality of the alien’s individual solution to a non-existent problem—a laws balance competing values. For circumstances and is a predictive lack of self-sufficiency among example, the criminal grounds of assessment. immigrants. A commenter indicated that inadmissibility53 are designed to protect Comment: A commenter stated that the proposed rule emphasized that the the United States and its citizens from section 212(a)(4) of the Act, 8 U.S.C. self-sufficiency of immigrants is a long- harm and threats to public safety,54 1182(a)(4) neither mentioned or standing congressional policy, yet did while health-related grounds of discussed self-sufficiency nor identified not provide sufficient data that inadmissibility are intended to protect self-sufficiency as a criteria in the dependency on the government and/or the health of the United States determination and therefore disagreed government benefits is a problem within population.55 These grounds of with primary purpose of the rule immigrant communities, especially in inadmissibility are valid exercises of outlined in the NPRM. Given the close light of data showing that immigrants congressional authority, proximity in time when PRWORA and have been shown generally to make very notwithstanding that such grounds of Illegal Immigration Reform and strong economic contributions to the inadmissibility may sometimes impede Immigrant Responsibility Act of 1996 country. The commenter stated that, for family unity, and notwithstanding that (IIRIRA) passed, the commenter example, in 2014 immigrant-led in many individual aliens’ cases, such considered it significant that Congress households in Massachusetts paid grounds of inadmissibility may not be restricted an immigrant’s eligibility for nearly $10 billion dollars in federal, implicated. Similarly, here, Congress, public benefits with PRWORA, yet state, and local taxes, and represented though legislation, addressed various IIRIRA codified the minimum nearly $28 billion dollars in spending policy considerations when determining mandatory factors without PRWORA’s power. whether a foreign national should be articulated self-sufficiency principles as Additionally, commenters expressed admitted to the United States, including relied on by DHS in the NPRM. The concern that the text of the rule suggests whether an individual who is likely at commenter indicated that both that it is the main responsibility of our any time in the future to become a PRWORA and IIRIRA, were considered nation’s immigration system—and the public charge should be admitted to the in the 1999 Interim Field Guidance agencies which run it—to cultivate or United States. Therefore, while self- because PRWORA and IIRIRA had maintain a national ethos of ‘‘self- sufficiency may not be the primary created widespread confusion about sufficiency.’’ A commenter indicated purpose of U.S. immigration laws, it is permissible public benefit receipt in that immigration policies and systems one consideration put into place by relation to public charge are meant to achieve a number of Congress. inadmissibility. The commenter stated different goals, such as family unity, DHS is under no obligation to that the current rule failed to identify diversity, humanitarian assistance, and demonstrate that all or most aliens in post-1999 laws, data, or experience, ensuring sufficient labor. Commenters the United States are not self-sufficient. such as congressional authorities or stated that safeguarding our nation from To the extent that an alien is self- other information not already taken into individuals that may at some point need sufficient, the alien is unlikely to be account by INS in developing the 1999 government support is not the singular affected by this rule. In the NPRM, DHS Interim Field Guidance that informed or even primary purpose of our system did provide extensive data on the lack DHS’s development of the proposed of immigration. of self-sufficiency among certain aliens, rule. The commenter therefore Response: DHS disagrees with the and showed how the minimum requested that DHS in its final rule commenters that ensuring the self- statutory factors identified by Congress identify and describe legal authorities or sufficiency of immigrants is relate to the self-sufficiency of information other than the authorities unnecessary, or that a lack of self- individuals and their receipt of public which predated the 1999 Interim Field sufficiency is a non-existent problem. benefits.56 DHS acknowledges that Guidance and that were relied on by As outlined in the NPRM, Congress immigrants provide significant INS, which DHS considered in clearly declared, in its policy statement contribution to the United States as a developing its proposed definition of in PRWORA, that self-sufficiency has whole and within their communities, as public charge. The commenter stated been a basic principle of United States demonstrated by data and information that if Congress had wanted to achieve immigration law since this country’s provided by many commenters. the self-sufficiency or cost-savings goals earliest immigration statutes and that it However, the focus of the inquiry for identified by the NPRM it could alter should continue to be a governing public charge purposes is whether an the eligibility rules for the enumerated principle in the United States.51 programs, but has not changed the Congress also has maintained the public 52 See IIRIRA, Public Law 104–208, div. C, sec. public benefit eligibility requirements, charge ground of inadmissibility in law 531, 110 Stat. 3009–546, 3009–674 (Sept. 30, 1996) and expanded eligibility for some since 1882. DHS believes that applicants (amending INA section 212(a)(4), 8 U.S.C. programs following the enactment of 1182(a)(4)); H.R. Rep. No. 104–828 at 240–41 (1996) for admission and adjustment of status (Conf. Rep.) (‘‘This section amends INA section PRWORA and IIRIRA in 1996, such as who are subject to the public charge 212(a)(4) to expand the public charge ground of in 2002, when Congress restored SNAP ground of inadmissibility should be self- inadmissibility.... Self-reliance is one of the eligibility for all qualified immigrant sufficient and should not depend on the most fundamental principles of immigration law.’’). children. government to meet their needs, and 53 See INA section 212(a)(2), 8 U.S.C. 1182(a)(2). Response: Although DHS agrees with 54 DHS firmly believes that this was See INA section 212(a)(2), 8 U.S.C. 1182(a)(2). the commenter that self-sufficiency is 55 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1). Congress’ intent in enacting section 56 See throughout the NPRM, Inadmissibility on not mentioned in section 212(a)(4) of Public Charge Grounds, 83 FR 51114 (proposed the Act, 8 U.S.C. 1182(a)(4), DHS 51 See 8 U.S.C. 1601. October 10, 2018). maintains, as outlined in the NPRM,

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that this principle, a congressional’ 2002, Public Law 107–17, (May 13, Response: DHS strongly disagrees policy objective, informs and has 2002), Section 4401, restored SSI with the comment that that DHS’s informed public charge determinations. benefits for any person who was regulatory framework was designed to Based on the administrative and lawfully residing in the United States on achieve the same effects as changing legislative context discussed in the August 22, 1996; restored SNAP for all eligibility requirements—decreased and NPRM,57 including congressional children under 18; and provided that foregone enrollment in public benefit records relating to debates addressing ‘‘qualified aliens’’ 60 were eligible for programs by certain populations—and self-sufficiency prior to Congress’ SNAP after five years of entry into the therefore, usurped Congress’ role. passing of IIRIRA,58 DHS’s view of self- United States. In 2007, Section 525 of Although DHS acknowledges that the sufficiency and its role in the public the Consolidated Appropriations Act for rule, once effective, may lead charge determination remains Fiscal Year (FY) 2008 61 provided for individuals to disenroll or choose to unchanged. In fact, DHS considers the Iraqi and Afghan foreign nationals to forego enrollment from public benefits, proximity of the passage of both obtain benefits. the rule does not change eligibility PRWORA and IIRIRA as an indication These provision and others restoring requirements for public benefits. The that Congress associated public charge or providing public benefit access to rule only provides for whether an alien closely with the principles governing immigrants are incorporated to the is admissible into the United States, PRWORA, and that Congress must have statutory provisions governing which is a matter of immigration law for recognized that it made certain public PRWORA, 8 U.S.C. 1611. Therefore, this the Federal Government and delegated benefits available to some aliens who rule is informed by all the to DHS. are also subject to the public charge documentation and data presented 2. Requests for Reconsideration and grounds of inadmissibility, even though before the 1999 Interim Field Guidance, Withdrawal of NPRM receipt of such benefits could render the as well as relevant subsequent alien inadmissible as likely to become a Comment: Several commenters asked legislation, and relevant case law. DHS that DHS reconsider the rule and public charge. Additionally, as outlined would note that precedential decisions in the NPRM, DHS does not believe that withdraw it, stating that the rule is and other materials cited by DHS do not unnecessary and would place an undue the plain text of section 212(a)(4) of the lose persuasive value for purposes of Act, 8 U.S.C. 1182(a)(4), INS’s burden on DHS and immigrants. One DHS’s interpretation simply because discussion of PRWORA and IIRIRA, and commenter stated the proposed rule’s they were also addressed in the 1999 the case law cited by INS or DHS preamble does not establish a sufficient proposed rule and 1999 Interim requires the adoption of the legacy INS justification for the proposed revisions. Guidance.62 Further, although interpretations for purposes of public Another commenter stated that the subsequent legislation, such as charge. As discussed in detail NPRM was too long and discouraged the Congress’s expansion of SNAP, throughout the NPRM and below, the public from commenting on the expanded eligibility of public benefits to term public charge is ambiguous, and proposed rule. Some commenters certain aliens, Congress has not neither the statute nor case law expressed concern that the rule conflicts subsequently changed the section prescribe the degree to which an alien with local, state, and federal initiatives, 212(a)(4) of the Act, 8 U.S.C. 1182, must be receiving public benefits to be including undermining community- which governs the public charge considered a public charge. DHS based, non-profit efforts, and making the inadmissibility determination.63 remains convinced that its immigration system inefficient. Several interpretation is permissible and Comment: A commenter stated that commenters stated that DHS should reasonable. Congress, not DHS, may change focus on promoting a rule that DHS disagrees with the commenter statutory eligibility requirements for strengthens, rather than undermines, that the NPRM failed to identify post- federally-administered public benefits immigrants’ ability to support 1999 laws, data, or experience, such as programs, including the ones listed in themselves. Some commenters congressional authorities or other the NPRM. The commenter stated that requested that the rule be withdrawn in information not already taken into DHS’s regulatory framework was its entirety, and that the 1999 Interim account by INS in developing current designed to achieve the same effects as Field Guidance remain in effect. public charge policy that informed changing eligibility requirements— Response: DHS will not retract the DHS’s development of the proposed decreased and foregone enrollment in proposed rule and is concluding the rule. Post-PRWORA, Congress did public benefit programs by certain public charge inadmissibility restore some public benefit eligibility populations—and therefore, usurped rulemaking through the publication of for aliens. DHS acknowledged these Congress’ role. this final rule. DHS is committed to developments in the NPRM preamble.59 implementing section 212(a)(4) of the For example, DHS incorporated the 60 ‘‘Qualified aliens’’ generally includes lawful Act, 8 U.S.C. 1182(a)(4), consistent with discussion that in 2002, the Farm permanent resident aliens, refugees/asylees, and the principles of self-sufficiency set other non-temporary legal residents (such as Cuban/ forth by Congress. As required by the Security and Rural Investment Act of Haitian entrants). 61 statute and reflected in this rule, DHS’s Public Law 110–161 (Dec. 26, 2007). public charge inadmissibility 57 See 83 FR 51114 (Oct. 10, 2018). 62 For example, precedent decisions issued by the 58 See 142 Cong. Rec. S4609 (May 2, 1996) Executive Office for Immigration Review (EOIR) determinations will involve an (statement of Sen. Byrd) (‘‘[S]elf-sufficiency will be and the Attorney General are binding on DHS until assessment of the mandatory factors as the watchword for those coming to the United overruled. See 8 CFR 103.3(c), 103.10(b), 1003.1(g); they relate to the likelihood of an States. By making noncitizens ineligible for Federal see, e.g., Matter of E–L–H–, 23 I&N Dec. 814, 817 applicant becoming a public charge at means-tested programs, and by ‘deeming’ a (BIA 2005) (finding that a published Board decision sponsor’s income attributable to an immigrant, the has precedential effect unless and until modified or any time in the future. American taxpayer will no longer be financially overruled by the Attorney General, the Board, Comment: Multiple commenters said responsible for new arrivals.’’), available at https:// Congress, or a Federal court.). the rule should be withdrawn, the 1999 www.congress.gov/crec/1996/05/02/CREC-1996-05- 63 Cf. Cyan, Inc. v. Beaver Cty. Emp. Ret. Fund, Interim Field Guidance should remain 02-pt1-PgS4592.pdf. (last visited July 26. 2019). 138 S. Ct. 1061, 1070 (2018) (explaining that, if 59 See Inadmissibility on Public Charge Grounds, Congress had wanted to deprive state courts of in place, and that the proposed rule is 83 FR 51114, 51126–51133 (proposed October 10, jurisdiction over certain class actions, it could have a drastic change from the 1999 Interim 2018). easily done so by inserting a provision). Field Guidance. Many said that the 1999

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Interim Field Guidance is consistent Response: DHS agrees that this rule convened to accomplish the with congressional intent and case law takes a different approach to Administration’s goals rather than and should not be abandoned. One interpreting the public charge ground of proceeding with the public charge rule, commenter noted that the 1999 Interim inadmissibility than the 1999 NPRM, which the commenter asserted will have Field Guidance’s exclusion of certain and withdrew the 1999 NPRM as part of a negative impact on the health and public health, nutrition, and in-kind the 2018 NPRM.67 The 2018 NPRM financial security of aliens. community service programs was explained DHS’s proposed change of Response: DHS disagrees that a consistent with the intent of Congress as position. DHS is not bound by a twenty- stakeholder working group is an expressed in its 1996 Conference Report year-old proposed rule, and believes alternative to this rulemaking. As regarding PRWORA and that rule was a that this rule represents a permissible indicated elsewhere in this rule, DHS is departure from this intent. implementation of the public charge exercising its authority to interpret the Response: DHS disagrees that the inadmissibility standard that Congress INA consistent with its congressional 1999 Interim Field Guidance should provided when it enacted section mandate. This final rule provides remain in place. DHS has chosen to 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). necessary guidance for purposes of define public charge more broadly than This public charge inadmissibility rule implementing section 212(a)(4) of the in the 1999 NPRM and 1999 Interim provides long-absent guidance on how Act, 8 U.S.C. 1182(a)(4), including, by Field Guidance. DHS believes this to interpret key statutory terms, which defining statutory terms that have never broader definition is consistent with have never been fully defined by been defined by Congress in the over Congress’ intention that aliens should Congress, and which the agency has the 100 years since the public charge be self-sufficient. Self-sufficiency is, and authority and responsibility to define. inadmissibility ground first appeared in has long been, a basic principle of the immigration laws. immigration law in this country.64 DHS 3. Alternatives to the Public Charge Rule The rulemaking process allowed for believes that this rule aligns DHS Comment: An individual commenter ample public participation. DHS notes regulations with that principle.65 proposed creating a ‘‘self-sufficiency that it received over 266,000 public Comment: A commenter urged DHS to program’’ in place of the proposed rule, comments. DHS also participated in either withdraw the proposed rule or if modeled after the Office of Refugee over 20 OMB E.O. 12866 meetings with moving to finalize it, to provide a full Resettlement’s (ORR) Voluntary public stakeholders related to the and complete analysis of all public Agencies Matching Grant Program that proposed rule. Therefore, DHS does not comments received on the proposed provides intensive case management, believe that national stakeholder group rule, including the total number of English language and vocational would work as substitute for this comments, (and the number of those training, and a variety employment rulemaking. signing individual comments), services, which would serve as an In addition, DHS notes that USCIS has composition of, relative numbers of alternative to public benefits receipt by a robust stakeholder communication commenters supporting and opposing immigrants and nonimmigrants. A and engagement program that covers all the overall proposal, the volume and commenter suggested that rather than aspects of the agency’s operations. This nature of comments regarding specific creating this rule to disincentivize program will engage stakeholders when provisions, and the rationale for specific receipt of public assistance by revoking this rule becomes final to help ensure choices made by DHS in light of or denying citizenship status based on that applicants for immigration benefits comments. The commenter stated that receipt of public assistance, DHS should and their representatives fully doing so would provide transparency instead create classes or provide understand the new rule. regarding the extent to which DHS resources to aliens to help them 4. Discrimination and Disparate Impact considered public input in accordance understand the importance of self- Comment: Several commenters stated with the APA. sufficiency. Response: DHS declines to withdraw Response: DHS notes that this rule that this rule discriminates against both the NPRM and will conclude does not address eligibility for aliens and citizens and unduly affects rulemaking with the publication of this citizenship and neither the statute nor certain individuals. Commenters stated final rule. DHS has responded to public this final rule permit revocation or that the rule discriminates against comments that raise substantive issues denial of citizenship status based on the immigrants based on age, gender, 66 or offer significant alternatives. In this public charge inadmissibility ground. income, race, health, and social status. final rule, DHS is providing both an This rule establishes guidelines for Some commenters expressed concerns overview of public comments and determining whether aliens who are that the proposed changes to the commenters, and a complete analysis of applicants for admission or adjustment definition of public charge are public comments including those of status, and who are subject to section inhumane and discriminatory to addressing specific aspects of the 212(a)(4) of the Act, are inadmissible as immigrants, particularly minors, the proposed rule. DHS has fully considered likely to become a public charge at any elderly, the poor, those will chronic the public input on this rule in time in the future.68 DHS further notes medical conditions and disabilities, accordance with the APA. that it will not create programs in lieu immigrants with limited English Comment: Commenters stated that of this rule that will help aliens attain proficiency, Latinos, Black families, and DHS’s position is inconsistent with the self-sufficiency, as DHS believes, other communities of color, and goes 1999 NPRM. consistent with Congress’s intent set against core American values. A number forth in PRWORA, that aliens should be of commenters stated this rule would 64 See 8 U.S.C. 1601(1). discriminate against individuals with 65 self-sufficient before they seek See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, chronic health conditions, such as heart 47 (1942) (‘‘Frequently the entire scope of admission or adjustment of status. Congressional purpose calls for careful Comment: A commenter requested a disease. Some commenters stated that accommodation of one statutory scheme to national stakeholder workgroup be the new definition of ‘‘likely at any time another. . . .’’). in the future to become a public charge’’ 66 Reytblatt v. U.S. Nuclear Regulatory Comm’n, in 8 CFR 212.21(c) would be 105 F.3d 715, 722 (D.C. Cir. 1997); Northside 67 See Inadmissibility on Public Charge Grounds, Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516 83 FR 51114 (proposed Oct. 10, 2018). discriminatory towards blind (D.C. Cir 1988). 68 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). individuals who rely on public

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assistance to make ends meet, due to the meaning, value, and weight strictly in forth in NPRM,73 DHS’s public charge 70 percent unemployment rate for blind relationship to determining whether or rule is rationally related to the individuals. The commenters stated that not an alien who is otherwise government’s interest to minimize the the proposed definition exhibits a clear admissible of eligible for adjustment of incentive of aliens to immigrate to the and inherent bias against the blind and status in the context of the existing United States because of the availability other individuals with a disability and system is likely at any time in the future of public benefits and to promote the urged DHS to abandon the rule. to become a public charge. DHS self-sufficiency of aliens within the Commenters generally stated the rule acknowledges that one likely outcome United States.74 creates an ageist system that favors of this change is that some individuals wealthy, healthy, and highly educated who would may have been able to Equally important, the public charge individuals. One commenter said that immigrate under the 1999 Interim Field inadmissibility rule does not this rule creates a ‘‘merit-based’’ system Guidance will now be deemed discriminate against or penalize U.S. that punishes immigrants and inadmissible as likely public charges. citizens, including children. The public discriminates against them based on Section 212(a)(4) of the INA, 8 U.S.C. charge inadmissibility rule does not their race, religion, and ethnicity. A 1182(a)(4), sets forth the public charge directly regulate the conduct of U.S. commenter stated that the rule’s ground of inadmissibility that makes citizens because the grounds of consideration of an applicant’s English aliens ineligible for visas, admission, inadmissibility do not apply to U.S. proficiency amounts to discrimination. and adjustment of status. Section citizens. Moreover, this rule does not Several commenters observed that 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), regulate eligibility for, or access to, U.S. born children often qualify for and also requires DHS to consider minimum public benefits. Neither the NPRM nor receive assistance, because their factors in the public charge this final rule take into consideration immigrant parents are struggling. The inadmissibility analysis. The Federal receipt of public benefits by U.S. commenters stated that DHS should not Government is responsible for citizens who are part of the alien’s penalize the parents or the children for ‘‘regulating the relationship between the household, including benefits received accepting public benefits that were United States and our alien visitors,’’ by U.S. citizen children. The receipt of legally available to them. One which includes regulating the manner public benefits by household members commenter questioned the legality of and conditions of entry, as well as the is not considered as part of an alien’s the rule and stated that the Supreme residence of aliens.70 DHS is the federal 69 application, although such receipt is Court in Plyler v. Doe held that states agency with the authority to establish cannot discriminate against children on regulations regarding the public charge excluded from the alien’s household the basis of undocumented status. The inadmissibility determination.71 As income, assets, and resources. commenter said numerous other cases required by statute, DHS must consider Furthermore, DHS disagrees that this have held that children cannot be how an alien’s age, health, family status, rule is inconsistent with Plyler v. Doe penalized for their parentage (e.g., Levy assets and resources, financial status, and the other cited cases. Plyler does not v. Louisiana, 391 U.S. 68 (1968) and education, and skills impact the alien’s apply to this rule. As courts have Clark v. Jeter, 486 U.S. 456 (1988)). likelihood at any time of becoming a recognized, Plyler relates to distinctions Response: To the extent that this rule, public charge. Under the statute, DHS made by states rather than the Federal as applied, may result in negative may also consider an applicant’s Government.75 Similarly, neither Levy v. outcomes for certain groups, DHS notes affidavit of support, if applicable. The that it did not codify this final rule to Louisiana nor Clark v. Jeter is applicable statute does not direct DHS to consider here. These cases did not address the discriminate against aliens based on age, an alien’s race, gender, or social status. race, gender, income, health, and social immigration status of children or Consequently, DHS will not consider an Federal regulations. Instead, both cases status, or to create an ‘‘ageist’’ system alien’s race, gender, or social status that selectively favors wealthy, healthy, when making a public charge and highly educated individuals. difference between state and federal distinctions inadmissibility determination. Other based on alienage is the difference between the Rather, this rule is intended to better than an absent or insufficient affidavit ensure that aliens subject to this rule are limits that the Fourteenth Amendment places on of support, where required, DHS will discrimination by states and the power the self-sufficient. To the extent that this not find an alien inadmissible based on Constitution grants to the federal government over rule specifically or disproportionately immigration.’’) (citation omitted); Lewis v. any single factor without consideration Thompson, 252 F.3d 567, 570 (2d Cir. 2001), citing affects those of a particular age or those of all of the other factors and the totality with lower incomes, less education, Lake v. Reno, 226 F.3d 141, 148 (2d Cir. 2000) (‘‘We of their effect on an applicant’s have recently recognized that a ‘highly deferential’ limited English proficiency, or poor likelihood of becoming a public charge standard is appropriate in matters of immigration health, DHS notes that Congress at any time in the future. . . . .’’). Generally, laws and regulations that requires DHS to consider, among other In addition, rational basis scrutiny neither involve fundamental rights nor include factors, an applicant’s age, assets, suspect classifications are reviewed under rational generally applies to immigration basis scrutiny, under which the person challenging resources, financial status, education, regulations applicable to aliens.72 As set the law must show that the government has no and skills as part of the public charge legitimate interest in the law or policy or that there inadmissibility determination. 70 Mathews v. Diaz, 426 U.S. 67, 81–82 (1976). is no rational link between the interest and the Additionally, this rule does not create 71 See Homeland Security Act of 2002, Public challenge law or regulation. See also Heller v. Doe a merit-based system more broadly or Law 107–296, sec. 102, 116 Stat. 2135, 2142–44 by Doe, 509 U.S. 312, 319 (1993). apply a wealth or poverty litmus test to (Nov. 25, 2002) (codified at 6 U.S.C. 112); INA 73 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51122–23 (proposed Oct. 10, 2018). make public charge inadmissibility section 103, 8 U.S.C. 1103. 72 See Korab v. Fink, 797 F.3d 572, 577–79 (9th 74 See 8 U.S.C. 1601. determinations. Instead, DHS has Cir. 2014) (‘‘[F]ederal statutes regulating alien 75 See, e.g., Aleman v. Glickman, 217 F.3d 1191, established a systematic approach to classifications are subject to the easier-to-satisfy 1198 (9th Cir. 2000) (‘‘Plyler [is] inapposite, implement Congress’ totality of the rational-basis review . . . Although aliens are however, because [it] involve[s] state classifications circumstances standard and has given protected by the Due Process and Equal Protection of aliens.’’ (emphasis in the original)); Rodriguez ex Clauses, this protection does not prevent Congress rel. Rodriguez v. U.S., 169 F.3d 1342, 1350 (11th the mandatory statutory factors from creating legitimate distinctions either between Cir. 1999) (‘‘Plyler is inapposite because it deals citizens and aliens or among categories of aliens with a Fourteenth Amendment challenge to a state’s 69 457 U.S. 202 (1982). and allocating benefits on that basis . . . The classification of aliens.’’ (emphasis in the original).

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dealt with impacts of state laws on benefit programs, including specific Housing Benefit-Related Effects 76 illegitimate children. groups of individuals, such as children. Many commenters said some 5. Potential Disenrollment Impacts Commenters involved in social services individuals will leave public housing as reported that they were already seeing a result of this rule and become Numerous commenters raised immigrants refraining from accessing homeless or face housing instability. concerns about the rule’s asserted services in clinics, food banks, childcare ‘‘chilling effect.’’ Commenters indicated Commenter stated that the rule will centers, emergency shelters, and local cause disenrollment from subsidized that the rule would cause aliens and school districts, including immigrants citizens to either disenroll from public housing programs, which will create who are exempt from public charge additional costs for local governments. benefit programs or forego enrollment in inadmissibility. Several commenters public benefit programs, which would Commenters stated that the chilling said that the chilling effect would not be negatively impact the nation, states, effect on using HCVs will cause the loss limited to immigrants subject to the local communities, families, vulnerable of ‘‘wraparound services’’ for residents, proposed rule and would discourage populations, and health care providers. including case management, mental many legal residents from utilizing Because most of these comments reflect healthcare, peer support, and child care. services to which they are legally the same theme, the discussion below Commenters raised concerns about the provides a detailed breakdown of public entitled, leading to negative health and effects of housing insecurity in specific comments separated by topic, followed economic outcomes. For example, a cities, including health problems and by a consolidated DHS response. commenter said that refugees, who are downstream economic impacts. One automatically enrolled in Medicaid commenter stated that while the Choice Between Public Benefits and upon arrival in its state, may believe proposed public charge rule does not Immigration Status they will be deported if they re-enroll in directly count benefits received by the Commenters stated that the rule puts Medicaid after their initial resettlement U.S. citizen children of immigrant the country at risk by forcing choices no period. Some commenters said the rule parents, it would still interfere with the family should have to make. may provide an incentive for U.S. ability of U.S. citizens to receive Commenters noted that alien parents citizens and lawful permanent residents housing assistance, because many will limit or forego their U.S. citizen to terminate their subsidized health care citizens live in mixed-status households children’s receipt of public benefits to in order to remain eligible to petition for with individuals who are subject to the avoid adverse immigration their family members living abroad. public charge ground of inadmissibility. consequences. Commenters stated that General Assertions as to Effects Food and Nutrition Benefit-Related the rule would force eligible immigrants Effects to withdraw their families from Commenters said that the rule’s Commenters noted that disenrollment assistance programs for fear of adverse disenrollment effect would have lasting immigration consequences, which from programs like SNAP would worsen impacts on the health and safety of our food insecurity in the United States. would undermine access to essential communities and that immigrant health, nutrition, and other critical Some commenters provided estimates of families are experiencing significant the number of children in certain states benefits and services. Several levels of fear and uncertainty that has a commenters, expressing the view that or cities currently accessing SNAP direct impact on the health and well- benefits who could be affected by the no person in the United States should being of children. Citing studies and be denied federal assistance programs or rule. Several commenters stated that the research, many commenters asserted proposed rule would force millions of public benefits, said that immigrants that the chilling effect will increase should not have to make impossible children and families to disenroll from hunger, food insecurity, homelessness the SNAP program. For example, one choices between their health or and poverty. They added that the providing for their family’s immediate commenter cited a study that found that chilling effect will also decrease 2.9 million U.S. citizen children would needs and risking their immigration educational attainment and undermine status or keeping their family together. forego SNAP benefits as a result of the workers’ ability to acquire new skills for proposed public charge rule. Another Some commenters said that the in-demand occupations. Many proposed rule would cause patients commenter stated that research shows commenters stated that negative public diagnosed with cancer or HIV to choose that immigrants’ loss of eligibility health, social, and economic outcomes between accessing needed health reduced participation in the ‘‘Food (e.g., hunger, food insecurity, decreased services or suffering adverse Stamp Program’’ among U.S.-born nutrition, unmet physical and mental consequences with respect to their children of immigrants by 50 percent health needs, unimmunized immigration status. A commenter stated and reduced the average benefits they individuals, disease, decreased school that their state had the highest rate of received by 36 percent. Some attendance and performance, lack of insurance coverage in the nation, and commenters stated that including SNAP education, poverty, homelessness) that it is vital that patients and families in the public charge determination collectively damage the prosperity and continue to access care without fear of would worsen food insecurity primarily health of our communities, schools, and adverse immigration consequences. A among families with older adults, number of commenters expressed country. Several commenters said that children, and people with disabilities. concerns that families must choose the rule would drive up uncompensated Many commenters opined that the between public housing or citizenship care costs, increase use of medical inability of individuals in need to access as a result of this rule. emergency departments, increase food assistance programs like SNAP Many commenters provided studies healthcare costs, endanger maternal and would impact health outcomes and or data related to the current or infant health and heighten the risk of those health outcomes would impact potential number of individuals who infectious disease epidemics. One healthcare utilization rates and costs. A will forego and/or disenroll from public commenter indicated that the rule few commenters emphasized that would make child poverty worse and disenrollment from programs such as 76 Levy v. Louisiana, 391 U.S. 68 (1968); Clark v. harm communities as well as SNAP and Special Supplemental Jeter, 486 U.S. 456 (1988). infrastructure that serves all of us. Nutrition Program for Women, Infants,

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and Children, (WIC) would specifically disenrollment rates ranging from 15 Several commenters said the proposed put children at risk for learning percent to 35 percent, then between 2.1 rule would adversely affect immigrant difficulties, increased emergency room million and 4.9 million Medicaid/CHIP women, because they will be more visits, chronic asthma, and other enrollees living in a family with at least likely to forego healthcare and suffer diseases and would cause a steep one noncitizen would disenroll. Many worsening health outcomes. A comment decline in the health and well-being of commenters said that DHS vastly described the detrimental impact of pregnant women and infants. underestimates the numbers of people reduced Medicaid enrollment on Several commenters noted that the who will disenroll from Medicaid and maternal and infant health. Multiple rule would increase the number of warned that DHS was underestimating commenters said the proposed rule individuals seeking help from state and the ‘‘negative consequences’’ in the would lead to negative health outcomes local non-profit feeding programs, proposed rule. Collectively, these in general, but especially for pregnant which would burden local government commenters described the positive and breastfeeding women, infants, and facilities, volunteer-lead organizations health and economic benefits associated children. Another commenter indicated and food pantries and compromise the with health coverage through programs that refugees and victims of trafficking, amount and quality of nutritious food like Medicaid. They also highlighted who are exempt from public charge, provided. Some commenters added that research findings about the dangers would also disenroll because of fear and restricting access to nutrition benefits associated with being uninsured. They gave the example that in 1996 the use could make things harder in warned that decreased participation in of TANF fell 78 percent among the communities with high volumes of Medicaid would lead to decreased refugee population despite the fact that homeless residents. utilization of preventative services, refugees were not subject to the public Some commenters said decreased worse health outcomes and financial charge test. participation in SNAP or Medicaid will standing for families and children, Several commenters said the health of likely have a profound impact on WIC’s increased health spending on children is inextricably linked to the ability to serve all eligible participants preventable conditions, and heightened health of their parents, asserting that by introducing new barriers to access strain on the healthcare system. parents who are enrolled in health and heaping additional costs on WIC Other commenters said the inclusion insurance are more likely to have agencies. A few commenters stated that of Medicare Part D in the rule will cause children who are insured. Some of these disenrollment from WIC could be as affected individuals to disenroll or commenters went on to say that high as 20 percent. A commenter stated otherwise be restricted from Medicare disenrollment from health insurance by that enrollment in WIC dropped from access, resulting in negative health parents will result in a loss of coverage 7.4 million to 6.8 million from January outcomes for individuals and and access to preventive healthcare for to May 2018, and the commenter stated communities (e.g., increased uninsured their children. A couple of commenters that families feel forced to decide rated, decreased access to said that they were already seeing these between their safety as immigrants and prescriptions). Another commenter said consequences due to confusion over the the food and services that their children that seniors who use Medicare Part D proposed rule, including parents need. will be deterred from filling choosing to avoid needed health Health Benefit-Related Effects prescriptions, which could increase services for their children. A couple of acute care and overall healthcare costs. commenters said every child in America A commenter opposed the rule, Several commenters stated that the should have access to quality, affordable stating that DHS failed to present sanctions associated with the use of healthcare. anything in the proposed rule that Medicaid and Medicare Part D benefits Many commenters, citing studies and would discredit, or justify ignoring, the would result in reduced access to research, stressed the chilling effect of evidence in the 1999 Interim Field medical care and medications for this rule will negatively affect the health Guidance that aliens’ reluctance to vulnerable populations, including and well-being of children. Other receive benefits for which they are pregnant women, children, people with commenters cited a study that predicted eligible will have a negative impact on disabilities, and the elderly. A couple of the numbers of children who would public health and general welfare. commenters said the inclusion of disenroll from Medicaid and included Commenters expressed concern that the Medicare Part D would punish figures on the numbers of children with rule would undo historic gains in health immigrants for accessing healthcare various medical conditions in need of coverage and associated positive health services. Another commenter said the medical attention. Healthcare providers outcomes over the past few years. Some proposed rule would dissuade said uninsured children would be less commenters stated that the proposed thousands of low-income residents in its likely to receive preventative care and rule would result in immigrants staying state from seeking health coverage. necessary treatment, and generally away from social service agencies and would be less healthy compared to will negatively impact health in many Effects on Vulnerable Populations children with health insurance. Several ways. Another commenter noted that Many commenters said that reduced commenters said that fewer children the rule will cause people to get sick or enrollment in federal assistance with disabilities would receive home go hungry and indicated that programs would most negatively affect and community based services, because ‘‘penalizing’’ immigrants who utilize vulnerable populations, including Medicaid covers these services. Another benefits to support their family only people with disabilities, the elderly, commenter said that many children worsens racial, gender, and economic children, survivors of sexual and receive critical dental services through inequality. domestic abuse, and pregnant women. Medicaid and that a lack of access to A number of commenters cited the Some of these commenters suggested these services can cause oral diseases Kaiser Family Foundation study, which that the chilling effect associated with that impact diet, emotional well-being, provided estimates on Medicaid/ the proposed rule would cause sleep, and the ability to work and study. Children’s Health Insurance Program vulnerable individuals and families to Several commenters voiced concern (CHIP) disenrollment. The Kaiser avoid accessing services, even if they about the adverse impact on Medicaid- Family Foundation estimated that if the are legally residing in the United States funded health services in schools. A few proposed rule leads to Medicaid and not subject to the proposed rule. commenters provided data on the

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funding school districts receive from research shows that U.S. citizens in the that could potentially lead to increased Medicaid for school-based health household are less likely to obtain wait list times, rolling enrollment services and the numbers of students needed services such as health freezes, and other program cuts that who benefit from these programs. The insurance through Medicaid due to would impact the broader health commenters pointed out that this concerns about the immigration status system. funding is tied to the number of of other family members. A number of Response: With respect to the rule’s Medicaid-eligible students enrolled. commenters said the rule would potential ‘‘chilling effects’’ or Many commenters said the proposed discourage U.S. citizens who live in disenrollment impacts, DHS notes that rule’s exemption of school-based health mixed-status households from accessing (1) the rule’s overriding consideration, services was insufficient given the larger assistance programs for which they are i.e., the Government’s interest as set repercussions of the chilling effect and eligible, including Medicaid and CHIP, forth in PRWORA, is a sufficient basis the likelihood that many children or deprive them of the benefits of those to move forward; (2) it is difficult to would be disenrolled. Commenters said programs entirely. predict the rule’s disenrollment impacts that schools would need to provide with respect to the regulated Increased Costs to Health Care healthcare and special education to population, although DHS has Providers, States, and Localities children regardless of whether the attempted to do so in the accompanying school could request payment from Many commenters particularly Final Regulatory Impact Analysis; and Medicaid for such services. These emphasized that disenrollment or (3) it is also difficult to predict the rule’s commenters further stated that the foregoing enrollment would be disenrollment impacts with respect to school would need to use local funds to detrimental to the financial stability and people who are not regulated by this cover the cost of services that Medicaid economy of communities, States, local rule, although, again, DHS has would ordinary cover because parents organizations, hospitals, safety net attempted to do so in the accompanying would be unwilling to give consent to providers, foundations, and healthcare Final Regulatory Impact Analysis. the school to enroll the children in centers. Commenters offering estimates First, as discussed above, this rule is Medicaid. Some commenters said on the number of people who would rationally related to the Government’s special education administrators disenroll from Medicaid under the interest, as set forth in PRWORA, to: (1) routinely engaged with families around proposed rule warned that the costs Minimize the incentive of aliens who issues related to health, wellness and associated with the resultant rise in attempt to immigrate to, or adjust status school attendance, and said the uncompensated care would be borne by in the United States due to the proposed rule would diminish many health systems, hospitals, and insured availability of public benefits; and (2) students’ chances for academic success. patients. A commenter said that this Promote the self-sufficiency of aliens A commenter said that it was important situation presents an ethical dilemma within the United States.77 DHS has for schools to create safe, supportive for physicians counseling patients on defined public benefits by focusing on and inclusive communities, and that the treatment options, who are ‘‘already cash assistance programs for income proposed rule could undermine efforts beginning to field questions from maintenance, and an exhaustive list of to accomplish this goal. One commenter patients and are having to explain the non-cash food, housing, and healthcare, said Medicaid covers behavioral immigration risks of using healthcare designed to meet basic living needs. treatments for children and that services.’’ A commenter citing research This definition does not include providers often partner with schools that found a high percentage of benefits related exclusively to who are not equipped to provide these emergency room visits could be emergency response, immunization, targeted services. Two commenters said managed in physicians’ offices warned education, or social services, nor does it that the language of the proposed rule that the proposed rule would increase include exclusively state and local non- was concerning for children who costly emergency room usage. cash aid programs. DHS acknowledges receive services through the Early and A couple of commenters said that that individuals subject to this rule may Periodic Screening, Diagnostic and Medicaid was the largest source of decline to enroll in, or may choose to Treatment (EPSDT) program, which is a funding for community health centers disenroll from, public benefits for which federally mandated benefit that provides and provided estimates of financial they may be eligible under PRWORA, in children with the routine and losses due to reduced Medicaid order to avoid negative consequences as preventive care services they need to reimbursement. A commenter said that a result of this final rule. However, DHS grow into healthy adults. Medicaid and CHIP were the has authority to take past, current, and underpinning for reimbursement for likely future receipt of public benefits Effects on U.S. Citizens pediatric subspecialists. Commenters into account, even where it may Several commenters said that rule stated that the proposed rule would ultimately result in discouraging aliens would cause the greatest harm to U.S. impact their reimbursements and would from receiving public benefits. citizen children of immigrant parents. force them to cut patient services. One Although individuals may reconsider Many commenters said that U.S. citizen of these commenters cited a study on their receipt of public benefits as children need SNAP, CHIP, Medicaid, the anticipated reductions in services, defined by this rule in light of future food stamps, and other public benefits which included an estimated $17 billion immigration consequences, this rule to survive if their immigrant parents reduction in hospital payments. Other does not prohibit an alien from cannot afford such services, and U.S. commenters said that Medicaid enables obtaining a public benefit for which he citizen children have a right to these many individuals to access needed or she is eligible. DHS expects that benefits. A commenter said research behavioral health services and that a aliens seeking lawful permanent demonstrates that barriers to rise in uncompensated care will resident status or nonimmigrant status participation in public programs like diminish providers’ ability to render in the United States will make Medicaid that affect immigrants also these services. A commenter said purposeful and well-informed decisions have harmful spillover effects on U.S. reductions in federal funding for commensurate with the immigration citizens, because many U.S. citizens live Medicaid and Medicare resulting from status they are seeking. But regardless, in mixed-status households. The decreased enrollment would force States commenter stated that in these cases, to increase funding levels, a challenge 77 See 8 U.S.C. 1601.

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DHS declines to limit the effect of the generally ineligible for SNAP benefits public charge inadmissibility. In the rulemaking to avoid the possibility that and therefore, would not need to proposed rule, DHS provided an individuals subject to this rule may disenroll from SNAP to avoid negative exhaustive list of immigration disenroll or choose not to enroll, as self- consequences.80 Once admitted, lawful classifications that are exempt from the sufficiency is the rule’s ultimate aim. permanent residents are generally public charge ground of inadmissibility, Second, DHS finds it difficult to prohibited from receiving SNAP and this final rule retains those predict how this rule will affect aliens benefits for a period of five years.81 exemptions. DHS is including in the subject to the public charge ground of Notwithstanding the inclusion of SNAP Applicability section of this final rule inadmissibility, because data limitations as a designated public benefit, DHS will Tables 3 and 4 that are similar to those provide neither a precise count nor not consider for purposes of a public included in the NPRM, which also reasonable estimate of the number of charge inadmissibility determination reflect additional clarifications made in aliens who are both subject to the public whether applicants for admission or this final rule with respect to T, U, and charge ground of inadmissibility and are adjustment of status are receiving food VAWA aliens. This rule does not eligible for public benefits in the United assistance through other programs, such prohibit or otherwise discourage States. This difficulty is compounded by as exclusively state-funded programs, individuals who are not subject to the the fact that most applicants subject to food banks, and emergency services, nor public charge inadmissibility from the public charge ground of will DHS discourage individuals from receiving any public benefits for which inadmissibility and therefore this rule seeking such assistance. they are eligible. are generally unlikely to suffer negative DHS recognizes a plausible Because DHS will not consider the consequences resulting from past connection between the NPRM and receipt of public benefits by U.S. receipt of public benefits because they reduction in alien enrollment in WIC to citizens and aliens not subject to public will have been residing outside of the the extent that aliens who are subject to charge inadmissibility, the receipt of United States and therefore, ineligible to public charge inadmissibility are also public benefits by these individuals will have ever received public benefits. For eligible to receive WIC benefits. While not be counted against or made example, most nonimmigrants and most DHS did not list WIC as a designated attributable to immigrant family immediate relative, family-sponsored, public benefit under proposed 8 CFR members who are subject to this rule. and diversity visa immigrants seek 212.21(b), DHS also did not expressly Accordingly, DHS believes that it would admission to the United States after exclude WIC from consideration as a be unwarranted for U.S. citizens and issuance of a nonimmigrant or public benefit. Indeed, DHS sought aliens exempt from public charge immigrant visa, as appropriate.78 The public comments on whether an alien’s inadmissibility to disenroll from a majority of these individuals are likely receipt of benefits other than those public benefit program or forego to have been ineligible for public proposed to be included in this rule as enrollment in response to this rule assistance in the United States, because public benefits should nonetheless be when such individuals are not subject to they generally have resided abroad and considered in the totality of this rule. DHS will not alter this rule to are not physically present in the United circumstances, which understandably account for such unwarranted choices. States. could have given the impression that DHS appreciates the potential effects Aliens who are unlawfully present DHS was contemplating the inclusion of of confusion regarding the rule’s scope and nonimmigrants physically present WIC among other public benefits. This and effect, as well as the potential nexus in the United States also are generally final rule makes clear that WIC will not between public benefit enrollment barred from receiving federal public be an enumerated public benefit under reduction and food insecurity, housing benefits other than emergency 8 CFR 212.21(b). scarcity, public health and vaccinations, assistance.79 For example, applicants for DHS also acknowledges that under education health-based services, admission and adjustment of status—are the NPRM, certain lawfully present reimbursement to health providers, and children and pregnant women 82 in increased costs to states and localities. 78 The United States admitted over 541 million certain states and the District of In response to comments, DHS will also nonimmigrants between Fiscal Years 2015 and issue clear guidance that identifies the 2017. See DHS, Yearbook of Immigration Statistics Columbia might have chosen to 2017, Table 25. Nonimmigrant Admissions by Class disenroll from or forego enrollment in groups of individuals who are not of Admission: Fiscal Years 2015 to 2017, available Medicaid if they are otherwise eligible subject to this rule, including, but not at https://www.dhs.gov/immigration-statistics/ to maintain or pursue an immigration limited to, U.S. citizens, lawful yearbook/2017/table25. Among immediate relative, permanent residents returning from a family sponsored, and diversity visa immigrants benefit and are subject to public charge who acquired lawful permanent resident status inadmissibility. As noted above, trip abroad who are not considered between Fiscal Years 2015 and 2017, sixty-seven however, this final rule exempts receipt applicants for admission, and refugees. percent were admitted to the United States and In addition, as explained in greater thirty-three percent adjusted their status in the of Medicaid by such persons. Third, DHS finds it difficult to predict detail elsewhere in this rule, DHS has United States. See DHS, Yearbook of Immigration made a number of changes in the final Statistics 2017, Table 6, Persons Obtaining Lawful the rule’s disenrollment impacts with Permanent Resident Status by Type and Major Class respect to people who are not regulated rule that may mitigate some of the of Admission: Fiscal Years 2015 to 2017, available concerns raised by the public regarding at https://www.dhs.gov/immigration-statistics/ by this rule, such as people who erroneously believe themselves to be disenrollment impacts. For example, yearbook/2017/table6. The 2017 Yearbook of DHS has excluded the Medicare Part D Immigration Statistics is a compendium of tables affected. This rule does not apply to LIS from the definition of public benefit that provide data on foreign nationals who are U.S. citizens and aliens exempt from granted lawful permanent residence (i.e., because DHS has determined that immigrants who receive a ‘‘’’), admitted Medicare Part D benefits, including LIS, as temporary nonimmigrants, granted asylum or 80 See 8 U.S.C. 1611(a); 8 U.S.C 1612(a)(2)(D)(ii). refugee status, or are naturalized. 81 See 8 U.S.C. 1613(a). are earned by working or being credited 79 DHS understands that certain aliens may be 82 U.S. Department of Health and Human with 40 qualifying quarters of work and eligible for state-funded cash benefits. As there are Services, Centers for Medicaid and Medicare establishing eligibility for Medicare. multiple state, local, and tribal programs that may Services, Medicaid and CHIP Coverage of ‘‘Lawfully While children are not exempt from provide cash benefits, DHS does not have a specific Residing’’ Children and Pregnant Women (July 1, public charge inadmissibility, DHS has list of programs or data on the number of aliens that 2010), https://www.medicaid.gov/Federal-Policy- may be affected by the rule by virtue of their Guidance/downloads/SHO10006.pdf (last visited decided against the inclusion of CHIP in enrollment in such programs. May 7, 2019). the definition of public benefit. DHS has

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excluded from the public benefits compromise on immigration policy, and negatively affect immigrants who definition, public benefits received by is not a solution to immigration reform. contribute to the American economy, children eligible for acquisition of Two other commenters said that the rule including satisfying this country’s need citizenship, and Medicaid benefits is motivated by fear and greed. for younger workers. Several received by aliens under the age of 21 Response: While immigration and commenters stated that immigrants take and pregnant women during pregnancy diversity have strengthened the United jobs that Americans are not willing to and 60 days following the last day of States, DHS strongly disagrees that this perform (e.g., landscaping, construction, pregnancy. rule is motivated by fear or greed, or is caregivers, manufacturing) and that In sum, DHS does not believe that it un-American or immoral. DHS does not immigrants are hardworking and is sound policy to ignore the seek to frustrate the United States’ long- contributing members that increase the longstanding self-sufficiency goals set standing commitment to family unity, diversity of our culture and forth by Congress or to admit or grant humanitarian relief, and religious communities. adjustment of status applications of liberty through this rule. DHS also Several commenters stated that use of aliens who are likely to receive public disagrees that this rule re-shapes, public benefits in a manner benefits designated in this rule to meet penalizes, or impedes the overall flow of commensurate with their purpose their basic living needs in an the hope legal immigration, and disagrees that the should not be ‘‘punishable.’’ They that doing so might alleviate food and rule puts lawful permanent resident emphasized that immigrants want to housing insecurity, improve public status beyond the reach of working-class work and be self-sufficient, but that health, decrease costs to states and and poor immigrant families. DHS immigrants access public assistance localities, or better guarantee health care reiterates that this rule does not and programs to help them through periods provider reimbursements. DHS does not cannot alter the process of obtaining of temporary hardship on the path to believe that Congress intended for DHS immediate relative, family-sponsored, self-sufficiency and successfully to administer section 212(a)(4) of the employment-based, diversity, or contributes to society just as U.S. Act, 8 U.S.C. 1182(a)(4), in a manner nonimmigrant visas, as required and citizens do, if not less so. They added that fails to account for aliens’ receipt of permitted by law. Rather, this rule that immigrants often need public food, medical, and housing benefits so clarifies the standard by which DHS assistance due to insecure jobs, as to help aliens become self-sufficient. will assess whether an alien subject to inadequate wages, lack of employer- DHS believes that it will ultimately section 212(a)(4) of the Act, 8 U.S.C. sponsored health insurance, the high strengthen public safety, health, and 1182(a)(4), is inadmissible as likely to cost of medical care and housing, nutrition through this rule by denying become a public charge at any time in inaccessibility of health insurance, and admission or adjustment of status to the future. Through this final rule, DHS other societal barriers. Multiple aliens who are not likely to be self- seeks to better ensure that applicants are commenters provided anecdotes about sufficient. self-sufficient. Even if an applicant has how they or their family member’s a low income, or belongs to a low- 6. Inconsistent With American Values receipt of federal assistance helped income family, that is only one and Historic Commitment to Immigrants them or their children go on to thrive consideration in the totality of the and become productive members of Comment: Several commenters said circumstances. Even if an applicant has American society. Similarly, some the rule puts immigration and/or household income that falls below 125 commenters told personal anecdotes obtaining ‘‘green cards’’ out of reach for percent of FPG, DHS must consider the about their interactions with working class or poor immigrant applicant’s age, health, family status, hardworking immigrants who rely on families and re-shapes, penalizes, or education, and skills in determining temporary public assistance to survive impedes legal immigration. Many whether the applicant is more likely and contribute to society. A few commenters said the rule goes against than not to become a public charge at commenters added that a large portion fundamental American values and any time in the future. DHS also notes of U.S. born citizens would not meet the morality, including religious values and that the public charge inadmissibility public charge standards proposed by principles of faith, upon which this ground does not apply to all applicants DHS.83 nation was built. Many commenters who are seeking a visa, admission, or Response: DHS believes that stated the importance of diversity and adjustment of status. Congress immigrants, in general, make significant immigration to United States’ history specifically exempted certain groups, contributions to American society and and strength, and expressed that the e.g., refugees and asylees at the time of enhance the culture of American life rule would fundamentally change our admission and adjustment of status, and communities. DHS also recognizes nation’s historic commitment to pursuant to sections 207(c)(3) and that public assistance programs provide welcoming immigrants where the 209(c) of the Act, 8 U.S.C. 1157(c)(3), food and nutrition, housing, and United States would no longer be the 1159(c). healthcare, and other benefits that meet country that serves as a beacon for the individual needs, serve the public world’s dreamers and strivers. Many 7. Contributions to American Society and Consideration of Self-Sufficiency interest, and help people to become commenters pointed out that many productive members of society. The Comment: Commenters stated that immigrants here today would not have relevant inquiry that this rule aims to immigrants already significantly been able to enter the country under the address, however, is whether an contribute to the economy, citing IRS proposed rule. Several commenters said applicant who is subject to the public data showing how much income tax the that the United States should be charge ground of inadmissibility is IRS received from immigrants and receptive to those seeking a better life in likely to become a public charge at any undocumented workers. Many the United States and should not seek time in the future. DHS believes that an commenters said that DHS should to penalize them, especially to those alien who uses certain types of public evaluate immigrants based on their fleeing violence. One commenter stated benefits for the more than 12 months that the rule will force more people to contributions to communities in the live in the shadows. Two commenters United States and not based on their 83 USCIS–2010–0012–0151; USCIS–2010–0012– expressed that the rule is scapegoating, income level or financial status. Many 0264; USCIS–2010–0012–1689; USCIS–2010–0012– is the result of Congress’ failure to commenters stated that the rule would 13212 (Form Letter Master).

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within a 36 month period of time can during the time they could not legally Because each case will be determined reasonably be said to lack self- work. on its own merits, and applicants’ sufficiency because her or she cannot A commenter wrote that the backlog individual circumstances will vary, it is meet his or her basic living needs. DHS for adjustment of status reviews was reasonable to expect that public charge has limited the type of public benefits already significant, and new inadmissibility determinations will to generally means-tested benefits that requirements in the proposed rules vary. provide cash for income maintenance or would simply exacerbate those Additionally, while the rule may meet the basic living needs of food and conditions. A commenter stated that increase USCIS processing times, such nutrition, housing, and healthcare. DHS immigration officers and consular is the burden of robust enforcement of believes that receipt of these public officers will have a limited amount of the law. USCIS is committed to timely, benefits alone for more than 12 months time to properly review documents and accurate, and lawful adjudications, and in the aggregate within any 36-month employment letters, and will not plans to increase resources for affected period suggests a lack of self- undertake an effective, case-by-case applications as appropriate. USCIS, as a sufficiency, as such receipt exceeds appraisal of applications. Similarly, fee funded agency, may set fees to what could reasonably be defined as a supervising officers will not have support the additional workload nominal or temporary need. enough time to review each denial associated with adjudication of cases thoroughly. subject to section 212(a)(4) of the Act, 8 8. Adjudication and Processing Response: As noted by commenters, U.S.C. 1182(a)(4). USCIS officers will Comment: Multiple commenters this rule is not binding on the receive training on the new standards stated that the rule would exacerbate immigration courts or the Board of set forth in this final rule, which will USCIS and immigration court Immigration Appeals (BIA). It is DHS’s include training on how to treat public processing backlogs. Other commenters understanding that DOJ is developing a benefits received before the effective stated that the proposed rule outlined a public charge proposed rule, which date of this rule. Any increases to process that was confusing at best, and would address DOJ’s standard for adjudication time will not affect an would increase the number of appeals assessing public charge inadmissibility applicant’s ability to apply for an and deepen nationwide immigration and deportability. DHS will work with employment authorization document if 85 processing delays. Similarly, several DOJ to ensure consistent application of otherwise eligible. Finally, with respect to comments commenters said the rule, while not the public charge ground of regarding visa processing time for binding on the immigration courts, inadmissibility. DHS reiterates, consular officers, DHS believes that would further exacerbate an already however, that this final rule pertains such matters are more appropriately record high case volume in the only to public charge inadmissibility addressed by DOS. This rule only immigration courts. They further determinations made by DHS for addresses DHS’s public charge expressed concerns that increased applicants seeking admission or inadmissibility determinations in evidentiary requirements, heightened adjustment of status, public charge applications for admission or scrutiny, and uncertainty as to what bonds, as well the conditions DHS has adjustment of status. However, it is standard to apply, will delay set for nonimmigrants applying for an extension of stay or change of status DHS’s understanding that DOS will adjudications, add to the backlog and update its FAM to ensure consistency result in inconsistent outcomes. One with USCIS. DHS believes that concerns about DOJ’s adjudication of cases with the DHS rule. commenter said that this rule will Comment: Many commenters pending before immigration courts, further delay visa processing. Some addressed concerns about the including immigration court backlogs, commenters asserted that the proposed adjudication of extension of stay and changes would greatly complicate the are more appropriately addressed by change of status applications, adjudication process by placing a DOJ in the context of their public charge adjudication delays, and the uncertainty greater burden on individuals who will rulemaking. of being able to obtain a future status be required to provide more evidence With respect to commenters’ concerns when seeking an extension of stay or and paperwork to establish that they are that the DHS final rule would result in change of status. Some commenters not likely at any time to become a inconsistent outcomes, DHS disagrees stated that the proposed rule failed to public charge and will require with the assertion that the rule will lead identify the potential Request for adjudicators to spend more time sifting to inconsistent determinations, or that it Evidence (RFE) and denial rate for through and verifying information. creates confusion, in a way that is at all applicants. Similarly, commenters Several commenters stated that the inconsistent with congressional intent. stated that the proposed rule’s RFE rule’s heightened evidentiary Given the wording of section 212(a)(4) provision would cause significant requirements and totality of the of the Act, 8 U.S.C. 1182(a)(4), which uncertainty for employers, create circumstances standard would states that the public charge obstacles to effective business planning, exacerbate backlogs and cause inadmissibility determination is ‘‘in the and increase costs for employers uncertainty in adjudications. opinion of’’ the Attorney General and because of potential processing delays Several commenters provided data on based on consideration of a range of and backlogs. Many commenters raised current processing times and estimated circumstances particular to the alien, concerns about adjudication delays for processing times under the proposed DHS believes that the determination is workers and other nonimmigrant 84 rule. Commenters stated that families inherently subjective in nature. categories, such as H–2A nonimmigrant would suffer the consequences of case workers and their employers, and other 84 See Matter of Harutunian, 14 I&N Dec. 583, 588 categories. processing delays such as job loss and (Reg’l Cmm’r 1974) (‘‘[T]he determination of food insecurity. Several commenters whether an alien falls into that category [as likely cited studies and stated that the to become a public charge] rests within the review.’’ (citation omitted)); Matter of Martinez- increased processing times would discretion of the consular officers or the Lopez, 10 I&N Dec. 409, 421 (Att’y Gen. 1962) Commissioner . . . Congress inserted the words ‘in (‘‘[U]nder the statutory language the question for hinder immigrants’ ability to become or the opinion of’ (the consul or the Attorney General) visa purposes seems to depend entirely on the remain self-sufficient because the delays with the manifest intention of putting borderline consular officer’s subjective opinion.’’). could financially impair immigrants adverse determinations beyond the reach of judicial 85 8 CFR 274a.12(c)(9).

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Response: DHS does not anticipate resources to pay for reasonably E. General Comments Regarding Legal any significant processing delays in the foreseeable medical costs. Authority and Statutory Provisions adjudication of extension of stay and In other words, DHS will be relying 1. Lack of Statutory Authority/ change of status requests filed by or on on existing medical reports and Inconsistent With Congressional Intent behalf of nonimmigrants based on the information submitted with the alien’s new conditions imposed in the rule Comment: Several commenters said applications; such information, once relating to the past and current receipt DHS lacks statutory authority to submitted by the alien, will become a of public benefits. This is especially so promulgate the NPRM. Multiple in light of that fact that DHS is removing part of the alien’s administrative record. commenters stated the rule is an over- the requirement that an officer assess Such data is collected and maintained reach, requires congressional the alien’s likelihood of receiving public consistent with the Privacy Act of consideration, involvement, or 87 benefits in the future and that USCIS 1974 (Privacy Act) and the System of approval, and that only Congress can will no longer seek to request that the Records Notice (SORN), which enact such specific policy changes. One alien submit Form I–944. Overall, DHS identifies the purpose for which commenter stated that the rule’s attempt is committed to ensuring that USCIS has Personally Identifiable Information (PII) to change public charge policy in a the necessary resources to provide for is collected, from whom and what type regulation rather than in legislation is the timely adjudication of immigration of PII is collected, how the PII is shared inconsistent with the Administration’s benefits. Additionally, USCIS believes externally (routine uses), and how to stated goal to reduce the power of that the number of RFEs actually issued access and correct any PII maintained administrative agencies. relating to these rule changes will be by DHS.88 Response: The public charge inadmissibility rule is within DHS’s relatively small as long as the employers Additionally, while USCIS is and petitioners/beneficiaries submit authority and does not require generally not a covered entity bound by congressional action. The Secretary has properly documented petition. 89 HIPAA, USCIS complies with the the authority to enforce and administer 9. Privacy Concerns Privacy Act in safeguarding information the immigration laws of the United in the applicable systems of records. 92 Comment: A commenter expressed States. The Secretary is also Such information is generally concern about the lack of clarity on how authorized to prescribe regulations, confidential and is used primarily for forms, and instructions necessary to DHS plans to use, store, access and 90 protect the health data it receives. The immigration purposes. The data is carry out the authority provided in commenter stated that copies of medical collected and kept in an alien’s section 103(a)(1) of the Act, 8 U.S.C. records provided by applicants may administrative record consistent with 1103(a)(1).93 Additionally, the Secretary contain highly sensitive information the Privacy Act,91 which applies to is charged with administering the public unrelated to the immigration information that is maintained in a charge ground of inadmissibility. application or the likelihood of the ‘‘system of records’’ from which Therefore, this rule does not exceed or person becoming a public charge. A few information is retrieved by the name of overreach the Secretary’s authority, and commenters expressed concern that the an individual or by some identifying further, does not require congressional proposed rule’s use of health insurance number, symbol, or other identifying involvement, consideration, or information and data raises data and particular assigned to the individual. approval. privacy concerns, stating USCIS would This public charge inadmissibility rule is a permissible implementation of accumulate an overbroad body of data, 87 and this could violate the Health See 5 U.S.C. 552. the public charge inadmissibility statute 88 See generally Notice of Modified Privacy Act enacted by Congress.94 The public Insurance Portability and System of Records, 82 FR 43556, 43564 (Sept. 18, Accountability Act (HIPAA). charge inadmissibility rule provides 2017) (‘‘DHS/USCIS safeguards records in this important guidance for purposes of Response: DHS rejects the comment system according to applicable rules and policies, that the rule raises data and privacy including all applicable DHS automated systems implementing the statute, including by concerns that could violate HIPAA. security and access policies. USCIS has imposed defining statutory terms that have never Congress mandated that DHS consider strict controls to minimize the risk of compromising been defined by Congress in the over an applicant’s health as part of every the information that is being stored.’’). 100 years since the public charge 89 See 45 CFR 160.103. inadmissibility ground first appeared in public charge inadmissibility 90 determination.86 In order to assess an See also E.O. No. 13768, Enhancing Public the immigration laws. Safety in the Interior of the United States 82 FR DHS believes the terms set forth in the alien’s health in the totality of the 8799, 8802 (Jan. 30, 2017). Section 14 of E.O. 13768 public charge inadmissibility ground circumstances, DHS will generally rely limits the rights and protections of the Privacy Act, need clarification so that DHS can on medical information provided by subject to applicable law, to U.S. citizens and consistently adjudicate applications civil surgeons on the Report of Medical lawful permanent residents. See also DHS Privacy subject to public charge inadmissibility Examination and Vaccination Record Policy Regarding Collection, Use, Retention, and determinations in a manner that better (Form I–693), or report of a panel Dissemination of Personally Identifiable Information (Apr. 25, 2017), https://www.dhs.gov/ ensures aliens are self-sufficient and not physician, to assess whether the alien sites/default/files/publications/PPGM%202017- reliant on the government (i.e., public has been diagnosed with a medical 01%20Signed_0.pdf (last visited May 8, 2019). The benefits) for assistance to meet their condition that is likely to require latter memorandum sets out DHS policy requiring basic needs.95 extensive medical treatment or that decisions regarding the collection, Finally, DHS disagrees that the public institutionalization, or that will interfere maintenance, use, disclosure, retention, and charge rule is inconsistent with the with the alien’s ability to provide and disposal of information being held by DHS must be Administration’s goals to reduce the care for himself or herself, to attend consistent with and take into consideration the Fair role of executive agencies. The rule’s school, or to work, upon admission or Information Practice Principles: Transparency, Individual Participation, Purpose Specification, adjustment of status. DHS will also Data Minimization, Use Limitation, Data Quality 92 INA section 103(a)(1), 8 U.S.C. 1103(a)(1). consider whether the alien has and Integrity, Security, and Accountability and 93 INA section 103(a)(3), 8 U.S.C. 1103(a)(3). Auditing. 94 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 86 See INA 212(a)(4), 8 U.S.C. 1182(a)(4). 91 See 5 U.S.C. 552. 95 See 8 U.S.C. 1601.

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aims are consistent with the receipt of such benefits could render the discussed in greater detail in the section Administration’s goal of rigorously alien inadmissible as likely to become a addressing the regulatory definition of enforcing all grounds of public charge’ . . . strains credulity and public charge, DHS believes that its inadmissibility.96 is simply not a reasonable interpretation definition is consistent with what it Comment: A number of commenters of the statutes, as required by Chevron, means to be a public charge—a lack of stated that the rule is generally U.S.A., Inc. v. Nat. Res. Def. Council, self-sufficiency and a need to rely on the inconsistent with Congress’ intent and Inc., 467 U.S. 837 (1984).’’ government for support. DHS believes past policies. Commenters said the Response: This rule is not that its rigorous and fair regulatory proposed rule is a significant, inconsistent with Congress’ intent in framework will ensure that aliens unjustified change from the current enacting the public charge ground of coming to or opting to stay in the United public charge policy. One commenter inadmissibility in IIRIRA, or in enacting States permanently are self-sufficient. said that DHS should not re-interpret a PRWORA. DHS believes that the policy DHS explains the basis for its term that Congress had left undefined, goals articulated in PRWORA and interpretation of the term ‘‘public and said that if future administrations underlying the creation of the charge’’ more fully below. similarly revised policy based on their mandatory factors for public charge DHS also disagrees with commenters understanding of congressional intent, inadmissibility determinations in that this rule changes federal and state such policy would ‘‘change wildly with IIRIRA inform DHS’s administrative decision-making regarding aliens’ access every administration,’’ and would result implementation of the public charge to public benefits. The rule itself does in ‘‘vast inconsistencies in the law.’’ A ground of inadmissibility. When passing not prohibit any eligible alien or citizen commenter specifically stated that the IIRIRA, Congress added factors to from accessing public benefits for which rule is an ‘‘unlawful attempt to rewrite consider in public charge they qualify. As explained above, DHS Congress’s rules’’ and that DHS cannot inadmissibility determinations in has the legal authority to promulgate the ‘‘exercise its authority in a manner that section 212(a)(4) of the Act, 8 U.S.C. rule and believes the rule provides is inconsistent with the administrative 1182(a)(4)), but left it to DHS and DOJ needed guidance to determine whether structure that Congress enacted into to specify how and which public an alien is inadmissible as likely to law’’ and needs to comply with benefits should be considered in a become a public charge. Congress’s intent in creating the public public charge inadmissibility Comment: One commenter stated that 97 charge inadmissibility ground. One determination. In the same year, ‘‘[c]ontrary to DHS’s interpretation, the commenter said the proposed rule Congress passed PRWORA with the enactment of PRWORA and section would effectively overturn decades of clear intent to promote self-sufficiency 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), congressional and State decision- of those entering the United States and close in time suggests that Congress making regarding alien access to public to ensure that public benefits do not assumed that receipt of these public benefits with one unilateral executive provide an incentive for immigration to 98 benefits would not be counted against a action. Multiple commenters said the the United States. This public charge person in determining whether the rule is contrary to, or inconsistent with, inadmissibility rule, in accordance with individual is likely to become a public current law, congressional intent, and PRWORA, disincentivizes immigrants charge.’’ A commenter stated that the the traditional interpretation of public from coming to the United States in 99 rule is ‘‘an intentional attempt at using charge, as well as inconsistent with the reliance on public benefits. As the specific language within PRWORA history of how public charge has been explained in the NPRM and this final as justification for a new, more rule, DHS agrees that this rule takes a understood. One commenter noted that restrictive rule which would override different approach to interpreting the DHS’s contention that ‘‘Congress ‘must portions of PRWORA.’’ Other public charge ground of inadmissibility have recognized that it made certain commenters stated that the proposed than the 1999 Interim Field Guidance. public benefits available to some aliens rule is unnecessary in light of In the NPRM, DHS acknowledged that it who are also subject to the public charge PRWORA’s restrictions on access to was making a change and provided a ground of inadmissibility, even though benefits to certain immigrants and their detailed explanation and justification families. One commenter noted that in 96 for that change. Therefore, DHS See, e.g., Memorandum from the President to advancing the Administration’s goals, the Secretary of State, the Attorney General, and the disagrees that these changes are the rule undercuts Congress’ original Secretary of Homeland Security, Implementing unjustified. Immediate Heightened Screening and Vetting of intent in creating nutrition, health, and With respect to commenter statements Applications for Visas and Other Immigration human services programs. that the rule departs from the historical Benefits, Ensuring Enforcement of All Laws for Response: The public charge Entry Into the United States, and Increasing and traditional understanding of what it inadmissibility rule is not inconsistent Transparency Among Departments and Agencies of means to be a public charge, DHS the Federal Government and for the American with PRWORA, nor does it contravene disagrees. As an initial matter, this is People, 82 FR 16279, 16280 (Apr. 3, 2017) (‘‘I direct PRWORA’s requirements. When passing the first time that DHS is defining in the Secretary of State, the Attorney General, the IIRIRA in 1996, Congress added the Secretary of Homeland Security, and the heads of regulation an ambiguous terms that mandatory factors to be considered in all other relevant executive departments and Congress itself left undefined. As agencies (as identified by the Secretary of public charge inadmissibility Homeland Security) to rigorously enforce all determinations to section 212(a)(4) of existing grounds of inadmissibility and to ensure 97 See Public Law 104–208, div. C, sec. 531, 110 subsequent compliance with related laws after Stat. 3009–546, 3009–674 (Sept. 30, 1996) the Act, 8 U.S.C. 1182(a)(4), but left admission. The heads of all relevant executive (amending INA section 212(a)(4), 8 U.S.C. discretion to the relevant agencies, departments and agencies shall issue new rules, 1182(a)(4)). including DHS, to interpret those regulations, or guidance (collectively, rules), as 98 See Public Law 104–193, section 400, 110 Stat. factors, including how to incorporate a appropriate, to enforce laws relating to such 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. grounds of inadmissibility and subsequent 1601). consideration of public benefit receipt compliance. To the extent that the Secretary of 99 See Lewis v. Thompson, 252 F.3d 567, 583–84 into the public charge inadmissibility Homeland Security issues such new rules, the (2d Cir. 2001) (‘‘it is reasonable for Congress to determination. As discussed in the heads of all other relevant executive departments believe that some aliens would be less likely to NPRM, consideration of receipt of and agencies shall, as necessary and appropriate, hazard the trip to this country if they understood public benefits was part of the public issue new rules that conform to them.’’ (emphasis that they would not receive government benefits added)). upon arrival . . . .’’) charge determination before Congress

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passed IIRIRA and PRWORA.100 At the deportability in the version that passed previously excluded benefits for same time that Congress added the U.S. Senate that included Medicaid decades, is contrary to congressional mandatory factors to be considered in and food stamps (now SNAP), among intent. One commenter stated that the the public charge inadmissibility other programs, in the list of public rule is inconsistent with congressional analysis, Congress passed PRWORA, benefits that were considered one of the intent, which ‘‘recognizes the establishing eligibility restrictions for grounds of deportability for public importance of access to preventive care aliens receiving public benefits with the charge.104 DHS notes that the Senate- and nutrition benefits for all people, clear intent to promote the self- passed bill would not have amended the including immigrants.’’ sufficiency of those entering the United public charge ground of Response: DHS acknowledges that States and to ensure that public benefits inadmissibility.105 Additionally, the this rule is a departure from the 1999 do not provide an incentive for administration of the public charge Interim Field Guidance. DHS also immigrants to come to the United inadmissibility ground under this rule is acknowledges that some aliens subject States.101 Congress did nothing, significantly different from the public to this rule will need to make decisions however, to constrain DHS (then INS) charge deportability provisions with respect to the receipt of public from considering the receipt of public considered by the Senate. The proposed benefits for which they are eligible. benefits in a public charge ground of deportability, for instance, Ultimately, however, DHS does not inadmissibility determination as INS made aliens automatically deportable believe that its inclusion of previously- had done previously. In light of this (with certain exceptions) if they excluded benefits is contrary to history, DHS’s proposed public charge received certain public benefits, congressional intent, particularly with rule is consistent with the principles of including Medicaid and food stamps, respect to access to preventive care and PRWORA and aligns this regulation to for 12 months within five years of nutrition benefits. In fact, DHS believes those principles. As such, this public admission. This rule, by contrast, it would be contrary to congressional charge rule is rationally related to focuses on future receipt of public intent to promulgate regulations that Congress’ intent to create a disincentive benefits for more than 12 months in the encourage individuals subject to this for immigrants to rely on public benefits aggregate in a 36-month period. The rule to rely on any of the designated if they are seeking admission to the prospective nature of the determination public benefits, or to ignore their receipt United States,102 and a permissible under this rule renders the definition of such benefits, as this would be interpretation of section 212(a)(4) of the significantly different. With respect to contrary to Congress’s intent in ensuring Act, 8 U.S.C. 1182(a)(4). past receipt, this rule requires DHS to that aliens within the United States are Comment: One commenter stated that evaluate such receipt as one of several self-sufficient and rely on their own the rule is inconsistent with factors to be considered in the totality resources and capabilities, and those of congressional intent set forth in the of circumstances. This rule therefore their family, sponsors, and private IIRIRA Conference Report, because that does not impose the provision included organizations.108 report noted that certain benefits, such in the Senate-passed bill that Congress To the extent that commenters are as public health, nutrition, and in-kind had rejected.106 concerned with the consequences of community service programs, should DHS notes that the quotation from receipt of previously-excluded public not be included in the prohibition on IIRIRA Conference Report 107 does not benefits, DHS notes that it is not aliens receiving public benefits.103 relate to public charge inadmissibility, considering an alien’s receipt of Other commenters stated that when but to PRWORA and exceptions to the previously excluded public benefits in Congress expanded the definition of prohibition on aliens accepting certain the public charge inadmissibility ‘‘public charge’’ in 1996, it rejected a public benefits. While language in a determination, if such receipt occurred definition of ‘‘public charge’’ that would Conference Report, especially when before the effective date of this final rule have included food and healthcare discussing a separate piece of and receipt of such benefits was not assistance; thus, expanding the legislation, is not binding, the rule is not considered under the 1999 Interim Field definition of ‘‘public charge’’ to include inconsistent with the language in the Guidance.109 However, DHS is such assistance would ignore Congress’ report because the public benefits considering an alien’s receipt of public legislative intent. covered by the rule do not include those benefits that were included in the 1999 Response: It is not clear what the excepted under PRWORA. Interim Field Guidance and received commenters are referencing when Comment: Commenters stated that prior to the effective date of the rule as referring to Congress’ rejection of a reversing the policies set forth in the a negative factor in the totality of the definition of public charge that included 1999 Interim Field Guidance, which circumstances analysis. DHS also is not food and healthcare assistance. It may have allowed immigrants to rely on the considering past receipt of public be a reference to the proposed ground of benefits by an alien if such receipt 104 H.R. 2202, 104th Cong. sec. 202 (as amended occurred while the alien was in a 100 See Inadmissibility on Public Charge Grounds, and passed by Senate, May 2, 1996). classification or status that was exempt 83 FR 51114, 51158 (proposed Oct. 10, 2018) (‘‘In 105 See H.R. 2202, 104th Cong. sec. 202 (as from public charge inadmissibility or for Matter of Martinez-Lopez, the Attorney General amended and passed by Senate, May 2, 1996). which a waiver of public charge indicated that public support or the burden of 106 See Hamdan v. Rumsfeld, 548 U.S. 557, 579– supporting the alien being cast on the public was 80 (2006) (‘‘Congress’ rejection of the very language inadmissibility was received. a fundamental consideration in public charge that would have achieved the result the Comment: Some commenters stated inadmissibility determinations’’); Matter of Government urges here weighs heavily against the that DHS only has the authority to Martinez-Lopez, 10 I&N Dec. 409, 421 (Att’y Gen. Government’s interpretation.’’); see also administer individual reviews of an 1964). Competitive Enterprise Inst. v. U.S. Dep’t of 101 See 8 U.S.C. 1601. Transp., 863 F.3d 911, 917 (DC Cir. 2017) applicant’s likelihood of becoming 102 See Lewis v. Thompson, 252 F.3d 567, 583– (‘‘Congressional inaction lacks persuasive dependent on the government in the 84 (2d Cir. 2001) (‘‘it is reasonable for Congress to significance because several equally tenable future, and cannot consider government believe that some aliens would be less likely to inferences may be drawn from such inaction, expenditures on means-tested programs. hazard the trip to this country if they understood including the inference that the existing legislation that they would not receive government benefits already incorporated the offered change.’’ (citations One of these commenters suggested that upon arrival . . . .’’). and internal quotations omitted)). 103 See H.R. Rep. No. 104–828, at 238 (1996) 107 See H.R. Rep. No. 104–828, at 238 (1996) 108 See 8 U.S.C. 1601(2)(A). (Conf. Rep.). (Conf. Rep.). 109 See 8 CFR 212.22(d).

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to the extent DHS is considering rejecting the 1999 Interim Field DHS followed accepted practices for aggregate costs of public benefits, it also Guidance and making a massive change making inferences at a 95 percent should consider aggregate benefits. This in the agency’s interpretation of federal confidence level. commenter suggested that DHS abandon law.’’ The commenter stated that DHS DHS also explained that the 1999 its effort to use public charge reform as failed to provide an explanation as to Interim Field Guidance failed to offer a back door means of realizing the why the interpretation used for the last meaningful guidance for purposes of political goals of reducing government 20 years is inappropriate, or to justify considering the mandatory factors and expenditures on means-tested programs the particular articulation of resource was therefore ineffective in guiding authorized by Congress. Another and health factors contained in the rule. adjudicators in making a totality of the commenter stated that whether or not Many commenters stated that the rule circumstances public charge there is a large government expenditure failed to provide a reasonable or rational inadmissibility determinations. In on a particular program is irrelevant to nexus between the data cited and the response to this deficiency, DHS the assessment of whether a particular policy decisions made. One commenter proposed to establish definitive legal individual may become a public charge. claimed that the proposed rule did not standards and evidentiary criteria for Response: DHS believes that these offer adequate justification that access to each of the mandatory factors as commenters misunderstood DHS’s public benefits create an incentive to relevant to the determination of whether proposal. DHS is not taking migrate to the United States. The an alien will be more likely than not to expenditures on public benefit programs commenter also asserted that the become a public charge at any time in into account for purposes of any single proposal is based on inaccurate and the future. public charge inadmissibility misleading data concerning low-wage DHS agrees with commenters that the determination. Rather, DHS has taken work, and thus fails to account for the public charge inadmissibility rule into consideration expenditures on societal benefit of low-wage workers constitutes a change in interpretation public benefit programs in order to who depend on benefits to supplement from the 1999 Interim Field Guidance. appropriately circumscribe, for the their income. Courts have long established that agencies are not bound forever to purpose of administrative efficiency, the Response: DHS believes that it has list of public benefits that will be maintain the same statutory provided adequate justification for the interpretation.110 To change its prior considered in public charge rule. DHS has interpreted its authorizing inadmissibility determinations. interpretation, an agency need not prove statute to clarify the criteria for when an that the new interpretation is the best Therefore, under this rule, DHS will alien would be found inadmissible as take into consideration all of the interpretation, but should acknowledge likely at any time to become a public that it is making a change, provide a mandatory factors in the totality of the charge, based on the consideration of alien’s circumstances, including reasoned explanation for the change, statutory factors. DHS provided an and indicate that it believes the new whether the alien received public explanation for why and how the 111 benefits as defined in 212.21(b). interpretation to be better. DHS has proposed rule furthers congressional laid out the proposed changes from the 2. Additional Legal Arguments intent behind both the public charge 1999 Interim Field Guidance in great inadmissibility statute and PRWORA in detail and provided a justification for a. Allegations That the Rule Is Arbitrary ensuring that aliens being admitted into and Capricious each. DHS also explained why it and intending to settle permanently in believes the new rule to be a superior Comment: Many commenters stated the United States be self-sufficient and interpretation of the statute to the 1999 that the proposed rule is arbitrary and not reliant on public resources. DHS Interim Field Guidance and explained capricious. Commenters said that the also explained the deficiencies of the why such interpretation is desirable rule would be struck down under the current standard established by the 1999 from a public policy perspective. APA. Commenters stated that DHS Interim Field Guidance, including that Moreover, as explained above, DHS is failed to provide a reasoned or adequate the guidance assumed an overly clearly authorized to promulgate explanation for the rule, including one permissible definition of dependence on regulations interpreting the public based on facts and data. Other public benefits by only including charge inadmissibility ground. DHS commenters asserted that the public consideration of certain cash benefits, carefully considered the public charge rule, as proposed, is rather than a broader set of benefits, comments on this rule and made unnecessary, has no legal justification, whether cash or non-cash, that similarly and is overbroad. Other commenters denote reliance on the government 110 See, e.g., Rust v. Sullivan, 500 U.S. 173, 186– stated that the rule ‘‘address[es] a rather than the alien’s own resources 87 (1991) (acknowledging that changed problem that doesn’t even exist.’’ One and capabilities, or the resources and circumstances and policy revision may serve as a commenter stated that ‘‘DHS has not capabilities of the alien’s family, valid basis for changes in agency interpretations of statutes); Chevron, U.S.A., Inc. v. Nat. Res. Def. cited any evidence that the current sponsors, and private organizations. In Council, Inc., 467 U.S. 837, 863–64 (1984) (‘‘The statute is ineffective in promoting self- expanding the list of benefits to be fact that the agency has from time to time changed sufficiency or that there is some need considered, DHS explained why a its interpretation of the term ‘source’ does not, as for increasing the pool of broader list should be considered, and respondents argue, lead us to conclude that no deference should be accorded the agency’s inadmissibility. Without substantiating provided data to support the specific list interpretation of the statute. An initial agency the need for this change, DHS is simply proposed in the proposed rule. For interpretation is not instantly carved in stone. On proposing unnecessary and harsh instance, DHS referenced Federal the contrary, the agency, to engage in informed restrictions against immigrants.’’ One Government data for the rates of rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing commenter stated that current participation in such benefit programs basis.’’); Motor Vehicle Mfrs. Ass’n v. State Farm immigration policy provides sufficient by non-citizens across factors related to Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983) (agencies protection for the nation’s interests, the public charge inadmissibility ‘‘must be given ample latitude to ‘adapt their rules including through existing eligibility determination, such as income. DHS and policies to the demands of changing circumstances’ ’’ (quoting Permian Basin Area Rate limits for public benefits. disagrees that the data provided to Cases, 390 U.S. 747, 784 (1968))). A few commenters stated that ‘‘DHS support these conclusions was either 111 See generally FCC v. Fox Television Stations, offered inadequate reasoning for inaccurate or misleading, and notes that Inc., 556 U.S. 502 (2009).

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adjustments based on the input it a more expansive definition of ‘‘public actions (e.g., any past receipt of public received. Accordingly, DHS believes benefit,’’ that would have potentially benefits, employment history, etc.), even this rule has been issued in compliance included a range of non-cash benefit if a sufficient Form I–864 is submitted with the APA. programs falling in specific categories on behalf of an alien.117 DHS acknowledges that its broader (such as programs that provide In addition, if the sponsor does not definitions for public benefits and assistance for basic needs such food and provide financial support to the public charge may result in additional nutrition, housing, and healthcare). DHS sponsored alien, the sponsored alien applicants being determined to rejected these alternatives for the may bring a suit in the court of law.118 inadmissible and therefore ineligible for reasons discussed in the proposed In the event a sponsored alien receives admission or adjustment of status rule.114 public benefits, seeking reimbursement because they are likely at any time to With respect to enforcing Form I–864 pursuant to the agreement made in become a public charge. However, as as an alternative to this rule, DHS notes Form I–864 requires deployment of noted elsewhere in this rule, DHS that this proposal is neither an adequate relevant resources by the agency that believes that expanding the definitions nor available alternative to this rule. As granted the benefit and/or use of of public benefits and public charge and explained in the proposed rule, DHS’s judicial resources. any resulting denials of applications objective in promulgating this rule is to Simply put, the affidavit of support is based on section 212(a)(4) of the Act, 8 better ensure that aliens seeking not a substitute for the assessment of the U.S.C. 1182(a)(4) are reasonable and are admission or adjustment of status do not mandatory factors. For these reasons, consistent with Congress’ intent and rely on public resources to meet their DHS determined that simply enforcing will better ensure that aliens seeking to needs, but rather rely on their own the affidavit of support under section come to the United States temporarily or capabilities and the resources of their 213A of the Act was not an adequate permanently are self-sufficient.112 families, their sponsors, and private legal or practical alternative to ensuring DHS also notes that as stated organizations. While Form I–864 serves that DHS appropriately applies previously, available data neither a crucial function where required to be mandatory factors established by provides a precise count nor reasonable submitted by section 212(a)(4) of the Congress to assess whether the alien is estimates of the number of aliens who Act, 8 U.S.C. 1182(a)(4), it is not an likely at any time in the future to are both subject to the public charge alternative to consideration of the become a public charge. Furthermore, ground of inadmissibility and are mandatory factors established by considering a sufficient affidavit of eligible for public benefits in the United Congress in determining whether an support under section 213A of the Act States. alien is likely at any time to become a does not, alone, achieve Congress’ goal to limit the incentive to immigrate to the b. Alternatives public charge. As discussed elsewhere in this rule, Form I–864 ensures that the United States for the purpose of Comment: Commenters stated that, obtaining public benefits. under E.O. 13563 and other applicable sponsor is available to support the authority, DHS should have considered sponsored alien in the event the c. Retroactivity other feasible regulatory alternatives to sponsored alien is unable or unwilling Comment: A commenter stated that, its proposed rule. One commenter to support himself or herself and is also despite the apparent attempt to draft the asserted that the proposed rule failed to intended to provide a reimbursement proposed rule appropriately, its plain consider a less restrictive alternative, mechanism for the government to language would allow it to be applied specifically, enforcing affidavits of recover from the sponsor the amount of retroactively. The commenter stated that support. This commenter stated that this public benefits distributed to the because not all sections specifically failure makes the rule arbitrary and sponsored alien. In fact, the plain exempt benefits received prior to the capricious. language of the statute permits rule’s effective date, DHS could apply Response: DHS disagrees with sponsored aliens to sue to enforce the 115 the rule retroactively. For example, commenters who argued that the support obligation, if necessary. In under 8 CFR 212.22(c), an alien’s receipt proposed rule failed to consider other addition, Form I–864 may also be taken of SNAP within 36 months preceding alternatives to this rule, or that the into consideration in the totality of the application for adjustment of status proposed rule was unnecessary because circumstances public charge 116 would weigh heavily in favor of a DHS can simply increase enforcement of inadmissibility determination. Had finding of public charge inadmissibility, Form I–864. Under E.O. 13563, the Congress intended enforcement of Form but that paragraph does not specifically agency must identify available I–864 to be the sole mechanism by limit DHS’s consideration of SNAP alternatives. In this case, DHS did just which DHS could ensure that an alien receipt to benefits received on or after that and explained the alternatives does not become a public charge after the effective date of the rule. This considered in the proposed rule, admission or adjustment of status, commenter also stated that the proposed including a ‘‘no-action’’ alternative— Congress would have included it as the rule violated reasonable reliance law continuing to administer this ground of sole mandatory factor to be considered and violates the APA. inadmissibility under the 1999 Interim when making public charge Response: DHS disagrees that the rule Field Guidance.113 DHS also considered inadmissibility determinations. Instead, will be applied retroactively to aliens Congress required DHS to consider the subject to the public charge ground of 112 See Nat’l Cable & Telecommunications Ass’n mandatory factors to assess whether the inadmissibility. As stated in the DATES v. Brand X internet Servs., 545 U.S. 967, 1001 alien is likely at any time to become a section of this final rule, this rule will (2005) (‘‘the Commission is free within the limits public charge based on his or her become effective 60 days after it is of reasoned interpretation to change course if it present circumstances and relevant past adequately justifies the change.’’); Competitive Enter. Inst. v. United States Dep’t of Transportation, 117 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 863 F.3d 911, 918 (D.C. Cir. 2017) (‘‘The benefits 114 See Inadmissibility on Public Charge Grounds, 118 See, e.g., Wenfang Lieu v. Mund, 686 F.3d 418 of the regulation are also modest, but the 83 FR 51114, 51276 (proposed Oct. 10, 2018). (7th Cir. 2012) (the sponsored immigrant is a third Department reasonably concluded that they justify 115 See INA section 213A(a)(1)(B), 8 U.S.C. party beneficiary whose rights exist apart from the costs.’’) 1183a(a)(1)(B); 71 FR 35732, 35743 (Jun. 21, 2006). whatever rights she might or might not have under 113 See Inadmissibility on Public Charge Grounds, 116 See INA section 212(a)(4)(B)(ii), 8 U.S.C. Wisconsin divorce law, and she has no legal 83 FR 51114, 51276 (proposed Oct. 10, 2018). 1182(a)(4)(B)(ii). obligation to mitigate damages).

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published in the Federal Register, and treat the receipt of these benefits as a vague did not provide specific details to the rule will be applied to applications heavily weighted negative factor. identify which provisions of the rule and petitions postmarked (or if Comment: One commenter noted that they were referring and DHS is therefore applicable, electronically submitted) on the rule punishes noncitizens for past unable to specifically address those or after that date. Thus, for instance, the conduct and therefore violates the ex claims other than stating general public charge inadmissibility post facto clause and is disagreement. In the NPRM, DHS determination factors and criteria will unconstitutionally retroactive.’’ provided specific examples of various apply only to applications that are Response: DHS rejects the comment concepts and laid out in great detail the postmarked (or if applicable, that the public charge inadmissibility applicability of the rule to different electronically submitted) on or after that rule violates that ex post facto clause of classes of aliens, and clearly identified date; applications that were postmarked the U.S. Constitution. The ex post facto the classes of aliens that would be before the effective date and accepted by clause prohibits changes to the legal exempt from the rule. DHS also USCIS pursuant to 8 CFR 103.2(a)(1) consequences (or status) of actions that provided an exhaustive list of the and (a)(2), and are pending on the were committed before the enactment of additional non-cash public benefits that effective date will be adjudicated under the law.119 The ex post facto clause would be considered, including receipt the criteria set forth in the 1999 Interim would generally only apply to laws that thresholds for all designated benefits. Field Guidance. For the purposes of impose criminal penalties.120 Although DHS explained that it would make determining whether a case was inadmissibility determinations are not public charge inadmissibility postmarked before the effective date of criminal penalties, and so are generally determinations in the totality of the the rule, DHS will consider the not subject to the ex post facto circumstances, and following postmark date for the application or clause,121 this rule, in any event, is not consideration of the minimum statutory petition currently before USCS, not the impermissibly retroactive in factors. The ‘‘vagueness’’ associated postmark date for any previously-filed application, as noted in the immediately with a totality of the circumstances application or petition that USCIS preceding response. determination is to a significant extent rejected pursuant to 8 CFR a byproduct of the statute’s requirement d. Due Process/Vagueness and Equal 103.2(a)(7)(ii). that DHS consider a range of minimum Protection Similarly, the condition related to factors as part of the public charge public benefit receipt in the context of Comment: Commenters stated that the inadmissibility determination. DHS extensions of stay and change of status public charge inadmissibility recognizes that the statutory multi-factor will only apply to petitions and determination called for by the framework will likely result in more applications postmarked (or if proposed rule is too open-ended and inadmissibility determinations when applicable, submitted electronically) on unpredictable. Some commenters combined with the standard in this rule or after the effective date of this rule. pointed to likely confusion about which (as compared to the 1999 Interim Field Guidance), but fundamentally, as it In addition, and as stated in this final benefits will be included or excluded relates to vagueness, the commenters’ rule, DHS will not apply the new for purposes of a public charge quarrel is with Congress, not with DHS. expanded definition of public benefit to determination. These commenters further stated that failing to define the In any case, in response to public benefits received before the effective comments, the list of public benefits has date of this final rule. Therefore, any term ‘‘likely,’’ as that term is used in the phrase ‘‘likely to become a public been revised in this final rule, and the benefits received before that date will threshold has been simplified such that only be considered to the extent they charge,’’ would grant too much discretion to adjudicators in an complex there is only a single, objective would have been covered by the 1999 duration-based threshold applicable to Interim Field Guidance. In the weighing system that would lead to arbitrary outcomes. Another commenter the receipt of all included public commenter’s example, SNAP benefits benefits. And DHS has determined, received by an alien prior to the recommended that the determination system be scored. Another commenter consistent with public commenter effective date of the final rule would not suggestions, that it will not consider the be considered as part of the alien’s stated that that the vagueness of the proposed framework would lead to receipt of any benefits not listed in the public charge inadmissibility rule, therefore removing potential determination, because SNAP was not inconsistent and unfair determinations. Response: DHS disagrees that the rule uncertainty. In addition, DHS remains considered in public charge committed to providing clear guidance is vague or unpredictable. Some inadmissibility determinations under to ensure that there is adequate commenters who alleged that the rule is the 1999 Interim Field Guidance. By knowledge and understanding among contrast, as explained in more detail 119 U .S. Const. art. I, sec. 9, cl. 3; see Calder v. the regulated public regarding which later in this preamble, for applications Bull, 3 Dall. 386, 390–391, 1 L.Ed. 648 (1798) benefits will be considered and when, postmarked (or if applicable, (opinion of Chase, J.). as well as to ensure that aliens electronically submitted) on or after the 120 See, e.g., Rhines v. Young, 899 F.3d 482, 495 understand whether they are or are not effective date of this final rule, an (8th Cir. 2018) (‘‘A criminal or penal law has a subject to the public charge ground of applicant’s receipt of cash assistance for prohibited ex post facto effect if it is ‘‘retrospective, that is, it must apply to events occurring before its inadmissibility. income maintenance prior to the enactment, and it must disadvantage the offender DHS has also further defined ‘‘likely’’ effective date of this rule will be treated affected by it.’’) (citations omitted), cert. denied, No. as more likely than not. While DHS as a negative factor in the totality of the 18–8030, 2019 WL 826426 (U.S. Apr. 15, 2019); agrees with commenters that the circumstances. However, regardless of Bremer v. Johnson, 834 F.3d 925, 932 (8th Cir. regulation must be sufficiently clear so 2016); the length of time such benefits were 121 Galvan v. Press, 347 U.S. 522, 531 (1954) that the regulated public can comply received before the effective date of this (Frankfurter, J.) (‘‘[W]hatever might have been said with it, DHS notes that some adjudicator rule, for the purposes of public charge at an earlier date for applying the ex post facto discretion must exist where inadmissibility determinations made for Clause, it has been the unbroken rule of this Court determinations are based on a totality of that it has no application to deportation.’’); applications postmarked (or if Alvarado–Fonseca v. Holder, 631 F.3d 385, 391–92 the circumstances examination that is applicable, submitted electronically) on (7th Cir. 2011); Montenegro v. Ashcroft, 355 F.3d highly fact-specific. Congress or after the effective date, DHS will not 1035, 1037 (7th Cir. 2004). specifically called for a fact-specific,

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discretionary determination in the immigrants and immigrants of color and here permanently, are self-sufficient and public charge context.122 As is the case is not rationally related to a legitimate not reliant on the government for with most regulations, over the course public interest. The commenter support. While this rule may influence of adjudications, new fact patterns arise indicated that the ‘‘legitimate public an alien’s decision to apply for, or that may require additional guidance to interest (which in and of itself is disenroll from, public benefits, it does adjudicators; however this does not contestable) is already served by the not constitute a restriction on accessing make the regulation impermissibly current provision.’’ Another commenter such benefits. However, even if the rule vague.123 similarly stated that the rule would have did place additional restrictions on DHS does not believe that a scoring a disparate impact on immigrants of aliens, the Supreme Court, even prior to system would be appropriate for this color and women. The commenter cited PRWORA, determined that the equal analysis, namely because of the wide to a Manatt, Phelps & Phillips protection analysis of Federal action variations between individual independent analysis of the U.S. Census that differentiates between citizens and circumstances of aliens. Both the Bureau’s (Census Bureau) American aliens in the immigration context is proposed rule and this final rule Community Survey Data 5-year 2012– different from the equal protection adequately explain how the criteria are 2016 data. The commenter stated that analysis of State actions that to be applied and what evidence should the application of the public charge rule differentiate between citizens of another be considered. USCIS will provide would be unequally distributed along state and citizens of another country. In training to its adjudicators and will racial lines. According to the Mathews v. Diaz, the Court specifically engage with the regulated public to the commenter, the effects of the proposed distinguished between state statutes that extent necessary to foster a better rule are expected to have a disparate deny welfare benefits to resident aliens, understanding and compliance with the impact on communities of color, or aliens not meeting duration residence regulation. affecting as many as 18.3 million requirements, from similar actions taken Comment: One commenter stated that members (or one-third) of the Hispanic by the political branches of the Federal although the Federal Government has and Latino community in the United Government that are specifically great leeway to enact immigration laws, States. The commenter stated that the empowered to regulate the conditions of its actions are still subject to review for DHS’s proposed ‘‘250-percent-FPG entry and residence of aliens. 426 U.S. constitutionality. The commenter stated threshold’’ would have disproportionate 67, 85–86 (1976). In that case, the court that proposed rule restricts the rights of effects based on national origin and found that the enforcement of a 5-year non-citizens to access crucial healthcare ethnicity, blocking 71 percent of residency requirement against aliens benefits, housing vouchers, and other applicants from Mexico and Central applying for a supplemental medical government benefits by using ‘‘heavily America, 69 percent from Africa, and 52 insurance program did not deprive the weighted factors,’’ such as English percent from Asia—but only 36 percent aliens of life, liberty or property without proficiency, and ‘‘exorbitant’’ bond from Europe, Canada and Oceania. The due process of law under the Due measures, and that the proposed rule commenter stated that ‘‘because the Process Clause of the Fifth would disproportionately impact proposed rule facially implicates Amendment.125 women and people of color. The national origin, strict scrutiny applies.’’ DHS agrees that if this rule were commenter stated that the Supreme Response: DHS disagrees that this rule regulating eligibility for public benefits Court has struck down state laws that would fail any level of scrutiny (i.e., outside of the immigration context, restricted public benefits based on strict, intermediate, or rational basis heightened scrutiny might apply.126 As alienage and noted that in one such scrutiny).124 As discussed previously, explained above, however, the rule case, the Court reviewed the law under DHS is not changing rules governing places no obstacles to aliens’ eligibility intermediate scrutiny. The commenter which aliens may apply for or receive for public benefits. Furthermore, the suggested that this rule could similarly public benefits, nor is this rule altering rule is not facially discriminatory and be subject to intermediate scrutiny. The any eligibility criteria for such benefits. DHS does not intend a discriminatory commenter stated that even if a Instead, DHS is exercising its authority effect based on race, gender, or any heightened scrutiny argument loses, the to administer the public charge ground other protected ground. rule would fail rational basis scrutiny of inadmissibility in a way that better Finally, the commenter misstated the because is not rationally related to a ensures that aliens being admitted into proposed rule’s income threshold as 250 legitimate public interest since ‘‘there is the United States, or seeking to remain percent of the FPG. While USCIS will no legitimate government interest generally consider 250 percent of the furthered by the proposed rule, as 124 See Korab v. Fink, 797 F.3d 572, 577–79 (9th FPG to be a heavily weighted positive 212(a)(4) [of the Act, 8 U.S.C. 1182(a)(4)] Cir. 2014) (‘‘[F]ederal statutes regulating alien factor in the totality of the is already in place and effective.’’ The classifications are subject to the easier-to-satisfy commenter stated that the proposed rational-basis review . . . Although aliens are protected by the Due Process and Equal Protection 125 ‘‘The fact that all persons, aliens and citizens measures will disparately impact female Clauses, this protection does not prevent Congress alike, are protected by the Due Process Clause does from creating legitimate distinctions either between not lead to the further conclusion that all aliens are 122 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4) citizens and aliens or among categories of aliens entitled to enjoy all the advantages of citizenship (‘‘Any alien, who in the opinion of the consular and allocating benefits on that basis.’’) (citation . . .’’ 426 U.S. at 79–80. officer at the time of application for a visa, or in omitted); Lewis v. Thompson, 252 F.3d 567, 570 (2d 126 See, e.g., Personal Administrator of Mass v. the opinion of the Attorney General at the time of Cir. 2001) (describing the level of scrutiny owed Feeney, 442 U.S. 256, 272 (1996) (Classifying the application for admission or adjustment of under the constitution to federal regulation of persons according to their race is more likely to status, is likely at any time to become a public immigration and naturalization as ‘‘highly reflect racial prejudice than legitimate public charge is inadmissible.’’) (emphasis added). deferential’’) (citing Lake v. Reno, 226 F.3d 141, 148 concerns.), McLaughlin v. Florida, 379 U.S. 184, 123 Cf., e.g., Freeman United Coal Mining Co. v. (2d Cir. 2000).) Generally, laws and regulations that 196 (1964) (‘‘Such classifications are subject to the Fed. Mine Safety & Health Review Comm’n, 108 neither involve fundamental rights nor include most exacting scrutiny; to pass constitutional F.3d 358, 362 (D.C. Cir. 1997) (‘‘Regulations suspect classifications are reviewed under rational muster, they must be justified by a compelling generally satisfy due process so long as they are basis scrutiny, under which the person challenging governmental interest and must be ‘necessary . . . sufficiently specific that a reasonably prudent the law must show that the government has no to the accomplishment’ of their legitimate person, familiar with the conditions the regulations legitimate interest in the law or policy or that there purpose.’ ’’); United States v. Virginia, 518 U.S. 515 are meant to address and the objectives the is no rational link between the interest and the (1996) (ruling that the Virginia Military Institute’s regulations are meant to achieve, would have fair challenge law or regulation. Heller v. Doe by Doe, gender-based admission policy violated the Equal warning of what the regulations require.’’). 509 U.S. 312, 319 (1993). Protection Clause).

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circumstances, the minimum income protections clauses, federal immigration Clause of the Fifth Amendment ‘‘has threshold to be considered a positive laws and their implementing regulations never been supposed to have any factor in the totality of the generally enjoy a highly deferential bearing upon, or to inhibit laws that circumstances is generally 125 percent standard of review, even where the indirectly work harm and loss to of the FPG. More specifically, if the federal laws and regulations treat aliens individuals.’’ 134 Similarly, and as alien has income below that level, it differently from citizens and create discussed in greater detail above, any will generally be a heavily weighed distinctions between different classes of potential chilling impacts of the rule negative factor in the totality of the aliens (i.e., lawful permanent residents would not violate the equal protection circumstances. vs. nonpermanent residents).129 DHS’s guarantee of the Fifth Amendment’s Due As set forth in NPRM,127 DHS’s public public charge inadmissibility rule falls Process Clause 135 because this rule is charge rule is rationally related to the within the agency’s broad authority, not facially discriminatory nor does government’s interest in ensuring that granted by Congress, to regulate DHS intend a discriminatory effect.136 aliens entering the United States or immigration matters, and therefore, if The standards of judicial review are seeking to settle here permanently are challenged on equal protection grounds established by statute and judicial not likely to become public charges, as discriminating based on alienage, interpretation 137 and are therefore consistent with the requirements of would be subject to rational basis beyond the scope of this rulemaking. section 212(a)(4) of the Act, 8 U.S.C. scrutiny.130 The public charge The proposal to institute a review by 1182(a)(4). The regulation minimizes inadmissibility rule is indeed rationally Congress is also beyond the scope of the incentive of aliens to immigrate to related to the government’s interest, as this rulemaking because only the the United States because of the set forth in IIRIRA and PRWORA, to legislative branch can create a role for availability of public benefits and determine which aliens are inadmissible itself.138 DHS rejects the proposal to promotes the self-sufficiency of aliens on public charge grounds in accordance create an appellate process to allow within the United States.128 Finally, with section 212(a)(4) of the INA, 8 applicants to present evidence of their DHS does not understand commenters’ U.S.C. 1182(a)(4), minimize the admissibility since there is an existing statements about the ‘‘unequal incentive of aliens to immigrate to the process to present such evidence. application’’ of the public charge United States due to the availability of Although not specific to this rule, inadmissibility rule and disagrees that public benefits, and promote the self- USCIS will notify applicants of the public charge inadmissibility rule sufficiency of aliens within the United deficiencies in their applications with would be unequally applied to different States.131 This is true even if this rule respect to any ineligibility including groups of aliens along the lines of race results in a disincentive for aliens to public charge in accordance with the or gender. avail themselves of public benefits for principles outlined in 8 CFR 103.2 and Comment: Several commenters which they are eligible under USCIS policy in regard to notices, RFEs, objected that the rule violates due PRWORA.132 Moreover, although the or notices of intent to deny (NOIDs), and process and equal protection rights. One rule could impact an alien’s decision to denials.139 Likewise, DHS will not commenter said that aliens seeking access public benefits for which he or accept the proposal to decline to revoke adjustment of status should be granted she is eligible under PRWORA and state a lawful permanent resident’s status due process rights closer to those of and local laws, it does not directly pending any appeals of a public charge United States citizens, and this rule regulate the right to apply for or receive should be subject to stricter standards public benefits, and the Due Process not apply to the indirect adverse effects of for judicial review to ‘‘ensure that more Clause would not be implicated by governmental action.’’ 134 O’Bannon v. Town Court Nursing Ctr., 447 immigrants are protected from the whether, due to the rule, an alien U.S. 773, 789 (1980) (quoting The Legal Tender detrimental effects of this proposal.’’ chooses not to access benefits for which Cases, 79 U.S. 457, 551 (1870)). The commenter stated that such a he or she qualifies.133 The Due Process 135 Although the Equal Protection Clause of the review ‘‘would require that Congress Fourteenth Amendment does not apply to the Federal government, the Supreme Court in Bolling 129 See Korab v. Fink, 797 F.3d 572, 579 (9th Cir. ha[ve] a dual review process.’’ Another v. Sharpe, 347 U.S.497, 500 (1954), held that while commenter stated that the DHS rule 2014); Lewis v. Thompson, 252 F.3d 567, 570 (2d ‘‘‘equal protection of the laws’ is a more explicit Cir. 2001) (citing Lake v. Reno, 226 F.3d 141, 148 safeguard of prohibited unfairness than ‘due could be challenged on the grounds that (2d Cir. 2000)); Brooks v. Ashcroft, 283 F.3d 1268, it affords nonimmigrants inside the process of law,’ . . . discrimination may be so 1274 (11th Cir. 2002) (‘‘Classifications that unjustifiable as to be violative of due process.’’ In United States less due process rights distinguish among groups of aliens are subject to the case of racial discrimination in DC public than they should be afforded. The rational basis review, and will be found valid if not schools, the Court found that no lesser commenter stated that USCIS should arbitrary or unreasonable’’). Constitutional protections apply to the Federal 130 See Mathews v. Diaz, 426 U.S. 67, 81 n.17 government through the application of the Due construct an appeals process that (1976). Process Clause in the Fifth Amendment than by satisfies due process and gives 131 See 8 U.S.C. 1601. application of the Equal Protection Clause of the applicants the opportunity to present 132 See Lewis v. Thompson, 252 F.3d 567, 583– Fourteenth Amendment. evidence of admissibility. The 84 (2d Cir. 2001) (‘‘[I]t is reasonable for Congress 136 See Pers. Adm’r v. Feeney, 442 U.S. 256, 272 commenter also stated that a person to believe that some aliens would be less likely to (1979). hazard the trip to this country if they understood 137 See, e.g., INA section 242(b)(4), 8 U.S.C. should not have ‘‘their status as a that they would not receive government benefits 1252(b)(4) (providing the scope and standard of resident revoked’’ prior to a full review upon arrival . . . Although it seems likely that judicial review of removal orders); McNary v. of the case. many alien women will illegally immigrate to Haitian Refugee Center, Inc., 498 U.S. 479, 493 Response: DHS disagrees with obtain the benefit of citizenship for their children, (1991) (discussing the appropriate standard of undeterred by ineligibility for prenatal care in the review for challenges to the Special Agricultural comments asserting that this rule event of pregnancy, Congress is entitled to suppose Worker program). violates aliens’ due process or equal that the denial of care will deter some of them. In 138 See generally Trans Ohio Sav. Bank v. protection rights. Although aliens the realm of immigration, where congressional Director, Office of Thrift Supervision, 967 F.2d 598, present in the United States are discretion is extremely broad, this supposition, 620 (DC Cir. 1992) (agency promise to bind protected by the due process and equal even if dubious, satisfies rational basis review.’’) Congress would be ultra vires and unenforceable). (citations omitted). 139 DHS notes that the failure to submit a 133 In O’Bannon v. Town Court Nursing Ctr., 447 completed Form I–944 and Form I–864 with the 127 See Inadmissibility on Public Charge Grounds, U.S. 773, 789 (1980), the Supreme Court concluded, Form I–485, when required, may result in a 83 FR 51114, 51122–23 (proposed Oct. 10, 2018). consistent with long-standing precedent that ‘‘the rejection or a denial of the Form I–485 without a 128 See 8 U.S.C. 1601. due process provision of the Fifth Amendment does prior RFE or NOID. See 8 CFR 103.2(a)(7), (b)(8)(ii).

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finding. Revocation of existing status is argue in removal proceedings that have jurisdiction over the adjustment generally distinct from the process of DHS’s public charge inadmissibility application.146 adjudicating applications for standard should be applied. And Additionally, when encountering an immigration benefits. For example, a because there would not be binding alien, who is an arriving alien or an person maintaining a valid precedent on DHS’s interpretation of alien present in the United State nonimmigrant status whose adjustment public charge inadmissibility, some without admission or parole, ICE will of status application is denied because immigration judges would adopt DHS’s use the criteria set forth in this rule with he or she is inadmissible on public rule while others would not. This would respect to determining whether to charge grounds would not lose his or result in inconsistent determinations charge such an alien under section her nonimmigrant status based on the and burden the immigration court 212(a)(4), 8 U.S.C. 1182(a)(4). denial of adjustment.140 To the degree system. DHS notes that it has no general the commenter’s concerns relate to the Response: DOJ has acknowledged authority over the EOIR inadmissibility determinations in removal proceedings loss of lawful permanent resident status, ongoing work on a proposed public and believes such matters are more such status generally terminates upon charge rule, which would propose to 141 appropriately addressed by DOJ in the the entry of a final order of removal change how adjudicators within the context of its public charge rulemaking. unless the alien voluntarily abandons Executive Office for Immigration lawful permanent resident status. Review (EOIR) determine whether an f. International Law and Related Issues e. Coordination With Other Federal alien is inadmissible to the United Comment: One commenter suggested, Agencies States as a public charge consistent with but did not explicitly state, that the rule 144 Comment: Several commenters said section 212(a)(4) of the INA. would violate international refugee law. the proposed definition of public charge According to DOJ, the rule is intended Another commenter suggested that the conflicts with the definition of public to make certain revisions to more rule would discriminate against charge used by DOS, which focuses on closely conform EOIR’s regulations with individuals waiting for their asylum an alien’s primary dependence on the DHS public charge inadmissibility applications to be adjudicated. Other public benefits. Other commenters rule. DHS will work with DOJ to ensure commenters noted that the rule would noted that the inconsistency with DOS’s consistent application of the public be a violation of, or is inconsistent with, definition of public charge would lead charge ground of inadmissibility. DHS various international agreements such to delays and denials of Application for reiterates, however, that this final rule as the Universal Declaration of Human Provisional Unlawful Presence Waiver pertains only to public charge Rights (UDHR), the 1959 Declaration of (Form I–601A). inadmissibility determinations made by the Rights of the Child, the International Response: DHS is working and will DHS for applicants seeking admission or Convention on the Elimination of All continue to work with DOS to ensure adjustment of status, public charge Forms of Racial Discrimination (CERD), consistent application of the public bonds, as well the conditions DHS has and the International Covenant on Civil charge ground of inadmissibility. As set for applicants applying for an and Political Rights (ICCPR). A noted in the NPRM, DHS expects that extension of stay or change of status commenter stated that treaties that have DOS will make any necessary before DHS. been ratified ‘‘should be considered as amendments to the FAM in order to If USCIS denies an adjustment of being Constitutional Amendments harmonize its approach to public charge status application after determining that under the Supremacy Clause.’’ inadmissibility determinations with the the applicant is likely at any time to Response: DHS rejects the comment approach taken in this final rule.142 As become a public charge at any time, and that this rule would violate the United previously, indicated, DHS does not the alien is not lawfully present in the States’ international treaty obligations believe that the rule would unduly United States, USCIS will generally relating to refugees or that the rule increase the delays or denials of issue a Notice to Appear (NTA),145 discriminates against individuals in the provisional unlawful presence waivers which may charge the alien as United States who have asylum filed on Form I–601A, as such waivers inadmissible under section 212(a)(4) of applications pending on the effective are unrelated to the public charge the Act, 8 U.S.C. 1182(a)(4), if the alien date of this rule. As noted in the NPRM, ground of inadmissibility.143 is an alien is an arriving alien or an this rule does not apply to asylum Comment: Several commenters stated alien present in the United States applicants, those granted asylum that in the absence of DOJ regulations without having been admitted or (asylees), and those seeking to adjust on public charge inadmissibility, U.S. paroled. Under section 240(c)(2)(A) of their status to that of a lawful Immigration and Customs Enforcement the Act, 8 U.S.C. 1229a(c)(2)(A), an permanent resident based on their (ICE) attorneys will be compelled to applicant for admission in removal asylee or refugee status. Applicants for proceedings has the burden of asylum are not required to demonstrate 140 It is possible that the basis for the denial could establishing that he or she is clearly and admissibility as part of demonstrating also make the alien deportable under the different beyond doubt entitled to be admitted their eligibility for asylum.147 requirements for deportability at section 237(a)(5) of the Act, 8 U.S.C. 1227(a)(5). Aliens placed in and is not inadmissible under section Additionally, while asylees who travel removal will be afforded al due process rights 212 of the Act, 8 U.S.C. 1182. The alien outside of the United States are accorded to aliens in removal proceedings. See INA may renew the adjustment of status examined for admissibility upon section 240(b)(4), 8 U.S.C. 1229a(b)(4). application before an immigration judge returning to the United States with a 141 See 8 CFR 1.2, definition of ‘‘lawfully admitted for permanent residence.’’ unless the immigration judge does not refugee travel document and are 142 See Inadmissibility on Public Charge Grounds, admitted as such if admissible, asylees 83 FR 51114, 51135 (proposed Oct. 10, 2018). 144 See Unified Agenda of Regulatory and are not subject to the public charge 143 Form I–601A is filed by aliens inside the Deregulatory Actions, DOJ, Inadmissibility on inadmissibility ground when seeking United States to request a provisional waiver of the Public Charge Grounds, RIN 1125 AA74 (Spring readmission as an asylee.148 Similarly, unlawful presence grounds of inadmissibility 2019), https://www.reginfo.gov/public/do/ section 212 (a)(9)(B) of the Act, 8 U.S.C. eAgendaViewRule?pubId=201904&RIN=1125-AA84 1182(a)(9)(B), before departing the United States to (last visited June 11, 2019). 146 8 CFR 245.2(a)(5)(ii) and 1245.2(a)(1). appear at a U.S. Embassy or Consulate for an 145 INA sections 103(a) and 239, 8 U.S.C. 1103(a) 147 See INA section 208, 8 U.S.C. 1158. immigrant visa interview. and 1229; 8 CFR 2.1 and 239.1. 148 See 8 CFR 223.3(d)(2).

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asylees and refugees who are applying judicially enforceable obligations.156 very nature, the public charge ground of for adjustment of status are not subject DHS disagrees with the comment that inadmissibility frequently affects people to the public charge inadmissibility ratified treaties should be considered as who lack the capacity or competence to ground under section 209(c) of the Act, constitutional amendments as this is enter into contracts. Contract law does 8 U.S.C. 1159(c).149 Because the rule legally inaccurate.157 not limit DHS’s ability to enforce the does not apply to or otherwise impact g. Contract Law public charge ground of inadmissibility. asylum applicants, asylees, and However, as noted elsewhere in this applicants for asylee or refugee Comment: A commenter said that it rule, DHS has decided, as a matter of adjustment, the rule does not violate would contradict principles of contract policy, to exclude consideration of the international treaty obligations relating law to hold a child responsible for the receipt of Medicaid by aliens under the to refugees, to the extent those public benefits they receive before the age of 21, as well as services or benefits obligations are applicable.150 age of majority. funded by Medicaid but provided under Response: DHS rejects the suggestion the IDEA or school-based benefits DHS also disagrees that the rule that DHS would be precluded, under provided to children who are at or would violate international treaties such contract law principles, from below the oldest age of children eligible as the CERD 151 and the ICCPR 152 or considering the receipt of public for secondary education as determined that it would be inconsistent with non- benefits in a public charge under State law. DHS also has excluded binding instruments such as the inadmissibility determination by an consideration of the receipt of all public UDHR 153 and the 1959 Declaration of alien under the age of 18. With the 154 benefits received by children of U.S. the Rights of the Child. First, the rule exception of the affidavit of support citizens whose lawful admission for is not inconsistent with those treaties statute, section 213A of the Act, 8 U.S.C. permanent residence and subsequent and instruments. As discussed above, 1183a, which requires a sponsor to be at residence in the legal and physical the rule does not prevent anyone subject least 18 years of age, decisions as to the custody of their U.S. citizen parent(s) to the public charge ground of admissibility of aliens subject to section will result automatically in the child’s inadmissibility from applying for and 212(a))(4) of the Act, 8 U.S.C. 1182(a)(4), acquisition of citizenship; or whose receiving any benefits for which they are questions regarding the burden the lawful admission for permanent are eligible, including benefits related to alien will place on the government in residence will result automatically in food and nutrition, housing, and the future, and does not implicate the child’s acquisition of citizenship as healthcare, and basic social services. contract law. While individuals under described in the rule. Additionally, to the extent that this rule the age of 18 generally lack the capacity does have a negative effect on those under most States’ laws to enter into a F. Applicability of the Public Charge from particular groups, it is not DHS’s contract, such considerations are Ground of Inadmissibility, and the intent, in issuing this final rule, to target inapposite to this rulemaking. Aliens Public Benefit Condition to Extension of aliens from certain countries or of a under the age of 18 are subject to the Stay and Change of Status particular race. Instead, DHS’s intent in provisions of section 212(a))(4) of the 1. Applicability of the Public Charge codifying the public charge Act, 8 U.S.C. 1182(a)(4), except where Ground of Inadmissibility Generally inadmissibility rule is to better ensure Congress has specifically provided an the self-sufficiency of aliens who seek to exemption of public charge Comment: A commenter opposed the come to or remain in the United States. inadmissibility, or otherwise provided application of the rule to applicants for admission because, according to the Second, the two referenced the possibility of a waiver of the public charge inadmissibility ground. By its commenter, it is impossible for DHS to declarations do not bind DHS as a make a prediction about future matter of U.S. domestic law. As the 156 U.S. Reservations, Declarations, and circumstances based upon the totality of Supreme Court has held, the UDHR Understandings, International Convention on the the alien’s circumstances at the time of ‘‘does not of its own force impose Elimination of All Forms of Racial Discrimination, the application for admission; the obligations as a matter of international 140 Cong. Rec. S7634–02 (1994) (‘‘[T]he United commenter said that life circumstances law.’’ 155 The Declaration of the Rights States declares that the provisions of the Convention are not self-executing.’’); U.S. cannot be predicted. Many commenters of the Child, like the UDHR is a U.N. Reservations, Declarations and Understandings, said the proposed rule would directly Declaration rather than a binding treaty. International Covenant on Civil and Political affect a large number of individuals Moreover, the CERD and the ICCPR, Rights, 138 Cong. Rec. 8071 (1992) (‘‘[T]he United (some commenters cited 1.1 million were both ratified on the express States declares that the provisions of Articles 1 through 27 of the Covenant are not self- individuals seeking to obtain lawful understanding that they are not self- executing.’’); see also Alvarez-Machain, 542 U.S. at permanent resident status), half of executing and therefore do not create 735 (‘‘[T]he United States ratified the Covenant [on whom already reside in the United Civil and Political Rights] on the express States and would be subject to a public understanding that it was not self-executing and so 149 ‘‘The provisions of paragraphs (4), (5), and charge inadmissibility determination. (7)(A) of section 212(a) shall not be applicable to did not itself create obligations enforceable in the any alien seeking adjustment of status under this federal courts.’’); Johnson v. Quander, 370 F. Supp. Another commenter stated that the section . . . .’’ 2d 79, 101 (D.D.C. 2005) (same—CERD), aff’d, 440 proposed rule would dramatically alter F.3d 489 (D.C. Cir. 2006). 150 Asylum is a discretionary benefit which immigrants are permitted to enter 157 implementing Article 34 of the 1951 Convention See Reid v. Covert, 354 U.S. 1, 18 (1957) (‘‘This Court has also repeatedly taken the position and stay in the United States. This Relating to the Status of Refugees (as incorporated commenter stated that quantitative and in the 1967 Protocol Relating to the Status of that an , which must comply with Refugees), which is ‘‘precatory,’’ INS v. Cardoza- the Constitution, is on a full parity with a treaty, qualitative data, including the DHS Fonseca, 480 U.S. 421, 441 (1987), and the 1967 and that when a statute which is subsequent in time Yearbook of Immigration Statistics, Protocol is not self-executing, e.g., Cazun v. U.S. is inconsistent with a treaty, the statute to the show that increases in restrictions to the Att’y Gen., 856 F.3d 249, 257 n.16 (3d Cir. 2017). extent of conflict renders the treaty null.’’); La Abra Silver Min. Co. v. United States, 175 U.S. 423, 460 legal means to immigration over the last 151 660 U.N.T.S. 195, U.N. Doc. A/6014 (1965). (1899) (‘‘Congress by legislation, and so far as the hundred years are responsible for 152 Dec. 16, 1966, 999 U.N.T.S. 171. people and authorities of the United States are increases in unauthorized border 153 G.A. Res. 217A (III), U.N. Doc. A/810 (1948). concerned, could abrogate a treaty made between 154 G.A. Res. 1386 (XIV), U.N. Doc. A/4354 (1959). this country and another country which had been crossings, visa overstays, and increases 155 Sosa v. Alvarez-Machain, 542 U.S. 692, 734– negotiated by the President and approved by the in an international network of private 35 (2004). Senate.’’ (citation omitted)). and public profiteers. Another

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commenter indicated that the new charge inadmissibility determination, the public charge inadmissibility regulation would adversely affect unless she or he was exempt from such determination with respect to the immigrants and nonimmigrants alike a determination at the time of population identified by the commenter. and discourage people from lawfully application for such status. Such a Congress identified which aliens are entering the United States through visas person would not undergo another subject to the public charge ground of offered by the DOS. public charge inadmissibility inadmissibility and specified which Response: DHS disagrees that the rule determination unless U.S. Customs and aliens are exempt from, or can obtain a cannot apply to applicants for Border Protection (CBP) determines, waiver of, public charge inadmissibility. admission because it is impossible to upon the alien’s return from a trip DHS does not have the authority to add make a prediction about future abroad, that the returning lawful additional categories of aliens that must circumstances based upon the totality of permanent resident is an applicant for establish admissibility based on public the alien’s circumstances at the time of admission based on one of the criteria charge. This rule only applies to those the application for admission. As set forth in section 101(a)(13)(C) of the categories of aliens that Congress has mandated by Congress under section Act, 8 U.S.C. 1101(a)(13)(C), such as the designated as subject to the public 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), alien has been absent from the United charge ground of inadmissibility.160 any alien applying for admission to the States for more than 180 days. Aliens In addition, although the commenter United States is inadmissible if he or who are lawfully present in the United indicated that DHS fails to specify how she is likely at any time to become a States as nonimmigrants have also to determine that aliens illegally present public charge. DHS must make a public undergone a public charge in the United States are inadmissible on charge inadmissibility determination inadmissibility determination, where the public charge ground, this unless the applicant for admission is applicable, and this rule does not determination is only made when aliens within one of the exempted categories. impact their status unless they are subject to this ground of inadmissibility Only those categories of aliens seeking an immigration benefit for apply for an immigration benefit for designated by Congress are exempt from which admissibility is required or if which admissibility is required, such as the public charge ground of they are seeking an extension of stay or adjustment of status, or when inadmissibility.158 Additionally, change of status. determining what charges to lodge on an although it will impact all aliens subject With respect to DACA recipients, NTA when initiating removal to the public charge ground of DHS notes that an alien is not required proceedings under section 240 of the inadmissibility under section 212(a)(4) to demonstrate that he or she is not Act, 8 U.S.C. 1229a.161 DHS notes that of the Act, 8 U.S.C. 1182(a)(4), the goal inadmissible on the public charge the SIPP data on receipt of public of this rule is to implement the public ground when requesting DACA. A benefits by noncitizens includes asylees charge inadmissibility ground as DACA recipient would only be subject and refugees and lawful permanent established by Congress. DHS rejects the to this rule when applying for a benefit residents who are lawfully present in notion that there is a relationship for which admissibility is required. the United States. between the implementation of the Comment: A commenter indicated Comment: Some commenters stated congressionally-mandated ground of that the NPRM excludes too many that the regulation would be arbitrary inadmissibility through this rulemaking applicants for admission from public and capricious because DHS would and any increase in the number of charge review. The commenter stated apply it to lawful permanent residents illegal border crossings or other illegal that the category of ‘‘applicants for who were abroad for a trip exceeding behavior. admission’’ is clearly defined in section 180 days, but DHS did not estimate the Comment: Multiple commenters 235(a) of the Act, 8 U.S.C. 1225(a) as size of this population in the proposed stated that the proposed rule would ‘‘aliens present in the United States who rule. These commenters further stated negatively affect those seeking a ‘‘green have not been admitted’’ 159 and ‘‘all that if the returning lawful permanent card’’ (lawful permanent residence) and aliens’’ who have not been ‘‘inspected resident is placed in removal would notably affect family-based by immigration officers.’’ The proceedings, the burden of proof of immigration. commenter indicated that although most inadmissibility should remain on the Response: Although this rule will of these categories of aliens are barred government to establish by ‘‘clear and impact those seeking lawful permanent from most of the public benefits convincing evidence’’ 162 that he or she resident status based on an approved designated under the proposed rule, the is lawfully present in the United States family-based petition, only aliens who commenter’s research indicates that the pursuant to a prior admission. This are subject to the public charge ground very high use of welfare programs by burden, per the commenters, should not of inadmissibility will be required to noncitizens cannot be explained unless be transferred to the lawful permanent demonstrate that they are not likely to at least half of the non-citizens surveyed become a public charge at any time in in the Survey of Income and Program 160 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4) the future, as prescribed in the rule. Participation (SIPP) data are in the (Any alien who, . . . in the opinion of the Attorney Comment: Another commenter country illegally. The commenter general at the time of application for admission . . . indicated that current green card is likely to become a public charge, is inadmissible). further stated that the NPRM fails to See 8 CFR 212.20. holders and other aliens lawfully provide any guidance on how this 161 For example, to be eligible for adjustment of present in the United States, like population will be assessed for public status under INA section 245(a) and (c), 8 U.S.C. recipients of Deferred Action for charge inadmissibility. 1255(a) and (c), an applicant must generally have Childhood Arrivals (DACA), could see Response: DHS disagrees that the rule been, among other requirements, inspected and admitted or paroled, and in legal immigration their status jeopardized, as they may not excludes too many aliens from the status. Therefore, in most cases, the applicant must meet the income standard in the public charge inadmissibility have been legally entered the United States and be proposed rule. determination and disagrees that DHS legally present in the United States. In contrast, Response: DHS notes that a person failed to provide adequate guidance under INA section 244(a), 8 U.S.C. 1154a, an alien who is already a lawful permanent cannot be denied Temporary Protected Status on with respect to how DHS would apply account of his or her immigration status or lack resident has already undergone a public thereof. 159 See INA section 235(a) and (b), 8 U.S.C. 162 See INA section 240(a)(3), 8 U.S.C. 158 See 8 CFR 212.23. 1225(a) and (b). 1229a(a)(3).

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resident through completion of the determines that the returning lawful to be admitted and is not inadmissible; Form I–944 or similar forms that CBP permanent resident is an applicant for however, Congress remained silent with may request. The commenter stated that admission based on one of the criteria respect to the burden and standard of doing so, would violate the lawful set forth in section 101(a)(13)(C) of the proof required to determine whether an permanent resident’s due process rights Act, 8 U.S.C. 1101(a)(13)(C), including alien is an applicant for admission.170 as a permanent resident by shifting the that the alien has been absent for more The BIA in Matter of Rivens,171 did not burden of proof to returning lawful than 180 days, and that the alien is deviate from longstanding case law on permanent residents, contrary to inadmissible under one of the grounds this question 172 and affirmed that DHS Woodby v. INS, 385 U.S. 276 (1966), set forth in section 212(a) of the Act, 8 continues to bear the burden of proving Landon v. Plasencia, 459 U.S. 21 (1982), U.S.C. 1182(a), the law requires that the by clear and convincing evidence that a and Matter of Rivens, 25 I&N Dec. 623 alien be placed into removal returning lawful permanent resident (BIA 2011). proceedings.165 In such removal should be treated as an applicant for Response: DHS does not believe such proceedings, DHS bears the burden of admission.173 This rule does not alter a quantitative estimate is necessary. proof to demonstrate by clear and DHS’s burden of proof with respect to DHS further disagrees that the rule convincing evidence that the lawful the treatment of returning lawful impermissibly shifts the government’s permanent resident is properly permanent residents as applicants for burden of proof onto the returning considered an applicant for admission admission in any way, i.e., the only lawful permanent residents, that the based on being outside of the United burden DHS bears is establishing that applicability of inadmissibility grounds States for more than 180 days, or any of the retuning lawful permanent resident to returning lawful permanent residents the grounds set forth in 101(a)(13)(C) of should be treated as an applicant for is unlawful, or that it would violate an the Act, 8 U.S.C. 1101(a)(13)(C).166 And, admission.174 The BIA, in Matter of alien’s due process rights. Congress if the lawful permanent resident is not Rivens, did not reach the issue of who specified when lawful permanent an applicant for admission, but is then bears the burden of showing residents returning from a trip abroad removable from the United States for admissibility, or a lack of will be treated as applicants for any reason, DHS may charge the alien inadmissibility, once it has been admission, and also specified who bears under section 237 of the INA, 8 U.S.C. determined that an alien is an applicant the burden of proof in removal 1227. for admission.175 proceedings when such an alien is For these reasons, DHS disagrees that the rule impermissibly places the DHS notes, as was pointed out by the placed in proceedings. In general, the commenters, that under section 291 of grounds of inadmissibility set forth in burden on returning lawful permanent residents in violation of their rights the Act, 8 U.S.C. 1361, an applicant for section 212(a) of the Act, 8 U.S.C. admission always bears the burden of under Woodby v. INS,167 Landon v. 1182(a), including public charge proof to establish that he or she is not Plasencia,168 and Matter of Rivens as inadmissibility, do not apply to lawful inadmissible to the United States under alleged by the commenters.169 permanent residents returning from a any provision of the Act; similarly, 163 Specifically, in Woodby and Landon, trip abroad. Congress set forth the under section 240(c)(2)(A) of the Act, 8 which predate IIRIRA, the Court circumstances under which lawful U.S.C. 1229a(c)(2)(A), an applicant for addressed the government’s burden in permanent residents returning from a admission in removal proceedings has deportation proceedings against a lawful trip abroad are considered applicants for the burden of establishing that he or she permanent resident and indicated that admission, and therefore, are subject to is clearly and beyond doubt entitled to the government would bear the burden admissibility determinations, including be admitted and is not inadmissible to demonstrate that the alien is a an assessment of whether the alien is under section 212(a) of the Act, 8 U.S.C. returning resident seeking admission. inadmissible as likely at any time to 1182(a). Therefore, the burden still lies 164 Subsequently, with IIRIRA, Congress become a public charge. If CBP with the returning resident to establish specified the circumstances under that he or she is not inadmissible based 163 which a lawful permanent resident will Although Congress did not subject those on public charge. admitted as lawful permanent residents to grounds be treated as an applicant for admission, of inadmissibility under INA section 212(a), 8 and provided that when an alien is an Comment: One commenter asks U.S.C. 1182(a), it did codify that an alien’s certain whether the public charge regulation conduct or conditions will lead to the alien’s applicant for admission that the alien removal from the United States, including has the burden to establish that he or would apply to applicants seeking inadmissibility on public charge. See INA section she is clearly and beyond doubt entitled naturalization. 237, 8 U.S.C. 1227, generally, and INA section 237(a)(5), 8 U.S.C. 1227(a)(5). One basis of removal proceedings; (5) have committed an offense 170 See INA sections 235 and 240, 8 U.S.C. 1225 is an alien’s inadmissibility at the time of admission identified in INA section 212(a)(2), 8 U.S.C. and 1229a; see Matter of Rivens, 25 I&N Dec. 623, or adjustment of status, including being 1182(a)(2), unless granted a waiver of 625 (BIA 2011). See INA sections 101(a)(13)(C), inadmissible for public charge under INA section inadmissibility for such offense or cancellation of 240(c)(2), and 291, 8 U.S.C. 1101(a)(13)(C), 212(a)(4), 8 U.S.C. 1182(a)(4). See INA section removal; and (6) are attempting to enter at a time 1229a(c)(2), and 1361. 237(a)(1)(A), 8 U.S.C. 1227(a)(1)(A). If the alien is or place other than as designated by immigration 171 charged as a deportable alien, the burden of proof 25 I&N Dec. 623, 626 (BIA 2011). officers or who have not been admitted to the 172 is on the government to show by clear and See Matter of Rivens, 25 I&N Dec. 623, 625 United States after inspection and authorization by convincing evidence that the alien, who has been (BIA 2011) (citing Matter of Huang, 19 I&N Dec. 749 an immigration officer. admitted, is not deportable. See INA section (BIA 1988); Woodby v. INS, 385 U.S. 276 (1966); 165 240(c)(3), 8 U.S.C. 1229a(c)(3). As explained above, lawful permanent and Landon v. Plasencia, 459 U.S. 21 (1982)). resident s are not subject to grounds of 173 164 See INA section 101(a)(13)(C), 8 U.S.C. See Matter of Rivens, 25 I&N Dec. 623, 625 inadmissibility after being properly admitted to the 1101(a)(13)(C). According to this provision, lawful (BIA 2011). United States as an lawful permanent resident permanent residents are regarded as an applicant 174 See Matter of Rivens, 25 I&N Dec. 623, 626 within the meaning of INA section 101(a)(20), 8 for admission when they: (1) Have abandoned or (BIA 2011). U.S.C. 1101(a)(20). See INA sections 235(b)(2)(A) relinquished that status; (2) have been outside the 175 See Matter of Rivens, 25 I&N Dec. 623, 626 and 240, 8 U.S.C. 1225(b)(2)(A) and 1229a. United States for a continuous period in excess of (BIA 2011) (not reaching the issue because it was 166 180 days; (3) have engaged in illegal activity after See Matter of Rivens, 25 I&N Dec. 623 (BIA unnecessary to address the ‘‘open question of who departing the United States; (4) have departed the 2011). then bears the burden of showing admissibility, or United States while under legal process seeking 167 See Woodby v. INS, 385 U.S. 276 (1966). a lack of inadmissibility, once it has been removal of the alien from the United States, 168 See Landon v. Plascencia, 459 U.S. 21 (1982). determined that an alien is an applicant for including removal proceedings and extradition 169 Matter of Rivens, 25 I&N Dec. 623 (BIA 2011). admission.’’).

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Response: The laws governing A commenter requested that asylum commenters’ concerns, and that such naturalization can be found in Title III seekers and entrepreneurs, crime changes are more in line with the of the INA. The public charge ground of victims, victims and survivors of statute. inadmissibility does not apply in domestic violence, and T With respect to the commenter’s naturalization proceedings. DHS notes, nonimmigrants seeking adjustment of suggestions that asylees, crime victims, however, that USCIS assesses as part of status should be excluded from the rule victims of domestic violence, and T the naturalization whether the applicant and public charge ground of nonimmigrants be exempt from this was properly admitted as a lawful inadmissibility. Similarly, commenters rule, DHS notes that such individuals permanent resident and therefore was stated that victims of domestic violence, are generally exempted by statute from eligible for adjustment based upon the human trafficking, and sexual assault public charge inadmissibility public charge ground of inadmissibility would be harmed as a consequence determinations, and that such at the time of the adjustment of since family members sponsored by exemptions are also set forth in 8 CFR status.176 victims would be impacted by the 212.23.177 As explained in the Comment: Multiple commenters proposed rule. NPRM,178 and addressed further below, indicated that the proposed rule makes Response: Generally, the public DHS codified in the regulation those the path to citizenship more difficult charge ground of inadmissibility applies classifications of nonimmigrants and and would give the Government the to all aliens who are applicants for a immigrants that Congress exempted ability to deny a ‘‘broad swath’’ of visa, admission, or adjustment of status. from public charge grounds of applicants for green cards, especially However, as noted previously, inadmissibility. DHS will not, and children who are likely to be self- Congress—not DHS—has the authority cannot, exempt other classes of aliens sufficient as adults, teenagers and to specify which aliens are exempt from unless these exemptions are created by students completing their education, public charge inadmissibility Congress.179 determinations, as well as those who infant caregivers, the elderly, 2. Applicability and Content of the may obtain a waiver of public charge immigrants from certain countries, and Public Benefits Condition an immigrant previously deemed inadmissibility. Therefore, the public admissible who becomes disabled. charge inadmissibility provisions set Comment: Citing to the statutory Many commenters stated that the rule forth in this final rule will apply to all policy statement set forth in PRWORA, should not apply to children, and that aliens seeking admission or adjustment a commenter indicated that doing so would destabilize families, of status, or any other immigration nonimmigrant applications or petitions make children unhealthy or more likely benefit for which admissibility is for extension of stay or change in status than not to become a public charge as required, unless otherwise exempted by should be subject to inadmissibility on adults, and may cause some children to Congress, irrespective of the alien’s age, public charge grounds in order to ensure be excluded while the parent is medical condition, economic status, their self-sufficiency. By contrast, some admitted. Some commenters provided place of origin, or nationality. With commenters stated that DHS lacked the data on the number of children who respect to comments suggesting that authority to condition of eligibility for would be impacted by the rule. A DHS specifically exclude children, extension of stay or change of status on commenter proposed an exemption teenagers, caregivers of infants, the past, current, or future receipt of public from public charge for all children up to elderly, and entrepreneurs, and other benefits because the public charge age 18, because such children are categories of individuals from the public inadmissibility ground does not apply subject to child labor laws and in most charge inadmissibility provisions, to extension of stay or change of status; cases still engaged in mandatory section 212(a)(4) of the Act, 8 U.S.C. commenters stated that this provision education. The commenter also 1182(a)(4), applies to such aliens was therefore not supported by the plain proposed a three-year grace period applying for a visa, admission, or language of the statute and is unlawful. beyond age 18, until age 21. Finally, the adjustment of status, unless otherwise A commenter stated in regards to commenter recommended further specified by Congress. DHS has tailored extension of stay and change of status extending the commenter’s proposed the effects of this rule somewhat for that DHS’s bald assertion that it exemption for those aliens who are certain populations. On the whole, generally has discretion to apply the test currently engaged in full-time college or however, DHS lacks the authority to to new categories cannot overcome clear vocational education, and for a three- create wholesale exemptions or provide and unambiguous language from year grace period after graduation or a grace period for broad categories of Congress to the contrary. certification. The commenter stated that aliens, as suggested by the commenters. Some of these commenters also DHS notes that does have the this will be a strong incentive for young indicated that nobody would be eligible authority to define public charge as it immigrants toward self-sufficiency and for extension of stay or change of status has in this rule and in doing so, decide positive GDP contribution. A few because the proposed regulation asks which public benefits are considered for commenters added that children born in applicants to prove a negative. Another the purposes of this rule. As discussed the United States to immigrant parents commenter disagreed with the proposed in greater detail below, DHS has made rule because no one can determine are United States citizens and therefore some changes to the public benefits that are eligible for public benefits under the whether an applicant seeking an DHS will consider, particularly as it extension of stay or change of status will same eligibility standards as all other relates to receipt of Medicaid benefits by United States citizens. receive public benefits at any time in aliens under the age of 21 and pregnant the future. women, including women for the 60 176 See INA section 318, 8 U.S.C. 1429. Additionally, an individual may become removable days following pregnancy, and for 177 However, DHS notes that T nonimmigrants are on account of public charge while in lawful receipt of Medicare Part D LIS. DHS has not excluded from public charge inadmissibility permanent resident status, which is a consideration also clarified the role that age and other when applying for employment-based adjustment of which may be assessed at the time of naturalization. factors play in the public charge status. See INA section 212(a)(4)(E), 8 U.S.C. See INA section 237(a)(5), 8 U.S.C. 1227(a)(5). 1182(a)(4)(E). However, the assessment of removability for public inadmissibility determination. DHS 178 See Inadmissibility on Public Charge Grounds, charge is different from the assessment of public believes that these changes may at least 83 FR 51114, 51156–57 (proposed Oct. 10, 2018). charge inadmissibility and is not a part of this rule. partially address some of the 179 See 8 CFR 212.23.

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One commenter stated that because after determining that the alien had not Under this final rule, nonimmigrants employment-based nonimmigrant received public benefits, and a who are seeking an extension of stay or categories require the employer to nonimmigrant subsequently wishes to a change of status must only demonstrate the ability to financially apply for another, the condition would demonstrate that they have not received, support the nonimmigrant, and further, apply again. The same would apply to since obtaining the nonimmigrant status because other nonimmigrants a change of status. If, however, an alien they seek to extend or from which they classifications such as F and M leaves the United States after holding seek to change, up to the time of the nonimmigrant students must nonimmigrant status, and seeks a new adjudication of the application,184 one demonstrate sufficient financial support nonimmigrant or immigrant visa based or more public benefits for more than 12 during the duration of the on a classification that is subject to INA months in the aggregate within any 36- nonimmigrant stay, that there are 212(a)(4), 8 U.S.C. 1182(a)(4), then the month period.185 This condition will sufficient financial safeguards in place public charge ground of inadmissibility apply to any extension of stay or change for these nonimmigrants such that this will apply. Similar to aliens who are not of status application or petition rule poses an unnecessary required to obtain a visa but are subject postmarked (or if applicable, administrative burden. A commenter to INA 212(a)(4), 8 U.S.C. 1182(a)(4)— electronically submitted) on or after the indicated that the expansion of the DHS would apply the public charge effective date of the rule. DHS will not public charge rule to include additional ground of inadmissibility at the port of consider any receipt of public benefits classifications of nonimmigrants will entry.182 Finally, with respect to an prior to the rule’s effective date, for reduce immigration or admission rates. alien in the United States who is eligible purposes of the public benefits Response: Neither the NPRM nor this to adjust status from a nonimmigrant condition for extension of stay or final rule is intended to apply the public classification to that of a lawful change of status. charge ground of inadmissibility to permanent resident, and the alien is Imposing conditions on extension of extension of stay or change of status subject to INA 212(a)(4), 8 U.S.C. stay and change of status applications is applicants. Instead, DHS is exercising 1182(a)(4), DHS will at the time of within DHS’s authority, as Congress its statutory authority to set a new adjudication of an adjustment of status granted DHS the authority, in sections condition for approval of extension of application make a public charge 214 and 248 of the Act, 8 U.S.C. 1184 stay and change of status applications— inadmissibility determination consistent and 1258, to regulate conditions and that the applicant establish that the with the requirements of INA 212(a)(4), periods of admission of nonimmigrants alien has not received since obtaining 8 U.S.C. 1182(a)(4), and regulations and conditions for change of status, the nonimmigrant status he or she seeks promulgated through this rulemaking. respectively. As explained in the NPRM, to extend or from which he or she seeks Therefore, DHS removed the future- however, the government’s interest in a to change, and through adjudication, looking aspect of this condition and will nonimmigrant’s ability to maintain self- one or more public benefits for more sufficiency does not end with his or her not request applicants for an extension 186 than 12 months in the aggregate within of stay or change of status to submit a initial admission as a nonimmigrant. any 36-month period.180 This condition Therefore, given DHS’s authority to set Form I–944. Additionally, DHS made a 187 will apply to any extension of stay or technical edit to remove ‘‘currently conditions and Congress’ policy change of status application or petition receiving public benefits,’’ as the statement ‘‘that aliens within the postmarked (or if applicable, submitted Nation’s borders not depend on public reference to the alien having ‘‘received’’ 188 electronically) on or after the effective public benefits is sufficiently inclusive resources to meet their needs,’’ it is reasonable for DHS to require, as a date of the rule. of receipt up to the date of adjudication. condition of obtaining an extension of If the nonimmigrant status the According to preexisting DHS stay or change of status, evidence that individual seeks to extend or to which regulations, an applicant must meet an nonimmigrants inside the United States the applicant seeks to change is eligibility requirement or a condition have remained self-sufficient during statutorily exempt from the public not only at the time of filing but also at 181 their nonimmigrant stay. charge ground of inadmissibility, the time of adjudication,183 which DHS will continue to require that the then the public benefits condition will renders superfluous the proposed text not apply. alien meets his or her burden of proof regarding ‘‘currently receiving public that he or she is eligible for the status After considering the comments, DHS benefits.’’ Finally, because DHS has agrees with the commenters that an requested, including whether the alien moved the public benefits receipt has the financial means, if required by assessment of whether the threshold from the public benefits nonimmigrant is ‘‘likely to receive the laws governing the particular definition to the public charge nonimmigrant classification. The two public benefits’’ for the expected period definition, DHS added the ‘‘for more of stay, which included the option for aspects of the adjudication (eligibility than 12 months in the aggregate within for the status requested and the public USCIS to request submission of a Form any 36-month period (such that, for I–944 as part of an RFE, might have benefit condition) are not duplicative. instance, receipt of two benefits in one DHS notes that although eligibility for a been similar to a public charge month counts as two months)’’ inadmissibility assessment. In addition, threshold to the public benefits applying a prospective element to the 184 See 8 CFR 103.2(b) (Demonstrating eligibility. condition in the extension of stay and An applicant or petitioner must establish that he or public benefits condition would likely change of status provisions as well she is eligible for the requested benefit at the time be redundant and unnecessary given the because the threshold applies to the of filing the benefit request and must continue to finite nature of nonimmigrant status and receipt of public benefits in these be eligible through adjudication.). 185 See 8 CFR 214.1(a)(3)(iv) and (c)(4)(iv); see 8 stay. To the extent DHS grants an provisions, as well. extension of stay to a nonimmigrant CFR 248.1(a) and (c)(4). 186 See PRWORA’s policy statement at 8 U.S.C. subject to the public benefit condition 182 See, e.g., 8 CFR 217.4(a)(1) (Visa Waiver 1601, reiterating that self-sufficiency of all aliens Program participants must not be ‘‘inadmissible to coming to the United States continues to be 180 See, e.g., INA sections 103(a)(3), 214(a)(1), the United States under one or more of the grounds national policy. 248(a). of inadmissibility listed in section 212 of the Act 187 See INA sections 214 and 248, 8 U.S.C. 1184, 181 See Inadmissibility on Public Charge Grounds, (other than for lack of a visa).’’). 1258. 83 FR 51114, 51135–36 (proposed Oct. 10, 2018). 183 See 8 CFR 103.2(b). 188 See 8 U.S.C. 1601(2)(A).

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nonimmigrant status might require some judge’s decision, if desired.192 These nonimmigrant status, and the alien’s indication of future self-support, it proceedings provide due process to the request for an extension of stay or would generally not require an extent required by law.193 change of nonimmigrant status.197 The assessment of public benefits received Comment: Many commenters noted alien’s financial situation may have since the alien obtained the that consular officers already conduct changed since the visa was issued or the nonimmigrant status he or she seeks to public charge inadmissibility alien was admitted to the United States. extend or from which he or she seeks to assessments and CBP would conduct an a. Nonimmigrant Students and change. admissibility determination at the port Comment: One commenter said that, of entry. Others indicated that the Exchange Visitors according to Mathews v. Eldridge, 424 proposed changes extension of stay and Comment: A commenter pointed out U.S. 319 (1976), it would be improper change of status applications create that the new public charge rule would to implement the public benefits duplicative work for applicants and apply to students and exchange visitors condition for change of status applicants USCIS. who would seek to change or extend with no available appeal process. To Response: As explained in the their status. The commenter indicated comply with due process rights as proposed rule,194 DHS believes that the that the new rule, therefore, would prescribed by Goldberg v. Kelly, 397 Government interest in ensuring an impose new standards and barriers for U.S. 254 (1970), the commenter alien’s self-sufficiency does not end students. The commenter added that suggested that DHS give applicants a once a nonimmigrant is admitted to the drops in international enrollment would chance to respond with evidence that United States. The Government has an have broader ripple effects for United supports their admissibility, and that interest in ensuring that aliens present States higher education institutions. DHS should not revoke the status until in the United States are self-sufficient. Response: To the extent that the rule the decision had been fully appealed This interest does not end once the alien may impose barriers to those seeking to through all stages of review. is admitted; aliens should remain self- extend their stay or change their status, Response: DHS disagrees that sufficient for the entire period of their as explained previously, given DHS’s imposing the public benefits condition stay, including any extension of stay or authority 198 and Congress’ policy on extension of stay and change of additional period of stay due to a statement with respect to self- status applications is improper because change of status. Indeed, as set forth by sufficiency,199 it is reasonable for DHS it violates due process. DHS notes that Congress in PRWORA, ‘‘aliens within to impose, as a condition of obtaining an to the extent that USCIS obtains the Nation’s borders [should] not extension of stay or change of status, the derogatory information unknown to the depend on public resources to meet requirement that the alien demonstrate applicant relevant to the extension of their needs, but rather rely on their own that he or she has not received public stay or change of status application, capabilities and the resources of their benefits as defined in 8 CFR consistent with 8 CFR 103.2(b)(16)(i), families, their sponsors, and private 212.21(b).200 As discussed previously, USCIS will provide notice of the organizations.’’ 195 The fact that DHS DHS has removed the forward-looking derogatory information and give the already considers the applicant’s aspect of the public benefits condition. applicant an opportunity to respond. financial status in adjudicating some This may ameliorate the consequences Moreover, applicants for extension of extension of stay and change of status of the public benefits condition for stay and change of status will receive applications further supports this certain nonimmigrants. notice of deficiencies as appropriate and policy. Moreover, although the Comment: Another commenter stated consistent with 8 CFR 103.2(b)(8) and extension of stay or change of status that subjecting extension of stay and consistent with USCIS’ policy on the provisions in the INA and the change of status applications and issuance of certain requests for evidence regulations do not specifically reference petitions to the public charge test 189 produces multiple legal contradictions: and notices of intent to deny, before an alien’s self-sufficiency, consideration The commenter provided the example denying an application for an extension of an alien’s self-sufficiency in these of international students in F–1 status of stay or change of status. In general, applications is consistent with the self- who are not eligible to work more than under DHS regulations, a denial of an sufficiency principles of PRWORA and 20 hours off campus or in federally- extension of stay or change of status aligns the INA to those principles.196 application cannot be appealed.190 DHS therefore does not believe that subsidized work study positions, Upon denial of an extension of stay or considering an extension of stay or asserting that these restrictions greatly a change of status application, if the change of status applicant’s past and reduced the amount of income students can earn and thus, reduces their self- alien is removable, DHS can issue an current receipt of public benefits over sufficiency. The commenter stated that NTA and place the alien in removal the designated threshold in the United 191 the determinations on self-sufficiency in proceedings. In removal proceedings, States is duplicative of the consular one status bear no significance on an the alien can challenge the basis for officer’s public charge inadmissibility individual’s ability to be self-sufficient removal, and appeal the immigration assessment at the nonimmigrant visa within the legal confines of a different stage, given that a certain amount of 189 classification. See USCIS Policy Memorandum Issuance of time has passed between an alien’s Certain RFEs and NOIDs; Revisions to Adjudicator’s Response: As noted above, DHS Field Manual (AFM) Chapter 10.5(a), Chapter consular interview or the alien’s disagrees that the rule would require 10.5(b) PM–602–0163 (Jul. 13, 2018) (https:// admission to the United States in www.uscis.gov/sites/default/files/USCIS/Laws/ ______197 DHS’s authority to specify the conditions, as Memoranda/AFM 10 Standards for RFEs and 192 NOIDs_FINAL2.pdf (last visited June 21, 2019). See INA sections 240 and 242, 8 U.S.C. 1229a a matter of discretion, under which an alien is and 1252. 190 See 8 CFR 214.1(c)(5) and 8 CFR 248.3(g). eligible for either a change of status or extension of 193 E.g., Zadvydas v. Davis, 533 U.S. 678, 693 191 See USCIS Policy Memorandum, Updated stay can be found in INA section 214(a)(1) and INA (2001). Guidance for the Referral of Cases and Issuance of section 248(a); 8 U.S.C. 1184(a)(1) and 1258(a); and 194 Notices to Appear (NTAs) in Cases Involving See Inadmissibility on Public Charge Grounds, 8 CFR 214.1 and 8 CFR 248.1. Inadmissible and Deportable Aliens (June 28, 2018), 83 FR 51114, 51135–36 (proposed Oct. 10, 2018). 198 See INA section 214 and 248, 8 U.S.C. 1184 https://www.uscis.gov/sites/default/files/USCIS/ 195 See 8 U.S.C. 1601(2)(A). and 1258. Laws/Memoranda/2018/2018-06-28-PM-602-0050.1- 196 See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 199 See 8 U.S.C. 1601. Guidance-for-Referral-of-Cases-and-Issuance-of- 47 (1942) (requiring ‘‘careful accommodation of one 200 See 8 CFR 214.1(a)(3)(iv) and (c)(4)(iv), and 8 NTA.pdf (last visited May 8, 2019). statutory scheme to another. . . .’’). CFR 248.1(c)(4).

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individuals seeking extension of stay or sufficiency. As explained above, a to that of an H–2A nonimmigrant, change of status to show they are not student is required, as part of the absent any indication of an alien’s inadmissible under section 212(a)(4), 8 eligibility for the nonimmigrant receipt of the designated public benefits U.S.C. 1182(a)(4). At the time of the classification, to establish that he or she for more than 12 months in the application for a nonimmigrant visa, the has sufficient funds to study in the aggregate in a 36-month period since alien must demonstrate to DOS that he United States; students are thus obtaining the nonimmigrant status from or she is not likely at any time in the admitted with the expectation of self- which they seek to change, USCIS will future to become a public charge. sufficiency. The public benefits approve the application if the alien Similarly, at the time a nonimmigrant condition created by this rule would not meets the eligibility requirement for the applies for admission, he or she must be inconsistent with such expectation. nonimmigrant classification. demonstrate to CBP that he or she is not b. Workers Additionally, as commenters pointed likely at any time in the future to out, nonimmigrants are generally become a public charge. Comment: A commenter pointed out ineligible for public benefits that would However, when seeking an extension that the new public charge rule applies be considered in connection with this of stay or change of status as a to specialty workers and their rule. DHS understands the concerns nonimmigrant student 201 or dependents who would seek admission addressed by the commenter regarding nonimmigrant exchange visitor,202 the or those who seek to change or extend the practices of nonimmigrant workers alien will not need to establish that he their status. A commenter indicated that and potential abuses of the programs, or she is not likely at any time in the the new rule would impose new and therefore encourages the reporting future to become a public charge standards and barriers not only on of any such abuse through the channels because those seeking extension of stay foreign workers, but also on employers provided by DHS or the Department of or change of status are not subject to the because of the unpredictability of the Labor (DOL).203 public charge ground of inadmissibility. public charge determination and As previously indicated, given However, the alien will need to because wages alone would not be the Congress’ policy statement with respect demonstrate that he or she has sufficient determining factor. Citing to research to self-sufficiency, and DHS’s authority funds to pay tuition and related costs as and data on the population size and to promulgate a rule addressing public part of the application for extension of impact that the rule would have on H– charge inadmissibility, it is reasonable stay or change of status to a 2A nonimmigrant workers, several other for DHS to impose, as a condition of nonimmigrant. Further, the alien must commenters stated that H–2A obtaining an extension of stay or change nonimmigrant workers would be demonstrate that he or she has not of status, the requirement that the alien affected and that the rule would isolate received, since obtaining the demonstrate that he or she has not H–2A nonimmigrant workers. One nonimmigrant status he or she seeks to received public benefits as defined in commenter, for example, also stated that extend or change and through the time the rule. DHS notes that it has removed the rule’s criteria for factors to be of filing and adjudication, one or more the forward-looking aspect of the public considered in the totality of the public benefits as defined in the rule, benefits condition. This may ameliorate circumstances test disadvantages for more than 12 months in the the consequences of the public benefits farmworkers who seek to either apply to aggregate within any 36-month period condition for certain nonimmigrants. adjust to lawful permanent resident (such that, for instance, receipt of two Comment: One commenter stated that status or apply for or extend their benefits in one month counts as two the proposed rule would be detrimental months). nonimmigrant status. The commenter to South Asian organizations that DHS disagrees that subjecting indicated that many farmworkers, sponsor nonimmigrant religious workers extension of stay and change of status domestic, and H–2A workers would applicants to this new condition is find themselves determined to be a and the rule would deem most of them legally contradictory because a student’s public charge due to factors beyond inadmissible to the United States as restriction on employment in the United their control, such as low wages, public charges. The commenter stated States reduces an alien’s self- poverty-level income, and lack of health that as part of a petition from, a insurance. Commenters stated that H– sponsoring institution, usually a non- 201 See 8 CFR 214.1(f)(1)(B) (requiring that the 2A nonimmigrant workers undergo a profit entity supported through student presents documentary evidence of financial public charge assessment at the consular volunteer contributions, it would support in the amount indicated on the SEVIS Form office, and once in the United States, provide free housing, all meals, and I–20 (or the Form I–20A–B/I–20ID)); 8 CFR health insurance to the religious worker 214.1(m)(1)(B) (requiring that student documents they are not eligible for the vast majority financial support in the amount indicated on the of public benefits but are provided as part of the employment package and SEVIS Form I–20 (or the Form I–20M–N/I–20ID); housing by their employer. A may offer a small stipend to cover see AFM Chapter 30.3(c)(2)(C) (applicants to change commenter also stated that H–2A incidental expenses in lieu of a salary. status to a nonimmigrant student must demonstrate The commenter indicated that such an that they have the financial resources to pay for nonimmigrant workers are already coursework and living expenses in the United reluctant to seek services due to fear of employment offer, with its mix of States); see also 22 CFR 41.61(b)(1)(ii) (requiring employer retaliation, and that this rule’s monetary and non-monetary that F and M nonimmigrants possess sufficient chilling effect could further isolate them compensation, might be insufficient to funds to cover expenses while in the United States overcome the public charge grounds or can satisfy the consular officer that other from the communities where they work arrangements have been made to meet those and live. Thus, H–2A nonimmigrant based on the totality of the expenses). workers would face delays and 202 See 8 CFR 214.2(j)(1) (admission upon uncertainty in the extension of their visa 203 USCIS has web pages and email addresses presentation of SEVIS Form DS–2019, issued by dedicated to combating suspected H–1B and H–2B DOS); 22 CFR 41.62(b)(2) (requiring that J status, and may become more fraud or abuse. Anyone, including both U.S. and nonimmigrants possess sufficient funds to cover vulnerable to recruitment fees and agent foreign workers who suspect they or others may be expenses or have made other arrangements to costs which, while prohibited, are a the victim of fraud or abuse, can email USCIS to provide for expenses before DOS can approve DS– common abuse. The commenters urged submit tips, alleged violations, and other relevant 2019 and the visa). See also AFM Chapter information. See USCIS, Report Labor Abuses, 30.3(c)(2)(C) (applicant to change status to exchange DHS to withdraw the rule in its entirety. https://www.uscis.gov/working-united-states/ visitor must show approved DS–2019 (formerly Response: For aliens seeking to information-employers-employees/report-labor- known as IAP–66). extend their stay or change their status abuses (last visited May 8, 2019).

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circumstances test proposed in the create a wholesale ‘‘exemption’’ to a migrant children and pregnant women NPRM. generally applicable regulation; rather, are eligible for Medicaid. Commenters Response: For aliens seeking to it permits an applicant to seek specific stated that workers may either disenroll extend their stay or change their status relief which may or may not be from these types of programs because of to that of religious workers, absent any complied with. Whether the RFRA the applicability to nonimmigrants indication of an alien’s receipt of the applies to a given applicant is a case-by- seeking admission or be blocked from designated public benefits for more than case determination.208 Therefore, for entering the United States. One 12 months in the aggregate in a 36- extension of stay and change of status commenter stated that ‘‘[t]his rule could month period, USCIS will approve the purposes, DHS would still apply the be used to deny COFA entry and ability application if the alien meets the public benefit condition to religious to live in the [United States] thereby eligibility requirement for the workers and review each case and each abandoning our Nation’s commitment to nonimmigrant classification. request individually. our Pacific allies, including the more Additionally, as commenters pointed With respect to admission and than 61,000 COFA persons currently out, nonimmigrants are generally adjustment of status, the fact that the residing in the United States.’’ ineligible for public benefits that would alien has an employment offer to work Response: DHS appreciates the be considered in connection with this in the United States as well as monetary comments on the impact of the rule on rule. and non-monetary compensation are COFA migrants and appreciates the As previously indicated, given positive factors that generally indicate continued relationship between COFA Congress’ policy statement with respect that the alien has sufficient assets and nations and the United States. Under to self-sufficiency, and DHS’s authority resources to be self-sufficient while the agreements and resulting to promulgate a rule addressing public present in the United States.209 As regulations, citizens of the Republic of charge inadmissibility, it is reasonable previously noted, the public charge the Marshall Islands, the Federated for DHS to impose, as a condition of determination is an assessment States of Micronesia, and the Republic obtaining an extension of stay or change considering all statutory mandated of Palau may enter into the United of status, the requirement that the alien factors in the totality of the States as nonimmigrants, lawfully demonstrate that he or she has not circumstances and that one factor alone engage in employment, and establish received public benefits as defined in is not outcome determinative. residence in the United States without the rule. DHS notes that it has removed Separately, if an individual is required regard to certain grounds of the forward-looking aspect of the public to obtain a visa from the DOS to inadmissibility.210 Certain COFA benefits condition. This may ameliorate facilitate entry into the United States, citizens are subject to a modified the consequences of the public benefits the inadmissibility determination with version of the public charge ground of condition for certain nonimmigrants. respect to whether to issue a visa is in deportability, which is not directly DHS acknowledges that, once the rule the jurisdiction of DOS. affected by this rule.211 But Congress is effective, certain religious workers did not exempt foreign nationals d. Compact of Free Association Migrants seeking admission to the United States entering the United States under COFA as nonimmigrants could be impacted by Comment: Several commenters from the public charge ground of this rule. As part of the determination addressed Compact of Free Association inadmissibility, or otherwise modify the of whether any alien is likely at any (COFA) migrants from the Republic of applicability of such ground of time in the future to become a public the Marshall Islands, Federated States of inadmissibility with respect to COFA charge, DHS will consider whether the Micronesia and the Republic of Palau, migrants. And Congress expressly alien has sufficient assets and resources who are able to reside in the United reiterated DHS’s authority under section for the purpose of his or her stay in the States as nonimmigrants under treaty 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), United States upon admission.204 DHS obligations. Commenters stated that ‘‘to provide that admission as a believes that this regulation, and other while COFA migrants are not eligible for nonimmigrant shall be for such time provisions of the INA and implementing many federal public benefits, some do and under such conditions as the regulations, can be administered participate in state and local programs, Government of the United States may by consistently with the Religious Freedom especially health insurance, and COFA regulations prescribe.’’ 212 DHS Restoration Act of 1993 (RFRA).205 As acknowledges that COFA migrants may DHS has noted previously, ‘‘[a]n alleged RFRA claim arose’’ are not ‘‘person[s]’’ be affected by this rulemaking when organization or individual who believes within the meaning of RFRA. Rasul v. Myers, 512 F.3d 644, 672 (D.C. Cir.), cert. granted, judgment applying for admission at a port of entry that the RFRA may require specific vacated on other grounds, 555 U.S. 1083 (2008). relief from any provision of this 208 See generally Federal Law Protections for 210 Under these compacts, foreign nationals regulation may assert such a claim at the Religious Liberty, 82 FR 49668, 49669 (Oct. 26, falling under COFA are able to enter without regard time they petition for benefits.’’ 206 2017) from DOJ. to inadmissibility under INA section 212(a)(5) and 209 Regulations that permit certain religious (7)(B)(i)(II), 8 U.S.C. 1182(a)(5) and (7)(B)(i)(II). See Similarly, DHS acknowledges that any workers to self-support, 8 CFR 214.2(r)(11)(ii), Compact of Free Association Amendment Act of individual or organization who require submission of ‘‘verifiable evidence 2003, Public Law 108–188, 117 Stat. 2720 (Dec. 17, identifies a substantial burden on his, acceptable to USCIS’’ that document ‘‘the sources 2003); see also Compact Free Association Approval her, or an organization’s exercise of of self-support.’’ These sources of self-support are Act, Public Law 99–658, 100 Stat. 3672 (Nov. 14, a positive factor in the public charge determination. 1986) (regarding the Republic of Palau); see also 8 religion such that the RFRA may require Additionally, as noted above, any individual or CFR 212.1(d). specific relief may assert such a organization who identifies a substantial burden on 211 See Public Law 108–188, 117 Stat. 2720, 2762, claim.207 Note, the RFRA does not his, her, or an organization’s exercise of religion 2800 (Dec. 17, 2003) (providing that with respect to such that the RFRA may require specific relief from citizens of the Federated States of Micronesia and any provision of this rule may assert such a claim. the Republic of the Marshall Islands, ‘‘section 204 See 8 CFR 214.2(r)(11). Separately, as noted in the preamble of a different 237(a)(5) of [the INA] shall be construed and 205 Public Law 103–141, sec. 3, 107 Stat. 1488, rule, ‘‘self-supporting religious workers who are not applied as if it reads as follows: ‘any alien who has 1488 (Nov. 16, 1993). eligible for admission to the United States as R–1 been admitted under the Compact, or the Compact, 206 Special Immigrant and Nonimmigrant nonimmigrant religious workers may pursue as amended, who cannot show that he or she has Religious Workers, 73 FR 72276, 72283 (2008) admission in the B–1 classification.’’ Special sufficient means of support in the United States, is codified at 8 CFR pts. 204, 214, 299. Immigrant and Nonimmigrant Religious Workers, deportable’’’); 8 CFR 214.7(e)(1). 207 Note that individuals ‘‘located outside 73 FR 72282 (2008) codified at 8 CFR pts. 204, 214, 212 See Public Law 108–188, 117 Stat. 2720, 2762, sovereign United States territory at the time their 299. 2800 (Dec. 17, 2003).

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or when applying for adjustment of proposed rule’s intention to streamline asylum application and obtaining asylee status before USCIS, but respectfully all abused-spouse applications under status. Refugees who are seeking submits that Congress never exempted the VAWA umbrella, the commenter admission to the United States are not COFA nonimmigrants from the public said USCIS and DHS must ensure there subject to public charge grounds of charge ground of inadmissibility. is no negative impact to survivors who inadmissibility and DHS will not DHS notes, however, that because choose to seek adjustment of status. A determine whether they may be likely to COFA migrants are not required to few commenters specifically stated that become a public charge in the United obtain an extension of their human trafficking survivors would be States as part of the refugee admission. nonimmigrant stay to remain in the negatively impacted by the significant Similarly, refugees or asylees seeking United States pursuant to COFA, such delays and increased adjudication adjustment based on their refugee or nonimmigrants are unlikely to be expenses. Other commenters expressed asylee status, are not subject to the affected by public benefits condition concerns about permitting refugees and public charge inadmissibility ground, applicable to extension of stay asylees to continue to receive healthcare and therefore, the use of public benefits applications. In addition, as noted while excluding foreign nationals who is not considered. Therefore, DHS elsewhere in this rule, to the extent that have immigrated here with the proper believes that the commenters’ concerns COFA migrant children under 21 and documentation (i.e., legally) and are regarding the rule’s impact on asylees pregnant women receive Medicaid, such going through the process to obtain and refugees are sufficiently addressed. receipt would not be considered under permanent residency here in the United Similarly, applicants for T this rule. States. These commenters said that this nonimmigrant visas are also generally is logical fallacy, at best, and at worst, exempt from the public charge 3. Exemptions and Waivers With it is unjustified discrimination. inadmissibility ground,215 and, as Respect to the Rule Generally Response: DHS believes that the established below, DHS also agrees with a. General Comments current organization of the regulations the commenters that T nonimmigrants and exemptions clearly communicates applying for adjustment of status should Comment: Many commenters who is exempt from the public charge generally be exempt from public supported the exemptions proposed in ground of inadmissibility and who may charge.216 Additionally, Congress the NPRM, but a few of the commenters be eligible for a waiver of the generally exempted VAWA self- suggested that exemptions be clearly inadmissibility ground. DHS has also petitioners from the public charge communicated. Some commenters added the summary table in subsection ground of inadmissibility.217 Also, in requested that the discussion of III.F.4 below. DHS declines to response to comments and for reasons exemptions should be moved earlier in implement the suggestions for explained in the section addressing the regulation or included in the reorganizing the final rule because the public benefits, DHS has amended 8 executive summary of the preamble, to current organization sufficiently CFR 212.21(b) by providing that public avoid any confusion. Other commenters addresses visibility. benefits received by those who are in a expressed their support for the DHS does not agree that the rule status exempted from public charge will exemptions and waivers but indicated should be more limited in scope and not not be considered in a subsequent that DHS should ensure that immigrant consider public benefits as part of the adjudication of a benefit that does communities and service providers be public charge inadmissibility subject the alien to the public charge made aware of these exemptions. determination. The purpose of this rule ground of inadmissibility. This step Many commenters expressed concern is to implement the public charge should further alleviate concerns that a about the rule’s impact on the ground of inadmissibility consistent person in one of the listed categories vulnerable populations specifically with the principles of self-sufficiency would be subject to the public charge excluded from public charge set forth by Congress, and to minimize ground. requirements, such as refugees, asylum the incentive of aliens to attempt to DHS also disagrees that this rule seekers, victims of trafficking, and immigrate to, or to adjust status in, the discriminates against aliens who are not VAWA petitioners, who may avoid United States due to the availability of asylees or refugees. Congress, in applying for or accepting any public public benefits.213 PRWORA, made the decision as to benefits for which they qualify, to avoid DHS disagrees with the commenters which noncitizens are eligible to apply any negative impact on the adjudication who indicated that this rule would for and receive certain public benefits. of their benefit requests and for fear of negatively impact refugees, asylum Congress decided that asylees and future repercussions. One commenter seekers, victims of trafficking, and refugees should be eligible to apply for indicated that the exemptions for VAWA self-petitioners and that the public benefits, and DHS does not have asylees and refugees appear to be based exemptions should be broader. As noted the authority to include or exclude any on their status at the time of admission in the NPRM and previous sections in groups from the receipt of public or grant of status but do not apply to this final rule, the public charge ground benefits. those whose application for asylum or of inadmissibility does not generally Comment: A commenter stated the refugee status is pending and who may apply to these populations. Congress rule should exempt people with be eligible for public benefits during expressly exempted refugees, asylees, disabilities and their families, stating that period. and applicants for adjustment based on many of these families come to the Multiple commenters stated that refugee or asylee status from the public United States in order to receive while the proposed rule exempts VAWA charge inadmissibility ground.214 adequate medical care. Commenters petitioners and U nonimmigrant status, Therefore, if an individual has a opposed including immigrants with the exemptions will not protect a large pending application for asylum, the number of victims from the detrimental individual will not be assessed for 215 See INA sections 101(a)(15)(T) and 212(d)(13)(A), 8 U.S.C. 1101(a)(15)(T) and effects of the public charge rule since public charge for purposes of the there are many victims of domestic 1182(d)(13)(A). 216 See INA sections 101(a)(15)(T) and 245(l)(2), 8 violence and sexual assaults that seek 213 See 8 U.S.C. 1601. U.S.C. 1101(a)(15)(T) and 1255(l)(2). status in other immigration categories. 214 See INA sections 207, 208, and 209; 8 U.S.C. 217 See INA section 212(a)(4)(E)(i), 8 U.S.C. While a commenter agreed with the 1157, 1158, and 1159. 1182(a)(4)(E)(i).

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disabilities in the proposed rule because be subject to public charge ground of adjustment of status based on an SIJ disability is one of the strongest known inadmissibility and which are exempt. determination are exempt from the factors that affect a household’s food Congress did not provide an exemption public charge inadmissibility ground. If security and housing instability. Some from the public charge ground of aliens who are not subject to the public commenters said DHS should make an inadmissibility for aliens seeking a visa, charge ground of inadmissibility choose exception for pregnant women. Another admission, or adjustment of status and to disenroll from or forego public commenter asked that DHS provide who may have been certified for benefits benefit receipt based on this rule, then more exemptions and waivers, under the authorization of another, such the decision to disenroll from or forego suggesting that the rule should be as the head of household or the enrollment is unwarranted. The NPRM narrowed to only apply to those seeking guardian who applied on the alien’s provided an exhaustive list of entry into the United States initially or behalf. DHS acknowledges that those individuals who are exempt from the to provide extra protection to those in dependents who are certified for or public charge ground of inadmissibility, the United States to lessen the fears of receiving public benefits under the and this final rule retains that list of the proposed rule’s negative effects. authorization of another, such as the exemptions. DHS will not consider Response: Congress generally head of the household or the guardian, receipt of public benefits by aliens specifies, in legislation, to whom may be unaware of the receipt of public exempt from the public charge ground grounds of inadmissibility apply and benefits but will, once the rulemaking is inadmissibility, even if the exempted which classes of aliens are exempt from effective, may be impacted by such alien has an alien family member who public charge. DHS understands that receipt of public benefits, if they are is not exempt. DHS notes that this rule individuals with disabilities and subject to the public charge ground of also categorically exempts receipt of pregnant women may be affected by this inadmissibility. Medicaid by children under the age of rule. However, Congress did not provide After having reviewed the comments, 21, which should reduce the potential an exemption for individuals with however, DHS has decided to provide for confusion. disabilities or pregnant women in the additional clarification regarding such statute.218 matters. As explained in detail in the c. Certain Employment Based Preference Additionally, DHS cannot limit the public benefits section in this preamble, Categories, or National Interest Waiver application of the ground of DHS has added a new definition of Comment: One commenter requested inadmissibility in a matter so that it ‘‘receipt of public benefits’’ to section that individuals applying for lawful only applies to those seeking entry into 212.21(e) to clarify that DHS will only permanent resident status via approved the United States or so that DHS consider the alien to have received a EB–1A (extraordinary ability alien), EB– provides extra protections because public benefit if the alien is a named 1B (outstanding researcher or scientist), Congress, in section 212(a)(4) of the Act, beneficiary of the benefit. An alien does or National Interest Waiver (NIW) 8 U.S.C. 1182(a)(4) specified that the not receive a benefit merely by virtue of petitions be added to the list of those ground of inadmissibility applies to having applied or been certified for such exempted from the rule. The commenter those seeking a visa, admission to the benefit, and has not received a public stated that the vast majority of these United States, or adjustment of status in benefit if the alien acted not on his or individuals may need to resort to using the United States. Classes of aliens her own behalf but on behalf of another the designated benefits, and it would be exempt from the public charge ground person. Therefore, if an alien is the completely contrary to the intent of of inadmissibility are listed in 8 CFR person receiving benefits on behalf of Congress in passing the EB–1A, EB–1B 212.23. Certain aspects of this rule limit another (for instance as a parent, legal and NIW statutes to deny scientific some of the rule’s effects, such as by guardian) the alien will not be researchers green cards who would relying on an exhaustive list of non-cash considered to have received, been otherwise be benefiting the lives of benefits, and excluding consideration of certified for, or applied for such public literally millions of U.S. citizens. certain benefits for certain populations benefit. Response: DHS disagrees that this rule or circumstances. DHS believes that this is contrary to congressional intent in is sufficient. b. Special Immigrant Juvenile passing the EB–1A, EB–1B and NIW Comment: A commenter Comment: A commenter stated that statutes. Congress did not exempt recommended adding exemptions from the proposed rule would conflict with employment based EB–1A or EB–1B the public charge ground of the purpose of Special Immigrant categories, or those seeking an NIW, inadmissibility for those who have been Juvenile (SIJ) status, asserting that the from the public charge ground of certified for benefits under the purpose of the status is to allow inadmissibility.219 DHS neither has the authorization of another person, such as children to thrive in the United States the head of household or guardian. The and that children are not responsible for 219 See INA section 203(b)(1)(A), 8 U.S.C. commenter reasoned that the their circumstances. Although SIJ 1153(b)(1)(A) (aliens with extraordinary ability) or INA section 203(b)(1)(B), 8 U.S.C. 1153(b)(1)(B) dependents may not have been aware recipients are statutorily exempt from (outstanding professors and researchers). See INA that this occurred or even that they inadmissibility on public charge section 203(b)(2), 8 U.S.C. 1153(b)(2) (aliens who receive a benefit. grounds, this rule would still affect SIJ are members of the professions holding advance Response: DHS disagrees that it youth indirectly because of its scope, degrees or aliens of exceptional ability who are seeking a waiver of the job over in the national should exempt from the public charge secondary effects on families, and interest); see also comment USCIS 2010–0012– ground of inadmissibility those who potential for confusion. Many of these 31111. The commenter explained that the work have been certified for benefits under youth live in homes with U.S. citizen or these individuals perform is of great importance to the authorization of another, such as the permanent resident adults or siblings the United States and have a profound impact on the U.S. economies. However, the commenter head of household or guardian, if the who would be entitled to benefits but indicated, a vast majority of these individuals who beneficiary is an alien subject to the may be deterred from accessing them are conducting scientific research earn low salaries public charge ground of inadmissibility. because of a fear of how it will affect the below the 250% threshold and may need to resort In general, Congress has the authority to SIJ youth or other family members. to using these types of benefits the proposed regulation is seeking to prohibit, especially for their legislate which classes of aliens should Response: DHS disagrees that this rule U.S. citizen children. The commenter indicated that conflicts with the SIJ program. As stated it would be contrary to congressional intent to 218 See INA sections 212(a)(4), 8 U.S.C. 1182(a)(4). in the proposed rule, aliens applying for apply public charge to these workers.

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authority to exempt an applicant or a inadmissibility to all foreign national 8 U.S.C. 1183a. Such individuals, group of applicants for admission or victims who are ‘‘qualified aliens’’ however, would not need to adjustment of status from the public under section 431(c) of PRWORA, 8 demonstrate, as set forth in paragraphs charge ground of inadmissibility where U.S.C. 1641(c), including T 212(a)(4)(A) and (B), 8 U.S.C. 1182(A) Congress has not already done so,220 nor nonimmigrant status holders.223 and (B), that he or she is not likely at has the authority to ignore the Response: DHS agrees that qualified any time to become a public charge. congressionally-mandated exemptions aliens under 8 U.S.C. 1641(c) (certain Those applicants would not need to to the public charge ground of battered aliens as qualified aliens) are submit Form I–944. As such, such inadmissibility. Because Congress has generally not subject to the public applicants would only have to submit a expressly exempted asylees and charge inadmissibility ground. Section sufficient affidavit of support described refugees from the public charge 212(a)(4)(E)(iii) of the INA, 8 U.S.C. in section 213A of the INA, 8 U.S.C. inadmissibility ground, DHS cannot 1182(a)(4)(E)(iii), specifically excludes 1183a. remove this exemption. Further, such individuals from the public charge For the reasons stated above, DHS is because Congress did not specifically ground.224 VAWA 2013, which added amending proposed 8 CFR exempt EB–1A or EB–1B workers, or section 212(a)(4)(E)(iii) of the INA, 8 212.23(a)(18), (19), (20), (21), and 8 CFR those with NIWs, from the public charge U.S.C. 1182(a)(4)(E)(iii), specifically 212.23(b) in this final rule to clarify that ground of inadmissibility, DHS may not excludes individuals such as qualified aliens exempt under section 212(a)(4)(E) create an exemption for them in this aliens described in 8 U.S.C. 1641(c) of the INA, 8 U.S.C. 1182(a)(4)(E), that rule.221 (including T nonimmigrants and certain are adjusting status based on an battered spouses and children of U.S. employment-based petition subject to d. Violence Against Women Act, T, and citizens), VAWA self-petitioners, and U section 212(a)(4)(D) of the INA, 8 U.S.C. U nonimmigrants from sections 1182(a)(4)(D), that requires the Comment: A commenter provided the 212(a)(4)(A), (B), and (C) of the INA, 8 execution of an affidavit of support as statutory amendment history of 8 U.S.C. U.S.C. 1182(a)(4)(A), (B), and (C). described in section 213A of the Act, 8 Section 1641, and stated that VAWA, T, Congress, however, did not include U.S.C. 1183a, are not exempt from the and U visa victims and all other paragraph (D) among the exemptions in entirety of section 212(a)(4) of the INA, immigrants covered by 8 U.S.C. 1641(c) section 212(a)(4)(E) of the INA, 8 U.S.C. 1182(a)(4), as they are still subject to cannot be subject to public charge under 1182(a)(4)(E). We must presume that section 212(a)(4)(D) of the INA, 8 U.S.C. federal statutes. Another commenter Congress acted intentionally in 1182(a)(4)(D). indicated that the NPRM incorrectly requiring all aliens described in Applicants seeking T nonimmigrant applies the public charge ground of paragraph (D) to file the requisite status, T nonimmigrants applying for inadmissibility to applications for affidavit of support, even if they are adjustment of status, and T adjustment of status and extension of described in paragraph (E). The law nonimmigrants seeking another stay filed by T nonimmigrants. The does not permit DHS to add language to immigration benefit that requires commenter noted that both T the statute. See, e.g., Lamie v. U.S. Tr., admissibility, are generally exempt from nonimmigrant status seekers and T 540 U.S. 526, 538 (2004) (counseling the public charge ground of nonimmigrant status holders are exempt against interpretative methodologies inadmissibility under section from the public charge ground of that yield ‘‘not . . . a construction of [a] 212(a)(4)(E) of the Act, 8 U.S.C. inadmissibility. The commenter also statute, but, in effect, an enlargement of 1182(a)(4)(E). In accordance with indicated that proposed 8 CFR it by the court, so that what was section 804 of the VAWA 2013,225 212.23(a)(17) should be amended to omitted, presumably by inadvertence, which added new section 212(a)(4)(E) of conform to section 804 of VAWA may be included within its scope’’); the Act, 8 U.S.C. 1182(a)(4)(E), 2013,222 exempting T nonimmigrants Yith v. Nielsen, 881 F.3d 1155, 1164 individuals who have been granted T seeking to adjust status to lawful (9th Cir. 2018) (‘‘It is never our job to nonimmigrant status or have a pending permanent residence or to extend status rewrite a constitutionally valid statutory application that sets forth a prima facie from the public charge ground of text. Indeed it is quite mistaken to case for eligibility for T nonimmigrant inadmissibility. The commenter assume that whatever might appear to status are generally exempt from the indicated that section 804 of VAWA further the statute’s primary objective public charge inadmissibility 2013, granted the same exemptions from must be the law.’’ (citations, quotation determination. the public charge ground of marks, and alterations omitted)). Notwithstanding these changes, Accordingly, in the unlikely event that VAWA 2013 did not amend section 220 As explained in the NPRM, DHS derives its an alien described in paragraph (E) is 245(l)(2) of the Act, 8 U.S.C. statutory authority for this rule and its authority to seeking admission or adjustment of 1255(l)(2),226 which provides that DHS promulgate regulation based on section 102 of the Homeland Security Act of 2002, Public Law 107– status based on an immigrant visa may waive the application of the public 296, 116 Stat. 2135, 2142–44 (Nov. 25, 2002) issued under section 203(b) of the INA, charge ground of inadmissibility if it is (codified at 6 U.S.C. 112) and INA section 103, 8 8 U.S.C. 1153(b), that individual must in the national interest to do so for a T U.S.C. 1103, as well as INA section 212(a)(4), 8 comply with the affidavit of support nonimmigrant seeking to adjust status to U.S.C. 1182 and the relevant statutory provisions governing immigration benefits. See Inadmissibility requirement in section 213A of the INA, lawful permanent residence under on Public Charge Grounds, 83 FR 51114, 51124 section 245(l) of the Act, 8 U.S.C. (proposed Oct. 10, 2018). 223 The commenter indicated that DHS correctly 1255(l). DHS concludes, however, that 221 Providing for an exemption where Congress recognized the full extent of exceptions that the the VAWA 2013 amendments, which does not expressly authorize one, as it does for same provisions made for VAWA-self petitioners, U postdated the enactment of section other immigration benefits applicants under the visa applicants, and U visa holders for purposes of INA, would be beyond the scope of DHS’s lawful permanent residency. 245(l)(2) of the Act, 8 U.S.C. 1255(l)(2), authority. See Andrus v. Glover Const. Co., 446 U.S. 224 While INA section 212(a)(4)(E)(iii), 8 U.S.C. 608, 616–17 (1980) (‘‘Where Congress explicitly 1182(a)(4)(E)(iii), excludes qualified aliens under 8 225 See Public Law 113–4, 127 Stat 54 (Mar. 7, enumerates certain exceptions to a general U.S.C. 1641(c) from public charge, that exclusion 2013). prohibition, additional exceptions are not to be does not apply to the separate category of ‘‘qualified 226 See INA section 245(l), 8 U.S.C. 1255(l), which implied, in the absence of a contrary legislative aliens’’ described in 8 U.S.C. 1641(b) who are was created by the Victims of Trafficking and intent.’’). subject to public charge unless otherwise subject to Violence Protection Act of 2000, Public Law 106– 222 See Public Law 113–4 (March 7, 2013). an exception. 386, 114 Stat. 1464 (Oct. 8, 2000).

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are controlling. That is, DHS has exemption to refer to sections in valid U nonimmigrant status at the determined that T nonimmigrants 212(a)(4)(E) and 212(d)(13)(A) of the time the Form I–485 is properly filed in seeking to adjust status under section Act, 8 U.S.C. 1182(a)(4)(E), (d)(13)(A).229 compliance with 8 CFR 103.2(a)(7) and 245(a) of the Act, 8 U.S.C. 1255(a) (with Additionally, based on the same throughout the pendency of an a limited exception) and section 245(l) rationale provided above, DHS is also application.233 Therefore, DHS clarified of the Act, 8 U.S.C. 1255(l) are not modifying current 8 CFR 212.18(b)(2) in this final rule that these individuals subject to the public charge ground of and 8 CFR 245.23(c)(3) to accurately are not subject to the public charge inadmissibility for purposes of reflect changes codified by Congress in ground of inadmissibility when seeking establishing eligibility for adjustment of 2013 in relation to those having a an immigration benefit,234 to accurately status. However, for this exemption pending prima facie case for status reflect changes enacted by Congress in from public charge to apply, the T under section 101(a)(15)(T) of the Act, 8 VAWA 2013. Additionally, VAWA self- nonimmigrant must hold and be in valid U.S.C. 1101(a)(15)(T), or is in valid T petitioners are generally exempt from T nonimmigrant status at the time the nonimmigrant status at the time of filing the public charge ground of Form I–485 is properly filed in for an immigration benefit, and to inadmissibility.235 Similar to T compliance with 8 CFR 103.2(a)(7) and clarify that these individuals—with the nonimmigrants (and as described throughout the pendency of an limited exception described in INA above), U nonimmigrants and VAWA application.227 For the reasons stated 212(a)(4)(D), 8 U.S.C. 1182(a)(4)(D)—are self-petitioners who are adjusting status above, DHS is amending proposed 8 not subject to the public charge ground under an employment-based category CFR 212.23(a)(17) in this final rule to of inadmissibility. As discussed further that is required to execute an affidavit clarify that T nonimmigrants seeking under the PRA section of this final rule, of support described in section 213A, 8 any immigration benefit subject to DHS is also making conforming changes U.S.C. 1183a, under 212(a)(4)(D) of the section 212(a)(4) of the Act, 8 U.S.C. to the Form I–601 instructions. INA, 8 U.S.C. 1182(a)(4)(D), must still 1182(a)(4)—except those described in Individuals seeking U nonimmigrant execute that affidavit of support to section 212(a)(4)(D) of the Act, 8 U.S.C. status and U nonimmigrants seeking overcome the public charge ground of 1182(a)(4)(D), who must file an affidavit adjustment of status on account of their inadmissibility. of support—are exempt from the public U nonimmigrant status are generally 4. Summary of Applicability, charge ground of inadmissibility, exempt from the public charge Exemptions, and Waivers provided that the T nonimmigrant ground.230 In accordance with section seeking the immigration benefit is in 804 of the VAWA 2013,231 which added The following tables provide a valid T nonimmigrant status at the new section 212(a)(4)(E) of the Act, 8 summary of all nonimmigrant and benefit request is properly filed with U.S.C. 1182(a)(4)(E), an individual who immigrant classification and whether USCIS and at the time the benefit is an applicant for, or is granted U they are subject to the public charge request is adjudicated.228 As section nonimmigrant status is exempt from the inadmissibility determination and 212(a)(4)(E) of the Act, 8 U.S.C. public charge ground of submit an I–944 or are subject to the 1182(a)(4)(E), is an additional authority inadmissibility.232 However, for this public benefit condition for extension of for exempting T nonimmigrants, DHS exemption from public charge to apply, stay and change of status has revised the authority for the the U nonimmigrant must hold and be nonimmigrants.

TABLE 2—SUMMARY OF NONIMMIGRANT CATEGORIES SUBJECT TO PUBLIC BENEFITS CONDITION

Subject to public benefit Eligible to apply for extension Eligible to apply for change of condition under proposed Category of stay (i.e., may file status (i.e., may file 8 CFR 214.1(a)(3)(iv), Form I–129 or Form I–539) * Form I–129 or I–Form 539) * 214.1(a)(4)(iv); 248.1(c)(4)

A–1—Ambassador, Public Minister, Ca- No. Not applicable as admitted Yes. Files I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). reer Diplomat or Consular Officer, or Im- for Duration of Status, 8 CFR 248.1(a). mediate Family; A–2—Other Foreign 214.1(c)(3)(v). Government Official or Employee, or Im- mediate Family; INA 101(a)(15)(A), 22 CFR 41.21. A–3—Attendant, Servant, or Personal Em- Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. INA 102; 22 CFR ployee of A–1 or A–2, or Immediate 214.1(c)(2). 248.1(a). 41.21(d)(3). Family; INA 101(a)(15)(A), 22 CFR 41.21. B–1—Temporary Visitor for Business; B– Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. 2—Temporary Visitor for Pleasure; * not 214.1(c)(2), 8 CFR 248.1(a). admitted under Visa Waiver Program; 214.2(b)(1). INA 101(a)(15)(B).

227 See 8 CFR 103.2(b)(1) (an applicant or 229 See also INA section 212(s), 8 U.S.C. 1182(s) 233 See 8 CFR 103.2(b)(1) (An applicant or petitioner must establish that he or she is eligible (excluding from the public charge determination petitioner must establish that he or she is eligible for the requested benefits at the time of filing and consideration of benefits received by those eligible for the requested benefits at the time of filing and the benefit request and must continue to be eligible to receive benefits under 8 U.S.C. 1641(c)). the benefit request and must continue to be eligible 230 through adjudication); see also Matter of Alarcon, See 8 CFR 212.23(a)(18). through adjudication). See also Matter of Alarcon, 231 20 I&N Dec. 557, 562 (BIA 1992) (‘‘an application 20 I&N Dec. 557, 562 (BIA 1992) (‘‘an application See Public Law 113–4, 127 Stat 54 (Mar. 7, for admission to the United States is a continuing for admission to the United States is a continuing 2013). 232 application, and admissibility is determined on the application, and admissibility is determined on the See INA sections 212(a)(4)(E)(ii), 8 U.S.C. 1182(a)(4)(E)(ii), which exclude from public charge basis of the facts and the law at the time the basis of the facts and the law at the time the determinations an applicants for, or individuals application is finally considered.’’). application is finally considered’’). granted, nonimmigrant status under section 234 See 8 CFR 212.23(a)(19). 228 See 8 CFR 212.23(a)(17) and (18). 1101(a)(15)(U). 235 See 8 CFR 212.23(a)(21).

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TABLE 2—SUMMARY OF NONIMMIGRANT CATEGORIES SUBJECT TO PUBLIC BENEFITS CONDITION—Continued

Subject to public benefit Eligible to apply for extension Eligible to apply for change of condition under proposed Category of stay (i.e., may file status (i.e., may file 8 CFR 214.1(a)(3)(iv), Form I–129 or Form I–539) * Form I–129 or I–Form 539) * 214.1(a)(4)(iv); 248.1(c)(4)

C–1—Alien in Transit; C–1/D—Combined No. 8 CFR 214.1(c)(3)(ii) ...... No. 8 CFR 248.2(a)(2), except Not Applicable as not eligible Transit and Crewmember Visa; INA for change to T and U, 8 for extension of stay or 101(a)(15)(C) and (D), INA 212(d)(8). CFR 248.2(b) using Form I– change of status. 914 or I–918. C–2—Alien in Transit to United Nations No. Not applicable as admitted No, 8 CFR 248.2(a)(2), except No. 22 CFR 41.21(d). Headquarters District Under Section for Duration of Status. 8 CFR for change to T and U, 8 11.(3), (4), or (5) of the Headquarters 214.1(c)(3)(ii). CFR 248.2(b) using Form I– Agreement; INA 101(a)(15)(C) and (D), 914 or I–918. INA 212(d)(8). C–3—Foreign Government Official, Imme- No. 8 CFR 214.1(c)(3)(ii) ...... No, 8 CFR 248.2(a)(2), except No. 22 CFR 41.21(d). diate Family, Attendant, Servant or Per- for change to T and U, 8 sonal Employee, in Transit; INA CFR 248.2(b) using Form I– 101(a)(15)(C) and (D), INA 212(d)(8). 914 or I–918. CW–1—Commonwealth of Northern Mar- Yes. Files Form I–129CW, 8 Yes. Files Form I–129CW, 8 Yes. iana Islands Transitional Worker Section CFR 214.1(c)(2) and 8 CFR CFR 248.1(a); 8 CFR 6(d) of Public Law 94–241, as added by 214.2(w)(17). 214.2(w)(18). Section 702(a) of Public Law 110–229. 8 CFR 214.2(w). CW–2—Spouse or Child of CW–1 ...... Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR 214.1(c)(2) and 8 CFR 248.1(a); 8 CFR 214.2(w)(18). 214.2(w)(17)(v). D—Crewmember (Sea or Air); D–2— No. 8 CFR 214.1(c)(3)(iii) ...... No, 8 CFR 248.2(a)(2), except Yes. Crewmember departing from a different for change to T and U, vessel than one of arrival; INA 248.2(b) using Form I–914 or 101(a)(15)(D). Form I–918. E–1, E–2—Treaty Trader (Principal); INA Yes. Files Form I–129, 8 CFR Yes, Files Form I–129, 8 CFR Yes. 101(a)(15)(E). 214.1(c)(1); 8 CFR 248.1(a), 8 CFR 214.2(e)(20). 214.2(e)(21)(i). E–1, E–2—Treaty Trader, Spouse or Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. Child; INA 101(a)(15)(E). 214.1(c)(2). 214.2(e)(21)(ii),. E–2–CNMI—Commonwealth of Northern Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. Mariana Islands Investor (Principal) 214.2(e)(23)(xii). 248.1(a), 8 CFR Section 6(c) of Public Law 94–241, as 214.2(e)(23)(xiii). added by Section 702(a) of Public Law 110–229.8 CFR 214.2(e)(23). E–2–CNMI—Commonwealth of Northern Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. Mariana Islands Investor, Spouse or 214.1(c)(2). 248.1(a). Child Section 6(c) of Public Law 94– 241, as added by Section 702(a) of Public Law 110–229. 8 CFR 214.2(e)(23)(x). E–3—Australian Treaty Alien coming to Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. the United States Solely to Perform 214.1(c)(1) and (2). 248.1(a). Services in a Specialty Occupation. E–3D—Spouse or Child of E–3; E–3R— Yes. Files I–539, 8 CFR Yes. Files I–539, 8 CFR Yes. Returning E–3; INA 101(a)(15)(E)(iii). 214.1(c)(1) and (2). 248.1(a). F–1—Student in an academic or language Yes, only if the F–1 requesting Yes. Files Form I–539, 8 CFR Yes. training program (principal); INA reinstatement to F–1 status 248.1(a),. 101(a)(15)(F). or if the F–1 received a date- specific admission to attend high school and is now seek- ing an extension to D/S to at- tend college. 8 CFR 214.1(c)(3)(v); 8 CFR 214.2(f)(7); 8 CFR 214.2(f)(16). F–2—Spouse or Child of F–1; INA No, not applicable as admitted Yes. Files Form I–539, 8 CFR Yes. 101(a)(15)(F). for Duration of Status. 8 CFR 214.2(f)(3). 214.1(c)(3)(v); 8 CFR 214.2(f)(3).

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TABLE 2—SUMMARY OF NONIMMIGRANT CATEGORIES SUBJECT TO PUBLIC BENEFITS CONDITION—Continued

Subject to public benefit Eligible to apply for extension Eligible to apply for change of condition under proposed Category of stay (i.e., may file status (i.e., may file 8 CFR 214.1(a)(3)(iv), Form I–129 or Form I–539) * Form I–129 or I–Form 539) * 214.1(a)(4)(iv); 248.1(c)(4)

G–1—Principal Resident Representative No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. 22 CFR 41.21(d). of Recognized Foreign Government to for Duration of Status 8 CFR 248.1(a). International Organization, Staff, or Im- 214.1(c)(3)(v). mediate Family; G–2—Other Represent- ative of Recognized Foreign Member Government to International Organiza- tion, or Immediate Family; G–3—Rep- resentative of Nonrecognized or Non- member Foreign Government to Inter- national Organization, or Immediate Family; G–4—International Organization Officer or Employee, or Immediate Fam- ily; INA 101(a)(15)(G). G–5—Attendant, Servant, or Personal Em- Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. ployee of G–1 through G–4, or Imme- 214.1(c)(2). 248.1(a). diate Family. H–1B—Alien in a Specialty Occupation, Yes. Files Form I–129, 8 CFR Yes. Files Form I–129.8 CFR Yes. Fashion Models of Distinguished Merit 214.1(c)(1). 248.1(a). and Ability, and workers performing services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and devel- opment project; INA 101(a)(15)(H)(i)(b); Section 222 of Pub. L. 101–649. H–1B1—Chilean or Singaporean National Yes. Files Form I–129, 8 CFR Yes. Files Form I–129. 8 CFR Yes. to Work in a Specialty Occupation; INA 214.1(c)(1). 248.1(a). 101(a)(15)(H)(i)(b1). H–1C 236—Nurse in health professional Yes. Filed Form I–129, 8 CFR Yes. Filed Form I–129, 8 CFR Yes. shortage area; INA 101(a)(15)(H)(i)(c). 212.2(h)(4)(v)(E). 212.2(h)(4)(v)(E). H–2A—Temporary Worker Performing Ag- Yes. Files Form I–129, 8 CFR Yes. Files Form I–129 ...... Yes. ricultural Services Unavailable in the 214.1(c)(1). United States; INA 101(a)(15)(H)(ii)(a). H–2B—Temporary Worker Performing Yes. Files Form I–129, 8 CFR Yes. Files Form I–129 ...... Yes. Other Services Unavailable in the 214.1(c)(1). United States; INA 101(a)(15)(H)(ii)(b). H–3—Trainee; INA 101(a)(15)(H)(iii) ...... Yes. Files Form I–129, 8 CFR Yes. Files Form I–539 ...... Yes. 214.1(c)(1). H–4—Spouse or Child of Alien Classified Yes. Files Form I–539, 8 CFR Yes. Files Form I–539. 8 CFR Yes. H1B/B1/C, H2A/B, or H–3; INA 214.1(c)(2). 248.1(a). 101(a)(15)(H)(iv). I—Representative of Foreign Information No, not applicable as admitted Yes. Files Form I–539 ...... Yes. Media, Spouse and Child; INA for Duration of Status 8 CFR 101(a)(15)(I). 214.1(c)(3)(v). J–1—Exchange Visitor; J–2—Spouse or No, not applicable, as generally Yes, subject to receiving a Yes. Child of J1; INA 101(a)(15)(J). admitted for Duration of Sta- waiver of the foreign resi- tus 237 8 CFR 214.1(c)(3)(v). dence requirement, if nec- essary, Files I–539. 8 CFR 248.2(a)(4); may apply for change to T and U, using for Form I–914 or I–918, 8 CFR 248.2(b). K–1—Fiance(e) of United States Citizen; No. 8 CFR 214.1(c)(3)(iv) ...... No. 8 CFR 248.2(a)(2) except Not Applicable. K–2—Child of Fiance(e) of U.S. Citizen; for change to T and U, INA 101(a)(15)(K). 248.2(b) using Form I–914 or I–918. K–3—Spouse of U.S. Citizen awaiting Yes. Files Form I–539, 8 CFR No. 8 CFR 248.2(2) except for Yes. availability of immigrant visa; K–4— 214.1(c)(2) and 8 CFR change to T and U, 248.2(b) Child of K–3; INA 101(a)(15)(K). 214.2(k)(10). using Form I–914 or I–918. L–1—Intracompany Transferee (Execu- Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. tive, Managerial, and Specialized 214.1(c)(1). 248.1(a). Knowledge Personnel Continuing Em- ployment with International Firm or Cor- poration); INA 101(a)(15)(L). L–2—Spouse or Child of Intracompany Yes. Files I–539 8 CFR Yes. Files Form I–539, 8 CFR Yes. Transferee. 214.1(c)(1) and (2). 248.1(a). M–1—Vocational Student or Other Non- Yes. Files Form I–539, 8 CFR Yes. Files Form I–539. Not eli- Yes. academic Student; INA 101(a)(15)(M). 214.1(c)(2). gible if requesting F–1, 8 CFR 248.1(c)(1).

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TABLE 2—SUMMARY OF NONIMMIGRANT CATEGORIES SUBJECT TO PUBLIC BENEFITS CONDITION—Continued

Subject to public benefit Eligible to apply for extension Eligible to apply for change of condition under proposed Category of stay (i.e., may file status (i.e., may file 8 CFR 214.1(a)(3)(iv), Form I–129 or Form I–539) * Form I–129 or I–Form 539) * 214.1(a)(4)(iv); 248.1(c)(4)

M–2—Spouse or Child of M–1; INA Yes. Files Form I–539, 8 CFR Yes. Files Form I–539 ...... Yes. 101(a)(15)(M). 214.1(c)(2). N–8—Parent of an Alien Classified SK3 Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. (Unmarried Child Employee of Inter- 214.1(c)(2). 248.1(e). national Organization) or SN–3; N–9— Child of N–8 or of SK–1 (Retired Em- ployee International Organization), SK– 2 (Spouse), SK–4 (surviving spouse), SN–1 (certain retired NATO 6 civilian employee), SN–2 (spouse) or SN–4 (surviving spouse); INA 101(a)(15)(N). NATO–1—Principal Permanent Rep- No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). resentative of Member State to NATO for Duration of Status 8 CFR 248.1(a). (including any of its Subsidiary Bodies) 214.1(c)(3)(v). Resident in the U.S. and Resident Members of Official Staff; Secretary General, Assistant Secretaries General, and Executive Secretary of NATO; Other Permanent NATO Officials of Similar Rank, or Immediate Family Art. 12, 5 UST 1094; Art. 20, 5 UST 1098. NATO–2—Other Representative of mem- No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). ber state to NATO (including any of its for Duration of Status 8 CFR 248.1(a). Subsidiary Bodies) including Represent- 214.1(c)(3)(v). atives, Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force En- tering in Accordance with the Provisions of the NATO Status-of-Forces Agree- ment or in Accordance with the provi- sions of the ‘‘Protocol on the Status of International Military Headquarters’’; Members of Such a Force if Issued Visas Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796. NATO–3—Official Clerical Staff Accom- No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). panying Representative of Member for Duration of Status 8 CFR 248.1(a). State to NATO (including any of its Sub- 214.1(c)(3)(v). sidiary Bodies), or Immediate Family Art. 14, 5 UST 1096. NATO–4—Official of NATO (Other Than No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). Those Classifiable as NATO1), or Im- for Duration of Status 8 CFR 248.1(a). mediate Family Art. 18, 5 UST 1098. 214.1(c)(3)(v). NATO–5—Experts, Other Than NATO Of- No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). ficials Classifiable Under NATO 4, Em- for Duration of Status 8 CFR 248.1(a). ployed in Missions on Behalf of NATO, 214.1(c)(3)(v). and their Dependents Art. 21, 5 UST 1100. NATO–6—Member of a Civilian Compo- No, not applicable as admitted Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). nent Accompanying a Force Entering in for Duration of Status 8 CFR 248.1(a). Accordance with the Provisions of the 214.1(c)(3)(v). NATO Status-of-Forces Agreement; Member of a Civilian Component At- tached to or Employed by an Allied Headquarters Under the ‘‘Protocol on the Status of International Military Head- quarters’’ Set Up Pursuant to the North Atlantic Treaty; and their Dependents Art. 1, 4 UST 1794; Art. 3, 5 UST 877. NATO 7—Attendant, Servant, or Personal Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR No. INA 102; 22 CFR 41.21(d). Employee of NATO 1, NATO 2, NATO 214.2(s)(1)(ii).. 248.1(a). 3, NATO 4, NATO 5, and NATO 6 Classes, or Immediate Family Arts. 12– 20, 5 UST 1094–1098.

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TABLE 2—SUMMARY OF NONIMMIGRANT CATEGORIES SUBJECT TO PUBLIC BENEFITS CONDITION—Continued

Subject to public benefit Eligible to apply for extension Eligible to apply for change of condition under proposed Category of stay (i.e., may file status (i.e., may file 8 CFR 214.1(a)(3)(iv), Form I–129 or Form I–539) * Form I–129 or I–Form 539) * 214.1(a)(4)(iv); 248.1(c)(4)

O–1—Alien with Extraordinary Ability in Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. Sciences, Arts, Education, Business or 214.1(c)(1). 248.1(a). Athletics or Extraordinary Achievement in the Motion Picture or Television In- dustry; O–2—Essential Support Workers Accompanying and Assisting in the Ar- tistic or Athletic Performance by O–1 INA 101(a)(15)(O). O–3—Spouse or Child of O–1 or O–2 INA Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. 101(a)(15)(O). 214.1(c)(1) and (2). 248.1(a). P–1—Internationally Recognized Athlete Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. or Member of Internationally Recog- 213.1(c)(3)(i). 248.1(a). nized Entertainment Group; P–2—Artist or Entertainer in a Reciprocal Exchange Program; P–3—Artist or Entertainer in a Culturally Unique Program INA 101(a)(15)(P); P–1S/P–2S/P–3S—Es- sential Support Workers 8 CFR 214.2(p). P–4—Spouse or Child of P–1, P–2, or P– Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. 3; INA 101(a)(15)(P). 214.1(c) (1) and (2). 248.1(a). Q–1—Participant in an International Cul- Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. tural Exchange Program; INA 213.1(c)(3)(i). 248.1(a). 101(a)(15)(Q)(i). R–1—Alien in a Religious Occupation; INA Yes. Files Form I–129, 8 CFR Yes. Files Form I–129, 8 CFR Yes. 101(a)(15)(R). 213.1(c)(3)(i). 248.1(a). R–2—Spouse or Child of R–1; INA Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. 101(a)(15)(R). 214.1(c)(1) and (2). 248.1(a). S–5—Certain Aliens Supplying Critical In- No. 8 CFR 213.1(c)(3)(vi) ...... No. 8 CFR 248.2(2) except for Yes. formation Relating to a Criminal Organi- change to T and U, 248.2(b) zation or Enterprise; S–6—Certain using Form I–914 or I–918. Aliens Supplying Critical Information Re- lating to Terrorism; S–7—Qualified Fam- ily Member of S–5 or S–6 INA 101(a)(15)(S). T–1—Victim of a severe form of trafficking Yes. Files Form I–539. INA Yes. Files Form I–539, 8 CFR No. in persons; INA 101(a)(15)(T). § 214(o)(7)(B); 8 CFR 248.1(a). 214.11(l)(1) and (2); 8 CFR 214.1(c)(2). T–2—Spouse of T–1; T–3—Child of T–1; Yes. Files Form I–539. INA Yes. Files Form Files I–539, 8 No. T–4—Parent of T–1 under 21 years of 214(o)(7)(B); 8 CFR CFR 248.1(a). age; T–5—Unmarried Sibling under age 214.1(c)(2). 18 of T–1; T–6—Adult or Minor Child of a Derivative Beneficiary of a T–1; INA 101(a)(15)(T). TN—NAFTA Professional; INA 214(e)(2) .. Yes. Files Form I–129, 8 CFR Yes. Files Form Files I–129, 8 Yes. 214.1(c)(1). CFR 248.1(a). TD—Spouse or Child of NAFTA Profes- Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. sional; INA 214(e)(2). 214.1(c)(2). 248.1(a). U–1—Victim of criminal activity; U–2— Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR No. Spouse of U–1; U–3—Child of U–1; U– 214.1(c)(2); 8 CFR 248.1(a). 4—Parent of U–1 under 21 years of 214.14(g)(2). age; U–5—Unmarried Sibling under age 18 of U–1 under 21 years of age; INA 101(a)(15)(U). V–1—Spouse of a Lawful Permanent Yes. Files Form I–539, 8 CFR Yes. Files Form I–539, 8 CFR Yes. Resident Alien Awaiting Availability of 214.1(c)(2); 8 CFR 248.1(a); 214.15(g)(3). Immigrant Visa; V–2—Child of a Lawful 214.15(g)(3). Permanent Resident Alien Awaiting Availability of Immigrant Visa; V–3— Child of a V–1 or V–2 INA 101(a)(15)(V)(i) or INA 101(a)(15)(V)(ii); INA 203(d).

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TABLE 2—SUMMARY OF NONIMMIGRANT CATEGORIES SUBJECT TO PUBLIC BENEFITS CONDITION—Continued

Subject to public benefit Eligible to apply for extension Eligible to apply for change of condition under proposed Category of stay (i.e., may file status (i.e., may file 8 CFR 214.1(a)(3)(iv), Form I–129 or Form I–539) * Form I–129 or I–Form 539) * 214.1(a)(4)(iv); 248.1(c)(4)

W–B—Visa Waiver for visitor for business; No. 8 CFR 214.1(c)(3)(i) and No, except for change to T and Not Applicable. W–T—visitor for pleasure, Visa Waiver 214.1(c)(3)(viii). U, using Form I–914 or I– Program; INA 217. 918; INA 248.2(b). * Includes questions on Form I–129 and Form I–539 about receipt of public benefits since the nonimmigrant status was approved. Whether the alien must file and I–129 or an I–539 depends on the status the alien is applying to change to or extend. If more than one person is applying using the I–539 application, the Form I–539A, Supplemental Information for Application to extend/Change Nonimmigrant Status, is submitted to provide all of the requested information for each additional applicant listed.

TABLE 3—APPLICABILITY OF INA 212(a)(4) TO FAMILY-BASED ADJUSTMENT OF STATUS APPLICATIONS 238

INA 213A and Form I–864, Subject to INA 212(a)(4) and must affidavit of support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

Immediate Relatives of U.S. citizens including spouses, children and Yes. INA 212(a)(4) ...... Required. INA 212(a)(4)(C). parents 239. Family-Based First Preference: Unmarried sons/daughters of U.S. citi- Yes. INA 212(a)(4) ...... Required. INA 212(a)(4)(C). zens and their children 240. Family-Preference Second: Spouses, children, and unmarried sons/ Yes. INA 212(a)(4) ...... Required. INA 212(a)(4)(C). daughters of alien residents 241. Family Preference Third: Married sons/daughters of U.S. citizens and Yes. INA 212(a)(4) ...... Required. INA 212(a)(4)(C). their spouses and children 242. Family Preference Fourth: Brothers/sisters of U.S. citizens (at least 21 Yes. INA 212(a)(4) ...... Required. INA 212(a)(4)(C). years of age) and their spouses and children 243. Fiance´, * admitted as nonimmigrant K–1/K2 244 ...... Yes. INA 212(a)(4) ...... Required. INA 212(a)(4)(C). Amerasians based on preference category-born between December Yes. INA 212(a)(4) ...... Exempt. Amerasian Act, Public 31, 1950 and before October 22, 1982 245. Law 97–359 (Oct. 22, 1982).

236 This classification can no longer be sought as conditional; IH–8 Children adopted abroad under of alien residents, subject to country limits; C–29 of December 20, 2009. See the Nursing Relief for the Hague Adoption Convention; IH–9 Children Unmarried children of alien residents, subject to Disadvantaged Areas Reauthorization Act of 2005, coming to the United States to be adopted under the country limits, conditional. Public Law 109–423. Hague Adoption Convention; IR–8 Orphans 242 Including the following categories: A–36 237 J nonimmigrant who are admitted for a adopted abroad; IR–9 Orphans coming to the United Married Amerasian sons/daughters of U.S. citizens; specific time period are not eligible for an extension States to be adopted; IR–0 Parents of adult U.S. F–36 Married sons/daughters of U.S. citizens; C–36 of stay. citizens. Note children adopted abroad generally do Married sons/daughters of U.S. citizens, 238 Applicants who filed a Form I–485 prior to not apply for adjustment of status. conditional; A–37 Spouses of A–31 or A–36; F–37 December 19, 1997 are exempt from the Affidavit 240 Including the following categories: A–16 Spouses of married sons/daughters of U.S. citizens; of Support requirement. See Public Law 104–208, Unmarried Amerasian sons/daughters of U.S. C–37 Spouses of married sons/daughters of U.S. div. C., section 531(b), 110 Stat. 3009–546, 3009– citizens; F–16 Unmarried sons/daughters of U.S. citizens, conditional; B–37 Spouses of B–31 or B– 675 (Sept. 30, 1996); 8 CFR 213a.2(a)(2)(i) citizens; A–17 Children of A–11 or A–16; F–17 36; A–38 Children of A–31 or A–36, subject to (adjustment applicants) and 213a.2(a)(2)(ii)(B) Children of F–11 or F–16; B–17 Children of B–11 country limits; F–38 Children of married sons/ (applicants for admission). Aliens who acquired or B–16. daughters of U.S. citizens; C–38 Children of C–31 citizenship under section 320 of the Act upon 241 Including the following categories: F–26 or C–36, subject to country limits, conditional; B– admission to the United States are exempt from Spouses of alien residents, subject to country limits; 38 Children of B–31 or B–36, subject to country submitting an affidavit of support. See 8 CFR C–26 Spouses of alien residents, subject to country limits. 213a.2(a)(2)(ii)(E); Child Citizenship Act, Public limits, conditional; FX–6 Spouses of alien residents, 243 Includes the following categories: F–46 Law 106–395, section 101, 114 Stat. 1631, 1631 exempt from country limits; CX–6 Spouses of alien Brothers/sisters of U.S. citizens, adjustments; F–47 (Oct. 30, 2000) (amending INA section 320). In residents, exempt from country limits, conditional; Spouses of brothers/sisters of U.S. citizens, addition, the surviving spouses, children, and F–27 Children of alien residents, subject to country adjustments; F–48 Children of brothers/sisters of parents of a deceased member of the military who limits; C–28 Children of C–26, or C–27, subject to U.S. citizens, adjustments. obtain citizenship posthumously are exempt from a country limits, conditional; B–28 Children of B–26, 244 Includes the following categories: CF–1 public charge determination. See National Defense or B–27, subject to country limits; F–28 Children of Spouses, entered as fiance(e), adjustments Authorization Act For Fiscal Year 2004, Public Law F–26, or F–27, subject to country limits; C–20 conditional; IF–1 Spouses, entered as fiance(e), 108–136, section 1703(e), 117 Stat. 1392, 1695 (Nov. Children of C–29, subject to country limits, adjustments. 24, 2003). An alien who meets the conditions of conditional; B–20 Children of B–29, subject to 245 Includes the following categories: Immediate new 8 CFR 212.23(a)(18), (19), (20), or (21) (e.g., country limits; F–20 Children of F–29, subject to Relative AR–6 Children, Amerasian, First certain T nonimmigrants, U nonimmigrants, and country limits; C–27 Children of alien residents, Preference: A–16 Unmarried Amerasian sons/ VAWA self-petitioners) are exempt from the public subject to country limits, conditional; FX–7 daughters of U.S. citizens; Third Preference A–36 charge inadmissibility ground and the affidavit of Children of alien residents, exempt from country Married Amerasian sons/daughters of U.S. citizens; support requirement, and therefore do not need to limits; CX–8 Children of CX–7, exempt from See INA 204(f). Note that this program does not File Form I–944 or Form I–864 regardless of what country limits, conditional; FX–8 Children of FX– have a specific sunset date and technically category the alien adjusts under. 7, or FX–8, exempt from country limits; CX–7 applicants could apply but should have already 239 Including the following categories: IR–6 Children of alien residents, exempt from country applied. Spouses; IR–7 Children; CR–7 Children, limits, conditional; F–29 Unmarried sons/daughters

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TABLE 3—APPLICABILITY OF INA 212(a)(4) TO FAMILY-BASED ADJUSTMENT OF STATUS APPLICATIONS 238—Continued

INA 213A and Form I–864, Subject to INA 212(a)(4) and must affidavit of support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

Amerasians, born in Vietnam between 1/1/62–1/1/76. Immediate Rel- No. (I–360 and adjustment) Sec- Exempt. Section 584 of the For- ative: AM–6, AR–6 Children; Amerasians under Amerasian Home- tion 584 of the Foreign Oper- eign Operations, Export Financ- coming Act, Public Law 100–202 (Dec. 22, 1987) 246—born between ations, Export Financing, and ing, and Related Programs Ap- 1/1/1962–1/1/1976. Related Programs Appropria- propriations Act of 1988, Public tions Act of 1988, Public Law Law 100–202. 100–202. IW–6 Spouses, widows or widowers ...... Yes. INA 212(a)(4) ...... Exempt. 8 CFR 204.2 and 71 FR 35732. Immediate Relative VAWA applicant, including spouses and chil- No. INA 212(a)(4)(E) ...... Exempt. INA 212(a)(4)(E). dren 247. First Preference VAWA, B–16 Unmarried sons/daughters of U.S. citi- No. INA 212(a)(4)(C)(i) ...... Exempt. INA 212(a)(4)(C)(i). zens, self-petitioning; B–17 Children of B–16. Second Preference VAWA applicant, including spouses and chil- No. INA 212(a)(4)(C)(i) ...... Exempt. INA 212(a)(4)(C)(i). dren 248. Third Preference VAWA. Married son/daughters of U.S. citizen, includ- No. INA 212(a)(4)(C)(i) ...... Exempt. INA 212(a)(4)(C)(i). ing spouses and children 249. * If found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I– 945). A public charge bond may be cancelled (Form I–356) upon the death, naturalization (or otherwise obtaining U.S. citizenship), permanent departure of the alien, or otherwise as outlined in proposed 8 CFR 213.1(g), if the alien did not receive any public benefits as defined in the pro- posed rule.

TABLE 4—APPLICABILITY OF INA 212(a)(4) TO EMPLOYMENT-BASED ADJUSTMENT OF STATUS APPLICATIONS 250

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must file Affidavit of Support under Category Form I–944, Declaration of Self-Suffi- section 213A of the INA, ciency? * required or exempt?

First Preference: Priority workers 251 ...... Yes, in general.252 INA 212(a)(4) ...... Exempt, unless qualifying relative or en- tity in which such relative has a sig- nificant ownership interest (5% or more) 253 in filed Form I–140. INA 212(a)(4)(D), 8 CFR 213a. Second Preference: Professionals with advanced degrees or aliens of excep- Yes in general.255 INA 212(a)(4) ...... Exempt, unless qualifying relative or en- tional ability 254. tity in which such relative has a sig- nificant ownership interest (5% or more) in filed Form I–140. INA 212(a)(4)(D), 8 CFR 213a.

246 Includes the following categories: AM–1 daughters of U.S. citizens, self-petitioning; B–37 nonimmigrants, U nonimmigrants, and VAWA self- principal (born between 1/1/1962–1/1/1976); AM– Spouses of B–36, adjustments B–38 Children of B– petitioners) the alien does not need to file Form I– 2 Spouse, AM–3 child; AR–1 child of U.S. citizen 36, subject to country limits; Third Preference 944 (but is still required to file Form I–864). born Cambodia, Korea, Laos, Thailand, Vietnam. VAWA; B–37 Spouses of B–36, adjustments; B–38 253 Relative means a husband, wife, father, Note that this program does not have a specific Children of B–36, subject to country limits. mother, child, adult son, adult daughter, brother, or sunset date and technically applicants could apply 250 An alien who meets the conditions of new 8 sister. Significant ownership interest means an but should have already applied. CFR 212.23(a)(18), (19), (20), or (21) (e.g., certain T ownership interest of five percent or more in a for- 247 Includes the following categories: IB–6 nonimmigrants, U nonimmigrants, and VAWA self- profit entity that filed an immigrant visa petition to Spouses, self-petitioning; IB–7 Children, self- petitioners) are exempt from the public charge accord a prospective employee an immigrant status petitioning; IB–8 Children of IB–1 or IB–6; IB–0 inadmissibility ground and the affidavit of support under section 203(b) of the Act. See 8 CFR.213a.1. Parents battered or abused, of U.S. citizens, self- requirement, and therefore do not need to File Form 254 Includes the following categories: E–26 petitioning. I–944 or Form I–864 regardless of what category the Professionals holding advanced degrees; ES–6 248 alien adjusts under. Includes the following categories: B–26 Soviet scientists E–27 Spouses of E–21 or E–26; E– Spouses of alien residents, subject to country limits, 251 Includes the following categories: E–16 Aliens 28 Children of E–21 or E–26. self-petitioning; BX–6 Spouses of alien residents, with extraordinary ability; E–17 Outstanding 255 exempt from country limits, self-petitioning; B–27 professors or researchers; E–18 Certain If the alien is adjusting based on an Children of alien residents, subject to country Multinational executives or managers; E–19 employment-based petition where the petition is limits, self-petitioning; BX–7 Children of alien Spouses of E–11, E–12, E–13, E–16, E–17, or E–18; filed by either a qualifying relative, or an entity in residents, exempt from country limits, self- E–10 Children of E–11, E–12, E–13, E–16, E–17, or which such relative has a significant ownership petitioning; BX–8 Children of BX–6, or BX–7, E–18. interest (five percent or more), and the alien, at both exempt from country limits; B–29 Unmarried sons/ 252 If the alien is adjusting based on an the time of filing and adjudication of the Form I– daughters of alien residents, subject to country employment-based petition where the petition is 485, also falls under a category exempted under limits, self-petitioning. filed by either a qualifying relative, or an entity in INA section 212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E), 249 Includes the following categories: B–36 which such relative has a significant ownership (e.g., T nonimmigrants, U nonimmigrants, and Married sons/daughters of U.S. citizens, self- interest (5% or more), and the alien, at both the VAWA self-petitioners) the alien does not need to petitioning B–37 Spouses of B–36, adjustments; B– time of filing and adjudication of the Form I–485, file Form I–944 (but is still required to file Form 38 Children of B–36, subject to country limits; also falls under a category exempted under INA I–864). Third Preference VAWA; B–36 Married sons/ section 212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E), (e.g., T

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TABLE 4—APPLICABILITY OF INA 212(a)(4) TO EMPLOYMENT-BASED ADJUSTMENT OF STATUS APPLICATIONS 250— Continued

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must file Affidavit of Support under Category Form I–944, Declaration of Self-Suffi- section 213A of the INA, ciency? * required or exempt?

Third: Skilled workers, professionals, and other workers 256 ...... Yes in general.257 INA 212(a)(4) ...... Exempt, unless qualifying relative or en- tity in which such relative has a sig- nificant ownership interest (5% or more) in filed Form I–140. INA 212(a)(4)(D), 8 CFR 213a. Fifth: I–526 Immigrant Petition by Alien Entrepreneur (EB–5) INA 203(b)(5), 8 Yes. INA 212(a)(4) ...... Not Applicable.259 CFR 204.6 258. * If found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I–945). A public charge bond may be cancelled (Form I–356) upon the death, naturalization (or otherwise obtaining U.S. citizenship), permanent departure of the alien, or upon the fifth year of the alien’s anniversary of the adjustment of status, or, if the alien, following the initial grant of lawful permanent resident status, obtains a status that is exempt from the public charge ground of inadmissibility, and provided that the alien did not receive any public benefits as defined in the proposed rule.

TABLE 5—APPLICABILITY OF INA 212(a)(4) TO SPECIAL IMMIGRANT ADJUSTMENT OF STATUS APPLICATION

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must Affidavit of Support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

Special Immigrant (EB–4)—Religious Workers. 8 CFR 204.5(m); INA Yes. INA 212(a)(4) ...... Not Applicable.261 101(a)(27)(C) 260. Special Immigrant (EB–4)—International employees of U.S. govern- Yes. INA 212(a)(4) ...... Not Applicable.263 ment abroad. INA 101(a)(27)(D), 22 CFR 42.32(d)(2) 262. Special Immigrant (EB–4)—Employees of Panama Canal. 22 CFR Yes. INA 212(a)(4) ...... Not Applicable.265 42.32(d)(3); INA 101(a)(27)(E), INA 101(a)(27)(F), and INA 101(a)(27)(G) 264. Special Immigrant (EB–4)—Foreign Medical School Graduates. INA Yes. INA 212(a)(4) ...... Not Applicable.267 101(a)(27)(H), INA 203(b)(4) 266.

256 Includes the following categories: EX–6 Children of T–51 or T–56, conditional; R–58 or Canal Zone Government; SF–7 Spouses or Schedule—A worker; EX–7 Spouses of EX–6; EX– Children of R–51 or R–56, conditional. children of SF–6; SG–6 Former U.S. government 8 Children of EX–6; E–36 Skilled workers; E–37 259 EB–5 applicants are Form I–526, Immigrant employees in the Panama Canal Zone; SG–7 Professionals with baccalaureate degrees; E–39 Petition by Alien Entrepreneur, self-petitioners. The Spouses or children of SG–6; SH–6 Former Spouses of E–36, or E–37; E–30 Children of E–36, regulation at 8 CFR 213a.1 relates to a person employees of the Panama Canal Company or Canal having ownership interest in an entity filing for a or E–37; EW–8 Other workers; EW–0 Children of Zone government, employed on April 1, 1979; SH– prospective employee and therefore the EW–8; EW–9 Spouses of EW–8; EC–6 Chinese 7 Spouses or children of SH–6. Note that this Student Protection Act (CSPA) principals; EC–7 requirements for an affidavit of support under INA program does not have a specific sunset date and Spouses of EC–6; EC–8 Children of EC–6. section 212(a)(4)(D) is inapplicable. 260 technically applicants could apply but should have 257 If the alien is adjusting based on an Includes the following categories: SD–6 already applied. employment-based petition where the petition is Ministers; SD–7 Spouses of SD–6; SD–8 Children of 265 filed by either a qualifying relative, or an entity in SD–6; SR–6 Religious workers; SR–7 Spouses of For this category, although the applicants are SR–6; SR–8 Children of SR–6. which such relative has a significant ownership subject to public charge under INA section 261 interest (5% or more), and the alien, at both the For this category, although the applicants are 212(a)(4), the employers generally would not be a subject to public charge under INA section time of filing and adjudication of the Form I–485, relative of the alien or a for-profit entity and 212(a)(4), the employers (for example, a religious also falls under a category exempted under INA therefore the requirements for an affidavit of institution), would generally not be a relative of the support under INA section 212(a)(4)(D) is section 212(a)(4)(E), 8 U.S.C. 1182(a)(4)(E), (e.g., T alien or a for-profit entity and therefore the nonimmigrants, U nonimmigrants, and VAWA self- requirements for an affidavit of support under INA inapplicable. petitioners) the alien does not need to file Form I– section 212(a)(4)(D) is inapplicable. 266 Includes the following categories: SJ–6 Foreign 944 (but is still required to file Form I–864). 262 Includes the following categories: SE–6 medical school graduate who was licensed to 258 Includes the following categories: C–56 Employees of U.S. government abroad, adjustments; practice in the United States on Jan. 9, 1978; SJ– Employment creation, not in targeted area, SE–7 Spouses of SE–6; SE–8 Children of SE–6. Note 7 Spouses or children of SJ–6; Note that this adjustments, conditional E–56 Employment that this program does not have a specific sunset program does not have a specific sunset date and creation; I–56 Employment creation, targeted area, date and technically applicants could apply but technically applicants could apply but should have pilot program, adjustments, conditional; T–56 should have already applied. already applied. Employment creation, targeted area, conditional; R– 263 For this category, although the applicants are 267 For this category, although the applicants are 56 Investor pilot program, not targeted, conditional; subject to public charge under INA section subject to public charge under INA section C–57 Spouses of C–51 or C–56, conditional; E–57 212(a)(4), the employers (for example, the U.S. 212(a)(4), the employers would generally not be a Spouses of E–51 or E–56; I–57 Spouses of I–51 or armed forces), would generally not be a relative of I–56, conditional; T–57 Spouses of T–51 or T–56, the alien or a for-profit entity and therefore the relative of the alien or a for-profit entity and conditional; R–57 Spouses of R–51 or R–56, requirements for an affidavit of support under INA therefore the requirements for an affidavit of conditional; C–58 Children of C–51 or C–56, section 212(a)(4)(D) is inapplicable. support under INA section 212(a)(4)(D) is conditional; E–58 Children of E–51 or E–56; I–58 264 Includes the following categories: SF–6 inapplicable. Children of I–51 or I–56, conditional; T–58 Former employees of the Panama Canal Company

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TABLE 5—APPLICABILITY OF INA 212(a)(4) TO SPECIAL IMMIGRANT ADJUSTMENT OF STATUS APPLICATION—Continued

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must Affidavit of Support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

Special Immigrant (EB–4)—Retired employees of International Organi- Yes. INA 212(a)(4) ...... Not Applicable.270 zations including G–4 International Organization Officer. Inter- national Organizations (G–4s international organization officer/Re- tired G–4 Employee) INA 101(a)(27)(I) and INA 101(a)(27)(L); 8 CFR 101.5; 22 CFR 42.32(d)(5); 22 CFR 41.24; 22 CFR 41.25 268 269. Special Immigrant (EB–4)—SL–6 Juvenile court dependents, adjust- No. SIJ are exempt under 245(h) Not Applicable. INA 245(h). ments. Special Immigrant (EB–4)—U.S. Armed Forces Personnel. INA Yes. INA 212(a)(4) ...... Not Applicable.272 101(a)(27)(K) 271. Special Immigrant—International Broadcasters. INA 101(a)(27)(M); 8 Yes. INA 212(a)(4) ...... Not Applicable.274 CFR 204.13 273. Special Immigrant (EB–4)—Special immigrant interpreters who are na- No. Section 1059(a)(2) of the Na- Exempt. Section 602(b)(9) of the tionals of Iraq or Afghanistan 275. tional Defense Authorization Act Afghan Allies Protection Act of for Fiscal Year 2006, as amend- 2009, Title VI of Public Law ed; Public Law 109–163—Jan. 111–8, 123 Stat. 807, 809 6, 2006, Section 1244(a)(3) of (March 11, 2009) which states the National Defense Authoriza- that INA 245(c)(2), INA tion Act for Fiscal Year 2008, as 245(c)(7), and INA 245(c)(8) do amended; Public Law 110–181 not apply to special immigrant (Jan. 28, 2008) Section 602(b) Iraq and Afghan nationals who of the Afghan Allies Protection were employed by or on behalf Act of 2009, as amended sec- of the U.S. government (for Sec- tion (a)(2)(C), Public Law 111–8 tion 602(b) and 1244 adjustment (Mar. 11, 2009). applicants who were either pa- roled into the United States or admitted as nonimmigrants). See Section 1(c) of Public Law 110–36, 121 Stat. 227, 227 (June 15, 2007), which amend- ed Section 1059(d) of the Na- tional Defense Authorization Act for Fiscal Year 2006, Public Law 109–163, 119 Stat. 3136, 3444 (January 6, 2006) to state that INA 245(c)(2), INA 245(c)(7), and INA 245(c)(8) do not apply to Iraq or Afghan translator ad- justment applicants. * If found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I– 945). A public charge bond may be cancelled (Form I–356) upon the death, naturalization (or otherwise obtaining U.S. citizenship), or permanent departure of the alien, if the alien did not receive any public benefits as defined in the proposed rule.

268 Includes the following categories: SK–6 271 Includes the following categories: SM–6 U.S. 212(a)(4), the employers would generally not be a Retired employees of international organizations; Armed Forces personnel, service (12 years) after 10/ relative of the alien or a for-profit entity and SK–7 Spouses of SK–1 or SK–6; SK–8; Certain 1/91 SM–9 U.S. Armed Forces personnel, service therefore the requirements for an affidavit of unmarried children of SK–6; SK–9 Certain (12 years) by 10/91; SM–7 Spouses of SM–1 or SM– support under INA section 212(a)(4)(D) is surviving spouses of deceased international 6; SM–0 Spouses or children of SM–4 or SM–9; inapplicable. organization employees. SM–8 Children of SM–1 or SM–6. 275 269 Includes SN–6 Retired NATO–6 civilian 272 For this category, although the applicants are Includes the following categories: SI–6 Special employees; SN–7 Spouses of SN–6; SN–9; Certain subject to public charge under INA section immigrant interpreters who are nationals of Iraq or surviving spouses of deceased NATO–6 civilian 212(a)(4), the employers would generally not be a Afghanistan; SI–6, SI–7, SI–8—spouse and child of employees; SN–8 Certain unmarried sons/daughters relative of the alien or a for-profit entity and SI–6; SQ–6 Certain Iraqis and Afghans employed by of SN–6. therefore the requirements for an affidavit of U.S. Government SQ–6, SQ–7, SQ–8 Spouses and 270 For this category, although the applicants are support under INA section 212(a)(4)(D) is children of SQ–6; SI–6 Special immigrant subject to public charge under INA section inapplicable. interpreters who are nationals of Iraq or 212(a)(4), the employers would generally not be a 273 Includes the following categories: BC–6 Afghanistan; SI–7 Spouses of SI–1 or SI–6; SI–8 relative of the alien or a for-profit entity and Broadcast (IBCG of BBG) employees; BC–7 Spouses Children of SI–1 or SI–6. therefore the requirements for an affidavit of of BC–1 or BC–6; BC–8 Children of BC–6. support under INA section 212(a)(4)(D) is 274 For this category, although the applicants are inapplicable. subject to public charge under INA section

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TABLE 6—APPLICABILITY OF INA 212(a)(4) TO REFUGEE, ASYLEE, AND PAROLEE ADJUSTMENT OF STATUS APPLICATIONS

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must Affidavit of Support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

Asylees 276 ...... No. INA 209(c) ...... Exempt. INA 209(c). Indochinese Parolees from Vietnam, Cambodia, and Laos. IC–6 Indo- No. Section 586, Public Law 106– Exempt. Section 586, Public Law chinese refugees (Public Law 95–145 of 1977). IC–7 Spouses or 429 (Nov. 6, 2000). 106–429 (Nov. 6, 2000). children of Indochinese refugees not qualified as refugees on their own. Polish and Hungarian Parolees (Poland or Hungary who were paroled No. Title VI, Subtitle D, Section Exempt. Title VI, Subtitle D, Sec- into the United States from November 1, 1989 to December 31, 646(b), Public Law 104–208; 8 tion 646(b), Public Law 104– 1991) 277. CFR 245.12. 208; 8 CFR 245.12. Refugees 278 ...... No. INA 207(c)(3); INA 209(c) ...... Exempt. INA 207; INA 209(c). Cuban-Haitian Entrant under IRCA—CH–6, CH–7 279 ...... No. Section 202, Public Law 99– Exempt. Section 202, Public Law 603, 100 Stat. 3359 (1986) (as 99–603, 100 Stat. 3359 (1986) amended), 8 U.S.C. 1255a. (as amended), 8 U.S.C. 1255a. HRIFA—Principal HRIFA Applicant who applied for asylum before De- No. Section 902 Public Law 105– Exempt. Section 902 Public Law cember 31, 1995 280. 277, 112 Stat. 2681 (Oct. 21, 105–277, 112 Stat. 2681 (Oct. 1998), 8 U.S.C. 1255. 21, 1998), 8 U.S.C. 1255. * If found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I– 945). A public charge bond may be cancelled (Form I–356) upon the death, naturalization (or otherwise obtaining U.S. citizenship), or permanent departure of the alien, if the alien did not receive any public benefits as defined in the proposed rule.

TABLE 7—APPLICABILITY OF INA 212(a)(4) TO OTHER APPLICANTS WHO MUST BE ADMISSIBLE

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must Affidavit of Support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

Diplomats Section 13 ...... Yes. Section 13 of Public Law 85– Exempt, by statute, as they are 316 (September 11, 1957), as not listed in INA 212(a)(4) as a amended by Public Law 97–116 category that requires Form I– (December 29, 1981); 8 CFR 864. 245.3. Individuals Born in the U.S. under Diplomatic Status (NA–3) 8 CFR Yes. INA 212(a)(4) ...... Exempt. 8 CFR 101.3. 101.3. Diversity, DV–1 diversity immigrant, spouse and child ...... Yes. INA 212(a)(4) ...... Exempt, by statute, as they are not listed in INA 212(a)(4) as a category that requires Form I– 864. Diversity visas are issued under INA 203(c) which do not fall under INA 212(a)(4)(C) or (D). W–16 Entered without inspection before 1/1/82; W–26 Entered as Yes. INA 212(a)(4) (except for cer- Exempt, by statute as they are not nonimmigrant and overstayed visa before 1/1/82. Certain Entrants tain aged, blind or disabled indi- listed in INA 212(a)(4) as a cat- before January 1, 1982. viduals as defined in 1614(a)(1) egory that requires an Form I– of the Social Security Act). INA 864. 245A(b)(1)(C)(i) and (a)(4)(a))— application for adjustment 42 U.S.C. 1382c(a)(1). Special Rule for determination of public charge—See INA 245A(d)(2) (B)(iii).

276 Including the following categories: AS–6 280 Includes the following categories: 1995—HA– subsequent to arrival in the United States HD–6, Asylees; AS–7 Spouses of AS–6; AS–8 Children of 6 Principal HRIFA Applicant; Spouse of HA–6, Spouse of HD–6, HD–7; Child of HD–6, HD–8; AS–6; SY–8 Children of SY–6; GA–6 Iraqi asylees; HA–7 and Child of HA–6, HA–8; Unmarried Son or Unmarried Son or Daughter 21 Years of Age or GA–7 Spouses of GA–6; GA–8 Children of GA–6. Daughter 21 Years of Age or Older of HA–6, HA– Older of HD–6, HD–9 Principal HRIFA Applicant 277 Note that this program does not have a specific 9 Principal HRIFA Applicant paroled into the child who was abandoned subsequent to arrival and sunset date and technically applicants could apply United States before December 31, 1995- HB–6; prior to April 1, 1998—HE–6; Spouse of HE–6, HE– but should have already applied. Spouse of HB–6, HB–7; Child of HB–6, HB–8; 7; Child of HE–6, HE–8; Unmarried Son or Daughter 278 Includes the following categories: RE–6 Other Unmarried Son or Daughter 21 Years of Age or refugees (Refugee Act of 1980, Public Law 96–212, Older of HB–6 HB–9; Principal HRIFA Applicant 21 Years of Age or Older of HE–6, HE–9. Note that 94 Stat. 102 (Mar. 17, 1980)); RE–7 Spouses of RE– who arrived as a child without parents in the this program has a sunset date of March 31, 2000; 6; RE–8 Children of RE–6; RE–9 Other relatives. United States HC–6; Spouse of HC–6, HC–7; Child however, dependents may still file for adjustment 279 Note that this program has a sunset date of two of HC–6, HC–8; Unmarried Son or Daughter 21 of status. years after enactment, however, some cases may Years of Age or Older of HC–6, HC–9; Principal still be pending. HRIFA Applicant child who was orphaned

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TABLE 7—APPLICABILITY OF INA 212(a)(4) TO OTHER APPLICANTS WHO MUST BE ADMISSIBLE—Continued

INA 213A, and Form I–864, Subject to INA 212(a)(4) and must Affidavit of Support under Category file Form I–944, Declaration of section 213A of the INA, Self-Sufficiency? * required or exempt?

T, T–1 victim, spouse, child, parent, sibling; INA 101(a)(15)(T), INA No. INA 212(a)(4)(E)...... Exempt, by statute as they are not 212(d)(13)(A). listed in INA 212(a)(4) as a cat- egory that requires Form I–864. Adjustment of status based on T nonimmigrant status is under INA 245(l) which does not fall under INA 212(a)(4)(C) or (D). American Indians—INA 289 ...... No. INA 289 ...... Exempt. INA 289. Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, No. Public Law 97–429 (Jan. 8, Exempt. Public Law 97–429 (Jan. Public Law 97–429 (Jan. 8, 1983); KIC—Kickapoo Indian Citizen; 1983). 8, 1983). KIP—Kickapoo Indian Pass. S (Alien witness or informant) ...... Yes, but there is a waiver avail- Exempt. INA 245(j); INA able—INA 245(j); INA 101(a)(15)(S); 8 CFR 101(a)(15)(S); 8 CFR 214.2(t)(2); 8 CFR 1245.11 214.2(t)(2); 8 CFR 1245.11 (Waiver filed on Form I–854, (Waiver filed on Form I–854, Inter-Agency Alien Witness and Inter-Agency Alien Witness and Informant Record). Informant Record). Private Immigration Bill providing for alien’s adjustment of status ...... Dependent on the text of the Pri- Dependent on the text of the Pri- vate Bill. vate Bill. NACARA (202); Principal NC–6, (NC 7–9) spouse and children 281 ...... No. Section 202(a), Public Law Exempt. Section 202(a), Public 105–100, 111 Stat. 2193 (1997) Law 105–100, 111 Stat. 2193 (as amended), 8 U.S.C. 1255.. (1997) (as amended), 8 U.S.C. 1255. NACARA 203; Cancellation of removal (Z–13) Battered spouses or No. Section 203, Public Law 105– Exempt. Section 203, Public Law children (Z–14) Salvadoran, Guatemalan and former Soviet bloc 100, 111 Stat. 2193 (1997) (as 105–100, 111 Stat. 2193 (1997) country nationals (Form I–881, Application for Suspension of Depor- amended), 8 U.S.C. 1255. (as amended), 8 U.S.C. 1255. tation or Special Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105–100 (NACARA)). Lautenberg, LA–6 282 ...... No. Section 599E, Public Law Exempt. Section 599E, Public Law 101–167, 103 Stat. 1195 (Nov. 101–167, 103 Stat. 1195 (Nov. 21, 1989), 8 U.S.C.A. 1255. 21, 1989), 8 U.S.C.A. 1255. Registry, Z–66—Aliens who entered the United States prior to January No. INA 249 of the Act and 8 CFR Exempt. INA 249 of the Act and 8 1, 1972 and who meet the other conditions. part 249. CFR part 249. U, U–1 Crime Victim, spouse, children and parents, and siblings under No. INA 212(a)(4)(E). Exempt. INA 212(a)(4)(E). INA 245(m). Temporary Protected Status (TPS) ...... No. 8 CFR 244.3(a).283 Exempt. 8 CFR 244.3(a).284 * If found inadmissible based on the public charge ground, USCIS, at its discretion, may permit the alien to post a public charge bond (Form I– 945). A public charge bond may be cancelled (Form I–356) upon the death, naturalization (or otherwise obtaining U.S. citizenship), or permanent departure of the alien, if the alien did not receive any public benefits as defined in the proposed rule.

G. Definitions that has appeared in U.S. Federal services that would make the alien more immigration law since at least 1882, but self-sufficient. Second, the commenter 1. Public Charge has never been defined by Congress or argued that the proposed rule could Comment: A commenter stated that in regulation. The rule provides a have adverse effects on aliens whose the lack of a public charge definition is definition for public charge and DHS presence in the United States is a net an issue that must be resolved because believes that prior to this rule there has benefit to the U.S. Government as a immigration is an important feature of been insufficient guidance on how to consequence of their productivity, America’s culture and public policy, determine if an alien who is applying associated tax revenues, etc. And third, heightening the importance of having a for admission or adjustment of status is the commenter argued that the proposed consistent definition. likely to become a public charge at any rule would bind adjudicators to a bright- Response: DHS agrees that it is time in the future. line definition of ‘‘public charge’’ that important to define public charge in the Comment: Commenters stated that the rulemaking—public charge is a term proposed definition of public charge is could result in harsh consequences in ‘‘without precedent and contrary to the some cases. By contrast, in the 281 Note that this program has a sunset date of discretion provided to DHS under commenter’s view, the ‘‘primarily April 1, 2000; however, some cases may still be statute.’’ A commenter stated that the dependent’’ standard under the 1999 pending. Interim Field Guidance provided 282 proposed public charge definition relies Note that this program sunset date of adjudicators with more discretion. September 30, 2014, only applies to parole. Eligible on outdated case law, and that the 1999 applicants may still apply for adjustment of status. Interim Field Guidance is preferable to Another commenter stated that the 283 INA section 244(c)(2)(ii), 8 U.S.C. the proposed rule, for three reasons. proposed rule does not comport with 1254a(c)(2)(ii), authorizes USCIS to waive any First, the commenter argued that the the law because it is contrary to the section 212(a) ground, except for those that Congress specifically noted could not be waived. proposed rule undermined DHS’s stated long-established common-law definition 284 See INA section 244(c)(2)(ii), 8 U.S.C. objectives, because it could stop an of public charge. A commenter stated 1254a(c)(2)(ii). alien from accessing government that the use of non-monetizable benefits

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for one third of the time period does not nor the case law requires DHS to weigh quantifying the level of public support reflect ‘‘primary dependence.’’ an alien’s net impacts on government or the type of public support required to Response: DHS disagrees that the resources, such as by evaluating the determine that the alien is likely to public charge definition is contrary to potential tax receipts generated by the become a public charge at any time in the discretion provided to DHS under alien, as compared to the alien’s receipt the future. the INA, relies on outdated case law or of public benefits. In addition, a DHS notes that even if there were a is without precedent, or undermines the definition that requires consideration of clear definition for public charge agency’s objectives. As noted in the the alien’s overall contributions to tax grounded in case law, which there does NPRM, DHS’s authority to make public revenues, economic productivity, or not appear to be, agencies responsible charge inadmissibility determinations society at large would be unjustifiably for administering federal law generally and related decisions is found in several challenging to administer. For instance, have the authority to interpret an statutory provisions, including section as explained in the proposed rule, fully ambiguous statute in a different manner 102 of the Homeland Security Act of monetized thresholds (which would be than the manner in which a court 2002 (Pub. L. 107–296, 116 Stat 2135), required to make a dollars-to-dollars interpreted the statute.287 Therefore, 6 U.S.C. 112, section 103 of the Act, 8 comparison) would not be administrable DHS would be within its authority to U.S.C. 1103, as well as section 212(a)(4) because some benefits, such as create a different definition of ‘‘public of the Act, 8 U.S.C. 1182(a)(4). DHS may Medicaid, lack clearly monetizable charge.’’ 288 issue regulations implementing its value. In addition, DHS notes that taxes Comment: Commenters provided a authority under these statutes without serve a variety of functions, and benefit historical overview of public charge, further congressional authorization. the taxpayer regardless of whether she and asserted that expanding the Additionally, as noted in the NPRM, or he receives an individual, means- definition would represent a ‘‘radical there is a scarcity of case law tested public benefit. A comparison of departure’’ from over 100 years of U.S. specifically defining public charge.285 the alien’s ‘‘contributions’’ (in the form immigration policy. The commenters The cases cited in the NPRM and in this of taxes) to the alien’s ‘‘withdrawals’’ (in discussed the laws governing public final rule include the most recent and the form of public benefits) would charge inadmissibility and relevant case law discussing the term therefore be incomplete, because it deportability, and observed that, in the public charge and the public charge would not consider the other past, public charge inadmissibility and ground of inadmissibility.286 government programs and services, associated guidance have sometimes With respect to the argument that the including national defense, operated to the detriment of certain public charge rule may make it more infrastructure, law enforcement and vulnerable populations, including Jews, difficult for some aliens to become self- emergency services, from which the women, and people from India. The sufficient, DHS has addressed this alien benefits. Further, under this rule, commenters stated that the change in argument at length elsewhere in this DHS will not consider receipt of any policy—from a focus on dependence on preamble. In short, and as relevant here, public benefits for which the alien has the government by cash support for the fact that an alien might rely on paid into directly. Each of the subsistence or long-term public benefits to become self-sufficient designated benefits involves significant institutionalization, to a focus on a in the future has no bearing on whether government subsidization. In this broader range of benefits—would lead to such alien currently is self-sufficient or context, DHS does not believe that value a ‘‘general erosion’’ of benefits that legal currently is or is not a public charge. of an alien’s current or future tax immigrants may access. DHS rejects the notion that it must contributions should ultimately have a Response: While this rule expands the interpret the term ‘‘public charge’’ in bearing on whether the alien is a public list of public benefits covered in the INS such a way as to allow aliens to rely on charge. 1999 Interim Field Guidance and the public benefits until such time as they With respect to the firmness of the 1999 proposed rule, DHS does not are self-sufficient. DHS notes that its definition, part of the rule’s purpose is believe that the rule is inconsistent with position on this aspect of the definition to provide a clearer definition; DHS will historical practice. DHS notes that this of public charge should not be taken as not institute a vague standard in order rule is not facially discriminatory, and a rejection of the commenters’ general to avoid harsh consequences for some that DHS does not intend the rule to point that an alien’s past receipt of people. have a discriminatory effect based on Finally, as to the comment stating that public benefits can result in greater self- the rule does not comport with the law sufficiency. If an alien received public 287 Nat’l Cable & Telecomms. Ass’n v. Brand X because it is contrary to the long- benefits in the past and such benefits internet Servs., 545 U.S. 967, 983–84 (2005) (Brand standing common law definition of X) (‘‘Since Chevron teaches that a court’s opinion helped the alien become self-sufficient, public charge, the commenter failed to as to the best reading of an ambiguous statute an DHS agrees that the alien’s current self- identify any common law definition of agency is charged with administering is not sufficiency is relevant to the prospective authoritative, the agency’s decision to construe that public charge that DHS should have public charge inadmissibility statute differently from a court does not say that the considered, or as the commenter stated, court’s holding was legally wrong. Instead, the determination, but the alien’s past that DHS violated. As noted in the agency may, consistent with the court’s holding, receipt of public benefits is relevant to NPRM, DHS’s definition for public choose a different construction, since the agency remains the authoritative interpreter (within the assessing the likelihood of future receipt charge is derived from a review of the of public benefits. limits of reason) of such statutes. In all other minimal legislative history of the public respects, the court’s prior ruling remains binding With respect to the argument charge ground of inadmissibility and the law (for example, as to agency interpretations to regarding aliens who receive the ordinary meaning of public charge. which Chevron is inapplicable). The precedent has designated public benefits, but may not been ‘reversed’ by the agency, any more than DHS’s definition also relies on the nonetheless be a net benefit to the U.S. a federal court’s interpretation of a State’s law can limited case law addressing the Government or society, neither the Act be said to have been ‘reversed’ by a state court that definition of public charge, in which adopts a conflicting (yet authoritative) courts, in the absence of statutory interpretation of state law.’’). 285 See Inadmissibility on Public Charge Grounds, 288 Brand X, 545 U.S. at 1001 (‘‘the Commission 83 FR 51114, 51157–58 (proposed Oct. 10, 2018). definition for public charge, generally is free within the limits of reasoned interpretation 286 See Inadmissibility on Public Charge Grounds, tied the definition of public charge to to change course if it adequately justifies the 83 FR 51114, 51157–58 (proposed Oct. 10, 2018). receipt of public benefits, without change’’).

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race, gender, religion, or any other a family member or corporate sponsor as are in distress,’’ 293 Congress must protected ground. Rather, the rule is providing support). have anticipated that some immigrants consistent with existing precedents that Response: DHS agrees that the would be in need of short-term support, have developed in the years since the definition of public charge in this rule without becoming a public charge. earliest public charge laws, as well as is broader than the existing definition The commenter also cited a floor Congress’ codified policy statement that and policy. However, as noted statement by a member of Congress in ‘‘[s]elf-sufficiency has been a basic previously, DHS believes that this the months preceding enactment of the principle of United States immigration expanded definition for public charge is 1882 Act. According to the commenter, law since this country’s earliest reasonable and consistent with the floor statement supported the immigration laws.’’ 289 As noted in the Congress’ intent and will better ensure conclusion that Congress intended for NPRM,290 courts have consistently tied that aliens seeking to come to the the term ‘‘public charge’’ to mean a the concept of public charge to an United States temporarily or person ‘‘primarily if not wholly alien’s receipt of public benefits, permanently are self-sufficient.292 DHS dependent on the government.’’ without quantifying the level of public acknowledges that the implementation Specifically, the member of Congress support or requiring a certain type of of the public charge ground of incorporated into his floor statement an public support, and the alien’s ability to inadmissibility will be a complex 1879 resolution passed by the New York be self-sufficient. DHS acknowledges adjudication, but USCIS is committed to Board of Charities, which concluded that individuals may disenroll from taking necessary steps to ensure that many cities and towns in Europe public benefits to avoid the consistent implementation and fair sent ‘‘to this country blind, crippled, consequences of this rule. As previously adjudication, including through the lunatic, and other infirm paupers, who noted, the rule aims to align the issuance of adjudicative guidance and ultimately become life-long dependents principles of self-sufficiency set forth in training. As noted elsewhere in this on our public charities’’; and that many PRWORA291 with the public charge rule, DHS believes consideration of such persons ‘‘become permanent inadmissibility ground. receipt of public benefits is appropriate inmates of the charitable institutions DHS does not believe that the history in determining whether an alien is supported by the State of New York.’’ 294 of the public charge ground of likely to become a public charge in the The resolution called on Congress to inadmissibility—which Congress has future. exclude such individuals from the United States and to appropriate funds consistently chosen to retain as part of Comment: Some commenters stated for returning such individuals to their our immigration laws—precludes DHS that the proposed rule would exceed home countries. The commenter from implementing a rigorous and fair DHS’s authority because the proposed suggested that because the resolution regulatory framework for public charge definition is over-inclusive, referred to ‘‘life-long dependents’’ and inadmissibility determinations. DHS encompassing a wide range of people ‘‘permanent inmates,’’ it is clear that notes that our immigration laws have who are substantially self-supporting Congress intended for the term ‘‘public evolved to provide greater protections to and not primarily dependent upon the charge’’ to refer to primary dependence vulnerable populations. For instance, government to meet their basic needs. on the Government for support. refugees and asylees are exempt from Commenters also indicated the proposal Response: DHS rejects the notion that the public charge ground of did not provide a reasoned analysis for the public charge definition violates the inadmissibility. changing the long-standing definition of law or is over-inclusive. DHS Comment: One commenter stated that public charge from being primarily acknowledges that this is a change that the proposed rule greatly expands the dependent on the government to a likely will increase the number of definition of public charge, is a determination in which a person could individuals who will be deemed departure from existing policy and become a public charge based on receipt inadmissible or ineligible for adjustment creates an unworkable, overly broad of a smaller amount of public benefits, of status based on the public charge definition that will be impossible to including non-cash benefits. ground. DHS disagrees, however, with implement fairly. The commenter also Commenters also stated that the NPRM the assertion that it did not provide a asserted that experts estimated that, would foreclose the opportunity for a reasoned explanation why the prior under the new definition, 94% of all hard-working, self-sufficient individual standard is insufficient, why the change noncitizens who entered the United who experiences a fleeting financial is necessary, and why non-cash benefits States without lawful permanent hardship to become a long-term resident are included in the new public charge resident status have at least one of the United States. determinations. Longstanding agency characteristic that DHS could Similarly, another commenter stated practice and policy,295 while generally potentially weigh negatively in a public that ‘‘[t]he broader scheme of the accorded some weight, is not controlling charge determination under the [Immigration Act of] 1882 . . . confirms or unalterable.296 DHS provided proposed rule. Another commenter that Congress intended the term ‘public stated that taking advantage of any charge’ to refer to primary dependence 293 , 22 Stat. 214 (Aug. 3, federal, state, or local government on the government, not mere receipt of 1882). program should have no impact on a some public aid.’’ The commenter 294 See 13 Cong. Rec. 5109–10 (June 19, 1882) pathway to residency or citizenship. suggested that because the Immigration (Statement of Rep. John Van Voorhis). The commenter suggested that instead, 295 As of the date of the effective rule, the agency Act of 1882 (1882 Act) authorized a practice had not been codified in agency regulations DHS evaluate each applicant based on fund ‘‘to defray the expense of as the NPRM published in May 1999 was never whether the alien is employed or is regulating immigration ..., for the finalized. As explained in the NPRM, the agency caring for a family, has a violent felony care of immigrants arriving in the also issued interim Field Guidance on Deportability conviction, and has a sponsor (such as and Inadmissibility on Public Charge Grounds, in United States, [and] for the relief of such which it detailed its policy. See 64 FR 28689 (May 26, 1999). See Inadmissibility on Public Charge 289 8 U.S.C. 1601(1). 292 Brand X, 545 U.S. at 1001 (‘‘the Commission Grounds, 83 FR 51114, 51133 (proposed Oct. 10, 290 See Inadmissibility on Public Charge Grounds, is free within the limits of reasoned interpretation 2018). 83 FR 51114, 51158 (proposed Oct. 10, 2018). to change course if it adequately justifies the 296 See, e.g., Judulang v. Holder, 565 U.S. 42, 62 291 See 8 U.S.C. 1601. change’’). (2011) (indicating that longevity is ‘‘a slender reed

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detailed reasoning why the changes are commenter draws from the funding to the population affected by this rule necessary in the NPRM. As explained in mechanism in that Act appear to be because the facts of Vindman and the NPRM, although the primarily largely unsupported. The commenter Harutunian were limited to cash dependence (more-than-50-percent assumes, without articulating any basis assistance and elderly, unemployed, or dependence) on public assistance for the assumption, that under the unsponsored applicants. DHS cited standard creates a bright line rule, it is Immigration Act of 1882 aliens who these decisions to establish that its possible and likely probable that many received assistance through the fund proposed regulation is consistent with individuals whose receipt of public could not also be public charges. DHS case law. Absent a clear statutory or benefits falls below that standard lack has no reason to believe that assumption regulatory definition, some courts and self-sufficiency.297 Because of the nature is correct. But even if the Immigration administrative authorities have tied of the benefits that would be considered Act of 1882 could be read as suggesting public charge to the receipt of public under this rule—i.e., cash benefits for that an alien can rely on public funds benefits.305 DHS does not believe that income maintenance and non-cash for support without becoming a public Vindman or Harutunian specifically benefits for basic living needs such as charge, DHS is unaware of any binding limited the general understanding of food and nutrition, housing, and case law requiring DHS to interpret the public charge to only those who are healthcare, that account for significant term ‘‘public charge’’ in this manner. ‘‘elderly, unemployed or unsponsored’’ public expenditures on non-cash And regardless, Congress has since aliens. Both decisions were based on the benefits 298—DHS believes that receipt amended the public charge ground of understanding that Congress intended to of such benefits for more than 12 inadmissibility multiple times over the exclude those who were unable to months within any 36-month period is course of more than a century. support themselves and who received sufficient to render a person a public With respect to the New York State public benefits.306 Additionally, charge.299 This is because an individual Board of Charities resolution referenced Congress later amended the law to with limited means to satisfy basic by the commenter, DHS notes that the specifically require sponsorship (by living needs who uses government resolution does not use the term ‘‘public requiring an affidavit of support for assistance to fulfill such needs for that charge’’ or implicitly define such term. some immigrants or considering an duration of time relies on such DHS does not find the resolution or the affidavit of support for others) as part of assistance to such an extent that the surrounding floor statement particularly the public charge determination, and person is not self-sufficient.300 Given instructive for purposes of this also codified statutory minimum factors that neither the wording of section rulemaking; they originate in a different to consider (including age, financial 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), historical context that preceded status, and education and skills). nor case law examining public charge multiple modifications to and re- Therefore, DHS finds the commenters’ inadmissibility, mandates the enactments of the public charge ground assertion that DHS’s reasoning does not ‘‘primarily dependent’’ standard, and in of inadmissibility in the 140 years since withstand scrutiny for those non- light of Congress’ unequivocal policy the passage of the 1879 resolution.302 elderly, employed, and sponsored aliens goal articulated in PRWORA, DHS has Comment: A commenter stated that unpersuasive. concluded that the ‘‘primarily DHS’s rationale for why the public Comment: One commenter stated that dependent’’ standard is not the only charge definition is consistent with the proposed public charge definition is permissible interpretation of what it more than 40 years of case law—and nonsensical because DHS has asserted means to be a public charge, and is in specifically, DHS’s citation of Matter of that legislative history and case law fact suboptimal when considered in Vindman and Matter of support the definition but has also relation to the goals of the INA and Harutunian 303—did not withstand noted that legislative history and case PRWORA.301 scrutiny because these cases involved law on the subject are scarce. Response: DHS does not believe that With respect to the commenter’s the receipt of cash benefits by the the public charge definition is arguments about the Immigration Act of elderly, unemployed and unsponsored nonsensical. While the case law and 1882, the conclusions that the applicants, and therefore bears no relevance to the broad population legislative history regarding the meaning of public charge is minimal, it to support a significant government policy’’); see affected by this rule. One commenter Chevron, USA, Inc v. Nat. Res. Def. Council, Inc., asserted that the cases cited do not is not non-existent. As outlined in the 467 U.S. 837, 863 (1984) (indicating that to engage NPRM, DHS carefully analyzed the in informed rulemaking, the agency must consider support the proposed definition, and stated that the citation to these cases available legislative history and case varying interpretations and the wisdom of its policy law as part of this rulemaking. on a continuing basis and establish a reasonable indicates that this rule is haphazardly Comment: A commenter indicated choice); United States v. Nat’l Ass’n of Sec. Dealers, put together and poorly researched. Inc., 422 U.S. 694, 719 (1975) (longstanding that DHS ignored Second Circuit case interpretations by an agency are entitled to Response: DHS rejects the notion that the case law cited does not support considerable weight but are not controlling). of the decision. Indeed, the Supreme Court has 297 See Inadmissibility on Public Charge Grounds, DHS’s public charge definition. In cited the age of a precedent as a reason to maintain 53 FR 51114, 51164 (proposed Oct. 10, 2018). particular, DHS disagrees that the case it. See Montejo v. Louisiana, 556 U.S. 778, 792–93 298 See Inadmissibility on Public Charge Grounds, law cited in support of the public charge (2009) (citing ‘‘the antiquity of the precedent’’ as a 53 FR 51114, 51164 (proposed Oct. 10, 2018). definition, and particularly Vindman factor against overturning a decision). 299 305 See Inadmissibility on Public Charge Grounds, 304 See Inadmissibility on Public Charge Grounds, 53 FR 51114, 51164 (proposed Oct. 10, 2018). and Harutunian, bears no relevance 83 FR 51114, 51157(proposed Oct. 10, 2018). 300 See Inadmissibility on Public Charge Grounds, 306 See Matter of Harutunian, 14 I&N Dec. 583, 53 FR 51114, 51164 (proposed Oct. 10, 2018). 302 NLRB v. SW General, Inc., 137 S. Ct. 929, 943 586 (Reg’l Comm’r 1974) (‘‘The words ‘public 301 See United States v. Mead Corp., 533 U.S. 218, (2017) (‘‘[F]loor statements by individual legislators charge’ had their ordinary meaning, that is to say, 227 (2001) (well-reasoned views of the agency rank among the least illuminating forms of a money charge upon or an expense to the public implementing a statute enjoys considerable weight); legislative history.’’). for support and care, the alien being destitute’’); see also Chevron, U.S.A., Inc. v. Nat. Res. Def. 303 See Matter of Vindman, 16 I&N Dec. 131 (Reg’l Matter of Vindmam, 16 I&N Dec. at 132 (Congress Council, Inc., 467 U.S. 837, 866 (1984) (judges have Comm’r 1977); Matter of Harutunian, 14 I&N Dec. intends that an applicant be excluded who is a duty to respect legitimate policy justices and 583 (Reg’l Comm’r 1974). without sufficient funds to support himself, who resolving the struggle between competing views of 304 The commenter also suggested the age of the has no one under any obligation to support him, the public interest are not judicial responsibilities— decisions. DHS notes that the age of a precedent and whose changes of becoming self-supporting they are vested in the political branches). decision does not invalidate the precedential effect decreases as time passes).

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law such as Howe v. United States ex unnecessary.309 Instead, the court ‘‘[i]f the words covered jails, hospitals, rel. Savitsky, 247 F. 292, 294 (2d Cir. emphasized that, in the context of and insane asylums, several of the other 1917), and Ex Parte Hosaye Sakaguchi, public charge provision and its position categories of exclusion would seem to 277 F. 913, 916 (9th Cir. 1922), which within the statute, as it appeared at that be unnecessary.’’ 312 But other courts rejected a broad definition of the term time, Congress meant to exclude have ruled differently,313 the public charge, tying it instead to a individuals who are likely to become surrounding grounds of inadmissibility person’s likelihood of becoming an occupants of government-run have been amended many times since, occupant of almshouses for want of almshouses from the United States 310 and the fact that two INA provisions means of support. This commenter for want of means to support themselves that may cover the same conduct does indicated that DHS’s historical in the future.311 The court did note that not make either unnecessary.314 argument—that the late 19th century Likewise, DHS does not believe that the history and meaning are irrelevant 309 Howe, 247 F. at 294 (‘‘Indeed, with such current public charge inadmissibility because the wide array of limited- latitudinarian construction of the provision ‘likely provision is limited to almshouses and to become a public charge,’ most of the other purpose public benefits now available specific grounds of exclusion could have been its modern equivalents. Later decisions did not exist at the time—was dispensed with . . . We are convinced that have considered other benefits such as historically inaccurate. The commenter Congress meant the act to exclude persons who old age assistance.315 noted that contemporaneous sources were likely to become occupants of almshouses for Skaguchi,316 a case in which the court want of means with which to support themselves based its holding in part on Howe,317 is and historical studies reveal that in the future. If the words covered jails, hospitals, throughout the 19th century’s and insane asylums, several of the other categories governments, including the Federal of exclusion would seem to be unnecessary.’’) at public expense, by reason of poverty, insanity Government, provided limited public 310 DHS reviewed a variety of sources to identify and poverty, disease and poverty, idiocy and poverty, or, it might be, by reason of having assistance short of institutionalization. a clear definition of the term ‘‘almshouse,’’ as it might relate to an interpretation of the term public committed a crime which, on conviction, would be Additionally, the commenter indicated charge. The Second Circuit, in Howe, did not followed by imprisonment. It would seem there that even if limited-purpose public further elaborate on the meaning of the term should be something indicating the person is liable benefits had not been available, the almshouse or the threshold level of support for to become, or shows probability of her becoming, a public charge.’’ argument is immaterial because such an purposes of determining whether an alien was likely to become a public charge. Almshouses have 312 See Howe, 247 F. at 294. expansion would not change the also been discussed in contexts other than public 313 See generally Leo M. Alpert, The Alien and meaning of the term set out in the 1882 charge. For example, for purposes of claiming tax the Public Charge Clauses, 49 Yale L.J. 18, 20–22 Act. In fact, according to the exemption, New York State courts emphasized that (1939) (discussing disagreements with part of the of commenter, Congress has declined to an almshouse only qualified for tax exemptions if the Howe decision). To be clear, DHS is not taking it offered services free of charge; almshouses which the position that some of the cases cited in the change its original meaning of the offered services at a reduced charge, for example, Alpert article did that someone who is incarcerated term.307 did not qualify as almshouses for tax purposes. See, is likely to become a public charge based on penal Response: DHS is aware of the e.g., In re Vanderbilt’s Estate, 10 N.Y.S. 239, 242 incarnation. decisions in Howe and Sakaguchi, but (Sur. 1890) (‘‘The New York Protestant Episcopal 314 See Kawashima v. Holder, 565 U.S. 478, City Mission Society claims exemption as an DHS does not believe that these cases (2012) (holding that the aggravated felony provision almshouse. It maintains a home and reading-rooms, for fraud or deceit includes tax offenses even are inconsistent with the public charge etc., and provides lodgings and meals free. It also though there is a separate aggravated felony definition set forth in this rule or with maintains a day nursery, for which it makes a small provision concerns tax crimes). charge. This takes it out of the domain of pure the suggested link between public 315 See, e.g., Matter of Harutunian, 14 I&N Dec. charity,—a house wholly appropriated to the poor. 583 (Reg’l Comm’r 1974). charge and the receipt of public I have already decided in several cases that a 316 benefits. In fact, the cases support DHS’s society, to be exempt from this tax as an almshouse, See Ex parte Hosaye Skaguchi, 277 F. 913 (9th belief that courts generally have neither must be absolutely free,—all benefits given Cir. 1922). 317 The court in Howe cited to Gegiow v. Uhl, 239 quantified the level of public support gratuitously.’’) In City of Taunton v. Talbot, an almshouse attempted to recover the cost from one U.S. 3 (1915), and Ex Parte Mitchell, 256 F. 229 nor the type of public support required of its inmates. 186 Mass 341 (1904). The court (N.D. NY 1919), both cases that confirmed that a for purposes of a public charge denied relief because there were no records to tie finding of public charge must be based on a defect inadmissibility finding. In Howe, the the expenses specifically to the inmate, in of a nature that affects an individual’s ability to court reviewed whether the immigration particular because the agreement between the earn a living and cannot be predicated on some inmate and the almshouse included support in external reason such as an overstocked labor inspector rightly attempted to classify exchange for the inmate’s work. See id. at 343. DHS market, see Gegiow, 239 U.S. at 10, and other the alien as a public charge because the is aware that INS used references to the term speculative and remote conjectures that are immigration inspector believed the ‘‘almshouse’’ in its 1999 proposed regulation and in unrelated to an alien’s defect or other fact that applicant to have engaged in a criminal the 1999 Interim Field Guidance to explain, among shows or tends to show that the alien is unlikely other things, its primarily dependent model for to earn a living and therefore likely to become a matter but lacked the requisite evidence purposes of public charge. See Inadmissibility on public charge. In Gegiow, the Secretary of Labor to charge the alien.308 The court rejected Public Charge Grounds, 83 FR 51114, 51163 deemed a group of illiterate aliens who lacked such a broad use of the public charge (proposed Oct. 10, 2018); see also Inadmissibility English language proficiency inadmissible as likely provision, which would have rendered and Deportability on Public Charge Grounds, 64 FR to become a public charge, because they had little 28676 (proposed May 26, 1999) and Field Guidance money on hand, had no sponsor, and intended to several other inadmissibility grounds on Deportability and Inadmissibility on Public travel to a city with a weak labor market. The Court Charge Grounds, 64 FR 28689 (May 26, 1999). As wrote that on the record before it, ‘‘the only ground 307 In support of the commenter’s arguments, the explained in the NPRM, however, neither INS’s for the order was the state of the labor market at commenter cited Forest Grove Sch. Dist. v. T.A., 557 reasoning nor any evidence provided, forecloses the Portland at that time; the amount of money U.S. 230, 239–40 (2009); Feltner v. Columbia agency adopting a different definition consistent possessed and ignorance of our language being Pictures Television, Inc., 523 U.S. 340, 358 (1998) with statutory authority. See Inadmissibility on thrown in only as makeweights.’’ Gegiow, 239 U.S. (Scalia, J., concurring). Public Charge Grounds, 83 FR 51114, 51133 at 9. The Court then interpreted the term public 308 See Howe v. United States ex rel. Savitsky, 247 (proposed Oct. 10, 2018). charge as similar in kind to the surrounding terms F. 292, 294 (2d Cir. 1917). In Howe, the alien had 311 Howe, 247 F. at 294 (interpreting the public in the governing statute (which included terms such been engaged in a contractual dispute in his home charge provision under Act of 1907); see also Ex as pauper and beggar). The Court reasoned that country on account of writing a bad check, which parte Mitchell, 256 F. 229, 230 (N.D.N.Y. 1919) because such surrounded terms related to the immigration inspector regarded as a dishonest (explaining, in addressing the public charge permanent personal characteristics of the alien practice. Because the immigration inspector lacked provision of 1917, that ‘‘I am unable to see that this rather than the alien’s destination, the Secretary of the requisite proof to exclude the applicant on change of location of these words in the act changes Labor could not consider conditions in the aliens’ criminal grounds, however, the inspector attempted the meaning that is to be given them. A ‘person destination city as part of the public charge to deny entry on public charge grounds of likely to become a public charge’ is one who for determination. The Court’s characterization of the inadmissibility under section 2 of the Immigration some cause or reason appears to be about to become role of the aliens’ assets and resources, as well as Act of 1907 (36 Stat 264). a charge on the public, one who is to be supported language proficiency, is dicta and has in any case

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not inconsistent with DHS’s proposed ‘d[oes] not foreclose [the Department] public charge inadmissibility ground. definition of public charge. As was the adopting a different definition DHS also believes it is consistent with case in Howe, the court in Skaguchi consistent with statutory authority.’ ’’ the premise underlying much of the rejected the use of the public charge The commenter believed that this public charge case law analyzing the ground of inadmissibility as a ‘‘catch- response was legally insufficient public charge inadmissibility ground 324 all’’ form of inadmissibility.318 The because it confused DHS’s ability to take that aliens who enter this country court reiterated that to sustain a public action under a statute with its should be self-sufficient and not reliant charge inadmissibility finding, there independent obligation to adopt an on the government. As explained in the must be evidence of a fact that tends to approach based on sound reasoning. NPRM and detailed above, despite the show that the burden of supporting the The commenter stated that merely lack of a definition in the statute and alien is likely to be cast upon the asserting that DHS has the ability to minimal case law defining public public.319 Therefore, DHS rejects the reject other agencies’ reasoned analyses charge, there has always been a link commenter’s suggestion that these cases (whether or not correct) does nothing to between the receipt of public benefits mandate a result other than the DHS’s justify its choice to do so. The and the public charge determination.325 public charge definition and the level of commenter concluded, therefore that Absent a clear statutory definition, dependency assigned to it in the NPRM. DHS’s response—like DHS’s overall courts and administrative authorities DHS agrees that it is immaterial to decision—failed to satisfy the APA’s have generally tied the concept of this rulemaking whether limited- requirements. public charge to the receipt of public purpose means-tested benefit programs Response: As explained in the benefits without quantifying the level, expanded over the course of the last NPRM,321 DHS is aware that former INS type or duration of the public benefits century-plus. DHS simply recited, consulted with various agencies that received.326 To create an administrable without endorsing, INS reasoning for administer the federal programs. The way to implement the statute, DHS’s the primarily dependent standard in the letters were issued in the context of the NPRM provided a list of specific NPRM, in an effort to explain the approach taken in the 1999 proposed benefits and a threshold amount that primarily dependent standard’s rule and 1999 Interim Field Guidance, DHS believed reasonably balances an limitations and why DHS proposed a and specifically opined on the alien’s lack of self-sufficiency against different standard in this rule.320 DHS’s reasonableness of that INS temporary welfare assistance that does reasoning for changing the public charge interpretation, that is, the primarily not amount to a lack of self- definition is not based on this dependent on the government for sufficiency.327 Additionally, by statement. subsistence definition. As noted in the proposing to codify the totality of the Comment: Some commenters NPRM, DHS does not believe that these circumstances approach to the indicated that the proposed rule was at letters supporting the interpretation set prospective inadmissibility odds with the recommendations of the forth in the 1999 Interim Field Guidance determination, DHS clarified that an very agencies that administer the federal foreclose this different interpretation, alien’s past receipt of public benefits programs included in the rule. The particularly where DHS’s reasoning for commenters also pointed out that, as the approach in this final rule is in 1996 also highlighted that an immigrant should indicated by DHS in the NPRM, INS had grounded in a different basis. be relying on his or her own resources, rather than becoming a burden on the taxpayers. See consulted with HHS, the Social Security Comment: Some commenters objected Inadmissibility on Public Charge Grounds, 83 FR Administration (SSA), and the to what they describe as the ‘‘per se’’ 51114, 51157 (proposed Oct. 10, 2018). With the Department of Agriculture (USDA) nature of the rule. Specifically, passage of PRWORA, Congress explicitly commenters expressed concerns that emphasized that self-sufficiency is a fundamental when developing the 1999 Interim principle of the United States immigration law and Guidance and that these agencies had immigrants receiving any amount of connected receipt of public benefits with a lack of told INS unequivocally ‘‘that the best public benefits would be deemed a self-sufficiency, further stating that aliens within evidence of whether an individual is public charge. An individual the Nation’s borders should not depend on public resources to meet their needs. See 8 U.S.C. 1601(1) relying primarily on the government for commenter said the rule would and (2). Courts likewise have connected public subsistence is either the receipt of implicitly classify more than a fifth of charge determinations to the receipt or the need for public cash benefits for income Americans as a public charge. public resources See Inadmissibility on Public maintenance purposes or Response: DHS disagrees with the Charge Grounds, 83 FR 51114, 51157–58 (Oct. 10, commenters’ characterization that the 2018). institutionalization for long-term care at 324 See, for example, Matter of Vindman, 16 I&N government expense’’ and that ‘‘neither definition of public charge creates an Dec. 131 (Reg’l Comm’r, 1977) (concluding that the receipt of food stamps nor nutrition inappropriate per se rule. DHS believes Congress intends that an applicant for a visa be that the nexus between likelihood of excluded who is without sufficient funds to support assistance provided under [SNAP] himself or herself, or who has no one under any should be considered in making a becoming public charge at any time in obligation to support him, and whose chances of public charge determination.’’ the future, the receipt of public benefits, becoming self-supporting decreases as time passes, Commenters indicated that in the and self-sufficiency, as described and and that the respondents’ receipt of assistance for NPRM, DHS ‘‘dismissed all of this explained in the NPRM,322 is consistent approximately three years clearly put them into the 323 confines of the public charge inadmissibility expertise, stating ipse dixit that such with Congress’ intent in enacting the ground); see also Matter of Harutunian, 14 I&N Dec. input from the federal agencies that 583 (Reg’l Comm’r 1974) (The words ‘‘public actually administer these programs 321 See Inadmissibility on Public Charge Grounds, charge’’ had their ordinary meaning, that is to say, 83 FR 51114, 51133 (proposed Oct. 10, 2018). a money charge upon or an expense to the public 322 See Inadmissibility on Public Charge Grounds, for support and care, the alien being destitute); see been superseded by multiple revisions to the public 83 FR 51114, 51157–58 (proposed Oct. 10, 2018). generally cases cited in Inadmissibility on Public charge statute, including a revision in 1996 that 323 As outlined in the NPRM, legislative history Charge Grounds, 83 FR 51114, 51157–58 (proposed specifically called for analysis of the alien’s assets, suggests the link between public charge and the Oct. 10, 2018). resources, and skills. receipt of public benefits. For example, in the 1950 325 See Inadmissibility on Public Charge Grounds, 318 See Ex parte Hosaye Skaguchi, 277 F. 913 (9th Senate Judiciary Committee report, preceding the 83 FR 51114, 51157–51158 (proposed Oct. 10, Cir. 1922). passage of the 1952 Act, concerns were raised about 2018). 319 See Ex parte Hosaye Skaguchi, 277 F. 913, 916 aliens receiving old age assistance. See 326 See Inadmissibility on Public Charge Grounds, (9th Cir. 1922). Inadmissibility on Public Charge Grounds, 83 FR 83 FR 51114, 51157–51158 (proposed Oct. 10, 320 See Inadmissibility on Public Charge Grounds, 51114, 51157 (proposed Oct. 10, 2018). Debates on 2018). 83 FR 51114, 51163 (proposed Oct. 10, 2018). public charge prior to Congress’ passage of IIRIRA 327 See 8 CFR 212.21(b).

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alone, without consideration of the as an assessment whether, at some approach to ‘‘likely at any time to other factors, would not establish future separate point in the future, an alien become a public charge’’ departs from likelihood of becoming a public charge. who is likely to become a public charge the plain meaning of the phrase, ‘‘likely DHS further agrees with the commenters will later become self-sufficient. With to become a public charge’’ in the INA, that under this new framework, the this rulemaking, DHS is implementing unnecessarily discarding long-standing number of aliens being found the public charge ground of and well-developed fairness; relies on inadmissible based on the public charge inadmissibility and seeking to better an inaccurate measure to predict ground will likely increase. ensure that those who are seeking whether an individual is likely to Comment: Commenters objected to admission to the United States and become a public charge; will eviscerate the proposed rule because it equates adjustment of status, as well as those the totality of circumstances standard; is receipt of benefits with the lack of self- seeking extension of stay or change of inefficient; not cost effective; and sufficiency. Others stated that the status, are self-sufficient, so that they do negatively impacts applicants, the receipt of public benefits is not an not need public benefits to become self- agency, and the economy.328 The indicator of a person’s incapacity for sufficient. commenter also questioned the focus on self-sufficiency, but helps individuals to Comment: Some commenters public benefits, indicating the case law become self-sufficient. Many provided input on the temporary nature was based on being ‘‘dependent on commenters expressed concern with the of public benefits as they relate to future support’’ rather than focused on the expansion of the public charge self-sufficiency. Commenters expressed likelihood of receiving a benefit that definition to include not just those a belief the rule’s core assumption was costs the government some amount of primarily depending on cash benefits, that people dependent on the money. The commenter said changing but also individuals who use basic Government for subsistence will remain the standard will deter immigrants from needs programs to supplement their that way indefinitely. pursuing expensive adjustment of status earnings or need short-term help. Some Response: DHS disagrees that the rule applications if they fear they will be inherently assumes that people who rely commenters stated that immigrant denied, thus forfeiting the in the government for assistance rather women already face a heightened risk of corresponding employment than relying on their own capabilities economic insecurity, discrimination, authorization that permits access to and the resources of their families, and disproportionate responsibility for better-paying jobs unavailable to sponsors, and private organizations will caregiving, and that participating in unauthorized workers. The commenter remain that way indefinitely. As noted benefit programs is important to their concluded that such a result thwarts the above, neither section 212(a)(4) of the ability to support themselves and their purported self-sufficiency goals of the Act, 8 U.S.C. 1182(a)(4), nor this final children. A commenter stated that many proposed rule. open jobs require specific training that rule, assess whether an alien subject to can be provided through community the public charge ground of Response: DHS disagrees with the colleges, and in order to obtain the inadmissibility will remain a public commenters’ assessment. As outlined in education to become a contributing charge indefinitely. Rather, the statute the NPRM, the approach suggested by member of society, some immigrants and the rule assess whether an alien is INS in the 1999 NPRM and the 1999 draw on public benefits for a short likely at any time in the future to Interim Field Guidance does not period of time to enable them to become a public charge. An alien may preclude DHS from suggesting a complete their studies. be likely in the future to become a different approach. As DHS laid out in Response: DHS understands that public charge in the future without the NPRM, DHS’s interpretation is individuals, including immigrant remaining a public charge indefinitely. consistent with the statutory wording women and their families, as well as For example, a person could receive which requires a public charge students, may supplement their income Medicaid for a number of years and then assessment that is prospective in nature, with public benefits, such as basic obtain employment that provides health and made at the time of the application needs programs, because they may insurance, avoiding the further need for for a visa, admission, or adjustment of require short-term help, and that the Medicaid. status.’’ 329 DHS understands that goal of these benefits assists them to Comment: A commenter stated that certain individuals present in the become self-sufficient in the short- and, changing the standard from ‘‘primarily United States may be impacted by this eventually long-term. DHS also dependent’’ upon cash assistance to rule, and therefore hesitant to apply for acknowledges that certain individuals ‘‘likely at any time in the future to adjustment of status. However, given the who are depending on public benefits receive one or more public benefits’’ limited number of aliens present in the may choose to disenroll because of this will cause an individual to risk his or United States eligible for public benefits rulemaking. However, the goals of her immigration status when enrolling under PRWORA, DHS does not believe public benefits programs and the public in specific programs. The commenter that the impact is as extensive as alleged charge ground of inadmissibility are not stated that this is problematic in part by the commenters. Finally, as the same. The public charge because aliens enroll in such programs explained in the NPRM, the receipt of inadmissibility provision is not consistent with government policy, and public benefits does not automatically intended to ensure that aliens can sometimes with the Government’s render an alien inadmissible based on become self-sufficient; in fact, Congress encouragement. Another commenter public charge; the determination is specifically articulated policy goals in stated that the INA includes the phrase always based on the totality of the PRWORA that provided that ‘‘likely to become a public charge’’ but alien’s circumstances. government welfare programs should the proposed rule ‘‘defines ‘public’ and not be an incentive for aliens to ‘charge’ as separate words, disconnected 328 The commenter also indicates that the immigrate to the United States and that from each other or from the fact that the approach is inefficient, not cost effective, and aliens inside the United States are phrase also requires a likelihood that negatively impact applicants, the agency and the expected to be self-sufficient. the person ‘become’ a public charge, as economy. 329 DHS notes the statutory wording includes the Correspondingly, DHS’s assessment of opposed to a likelihood that he or she wording ‘‘at any time’’—the commenter omitted the whether an alien is likely at any time to will engage in a specific act.’’ The language when asserting that the interpretation is become a public charge is not the same commenter indicated that the proposed not consistent with the plain wording of the statute.

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Comment: Several commenters admission, or adjustment of status, not whole. DHS does not dispute these provided feedback on the comparison U.S. citizens. The purpose of this rule positive impacts of public benefits on an between public benefits used by non- is to better ensure that aliens who enter individual’s long-term self-sufficiency, citizens and native-born residents. A the United States or remain in the or the importance of these programs and commenter stated that a study United States are self-sufficient. their goals, including the integration of concluded that non-citizen households Statistics on the use of public benefits immigrants. DHS also does not dispute have much higher use of food programs, by non-citizens compared to the use of that benefits programs may produce Medicaid and cash programs compared citizens are not indicative of an more equal opportunities and provide to households headed by native-born individual alien’s self-sufficiency. Even humanitarian support, and does not citizens and therefore, a reform of the though the use of public benefits by intend to in any way diminish these public charge doctrine is needed. Other noncitizens may be lower than the opportunities. DHS, however, is commenters stated, providing statistics native-born population for a given implementing the congressional in support, that immigrants access benefit, an alien may still qualify and mandate to assess a prospective benefits for which they are eligible at a receive public benefits in the future immigrant’s likelihood of becoming a far lower rate than native-born based on his or her particular public charge in the future based on the residents, suggesting that access to circumstances and therefore may be criteria that Congress put into place. As public benefits does not make likely to become a public charge. previously indicated, the INA does not immigrants more of a public charge than Similarly, it is immaterial whether the aim to achieve the same goals as public native-born residents. definition of ‘‘public charge’’ in the rule assistance programs; in fact, Congress A commenter stated that if the public would affect one in twenty U.S. citizens specifically articulated policy goals in charge rule were applied to native born or one in three. The relevant question is PRWORA that provided that citizens, it would exclude one in three whether the rule’s definition of public government welfare programs should U.S. born citizens, whereas the current charge is consistent with the statute. not be an incentive for immigrants and rule would exclude one in twenty. DHS believes that it is consistent with that immigrants are expected to be self- Similarly, another commenter indicated the statute. sufficient. Correspondingly, DHS’s that the definition would mean that Comment: Commenters stated that assessment of whether an alien is likely most native-born, working-class U.S. immigrants use public benefits to escape to become a public charge is not the citizens are or have been public charges the poverty cycle, using benefits as a same as an assessment of whether an and that substantial numbers of middle- ladder to prevent them from becoming alien is currently a public charge or class Americans are or have been public public charges. Other commenters whether, at some separate point in the charges. A commenter stated that stated that the rule is self-defeating, future, an alien who is likely to become according to the MPI’s recent analysis, because although DHS prefers self- a public charge will later become self- about 69 percent of recent lawful sufficient families and individuals, the sufficient. permanent residents have at least one proposed rule dissuades individuals Comment: Some commenters factor that would count against them from using public benefits in order to emphasized not just the self-sufficiency under the new rule, as opposed to just become self-sufficient and thus of the immigrants that use public three percent of noncitizens who make enhances financial barriers. Many benefits or programs, but their use of cash benefits under the existing commenters said that those eligible for contributions to society as a whole. A standard. benefits are entitled to avail themselves few commenters stated that providing Response: The proposed rule’s of government benefits and should be support to families is a necessary facet analysis of public benefits receipt able to do so without shame or guilt. of our economic system and recipients among citizens and noncitizens was Commenters stated that when eligible provide more to communities than the meant to inform public understanding individuals receive such benefits, the aid they receive. A commenter stated of the proposal. DHS need not resolve outcomes are frequently better for the that a study in Arizona found that competing claims regarding the rates of United States and the economy. Several immigrants generate $2.4 billion in tax public benefits use by various commenters stated that the United revenue, which is more than the $1.4 populations, because the primary basis States has always been open to those billion in benefits they used. A few for the NPRM is a revised interpretation who needed assistance, and given that commenters stated that broadening the of the term public charge, as informed that this country was founded on a definition of public charge ignores the by the statement of congressional policy nation of immigrants, a commenter work, taxes, and other contributions in PRWORA. The proposal did not rest indicated that it was the Government’s immigrants are making to their on a specific level of public benefits use responsibility to create policies that communities, and makes a ‘‘false, by particular categories of individuals or reflect the values of equal opportunity negative comparison between households. and humanitarian support. Another immigrants’ drain on public resources DHS notes, however, that the analysis commenter indicated that even under compared to other Americans’ use.’’ A in the NPRM included only a limited existing policy, the United States has few commenters said a ‘‘public charge’’ number of programs, and did not always integrated immigrants is not a person who uses government assume that eligibility for public sufficiently, such that they become self- services that are funded via taxes which benefits necessarily meant enrollment. sufficient and contributing members of immigrants are expected to pay Furthermore, the analysis concerned use U.S. society. throughout their lifetime. Commenters by individuals and not households. Response: With this public charge also indicated that tying public benefits Additionally, this rulemaking does inadmissibility rule, DHS neither seeks to the public charge definition is not not apply to U.S. citizens. Even though to stigmatize receipt of public benefits appropriate as the foreign national is some U.S. citizens would fall under the nor seeks to preclude an individual working, paying taxes, and contributing receipt threshold in the public charge from seeking public benefits. DHS to the welfare of the United States and definition, this fact is not relevant for appreciates the input on the effect of is entitled to public benefits. the purposes of this rule, as the public public benefits payments and the role Response: DHS appreciates the charge ground of inadmissibility applies these benefits play in becoming self- commenters’ input. DHS did not, to aliens who are seeking a visa, sufficient, and on the economy as a however, make any changes to the

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public charge definition based on these rule, DHS has a separate definition for benefits for a substantial component of comments. DHS recognizes the public charge and public benefits. In their support and care can be reasonably contributions foreign nationals have this final rule, DHS has also provided a viewed as being a public charge.’’ 334 made to American society as a whole more detailed definition for ‘‘likely at But in justifying the thresholds, DHS and to their communities. However, any time to become a public charge.’’ 330 wrote that it ‘‘believes that receipt of with this rulemaking, DHS seeks to DHS believes that the framework and such benefits, even in a relatively small better enforce the grounds of separate definitions provided with this amount or for a relatively short duration inadmissibility to ensure that those final rule sufficiently permit its officers would in many cases be sufficient to seeking admission to the United States to make sound and reasonable public render a person a public charge.’’ 335 are self-sufficient, i.e., rely on their own charge inadmissibility determinations, Another commenter stated that some capabilities and the resources of their as intended by Congress. households may be self-sufficient and family, sponsors, and private Comment: A commenter stated that capable of meeting their basic needs organizations. DHS’s statutory interpretation of without public benefits, but nonetheless Finally, DHS disagrees with the ‘‘public charge’’ is flawed. The enroll in such benefits to supplement commenters who stated that tying commenter noted that in the proposed available resources. public benefits to the public charge rule DHS stated that its proposed Response: DHS disagrees with the definition is not appropriate for aliens definition of public charge was commenter that Merriam-Webster’s who are working, paying taxes, and consistent with various dictionary definition of ‘‘support’’ compels DHS to contributing to the welfare of the United definitions of public charge, including abandon the policy proposed in the States and entitled to public benefits. the current edition of the Merriam- NPRM.336 The commenter is correct that Simply because an alien is working, Webster Dictionary, which defines some of Merriam-Webster’s definitions paying taxes and contributing to the public charge simply as ‘‘one that is of ‘‘support’’ reference paying the costs welfare of the United States does not supported at public expense.’’ 331 The of another, or providing a basis for the guarantee an alien’s self-sufficiency now commenter stated that DHS’s existence or subsistence of another. or in the future. interpretation is flawed, because DHS Other definitions of ‘‘support’’ in the Again, an individual may provide failed to define the term ‘‘support.’’ The same dictionary do not specify a degree significant benefits to their commenter stated that ‘‘looking to the of assistance (for instance, Merriam- communities, including to the tax base, Merriam-Webster Dictionary, which is Webster’s also defines support as but nonetheless be a public charge. With the dictionary favored by the Supreme ‘‘assist, help’’).337 this rulemaking, DHS seeks to ensure Court, ‘support’ is defined as ‘pay[ing] But, the public benefits designated that those coming to the United States the cost of’ or ‘provid[ing] a basis for the under this rule are specifically designed are self-sufficient and not dependent on existence or subsistence of.’’’ 332 The for the Government to pay the costs of the government for subsistence now or commenter further stated that, in turn, the beneficiary with respect to basic in the future, even if they are currently ‘‘one who is ‘supported at the public necessities, i.e., to provide a basis for contributing to the tax base. expense’ must be having needs met the beneficiary’s subsistence. This is the Furthermore, the public charge entirely or at least nearly entirely by the case with respect to cash benefits for assessment is an assessment based on government.’’ Therefore, the commenter income maintenance, Medicaid, SNAP, the individual’s facts and concluded, DHS failed to provide a and all other designated benefits. DHS circumstances; the greater the taxable justification for how DHS’s proposal believes that its rule is consistent with income and other resources, the more with its low thresholds for benefit use all of the aforementioned definitions of likely an individual is self-sufficient, comports with that definition. Another ‘‘support’’ and especially with the and the less likely he or she is to commenter cited to various dictionary definition of ‘‘public charge’’ as ‘‘one become a public charge. DHS definitions of ‘‘charge’’ to support the that is supported at public expense.’’ 338 encourages all applicants to bring proposition that the term ‘‘public And for substantially the same reasons, forward any factors and circumstances charge’’ means a person with a very DHS believes that its rule is broadly they believe are relevant to their high level of dependence on the consistent with the 1828 Webster’s adjudication of public charge. government. For instance, the Dictionary definition of the term Comment: A commenter suggested commenter cited the 1828 edition of ‘‘charge,’’ as well. For instance, the that DHS more clearly separate the Webster’s Dictionary, which defined definition cited by the commenter definition of public charge from the ‘‘charge’’ as ‘‘The person or thing provides an example of appropriate predictive process by moving any committed to another’s [sic] custody, usage: ‘‘Thus the people of a parish are predictive language, along with any care or management; a trust.’’ 333 thresholds based on predictive value, A commenter also stated that DHS’s 334 Inadmissibility on Public Charge Grounds, 83 from the definitions in 8 CFR 212 and proposed statutory interpretation is at FR 51114, 51158 (proposed Oct. 10, 2018). 214 to a separate section listing factors 335 Inadmissibility on Public Charge Grounds, 83 odds with how DHS justified the to be considered as part of the public FR 51114, 51164 (proposed Oct. 10, 2018). proposed thresholds for public benefits 336 charge inadmissibility determination. In particular, DHS also disagrees with the use. The commenter explained in commenter who indicated that DHS’s citing to the The commenter stated that this would defining ‘‘public charge,’’ DHS wrote 1990 edition of Black’s Law Dictionary provide a clear separation between the that an individual ‘‘who receives public inappropriate because PRWORA redefined the term question of what is a public charge, and public charge. As explained throughout the NPRM whether a person is likely to become a and this final rule, PRWORA restricted access for 330 See generally 8 CFR 212.21. aliens to certain benefits but did not define public public charge. 331 Inadmissibility on Public Charge Grounds, 83 benefits. Response: With respect to the FR 51114, 51158 (proposed Oct. 10, 2018). 337 See Merriam-Webster Online Dictionary, commenter’s suggestion to more clearly 332 Merriam-Webster, definition of ‘‘support,’’ Definition of Support, https://www.merriam- distinguish between the definition of available at https://www.merriam-webster.com/ webster.com/dictionary/support (last visited July ‘‘public charge’’ and the prospective dictionary/supported (last visited July 26, 2019). 26, 2019). 333 Webster’s Dictionary 1828 Online Edition, 338 Merriam-Webster Online Dictionary, public charge inadmissibility definition of ‘‘charge,’’ available at http:// Definition of Public Charge, https:// determination, DHS notes that as webstersdictionary1828.com/Dictionary/charge (last www.merriamwebster.com/dictionary/ proposed, and as codified in this final visited July 26, 2019). public%20charge (last visited July 8, 2019).

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called the ministers [sic] charge.’’ Just as confirms that the DHS has set the rejection of the proposed definitions of a parishioner can be a ‘‘charge’’ of threshold for ‘‘self-sufficiency’’—or public charge and means-tested public minister without being entrusted ‘‘public charge’’—in an unreasonable benefit meant that Congress retained the entirely to their care, a person can be a way and too high. The commenter longstanding meaning of public charge ‘‘charge’’ of the public if he or she relies stated that in setting the salary levels for as being primarily dependent on the on public benefits to meet basic needs. members of the U.S. military, Congress government for subsistence.343 Regardless, DHS does not believe that has determined that the salary levels are A commenter questioned DHS’s isolated definitions of ‘‘support’’ or the sufficient to render our servicemembers assertion that the proposed definition of word ‘‘charge’’ standing alone ‘‘self-sufficient,’’ and therefore the rule public charge reflects Congress’s intent conclusively determine the possible conflicts with this determination. The to have aliens be self-sufficient and not range of definitions for the term, public commenter further stated that reliant on the government for assistance. charge; neither term standing alone is employment as an active-duty member The commenter indicated that the INA used in section 212(a)(4) of the Act, 8 of the U.S. military has long been does not mention self-sufficiency and U.S.C. 1182(a)(4), and neither term, viewed as an honorable, stable job that does not list it as a criterion for avoiding standing alone, is used in the definition provides a gateway for all individuals in a finding of inadmissibility under of ‘‘public charge’’ or ‘‘public benefit’’ this country—regardless of race, public charge. Several commenters in this rule. DHS disagrees with the economic background, social class, or stated that the rule would drastically comment that the reference to other forms of difference—to succeed in increase the scope of who would be ‘‘substantial component’’ 339 makes the life. The commenter stated that the considered a public charge to include statutory interpretation in the NPRM answer is not to exempt active-duty people who use a much wider range of inconsistent with the justification which servicemembers from the ‘‘public benefits and not just those who are references a ‘‘relatively small charge’’ regulation, but to embrace a primarily dependent on the government amount.’’ 340 The reference to reasonable definition of ‘‘public charge’’ for subsistence. A few commenters ‘‘substantial component’’ was part of a so that active-duty servicemembers are stated that the proposed rule’s summary of dictionary definitions and not rendered ‘‘public charges.’’ definition of public charge would not the basis for the definition of public Response: Contrary to the equate occasional or temporary use of 341 charge. Nonetheless, as discussed commenter’s arguments, to the best of benefits and services with primary elsewhere in this rule, DHS has revised DHS’s knowledge there is no indication reliance on benefits. A commenter 8 CFR 212.22 to limit public charge that Congress considered the public agreed with the current standard, in that determinations to benefits received for charge ground of inadmissibility when it does not penalize individuals from 12 months in a 36-month period and is it created the military compensation accepting all of the forms of support not considering the value of the amount structure, or that the levels of pay encompassed within this rule. A of benefits received. Finally, DHS rejects afforded to active duty servicemembers commenter, in considering only primary the contention that an alien is not a are always adequate to ensure that dependence on public benefits as the public charge if the alien does not servicemembers and their families will degree of dependency required to ‘‘need’’ the designated benefits that he be self-sufficient for purposes of our sustain a public charge finding, stated or she or receives. DHS’s view is that an immigration laws. In the NPRM, DHS that the standard provides clear and alien, who receives designated benefits recognized that as a consequence of the effective guidelines for adjudicators and under this rule for the specific duration, unique compensation and tax structure applicants without endangering the is a public charge, whether he or she lives of immigrant families and children afforded by Congress to aliens enlisting needs those benefits or not. in this country. for military service, some active duty Comment: A commenter stated that Response: As noted above, although DHS should not have cited to the 1990 alien servicemembers, as well as their the INA does not mention self- Black’s Law Dictionary’s definition of spouses and children, as defined in sufficiency in the context of section ‘‘public charge,’’ because the edition is section 101(b) of the Act, 8 U.S.C. 1101(b), may rely on SNAP and other 343 The commenter indicated that during the out of date and was written pre- 342 PRWORA. listed public benefits. DHS included debates leading up to IIRIRA, Congress stripped the Response: In its NPRM, DHS was a provision for these individuals, as bill of a provision defining public charge as a reflected in the proposed rule and as noncitizen who uses ‘‘means-tested, public attempting to provide a historical benefits,’’ meaning ‘‘any public benefit (including review of the term public charge as discussed later in this preamble. cash, medical, housing, food, and social services) defined in various reference materials. . . . in which eligibility of an individual, a. Threshold Standard household, or family eligibility unit for such benefit The 1990 edition would have preceded or the amount of such benefit, or both are the IIRIRA amendments by only six ‘‘Primarily dependent’’ Based on Cash determined on the basis of income, resources, or years. Public Benefit Receipt or Long-Term financial need of the individual household, or Comment: A commenter stated that Institutionalization at Government unit.’’ See H.R. Rep. No. 104–208, at 144 (Sept. 24, Expense’’ 1996) (sec. 551 of H.R. 2202, proposing 8 U.S.C. DHS’s recognition that active-duty U.S. 1183a(e)(defining ‘‘means-tested public benefit’’); servicemembers would qualify as Comment: Commenters indicated that see id. at 138 (sec. 532 of H.R. 2202, proposing 8 ‘‘public charges’’ under the plain terms DHS, through regulation, cannot U.S.C. 1251(a)(5)(C)(99), (D) (defining term ‘‘public of the proposed rule is proof positive charge’’ [to] include[] any alien who receives . . . institute a definition that Congress had means-tested public benefits’); H.R. Rep. No. 104– that the proposal is bad policy. The already squarely rejected. The 863, at 564, 690–91 (Sept. 28, 1996) (absence of sec. commenter stated that the exclusion of commenters noted that Congress, as part 532 from prior H.R. 2202); see 142 Cong. Rec. 25868 public benefits received by of IIRIRA debates, had rejected a (Sept. 28, 1996) (noting that sec 532 was stricken servicemembers and their families and that proposed subsection (e) to INA section proposal that would have defined a 213A definition ‘‘Federal means-tested public public charge as a person who receives benefit’’ was also stricken). Instead, the commenter 339 Inadmissibility on Public Charge Grounds, 83 means-tested public benefits. The stated, IIRIRA retained the term’s longstanding FR 51114, 51158 (proposed Oct. 10, 2018). commenters indicated that Congress’ meaning of primary dependence on the government 340 Inadmissibility on Public Charge Grounds, 83 for subsistence. The commenter further stated that FR 51114, 51164 (proposed Oct. 10, 2018). Congress’ rejection of the proposed provision was 341 Inadmissibility on Public Charge Grounds, 83 342 Inadmissibility on Public Charge Grounds, 83 an express political choice to ensure that IIRIRA’s FR 51114, 51158 (proposed Oct. 10, 2018). FR 51114, 51173 (proposed Oct. 10, 2018). passage, and not a clerical change.

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212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), from adopting a similar definition primarily dependent on the government, DHS believes that there is a strong now.349 Rather, DHS views Congress’ as a policy matter, does not go far connection between the self-sufficiency failure to define ‘‘public charge’’ by enough in enforcing this ground of policy statements elsewhere in Title 8 of statute as an affirmation of what the inadmissibility. the United States Code (even if not Senate Judiciary Committee Given that the statute and case law do codified in the INA itself) at 8 U.S.C. acknowledged over 50 years ago, i.e., not prescribe the type or extent of 1601 and the public charge that the meaning of public charge has public benefit receipt that makes an inadmissibility language in section been left to the judgment and alien a public charge, DHS believes that 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), interpretation of administrative officials benefits designated in this rule are which were enacted within a month of and the courts. More specifically, that directly relevant to public charge each other.344 Of particular significance committee found that the determination inadmissibility determinations. These and just prior to the passage of the whether the alien is a public charge or enumerated public benefits are directed revised public charge inadmissibility is likely to become a public charge toward meeting the basic necessities of ground in IIRIRA, conference managers should rest within the discretion of life through the provision of food and noted that the implementing section immigration officers, because the nutrition, housing, and healthcare.354 ‘‘amends INA section 212(a)(4) to elements constituting public charge are This basic fact is underscored by the expand the public charge ground of so varied.350 If Congress had wanted to many comments identifying significant inadmissibility. Aliens have been conclusively define the term public consequences for individuals who excludable if likely to become public charge as ‘‘primarily dependent,’’ it decide to disenroll from these benefits. charges since 1882. Self-reliance is one could have done so.351 DHS also notes Ultimately, the public charge ground of of the most fundamental principles of that courts that have examined public inadmissibility is targeted to individuals immigration law.’’ 345 Previous House charge have generally explained public who, in the absence of government and Senate Judiciary Committee reports charge in the context of dependence or assistance, would lack the basic included similar statements addressing reliance on the public for support necessities of life. DHS acknowledges self-sufficiency and receipt of public without elaborating on the degree of that this rule constitutes a change that benefits in the context of public dependence or reliance required to be a will have a practical impact on aliens charge.346 public charge.352 covered by this rule; however, it views Furthermore, DHS disagrees that As discussed in the NPRM,353 DHS the current policy as unduly restrictive either congressional actions leading up believes that the primary dependence in terms of which benefits are to IIRIRA or years of precedent mandate definition constitutes one permissible, considered for public charge the adoption of the primarily dependent but non-exclusive way of establishing a inadmissibility. Therefore, expanding standard. As explained in the NPRM, bright line for considering public benefit the list of public benefits to include a the statute does not expressly prescribe receipt relative to a public charge broader list of public benefits that a single method to define the level, type, determination. Because Congress satisfy basic living needs as a policy or duration of public benefit receipt already identified certain classes of matter better enforces this ground of necessary to determine whether an alien aliens, including those who are inadmissibility. is a public charge or is likely at any time Equally important, given that the 347 particularly vulnerable, and has to become a public charge. DHS does exempted or authorized DHS to exempt statute and case law do not prescribe the not interpret the fact that Congress did them from the public charge ground of degree or duration of public benefit not define public charge as ‘‘any alien inadmissibility, DHS believes that with receipt that make an alien a public who receives [means-tested public] respect to other aliens not similarly charge, DHS has determined that it is benefits for an aggregate period of at protected, the current approach of permissible to adopt a threshold other least 12 months’’ prior to enactment of excluding receipt of non-cash benefits than the primarily dependent standard. IIRIRA 348 as meaning DHS is precluded and only finding to be inadmissible In its annual reports to Congress on individuals who are likely to become welfare indicators and risk factors, HHS 344 See Public Law 104–193, section 400, 110 Stat. explains that defining welfare 2105, 2260 (Aug. 22, 1996) (enacting 8 U.S.C. 1601) dependence and developing consensus and Public Law 104–208, div. C, sec. 531, 110 Stat. www.congress.gov/104/crpt/hrpt828/CRPT- 3009–546, 3009–674 (Sept. 30, 1996) (amending 104hrpt828.pdf (last visited 5/9/2019). around a single measure of welfare INA section 212(a)(4), 8 U.S.C. 1182(a)(4)). 349 See Competitive Enterprise Inst. v. U.S. Dep’t dependence are difficult and adopting 345 See United States. Cong. House. Committee on of Transp., 863 F.3d 917 (D.C. Cir. 2017) (‘‘But any definition of welfare dependence the Conference. Illegal Immigration Reform and ‘Congressional inaction lacks persuasive has its limitations and represents a Immigrant Responsibility Act of 1996. 104th Cong. significance because several equally tenable 2nd Sess. H. Rpt. 828, at 240–241 (1996). https:// inferences may be drawn from such inaction, choice of demarcation beyond which www.congress.gov/104/crpt/hrpt828/CRPT- including the inference that the existing legislation someone is or will be considered 104hrpt828.pdf (last visited 5/9/2019). already incorporated the offered change.’ ’’ (citing dependent.355 In HHS’s efforts to 346 See United States. Cong. House. Committee on Consumer Elecs. Ass’n v. FCC, 347 F.3d 291, 299 examine the range of dependence from n.4 (DC Cir. 2003) (quoting Pension Benefit Guar. the Judiciary. Immigration in the National Interest complete long-term dependence to total Act of 1995. 104th Cong. 2nd Sess. H. Rpt. 469, pt Corp. v. LTV Corp., 4966 U.S. 633, 650 (1990))). 1, at 109 (1996). https://www.congress.gov/104/crpt/ 350 See Inadmissibility on Public Charge Grounds, self-sufficiency, HHS acknowledges that hrpt469/CRPT-104hrpt469-pt1.pdf (last visited 83 FR 51114, 51123 n.21 (proposed Oct. 10, 2018). 5/9/2019). See also United States. Cong. Senate. See also The 1950 Omnibus Report of the Senate 354 See Inadmissibility on Public Charge Grounds, Committee on the Judiciary. Immigration Control Judiciary Committee, S. Rep. No. 81–1515, at 349 83 FR 51114, 51159 (proposed Oct. 10, 2018). and Financial Responsibility Act of 1996. 104th (1950). 355 See U.S. Dep’t of Health & Human Servs., Cong. 2nd Sess. S. Rpt. 249, at 5–7 (1996). https:// 351 See, e.g., Cyan, Inc. v. Beaver Cty. Emp. Ret. Indicators of Welfare Dependence: Annual Report www.congress.gov/104/crpt/srpt249/CRPT- Fund, 138 S. Ct. 1061, 1070 (2018) (explaining that, to Congress, at Foreword and Chapter II (1997), 104srpt249.pdf (last visited 5/9/2019.). if Congress had wanted to deprive state courts of available at https://aspe.hhs.gov/report/indicators- 347 See Inadmissibility on Public Charge Grounds, jurisdiction over certain class actions, it could have welfare-dependence-annual-report-congress-1997 83 FR 51114, 51163–51164 (proposed Oct. 10, easily done so by inserting a provision.). (last visited July 26. 2019). See also U.S. Dep’t of 2018). 352 See Inadmissibility on Public Charge Grounds, Health & Human Servs., Welfare Indicators and Risk 348 United States. Cong. House. Committee on the 83 FR 51158 (proposed Oct. 10, 2018). Factors, at I–2 (2015), available at https:// Conference. Illegal Immigration Reform and 353 See Inadmissibility on Public Charge Grounds, aspe.hhs.gov/report/welfare-indicators-and-risk- Immigrant Responsibility Act of 1996. 104th Cong. 83 FR 51114, 51163–51164 (proposed Oct. 10, factors-fourteenth-report-congress (last visited July 2nd Sess. H. Rpt. 828, at 138 (1996). https:// 2018). 26. 2019).

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mere public benefit receipt is not a good inability to achieve self-sufficiency; or restrictive, and arbitrary. A commenter measure of dependence 356 but that: that the 15 percent threshold was unfair also equated the threshold with having ‘‘Welfare dependence, like poverty, is a and unnecessary in scope because the no threshold at all and stated that continuum, with variations in degree minimal financial support provided by noncitizens will be too afraid to apply and in duration.’’ 357 As HHS explains, federally funded benefits did not for benefits. Similarly, commenters an individual may be more or less promote dependency, but were a safety stated that the 15 percent threshold is dependent based the share of total net for vulnerable families and therefore particularly low for immigrants living in resources derived from public benefits should not be linked to threats of areas with a high cost of living, for those or the amount of time over which the deportation. receiving cash assistance, or for those individual depends on the public Commenters stated that DHS had receiving housing assistance, especially benefit. As HHS further elaborates, ‘‘A offered no basis for its use of 15 percent in cities or states where the cost of summary measure of dependence . . . as the relevant benchmark for who is a housing exceeds those detailed in the as an indicator for policy purposes must public charge. Commenters also rule. Some commenters asserted that the have some fixed parameters that allow indicated that DHS’s own conclusory standard should be 50 percent of the one to determine [who] should be assumption that receipt of this level of FPG, while other stated that DHS should counted as dependent, just as the funding represents a lack of self- conduct a sensitivity analysis poverty line defines who is poor under sufficiency was rebutted by the ample comparing the economic impacts of the official standard.’’ 358 In this context, research showing that immigrants pay using a 15 percent of the FPG cutoff DHS has determined that it is more into the United States healthcare versus a 50 percent of the FPG cutoff for permissible to adopt a uniform duration system than they take out and that most benefits before determining the threshold so long as the threshold has immigrants pay taxes. This commenter threshold. A commenter stated that the fixed parameters to allow DHS to also indicated that DHS provided little FPG have long been criticized for being determine who is considered a public to no guidance as to how DHS officials inadequate and low—failing to take into charge. Accordingly, as explained would go about predicting a person’s account, for example, of geographical further below, DHS has defined ‘‘public future likelihood of receiving the variances in cost of living, as well as charge’’ in this final rule to mean a requisite amount of benefits and that the expenses that are necessary to hold a job person who receives the designated use of a specific dollar benchmark belies and to earn income (e.g., child care and benefits for more than 12 months in the the Department’s assurances that it will transportation costs). The commenter aggregate in any 36-month period. This not consider prior receipt of benefits to wrote that given these well-documented fixed standard will assist DHS to be the dispositive factor in public and critical flaws with the FPG, DHS’s determine which aliens are inadmissible charge determinations. Another proposed thresholds are particularly as likely to become a public charge at commenter indicated that DHS does not egregious. provide an explanation as to why the any time in the future based on the Many commenters provided examples totality of the alien’s circumstances. quantifiable amount of dependency was set at 15 percent rather than 50 percent, of individuals who would be found to b. Standards for Monetizable and Non- which would reflect primary be public charges under the proposed Monetizable Benefits dependency, or even 30 or 40 percent. benefit thresholds, despite being largely self-sufficient. Several commenters also Numerical Percentage Threshold Citing to United States v. Dierckman, 201 F.3d 915, 926 (7th Cir. 2000) and stated that a noncitizen receiving Comment: One commenter supported Allied-Signal, Inc. v. Nuclear Reg. slightly less than $5 per day, or roughly the explanation in the NPRM that the 15 Comm’n, 988 F.2d 146, 152 (D.C. Cir. $1,800 per year, in benefits would be percent threshold is an acceptable proxy 1993), the commenters indicated that enough to trigger a public charge for benefits use, and indicated that the DHS failed to provide the essential facts finding. Other commenters stated that a 15 percent threshold is ‘‘widely used upon which the administrative decision noncitizen family of four making 250 and thus arguably more transparent than is based. The commenter also stated that percent of the federal poverty line could other alternatives.’’ DHS’s attempt to justify its public be deemed public charges if they In contrast, many commenters voiced charge definition with existing case law received $2.50 per person per day, general opposition to the 15 percent that, according to DHS, failed to although such a family would be about threshold, believing that the standards stipulate quantifying levels of public 95 percent self-sufficient. A commenter will likely reverse public health strides support required, may have explained stated that therefore, DHS’s standard to communities have made relating to DHS’s proposal to quantify the amount, measure self-sufficiency had no rational vaccinations, communicable diseases but failed to explain why that connection with actual self-sufficiency. and nutrition; that benefits amount quantifiable amount should be 15 Many commenters cited studies finding received at that threshold level or any percent of FPG, and not a higher that those who are widely self- level, did not represent an individual’s percentage like 30 or 40 percent, or sufficient, upwards of 90 percent, but another amount that is less than 51 who receive or previously received ten 356 See U.S. Dep’t of Health & Human Servs., percent. percent of their income in benefits Indicators of Welfare Dependence: Annual Report could be found inadmissible under the to Congress, at Chapter II (1997), available at Other commenters stated DHS did not https://aspe.hhs.gov/report/indicators-welfare- provide adequate data to support using proposed threshold, especially in light dependence-annual-report-congress-1997 (last the 15 percent threshold in public of the fact that past receipt counts as a visited July 26. 2019). charge determinations, that the heavily-weighted factor. Another 357 See U.S. Dep’t of Health & Human Servs., threshold was contrary to the spirit of commenter cited a study indicating that Welfare Indicators and Risk Factors, at I–2 (2015), available at https://aspe.hhs.gov/report/welfare- public charge and did not prove an the rule could effectively ban a family indicators-and-risk-factors-fourteenth-report- immigrant is ‘‘primarily dependent’’ on of four making 175 percent of FPG, but congress (last visited July 26. 2019). government assistance; and that the which received $2.50 per day per 358 See U.S. Dep’t of Health & Human Servs., standard ignored the economic realities person in government aid, even though Welfare Indicators and Risk Factors, at I–2 (2015), this family is only receiving 8.6 percent available at https://aspe.hhs.gov/report/welfare- of low-wage work. indicators-and-risk-factors-fourteenth-report- Multiple commenters stated that the of their income from the government congress (last visited July 26. 2019). 15 percent threshold is too low or and is 91.4 percent self-sufficient. A

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commenter also stated that the proposed a public charge at any time in the future attribution of monetizable benefits (such threshold could have the perverse effect if the alien is more likely than not to that benefits granted to a multi-person of discouraging immigrants from receive public benefits for longer than household would not all be attributed to accessing benefits they need to 12 months in the aggregate in any 36- a single person), but stated that the eventually become self-sufficient. One month period. As with the proposed proposed rule was confusing, and that commenter stated that it would be rule, current receipt or past receipt of families are highly likely to avoid unreasonable to use the receipt of public more than 12 months of public benefits, seeking social services entirely, rather benefits in excess of 15 percent against in the aggregate, in any 36-month period than rely on the valuation formulas. an individual if the individual received will not necessarily be dispositive in the Some commenters suggested that it the aid after an accident or emergency, inadmissibility determination; i.e., in would be unreasonable to refer to FPG as such use would not be evidence determining whether the alien is likely for a household of one, when evaluating indicating that it will happen again. A to become a public charge at any time an alien who is part of a large commenter stated that the proposed in the future, but will be considered a household. One commenter wrote that threshold was so low that it would be heavily weighted negative factor in the the correlation between household more of an indicator that the alien is totality of the alien’s circumstances. receipts of public benefits in absolute subject to the inherent uncertainties and By moving the threshold standard dollar terms and the likelihood that one exigencies of life, e.g., if a sponsoring into the ‘‘public charge’’ definition, DHS member of that household will become company goes out of business or with intends to alleviate confusion about the a public charge can be assumed to be the occurrence of a heart attack or a threshold for being a public charge. As stronger, the smaller the size of the child developing a disability, that it part of the inadmissibility household. For a given level of receipt, would be an indicator of the alien’s determination, an officer will review the a larger household is more likely to be ongoing dependence on public benefits. likelihood of whether an alien will self-sufficient. The commenter Another commenter stated that a higher receive public benefits over the suggested that DHS set the threshold for threshold would better keep with the durational threshold. The ‘‘public monetary receipt based on actual prudence dictated by the precautionary benefit’’ definition will only list the household size. The commenter did not principle. The commenter wrote that specific programs considered and the address the fact that the proposed significantly tightening the public list of exclusions. Separating concepts valuation methodology called for benefits threshold from the old primary of ‘‘public charge’’ and ‘‘public prorating the benefit valuation based on dependence paradigm will entail benefits’’ also clarifies that DHS will household size. unanticipated consequences and ought consider in the totality whether an alien Response: DHS appreciates these to be conducted slowly. has applied for, received, or been comments. Because DHS is eliminating Many commenters stated that the 15 certified or approved to receive any the percentage-based threshold for percent threshold is overly complicated public benefits, as defined in 8 CFR monetizable benefits, as well as the and would lead to widespread 212.21(b), in assessing whether he or combination threshold, DHS is not confusion. A commenter said that she is likely to become a public charge making any adjustments to the because of the low threshold, it would as part of the totality of the application of the FPG to the valuation be difficult or impossible for families to circumstances. of monetizable benefits because the understand how to utilize public safety DHS believes that this approach is entire valuation concept is being nets without becoming a public charge, particularly responsive to public eliminated from the rule. Similarly, or to know at the time of an application comments that communicated concerns because DHS will not be monetizing if a specific benefit program would meet about the complexity of the bifurcated public benefits, the household size the 15 percent threshold. A commenter standard and lack of certainty. As applicable to the FPG (i.e., the stated that the proposed cutoff of 15 revised, this determination includes the household size of one) is no longer percent would not serve to improve consideration of public benefit relevant. That said, DHS does not clarity when making public charge application, certification, or receipt over believe that public benefits received by determinations, but would instead any period of time. However, as a member of the alien’s household reduce the number of immigrants whose indicated above, the alien’s application would serve as a reliable measure of the applications will be approved. for, certification, or receipt of public likelihood of an alien becoming a public Response: After considering all of the benefits will only be weighted heavily charge at any time in the future because public comments on the proposed in certain circumstances, namely where the receipt of benefits by a household thresholds for the receipt of public such application, certification, or member does not indicate that the benefits, DHS decided against finalizing receipt of public benefits exceeded 12 applicant is likely to receive public separate thresholds for monetizable and months in the aggregate within any 36- benefits as well. Therefore, if someone non-monetizable benefits, including the month period, beginning no earlier than in the household other than the combination threshold. Instead, DHS 36 months prior to the alien’s applicant is receiving the public benefit, has determined that a better approach application for admission or adjustment DHS will not consider receipt of the from a policy and operational of status on or after the effective date. public benefit. Similarly if the recipient perspective, and one indicative of a lack Similarly, DHS has revised the public is a member of the alien’s household, of self-sufficiency is a single duration- benefit condition that applies in the any income derived from such public based threshold, which this rule context of an extension of stay or change benefit will be excluded from the incorporates directly into the definition of status application or petition, to calculation of household income. of public charge,359 and the include this new standard as well. However, because DHS is eliminating the percentage-based threshold for determination of likely to become a Valuation public charge.360 monetizable benefits and instead Therefore, under this final rule, DHS Comment: DHS also received establishing a single, duration-based will consider an alien likely to become comments on the valuation of threshold, the length of time an alien monetizable benefits. A commenter receives any public benefit, as defined 359 See 8 CFR 212.21(a). acknowledged that the proposed rule in 8 CFR 212.21(b), will be considered 360 See 8 CFR 212.22(a). including provisions for pro rata in the totality of the circumstances,

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regardless of whether the alien is the where the threshold does not allow DHS nominally supplements an alien’s only person in the household receiving to determine the extent to which the independent ability to meet his or basic the benefit, or is one of the people benefit was used. A commenter living needs. Although an alien who receiving the same benefit. This differs suggested this threshold would be receives the designated public benefits from the approach in the proposed rule prohibitive for all households for more than 12 months in the where valuation of certain benefits that participating in federal housing aggregate may soon disenroll, the fact are based on the household size (e.g., programs, regardless of immigration that she or he received such support for SNAP) would have been proportionally status. The commenter also stated that such a substantial period of time attributed to the alien.361 durational receipt measures are establishes that they are a public charge Comment: DHS also received meaningless in the context of health until such disenrollment occurs. DHS comments on the non-monetizable coverage since duration does not would consider the alien’s request to benefits standards. One commenter represent the extent of benefits actually disenroll in the totality of the stated that the 12- and 9-month used. Commenters stated that DHS’s circumstances review. minimum use thresholds are acceptable public charge assumption rests on Ample basis exists for using a proxies for being a public charge, but arbitrary time periods for receiving duration-based standard even if, as the NPRM provides almost no benefits. Without citing to the source of commenters noted, neither the 1999 explanation of how or why DHS information, one commenter stated that Interim Field Guidance nor any other determined that the 12- and 9-month the average length a person is on SNAP source provides an authoritative basis threshold for non-monetizable benefits is 8–10 months, Medicaid assistance for for a specific duration-based standard. was indicative that an alien is a public children is provided on average for 28 As indicated in the NPRM, under the charge. The commenter said a more months, and the average length of 1999 Interim Field Guidance, the detailed analysis of the non-monetizable receipt for public housing for families is duration of receipt is a relevant factor benefits threshold in a final rule would no more than 4 years. Similarly without with respect to covered benefits and is go a long way to legitimizing this attributing the source of information, a specifically accounted for in the rulemaking. Many commenters either commenter said a 20-year analysis guidance’s inclusion of long-term voiced general opposition to the 12- makes clear that seemingly dependent institutionalization at government’s month standard for non-monetizable immigrants will become self-sufficient expense.362 But the 1999 Interim Field benefits or indicated that the standard and productive in the long-term. One Guidance did not create a standard by was unreasonable in the context of commenter stated strong opposition to which an alien’s long-term reliance on specific non-monetizable benefits, such the double counting of months where public benefits would indicate a lack of as Medicaid (which according to the more than one benefit is received. self-sufficiency. In addition, HHS has commenters is designed for continuous Response: DHS has decided to adopt repeatedly cited and measured the enrollment) and public housing (which a uniform duration standard for the duration of time individuals receive frequently requires a year-long lease following reasons. First, the new means-tested assistance as an indicator agreement. A commenter stated that the standard is simpler and more threshold would not be well understood administrable than the proposed 362 See Inadmissibility on Public Charge Grounds, by the public, or provide sufficient approach for monetizable and non- 83 FR 51114, 51165 (proposed Oct. 10, 2018). In assessing the probative value of past receipt of assurance that a brief period of monetizable benefits. It eliminates the public benefits, ‘‘the length of time . . . is a enrollment would be worthwhile. For need for complicated calculations and significant factor.’’ 64 FR 28689, 28690 (May 26, instance, with respect to Medicaid, if projections related to the 15 percent of 1999) (internal quotation marks and citation the alien learned about the thresholds at FPG threshold. By eliminating the 15 omitted). The NPRM also noted that in the context of both state welfare reform efforts and the 1990s all, she or he might still be concerned percent of FPG threshold for Federal welfare reform, Federal Government and about signing up for a brief period of monetizable benefits, DHS is also able to state governments imposed various limits on the coverage, fearing that they might eliminate the complicated assessment duration of benefit receipt as an effort to foster self- experience more acute healthcare needs for the combination of monetizable and sufficiency among recipients and prevent long-term or indefinite dependence. States have developed later and should refrain from using non-monetizable benefits and the widely varying approaches to time limits. Medicaid until or unless that occurred. provision for the valuation of Currently, 40 states have time limits that can result The alien might also know that monetizable benefits, including the in the termination of families’ welfare benefits; 17 Medicaid eligibility periods typically need to prorate such benefits. of those states have limits of fewer than 60 months. Second, the standard is consistent See, e.g., MDRC, formerly Manpower last a year and may be unclear about Demonstration Research Corporation, Welfare Time how that period can be shortened. with DHS’s interpretation of the term Limits State Policies, Implementation, and Effects Another commenter stated that the 12- ‘‘public charge.’’ DHS believes that on Families. https://www.mdrc.org/sites/default/ month standard is arbitrary and would public benefit receipt for more than 12 files/full_607.pdf (last visited July 26, 2017). cumulative months over a 36-month Similarly, on the Federal level, PRWORA produce ‘‘absurd results’’ when applied established a 60-month time limit on the receipt of in a real-world context. For example, period is indicative of a lack of self- TANF. See Temporary Assistance for Needy someone with cancer might use sufficiency. The threshold is intended to Families Program (TANF), Final Rule; 64 FR 17720, Medicaid to help cover their expenses, address DHS’s concerns about an alien’s 17723 (Apr. 12, 1999) (‘‘The [Welfare to Work and the 12-month standard could cause lack of self-sufficiency and inability to (WtW)] provisions in this rule include the amendments to the TANF provisions at sections them to discontinue care too early, rely on his or her own capabilities as 5001(d) and 5001(g)(1) of Public Law 105–33. leading to devastating consequences. well as the resources of family, Section 5001(d) allows a State to provide WtW Commenters stated that using duration sponsors, and private organizations to assistance to a family that has received 60 months to determine dependency is particularly meet basic living needs. DHS believes of federally funded TANF assistance . . .’’). These time limits establish the outer limits of how long problematic in the context of Medicaid, that an alien who receives the benefits are even available to a beneficiary as a designated public benefits for more than matter of eligibility for the public benefit, and 361 In the NPRM, DHS had proposed calculating 12 months in the aggregate during a 36- therefore how long an individual can receive those the value of the benefit attributable to the alien in month period is not self-sufficient. benefits. But DHS cannot use these time limits to proportion to the total number of people covered by Receipt of public benefits for such a establish a specific standard to determine how long the benefit in determining the cumulative value of an individual can receive such benefits while one or more monetizable benefits. See proposed 8 duration exceeds what DHS believes is remaining self-sufficient for purposes of the public CFR 212.24, Valuation of Monetizable Benefits. a level of support that temporarily or charge inadmissibility determination.

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of welfare dependence in its annual months.368 The study thus showed that researchers found that on average, reports on welfare dependence, a significant portion of the benefits- ‘‘cyclers’’ received 27 months of cash indicators, and risk factors.363 HHS receiving population ended their assistance within the study’s four-year states, ‘‘The amount of time over which participation within a year. In fact, the observation period, compared with an [an individual] depends on welfare study compared participants’ months of average of 12 months for short-term might also be considered in assessing program participation across various recipients and 40 months for long-term [the individual’s] degree of income and age ranges, racial groups, recipients.372 dependence.’’ 364 family types, levels of educational DHS acknowledges that the duration This rule aims to create such a attainment, and types of employment standard is imperfect, because it is an standard, in order to provide aliens and status, and found that nearly across the exercise in line-drawing, it does not adjudicators with a bright-line rule board, there was a relatively large group monetize public benefit receipt, and it is upon which they can rely. The proposed of people who participated for between applied prospectively based on the rule cited longitudinal studies of one and 12 months, followed by totality of the alien’s circumstances welfare receipt, such as the Census relatively smaller groups who instead of an algorithm or formula. In Bureau’s Dynamics of Economic Well- participated for between 13 and 24 some cases, DHS may find an alien Being study,365 and the welfare leaver months and between 25 and 36 months, admissible, even though the alien may study.366 Both studies offer insight into respectively, followed by a relatively receive thousands of dollars, if not tens the length of time that recipients of large group of people who participated of thousands of dollars, in public public benefits tend to remain on those for between 37 and 48 months. benefits without exceeding the duration benefits, and lend support to the notion Similarly, an earlier study showed that threshold at any time in the future. DHS that this rule’s standard provides across a 24-month period of study, those recognizes this scenario is plausible meaningful flexibility to aliens who may who were enrolled in one or more major based on estimates of Medicaid costs require one or more of the public assistance programs (approximately 25.2 and receipt of Medicaid only. For benefits for relatively short periods of percent of the overall population example, the Office of the Actuary in the Centers for Medicare and Medicaid time, without allowing an alien who is studied) were most likely to be enrolled Services estimated that annual Medicaid not self-sufficient to avoid facing public for the entire 24-month period (10.2 369 spending per enrollee ranged from charge consequences.367 percent). But a substantial portion of the population enrolled in such approximately $3,000-$5,000 for For example, according to the Census programs only participated between one children and adults to approximately Bureau, the largest share of participants and 11 months (8.5 percent) or 12 to 23 $15,000-$20,000 for the aged and (43.0 percent) who benefited from one months (6.5 percent).370 All of this persons with disabilities in Fiscal Year or more means-tested assistance suggests that a 12-month standard is not 2014.373 DHS’s analysis of SIPP data programs in the 48 months from January absurd, as indicated by commenters, but shows that among individuals receiving 2009 to December 2012, stayed in the in fact accommodates a significant SSI, TANF, GA, SNAP, Section 8 program(s) between 37 and 48 months. proportion of short-term benefits use, Housing Vouchers, Section 8 Rent By contrast, 31.2 percent of participants while also providing a simple and Subsidy, or Medicaid in 2013, over 32 in such benefits stayed in the program(s) accessible touchstone (more than a year) percent were receiving Medicaid only for between one and 12 months, and the and an easily administrable cutoff that on average each month.374 remaining 25.8% of participants stayed is a midpoint between the cutoffs In other cases, DHS may find an alien in the program for between 13 and 36- established in the studies (36 months). inadmissible under the standard, even The ‘‘welfare leaver’’ study referenced though the alien who exceeds the 363 See, e.g., U.S. Dep’t of Health & Human Servs., above also provides support for a 12- duration threshold may receive only Welfare Indicators and Risk Factors (2014–2015) month standard. Although most people hundreds of dollars, or less, in public and U.S. Dep’t of Health & Human Servs., Indicators of Welfare Dependence (1997–1998, 2000–2013), who leave welfare programs work after available at https://aspe.hhs.gov/indicators-welfare- they leave those programs, people may 372 For most analyses in the report, the report dependence-annual-report-congress (last visited come back to receive additional public divides the samples into three key outcome groups, July 26. 2019). 371 based on each sample member’s pattern of welfare benefits. In the welfare leaver study, receipt: Cyclers, short-term recipients, and long- 364 See U.S. Dep’t of Health & Human Servs., term recipients. The report states that this grouping Welfare Indicators and Risk Factors, at I–2 (2015), 368 reflects definitions used in the literature, combined available at https://aspe.hhs.gov/system/files/pdf/ See Shelley K. Irving & Tracy A. Loveless, U.S. _ Census Bureau, Household Economic Studies, with an examination of the full sample. The report 76851/rpt indicators.pdf (last visited July 26. 2019). defines a cycler as someone who had 3 or more 365 Dynamics of Economic Well-Being: Participation in See Shelley K. Irving & Tracy A. Loveless, U.S. Government Programs, 2009–2012: Who Gets spells of welfare receipt during the 4-year Census Bureau, Dynamics of Economic Well-Being: Assistance? 4 (May 2015), available at https:// observation period. The report defines a short-term Participation in Government Programs, 2009–2012: www.census.gov/content/dam/Census/library/ recipient as someone who had 1 or 2 spells and a Who Gets Assistance? 10 (May 2015), available at publications/2015/demo/p70-141.pdf (last visited total of up to 24 months of welfare receipt during https://www.census.gov/content/dam/Census/ July 26, 2019). This report includes TANF, General the observation period. The report defines long- library/publications/2015/demo/p70–141.pdf (last Assistance (GA), SSI, SNAP, Medicaid, and housing term recipients as sample members with 1 or 2 visited July 26, 2019). assistance as major means-tested benefits. spells and a total of 25 to 48 months of welfare 366 See Lashawn Richburg-Hayes & Stephen 369 The programs included in the study were receipt during the observation period. See Lashawn Freedman, A Profile of Families Cycling On and Off TANF, GA, SNAP, SSI, and Housing Assistance, all Richburg-Hayes & Stephen Freedman, A Profile of Welfare 4 (Apr. 2004), available at https:// of which are covered to at least some degree by this Families Cycling On and Off Welfare 22 (Apr. aspe.hhs.gov/system/files/pdf/73451/report.pdf rule. 2004), available at https://aspe.hhs.gov/system/ (last visited July 26, 2019). 370 See Jeongsoo Kim, Shelley K. Irving, & Tracy files/pdf/73451/report.pdf (last visited July 26, 367 See Shelley K. Irving & Tracy A. Loveless, U.S. A. Loveless, U.S. Census Bureau, Dynamics of 2019). Census Bureau, Dynamics of Economic Well-Being: Economic Well-Being: Participation in Government 373 See United States Department of Health and Participation in Government Programs, 2009–2012: Programs, 2004 to 2007 and 2009—Who Gets Human Services, Centers for Medicare and Who Gets Assistance? 10 (May 2015), available at Assistance? 4 (July 2012), available at https:// Medicaid Services, the Office of the Actuary, 2017 https://www.census.gov/content/dam/Census/ www2.census.gov/library/publications/2012/demo/ Actuarial Report of Financial Outlook for Medicaid, library/publications/2015/demo/p70-141.pdf (last p70–130.pdf (last visited July 26, 2019). Table 21, page 61, at https://www.cms.gov/ visited July 26, 2019). See also Lashawn Richburg- 371 See Lashawn Richburg-Hayes & Stephen Research-Statistics-Data-and-Systems/Research/ Hayes & Stephen Freedman, A Profile of Families Freedman, A Profile of Families Cycling On and Off ActuarialStudies/Downloads/ Cycling On and Off Welfare 4 (Apr. 2004), available Welfare ES–1 (Apr. 2004), available at https:// MedicaidReport2017.pdf (last visited July 26, 2019). at https://aspe.hhs.gov/system/files/pdf/73451/ aspe.hhs.gov/system/files/pdf/73451/report.pdf 374 DHS analysis of Wave 1 of the 2014 Panel of report.pdf (last visited July 26, 2019). (last visited July 26, 2019). the Survey of Income and Program Participation.

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benefits annually. A DHS analysis of period.376 At bottom, DHS believes that inadmissible or ineligible for adjustment SIPP data related to public benefit this standard appropriately balances the of status by virtue of such past receipt. receipt and amounts indicates that relevant considerations, and that even This is because, as noted throughout among the 25 percent of SNAP an alien who receives a small dollar this preamble, the public charge recipients in 2013 who only received value in benefits over an extended inadmissibility determination is SNAP (rather than SNAP and some period of time can reasonably be prospective in nature, and depends on other benefit), eight percent lived in deemed a public charge, because of the DHS’s evaluation of the totality of the households receiving between $11 and nature of the benefits designated by this circumstances. Moreover, the amount of $50 per month, compared to 80 percent rule. past benefit receipt may be considered of recipients who lived in households DHS also notes the operational in the totality of the circumstances. For receiving over $150 per month. Among difficulties associated with a monetary instance, all else being equal, an alien the 3 percent of TANF recipients who threshold particularly given that several who previously received $15 in monthly only received TANF in 2013, nearly of the benefits under consideration are SNAP benefits for a lengthy period of eight percent of recipients lived in benefits received by a family unit and time, but has since disenrolled, is less households receiving between $11 and the public charge determination is, by likely to require such benefits in the $50 per month compared to 60 percent statute, an individual determination. future, as compared to an alien who of recipients who lived in households For example, in the case of SNAP or a only recently disenrolled from a $100 receiving over $150 per month. And housing voucher it would be difficult to SNAP benefit monthly, or who recently among the 26 percent of TANF, SNAP, meaningfully assign proportions of the left public housing after a lengthy stay. GA, and SSI recipients who only group benefit to individuals in the family, who may benefit in different Finally, DHS believes that it is received one of those public benefits, appropriate to aggregate the 12 months, six percent of recipients lived in amounts or account for less or more than a pro rata share of the benefit, from inasmuch as the aggregation ensures households receiving between $11 and that aliens who receive more than one $50 per month compared to 80 percent the benefits-granting’s agency’s perspective. At its core, the prospective public benefit (which may be more of recipients who lived in households indicative of a lack of self-sufficiency, receiving over $150 per month. Among determination seeks to determine, based on the totality of the circumstances, the with respect to the fulfillment of TANF, SNAP, GA, and SSI recipients multiple types of basic needs) reach the receiving any of those public benefits, likelihood of an individual to use the public benefits enumerated in this rule 12-month limit faster. Namely, DHS four percent lived in households to support themselves at any point in believes that receipt of multiple public receiving between $11 and $50 per the future. This is a determination more benefits in a single month is more month cumulatively across all such aptly made by examining a pattern of indicative of a lack of self-sufficiency benefits received, compared to 87 behavior than by a monetary threshold than receipt of a single public benefit in percent of recipients who lived in which could represent a lump sum a single month because receipt of households receiving over $150 per payment due to a one-time need. DHS multiple public benefits indicates the month.375 believes that short-term benefits use alien is unable to meet two or more These potential incongruities are to may not be as reliable an indicator of an basic necessities of life. This is not an some extent a consequence of having a alien’s lack of self-sufficiency, and uncommon occurrence. For example, bright-line rule that (1) provides believes that longer-term benefits use DHS’s analysis of SIPP data reveals that meaningful guidance to aliens and serves as a better indicator. among individuals who received the adjudicators, (2) accommodates Of course, if an alien who receives a enumerated public benefits in 2013, at meaningful short-term and intermittent small dollar value in public benefits least nearly 35 percent of individuals access to public benefits, and (3) does over an extended period of time received two or more public benefits on not excuse continuous or consistent disenrolls from a benefit and later average per month. Table 7 provides public benefit receipt that denotes a lack applies for admission or adjustment of additional context with respect to the of self-sufficiency during a 36-month status, she or he will not necessarily be concurrent receipt of multiple benefits.

TABLE 7—PUBLIC BENEFIT RECEIPT COMBINATIONS AMONG INDIVIDUALS RECEIVING ONE OR MORE ENUMERATED PUBLIC BENEFITS (AVERAGE PER MONTH), 2013

Percent of individuals Program with DHS view combination

Individuals Receiving Public Benefits ...... 100.0 Medicaid only ...... 32.5 Meeting healthcare needs. Medicaid and Supplemental Nutrition Assistance Program 22.8 Meeting healthcare and food/nutrition needs. (SNAP). SNAP Only ...... 13.1 Meeting food/nutrition needs. Section 8 Rental Assistance Only ...... 3.6 Meeting housing needs. Medicaid, SNAP, and Supplemental Security Income (SSI) ..... 3.2 Meeting healthcare, food/nutrition, and cash assistance needs. Medicaid, SNAP, and Section 8 Rental Assistance ...... 3.0 Meeting healthcare, food/nutrition, and housing needs. Medicaid and SSI ...... 2.9 Meeting healthcare and cash assistance needs.

375 DHS analysis of Wave 1 of the 2014 Panel of discretion by applying a bright-line rule Cir. 1988) (‘‘Strict adherence to a general rule may the Survey of Income and Program Participation. consistently in order both to preserve incentives for be justified by the gain in certainty and 376 Cf., e.g., Harris v. FCC, 776 F.3d 21, 28–29 compliance and to realize the benefits of easy administrative ease, even if it appears to result in administration that the rule was designed to (D.C. Cir. 2015) (‘‘An agency does not abuse its some hardship in individual cases.’’). achieve.’’); Turro v. FCC, 859 F.2d 1498, 1500 (D.C.

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TABLE 7—PUBLIC BENEFIT RECEIPT COMBINATIONS AMONG INDIVIDUALS RECEIVING ONE OR MORE ENUMERATED PUBLIC BENEFITS (AVERAGE PER MONTH), 2013—Continued

Percent of individuals Program with DHS view combination

Medicaid, SNAP, Section 8 Housing Vouchers, and Section 8 2.8 Meeting healthcare, food/nutrition, and housing needs. Rental Assistance. SSI Only ...... 2.1 Meeting cash assistance needs. All other combinations ...... 13.3 Note: Because of rounding, percentages may not sum to 100.0. Source: This table was derived from DHS analysis of Wave 1 of the 2014 Panel of the Survey of Income and Program Participation.

DHS does not believe that the services they need. Medicaid coverage supplements an alien’s independent threshold should operate in a way that constitutes a significant benefit received ability to meet his or her basic living effectively ignores receipt of multiple by enrollees regardless of direct needs.381 benefits in a single month and results in expenditures, even if states require DHS also disagrees that the standard differential treatment for an alien who enrollees to pay subsidized premiums is arbitrary. As discussed in the NPRM receives one designated benefit in one and pay for cost-sharing services.378 and this final rule, researchers have month and another in the next month, According to the Centers for Medicare shown that welfare recipients as compared to an alien who receives and Medicaid Services, Office of the experienced future employment each of those designated benefits in the Actuary, ‘‘beneficiary cost sharing, such instability, and continued to move in same month. DHS appreciates the as deductibles or copayments, and and out of welfare benefit programs references one commenter makes to beneficiary premiums are very limited such as Medicaid and SNAP.382 Based average durations of receipt for certain in Medicaid and do not represent a on this research, DHS considers any benefits but notes that the commenter’s significant share of the total cost of past receipt of public benefits a negative statements could not be evaluated healthcare goods and services for factor in the public charge without a reference to a study or sources Medicaid enrollees.’’ 379 Ninety-five determination, although the weight data. percent of total outlays in 2016 were for accorded to such receipt would vary DHS strongly disagrees with medical assistance payments, such as according to the circumstances. commenters’ assertion that the duration acute care benefits, long-term care Similarly, application for or certification standard is problematic in the context of benefits, capitation payments and to receive a public benefit, or current Medicaid because the standard does not premiums, and disproportionate share receipt of public benefits for longer take into account the extent to which hospital (DSH) payments. Capitation periods of time or moving in and out of Medicaid is used. As DHS explained in payments and other premiums, which benefit programs for an aggregate period the NPRM, Medicaid serves as a last- include premiums paid to Medicaid of more than 12 of the most recent 36 resort form of health insurance for managed care plans, pre-paid health months preceding the filing of the people of limited means. Medicaid plans, other health plan premiums, and application for admission or application expenditures are significant across premiums for Medicare Part A and Part for adjustment of status is considered a multiple enrollee groups, and are B, represented 49 percent of Medicaid heavily-weighted negative factor. particularly pronounced among persons benefit expenditures in 2016.380 The duration standard should provide with disabilities and the aged. The Accordingly, the duration of an alien’s a more predictable threshold that will Office of the Actuary in the Centers for receipt of non-monetizable benefits like better permit applicants to adjust their Medicare and Medicaid Services, HHS, Medicaid is a reasonable proxy for behavior as they deem necessary and most recently reported that Medicaid assessing an alien’s reliance on public appropriate. An applicant should be spending per enrollee in FY 2016 was benefits. DHS also believes that benefits readily aware whether he or she has $3,555 for children, $5,159 for adults, received, including Medicaid, over that received public benefits for more than $19,754 for persons with disabilities, timeframe likely exceeds a nominal 12 cumulative months within a 36- and $14,700 for the aged.377 Even if a level of support that merely month period. Note that this rule Medicaid enrollee claims that he or she clarifies that DHS will take into did not or will not use Medicaid 378 Premium means any enrollment fee, premium, consideration evidence that an alien benefits (i.e., by going to the doctor or or other similar charge. Cost sharing means any made requested to be disenrolled from copayment, coinsurance, deductible, or other hospital) within a given time period, the similar charge. See 42 CFR 447.51 for definitions. public benefits and has made clarifying value of Medicaid is not merely the 379 See U.S. Department of Health and Human edits in 8 CFR 212.22(b)(4)(ii)(E) to value of claims paid out. Like any Services, Centers for Medicare and Medicaid make such consideration explicit. insurance plan, Medicaid protects Services, the Office of the Actuary, 2017 Actuarial Finally, DHS notes that the change to against future potential expenses and Report of Financial Outlook for Medicaid, page 3, a duration-only standard is responsive available at https://www.cms.gov/Research- ensures that enrollees can receive the Statistics-Data-and-Systems/Research/ to comments indicating that the 15 ActuarialStudies/Downloads/ percent of FPG threshold would be too 377 See United States Department of Health and MedicaidReport2017.pdf (last visited June 6, 2019). low or unreasonable for those living in Human Services, Centers for Medicare and 380 See United States Department of Health and cities and areas with high costs of Medicaid Services, the Office of the Actuary, 2017 Human Services, Centers for Medicare and living. For example, under the NPRM, Actuarial Report of Financial Outlook for Medicaid, Medicaid Services, the Office of the Actuary, 2017 Table 21, page 61, at https://www.cms.gov/ Actuarial Report of Financial Outlook for Medicaid, Research-Statistics-Data-and-Systems/Research/ pages 5–6, available at https://www.cms.gov/ 381 See Inadmissibility on Public Charge Grounds, ActuarialStudies/Downloads/ Research-Statistics-Data-and-Systems/Research/ 83 FR 51114, 51165 (proposed Oct. 10, 2018). MedicaidReport2017.pdf (last visited April 25, ActuarialStudies/Downloads/ 382 See Inadmissibility on Public Charge Grounds, 2019). MedicaidReport2017.pdf (last visited June 6, 2019). 83 FR 51114, 51165 (proposed Oct. 10, 2018).

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DHS would have considered an alien time of filing and adjudication, any to add a grace period for the receipt of receiving a Section 8 Housing Voucher public benefit, as defined in 8 CFR public benefits. For purposes of this in an area where the eligibility 212.21(b), for 12 months, in the rule, there will be a period between the requirement amounted to income more aggregate, within a 36-month period.385 publication of this rule, and the rule’s than 250 percent of the FPG in the same Finally, DHS understands that certain effective date, which would serve as a manner as another alien living area individuals may become self-sufficient ‘‘grace period’’ of sorts. DHS has also where the income eligibility was 50 in the long-term after a certain duration specified how it will consider receipt of percent of the FPG. Under the new of benefits use and that individuals may public benefits prior to the rule’s standard, the effect of cost living is use benefits for shorter or longer periods effective date. Ultimately, however, all minimized. of time. But similar to the explanation aliens who apply for admission or DHS understands that certain above, the fact that a person may adjustment of status on or after the applicants may be hesitant to receive ultimately become self-sufficient is not rule’s effective date will be subject to a certain benefits in light of the public the material question. The material prospective public charge charge assessment. DHS reiterates that questions is whether the person is likely inadmissibility determination. this rule does not prevent individuals to become a public charge at some point DHS notes that as part of the totality who are eligible for public benefits from in the future. Therefore, DHS will not of the circumstances determination, receiving these benefits. And as limit its definition of ‘‘public charge’’ DHS will consider evidence that is explained below, in its public charge based on the potential that an alien who relevant to its determination whether an inadmissibility determination DHS will is currently public charge may not alien is likely to become a public charge not consider receipt of Emergency remain so indefinitely. The appropriate at any time in the future. For example, Medicaid, the Medicare Part D LIS, way to address that nuance is through if an alien received public benefits in Medicaid received by alien under age 21 the totality of the circumstances excess of the threshold duration but has or pregnant women, and a wide range of prospective determination, rather than evidence that his or her circumstances other benefits, such as emergency or the definition of public charge. have changes or that the alien has disaster relief. This rule also explains Accordingly, DHS properly considers requested to be disenrolled from such the criteria under which DHS will the receipt of public benefits for more benefits, DHS will take such evidence determine whether an alien subject to than 12 months in the aggregate within into consideration in the totality of the section 212(a)(4), 8 U.S.C. 1182(a)(4), a 36-month period a heavily weighted circumstances. has established that he or she is not negative factor in public charge Comment: A commenter stated that inadmissible on that ground. As inadmissibility determinations. the 12-month period ought to be explained, DHS will assess all factors lengthened to approximately 36 months, Alternatives to the Duration Standard and circumstances applicable to the because according to a report, 45 public charge determination, including Comment: Some commenters percent of people who received the past receipt of public benefits listed recommended a ‘‘grace period’’ for government assistance for less than 36 in 8 CFR 212.21(b). No one factor alone foreign nationals coming to the United months stop receiving assistance will render an applicant inadmissible States to use public benefits and reach sometime after the first 12 months. on account of public charge; DHS will self-sufficiency, including an 18-month According to the commenter, the 45 assess whether the alien is likely to period to become a fully acclimated and percent are people who are on their way become a public charge, i.e., to receive productive person or to recover from out of poverty due to public benefit the designated benefits above the emergencies or severe medical issues. programs. By contrast, approximately 43 threshold, in the totality of the Response: As previously discussed, percent of welfare recipients stay circumstances. the purpose of this rule is to implement dependent for at least 3 years. DHS also acknowledges that the the public charge ground of According to the commenter, these are regulation may result in fewer numbers inadmissibility consistent with the the people who truly lack self- of nonimmigrants and immigrants being principles of self-sufficiency set forth by sufficiency, as they have failed to exit admitted to the United States or granted Congress, and to minimize the incentive the welfare system. adjustment of status to that of a lawful of aliens to attempt to immigrate to, or Response: DHS disagrees with this permanent resident. DHS notes that the to adjust status in, the United States due recommendation. As discussed in the 386 ground of inadmissibility under section to the availability of public benefits. NPRM and above, while some recipients 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) In particular, Congress indicated that may disenroll from public benefits after applies to aliens seeking admission to the immigration policy continues to be 12 months, this only addresses short- the United States, or adjustment of that ‘‘aliens within the Nation’s borders term welfare recipients.388 For example, status to that of a lawful permanent not depend on public resources to meet as indicated in the NPRM, ‘‘the resident. The public charge ground of their needs, but rather rely on their own proportion of [Medicaid and food stamp inadmissibility does not apply to capabilities and the resources of their participation] leavers who receive these families, their sponsors, and private benefits at some point in the year after nonimmigrants present in the United 387 States seeking an extension of stay 383 or organizations.’’ When Congress exit is much higher than the proportion change of nonimmigrant status.384 As enacted section 212(a)(4) of the Act, 8 who receives them in any given quarter, indicated in the NPRM, however, when U.S.C. 1182(a)(4), it did not provide a suggesting a fair amount of cycling into adjudicating an alien’s application for grace period or a time period in which and out of these programs.’’ 389 HHS aliens could use public benefits after extension of stay or change of status, also funds various research projects on entering the United States. Therefore, DHS will assess whether the alien has welfare. Across fifteen state and county DHS does not believe it is appropriate demonstrated that he or she has not received, since obtaining the 388 See Inadmissibility on Public Charge Grounds, 385 See 8 CFR 214.1(a)(3)(iv) and 8 CFR 248.1. nonimmigrant status and through the 83 FR 51114, 51199 (proposed Oct. 10, 2018). 386 See 8 U.S.C. 1601. 389 See Lashawn Richburg-Hayes & Stephen 387 See Personal Responsibility and Work Freedman, A Profile of Families Cycling On and Off 383 See 8 CFR 214.1. Opportunity Reconciliation Act of 1996, Public Law Welfare 4 (Apr. 2004), available at https:// 384 See INA section 248, 8 U.S.C. 1258; see 8 CFR 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, aspe.hhs.gov/system/files/pdf/73451/report.pdf 248. 1996) (codified at 8 U.S.C. 1601(2)). (last visited July 26, 2019).

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welfare studies funded by HHS, it was cash assistance that are not intended to However, as indicated above, DHS has found that the number of leavers who maintain a person at a minimum level eliminated the threshold standard and is received food stamps within one year of of income would similarly not fall applying a single duration-based exit was between 41 and 88 percent. within the definition. In addition, DHS threshold standard to all covered public Furthermore, TANF leavers returned to will not consider medical assistance for benefits. DHS believes that this the program at a rate ranging between 17 emergency medical condition (42 U.S. approach is responsive to public and 38 percent within one year of exit. C. 1396(v)(3)) or short-term, non-cash, comments that raised concerns about Twelve of these studies included in-kind emergency disaster relief.392 the complexity of the proposed household surveys, with some Finally as discussed above, DHS will standards as well as the need for conducting interviews less than a year also take into consideration evidence certainty and predictability in public post-exit, and some as much as 34 that an alien has disenrolled or charge determinations. months after exit. A review of these requested to disenroll from public 2. Public Benefits surveys found that among those who left benefits in the totality of the Medicaid, the rate of re-enrollment at circumstances when determining Comment: A majority of commenters the time of interview was between 33 whether an alien is likely at any time in recommended that public benefits and 81 percent among adults, and the future to become a public charge. encompassed by the definition of that between 51 and 85 percent among term in the proposed rule (both children. Employment rates at the time Combination Standard monetizable and non-monetizable), such of interview ranged between 57 and 71 Comment: DHS received comments as SSI, SNAP, Medicaid, TANF, and percent.’’ 390 For these reasons, DHS on the proposed rule’s provision for housing not be included in the public does not believe that it should lengthen combining monetizable and non- charge determination and described the the 12-month period to 36 months. monetizable benefits. Commenters negative outcomes that would arise if Comment: Commenters also stated generally opposed the proposed immigrants’ access to the benefits were that receipt of benefits after an event standard for combination of monetizable reduced due to this rule. A commenter such as a natural disaster ought not benefits under 15 percent of FPG and stated that public charge determinations render an alien a public charge, but that one or more non-monetizable benefits. never considered non-cash benefits in sometimes the effects of a natural Under this proposal, if an alien received the past, and including them now is disaster can last longer than 12 months. a combination of monetizable benefits inhumane, and will cost the local, State, The commenter disagreed with DHS’s equal to or below the 15 percent and Federal governments in the long- statement in the proposed rule that ‘‘an threshold together with one or more run. One commenter requested that the individual who receives monetizable benefits that cannot be monetized, the listed programs be removed, and that no public benefits for more than 12 threshold for duration of receipt of the additional programs be added to the cumulative months during a 36-month non-monetizable benefits would be 9 determination. One commenter said that period is neither self-sufficient nor on months in the aggregate (rather than 12 expanding the public benefits definition the road to achieving self- months) within a 36-month period (e.g., would result in sweeping negative sufficiency.’’ 391 The commenter stated receipt of two different non-monetizable consequences and cause detrimental that it can take much longer than 12 benefits in one month counts as two effects to public access to benefits by months to recover from a natural months, as would receipt of one non- discouraging vulnerable populations disaster, and noted that following a monetizable benefit for one month in from seeking the services they need. A tornado in the commenter’s community January 2018, and another such benefit commenter asserted that this rule affects in 2013, some families were still for one month in June 2018).393 more than just immigration status recovering in 2018, and required the Some commenters stated that the determinations, as it would impede designated benefits. proposed combination standard lacked access to supplemental services that Response: As indicated in the NPRM, clarity in its explanation and some raise the standard of living for the DHS will not consider public benefits explained that they opposed this individual and their family. Another commenter indicated that beyond those covered under 8 CFR combination standard as it would have lawfully present noncitizens who have 212.21(b), but even within that category, a similar effect to having no threshold jobs within needed sectors simply might DHS will not consider all cash at all, resulting in immigrants being too not earn enough to provide quality assistance as cash assistance for income afraid to apply for and receive benefits. healthcare, nutritious food, and safe, maintenance under the rule. For Commenters stated that DHS did not stable housing to their families. The instance, DHS would not consider provide a rationale for the combination Stafford Act disaster assistance, commenter further indicated that of monetizable benefits under 15 programs like SNAP, CHIP, and including financial assistance provided percent of the FPG and one or more to individuals and households under Medicaid are designed to help non-monetizable benefits. One individuals meet their families’ basic Individual Assistance under the Federal commenter suggested deleting this Emergency Management Agency’s needs to keep them healthy and safe, provision, because it would render a and to penalize hardworking families Individuals and Households Program person a public charge based on any (42 U.S.C. 5174) as cash assistance for for using the program designed for them amount of SNAP or housing benefits, is morally bankrupt. A couple of income maintenance. The same would combined with 9 months of Medicaid hold true for comparable disaster commenters said the policy penalizes coverage. The commenter indicated that the use of public benefits, and indicated assistance provided by State, local, or this outcome was too severe. tribal governments. Other categories of that safety-net programs are correlated Response: DHS disagrees with with the positive health and education commenters that the combination 390 outcomes that help low-income families Inadmissibility on Public Charge Grounds, 83 standard lacked clarity or justification. FR 51114, 51199 (proposed Oct. 10, 2018) (quoting escape poverty. Commenters stated that Lashawn Richburg-Hayes & Stephen Freedman, A access to non-cash programs and other Profile of Families Cycling On and Off Welfare 4 392 Inadmissibility on Public Charge Grounds, 83 (Apr. 2004) (citation omitted)). FR 51114, 51128, 51159 (proposed Oct. 10, 2018). public benefits offers dignity and 391 See Inadmissibility on Public Charge Grounds, 393 See Inadmissibility on Public Charge Grounds, comfort as individuals work to build a 83 FR 51114, 51165 (proposed Oct. 10, 2018). 83 FR 51114, 51166 (proposed Oct. 10, 2018). new and better life, acquiring the skills

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and training to qualify for better-paying commenter stated that SNAP supports and the economy overall, and that jobs. Several commenters that opposed employment by increasing access to access to such housing frees up income the proposed rule stated that the nutritious foods that enable workers to for other living necessities. Others cited inclusion of the public benefits stay healthy and productive, and by to research showing that public benefits, included in the NPRM, including SNAP, enabling families to spend more of their such as subsidized housing, positively in the public charge determination income on work-related expenses like impacts the health of children, people would reverse longstanding national transportation, childcare, and laundry. with disabilities, families, domestic policy. Many commenters stated the benefits of violence victims, pregnant women and Many commenters provided Medicaid for different people and people of color; reduces poverty and information and data on the general groups, including better health homelessness, and promotes economic benefits of these public benefits outcomes for pregnant women and stability; helps low-earning immigrants programs; the number of people, children throughout adulthood. Some increase their economic opportunities; children, and businesses affected; and commenters described how access to facilitates upwards economic mobility; the assistance that these public benefits affordable health insurance like builds safe and affordable housing provide to needy individuals and Medicaid enables workers to find and communities and decreases families. Comments referenced, for retain jobs, and how a lack of affordable foreclosures; and benefits of immigrants instance, the importance of TANF insurance contributes to worse health to the housing market during economic assistance for child care, Medicaid’s role outcomes, unmet physical, behavioral downturns. Other commenters cited in helping families and communities and mental health needs, and eventual research showing that housing manage healthcare costs, and SNAP’s joblessness. Commenters stated that instability is associated with a broad role in fighting food insecurity for access to affordable insurance leads to range of health impacts, including children and families. Commenters better performance on the job, an easier worsening HIV side effects, heart stated that the proposed rule would time staying employed or seeking disease, asthma, and cancer. exacerbate problems that the designated employment, and less unpaid bills and Several commenters stated that benefit programs are designed to other debt; and important economic immigrants in high rent areas need address. Other commenters provided benefits, such as increased tax public housing, specifically where data suggesting that the designated contributions, decreased reliance on income has not kept pace with rent public benefits help reduce other public assistance programs, and prices. Some of these commenters cited homelessness and improve health more disposable income to spend in the research and figures on the rent prices outcomes. Commenters stated that these local economy. Commenters stated that in areas across the United States. Other benefits are crucial for the health and states that expanded Medicaid commenters stated that only one in four development of children and experienced savings in costs associated families who need affordable housing individuals. Commenters also cited with uncompensated care and state- receive it, arguing that even fewer research that emphasized the important funded health programs, as well as families who need affordable housing role public benefits and access to those growth in jobs and general fund receive it factoring in immigration status benefits, including SNAP, plays for revenue. A commenter stated that and family size. Multiple commenters pregnant women and the elderly, reimbursement for services rendered to stated that housing instability and including that the benefits make elderly Medicaid patients was especially unaffordability are strongly correlated individuals less likely to be admitted to important for hospitals, and cited with involuntary job loss and other nursing homes and hospitals; patients research documenting positive effects economic barriers that undermine self- with medical problems, because public on hospitals’ financial performance in sufficiency, citing statistics. Several benefits reduce financial stress; and States which decided to expand commenters stated that the rule college and university students who are Medicaid. undermines the mission of public struggling with food insecurity. Other commenters discussed a study housing. A commenter cited research Many commenters described adverse in which the use of certain housing indicating that including affordable impacts of homelessness, including vouchers and access to public housing housing in the rule may increase the childhood depression and the positive reduced the chance of families living in poverty rate and disability rates. impacts of affordable housing, including crowded conditions, shelters, or on the In contrast, a few commenters increased health benefits and chronic street, help ease the burden of rent in supported the inclusion of the public disease management and lowering the high-cost cities, prevent or alleviate benefits as part of the public charge cost of healthcare. Another commenter homelessness, allow the flexibility for determination. Some stated that only cited studies where more students may families to pay for other necessities, and citizens should be eligible for the experience homelessness under this promote self-sufficiency. Commenters benefits. A commenter stated that the rule, and described the negative impacts also said this rule will deter landlords public charge rule should cover benefits on rural subsidized housing and the from participating in the housing that are provided for long periods of agriculture economic market. voucher program, affecting the private time, such as TANF. A commenter stated that receipt of housing market. Some commenters Response: DHS appreciates the public benefits, including SNAP, discussed the difficulty of immigrants comments and recognizes that the support work and improve a family’s obtaining affordable housing. public benefits listed in the rule provide immediate and long-term prospects, Other commenters cited research on assistance to needy individuals, and decreasing the odds that the individuals children’s health outcomes, asserting that rigorous application of the public will become primarily dependent on that access to public housing creates charge ground of inadmissibility will government benefits to support long-term improvements in educational inevitably have negative consequence themselves. Similarly, another attainment, income, self-sufficiency, for some individuals. DHS is aware that commenter stated that nutritional, and children’s health outcomes; child individuals may reconsider their receipt healthcare, and housing assistance are development; greater attendance and of public benefits in light of future all critical programs that support work, prospects at school. Commenters also immigration consequences. However, which the commenter identified as the noted that access to affordable housing the rule does not prevent individuals ultimate path to self-sufficiency. A has positive effects on family stability from receiving any public benefits for

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which they are eligible. Additionally, as percent of people using public benefits benefit on enrollment in the first. That noted in the NPRM, the rule, are noncitizens and this rule will reach said, DHS disagrees that the rule would particularly the inclusion of the beyond that population. One commenter materially undermine decades of work designated benefits into the public stated that immigrants use public to address poverty. The population benefits definition, is consistent with benefits at a lower rate than U.S. born affected by this rule is limited to those congressional statements in 8 U.S.C. citizens, while other commenters stated applicants seeking admission to the 1601 concerning self-sufficiency of that DHS did not consider whether the United States and adjustment of status, foreign nationals. In particular, Congress temporary benefits immigrants might who are subject to public charge. The indicated that the immigration policy receive would result in a net positive data and information provided by the continues to be that ‘‘aliens within the impact to the budget or society. commenter involves a much broader Nation’s borders not depend on public Response: DHS appreciates the population that may not be affected by resources to meet their needs, but rather comments and references to data. DHS the rule. rely on their own capabilities and the does not assume, and has not based the Comment: A commenter stated that resources of their families, their rule on the assumption, that immigrant Congress had already made clear its sponsors, and private organizations.’’ 394 families rely disproportionately on intent on immigrants’ eligibility for DHS will therefore continue to consider public benefits. The statistical analysis SNAP and Medicaid. The commenter the public benefits proposed in the provided in the preamble of the NPRM went on to state that IIRIRA established NPRM in public charge inadmissibility did not reach that conclusion. The criteria to be weighted by immigration determinations with certain exceptions NPRM provided data regarding both authorities using a ‘‘totality of described below. citizens and noncitizens in the circumstances’’ test, and stated that the As discussed in the NPRM, the discussion of the factors that may lead criteria specifically did not include benefits that will be considered in this a person to receive public benefits. receipt of public benefits. The rule account for some of the largest However, only aliens seeking admission commenter also stated that PRWORA federal expenditures on low-income to the United States or adjustment of established a set of eligibility rules for individuals and bear directly on self- status are subject to the public charge certain lawful immigrants to receive sufficiency.395 The benefits listed are ground of inadmissibility. Therefore, Medicaid, SNAP, and other means- directed toward food and nutrition, whether citizens’ receipt of public tested programs, and Congress later housing, and healthcare, and are benefits is higher than that of aliens is modified these rules to allow Medicaid directly relevant to the public charge immaterial. DHS notes that with respect coverage for pregnant women without inadmissibility determination, because a to the comment that the temporary the typical five-year waiting period. person who needs the public’s receipt of public benefits would result Response: Through PRWORA, assistance to provide for these basic in a positive impact on the economy, Congress declared that aliens generally necessities of life and receives such such considerations are not the aim of should not depend on public resources benefits for longer periods of time is this rule. This rule is intended to better and that these resources should not more likely to receive such benefits in ensure that aliens seeking to come to constitute an incentive for immigration the future.396 DHS also notes, as and remain in the United States are self- to the United States.397 With IIRIRA, updated in the regulatory text, that sufficient, and rely on their resources Congress codified minimum factors that receipt of a public benefit occurs when and those of their families, sponsors, must be considered when making public a public benefit-granting agency and private organizations. charge determinations: 398 Age; health; provides such benefit, whether in the Comment: One commenter stated that family status; assets, resources, and form of cash, voucher, services, or including Medicaid, SNAP and housing financial status; education and skills.399 insurance coverage. Certification for assistance programs as public benefits As explained in the NPRM,400 policy future receipt of a public benefit does ‘‘would undermine decades of the goals articulated in PRWORA and not constitute receipt, although it may federal government’s work to address IIRIRA inform DHS’s implementation of suggest a likelihood of future receipt. poverty and build a clearer path to the the public charge ground of With respect to Medicaid in particular, middle class for millions of families,’’ inadmissibility. DHS does not believe DHS would consider receipt to have because individuals may decide to there is tension between the availability occurred when coverage commences, forego WIC, which is connected to of public benefits to some aliens as set regardless of whether the alien accesses SNAP or other similar benefits. A forth in PRWORA and Congress’ intent services using such coverage. commenter stated that the inclusion of to deny admission, and adjustment of Comment: A commenter said data Medicaid/CHIP, SNAP and housing status to aliens who are likely to become refutes the notion that immigrant assistance in public charge review a public charge. Indeed, DHS believes families rely disproportionately on all would undermine decades of the federal that Congress, in enacting PRWORA and forms of public assistance, citing to a government’s work to address poverty IIRIRA very close in time, must have study from the National Academies of and build a clearer path to the middle recognized that it made certain public Sciences, Engineering, and Medicine class for millions of families. benefits available to some aliens who Response: DHS understands that indicating that just 4.2 percent of are also subject to the public charge many public benefits may be immigrant households with children ground of inadmissibility, even though interconnected, such that when a person utilize housing assistance as compared receipt of such benefits could render the to 5.3 percent of U.S.-born households. enrolls in one benefit, the benefit- granting agency will automatically A commenter stated that only 6.5 397 See Public Law 104–193, sec. 400, 110 Stat. qualify that person in another benefit. In 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. 394 See Personal Responsibility and Work those circumstances, an alien’s decision 1601). Opportunity Reconciliation Act of 1996, Public Law to forego enrollment in a designated 398 Public Law 104–208, div. C, sec. 531, 110 Stat. 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, public benefit could result in the alien 3009–546, 3009–674 (Sept. 30, 1996) (amending 1996) (codified at 8 U.S.C. 1601(2)). not being automatically qualified in a INA section 212(a)(4), 8 U.S.C. 1182(a)(4)). 395 See Inadmissibility on Public Charge Grounds, 399 See INA section 212(a)(4)(B), 8 U.S.C. 83 FR 51114, 51166 (proposed Oct. 10, 2018). non-designated benefit. Similar 1182(a)(4)(B). 396 See Inadmissibility on Public Charge Grounds, outcomes could occur if a state 400 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51159 (proposed Oct. 10, 2018). conditions eligibility for the second 83 FR 51114, 51132 (proposed Oct. 10, 2018).

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alien inadmissible as likely to become a eligible for the public benefits. In a. Specific Groups and Public Benefits public charge. Under the scheme addition, some aliens are eligible for Individuals With Disabilities envisioned by Congress, aliens generally public benefits, as noted in Table 3 of would not be issued visas, admitted to the NPRM.402 Comment: Commenters stated that the the United States, or permitted to adjust Comment: A commenter indicated inclusion of non-monetizable benefits in status if they are likely to become public that immigrants contribute far more to the proposed rule would charges. This prohibition may deter America (i.e., taxes, premiums, disproportionately harm people with aliens from making their way to the 405 economic and military contributions) disabilities. One commenter stated United States or remaining in the that ‘‘[p]eople with disabilities would be than they use in assistance. Other United States permanently for the uniquely affected by the inclusion of commenters indicated that immigrants purpose of availing themselves of public Medicaid-funded services in the public contribute by paying taxes and the rule benefits.401 DHS believes that Congress charge calculus, including Medicaid- penalizes immigrants who file taxes and must have understood, however, that funded community-based services that utilize programs to which they are certain aliens who were unlikely to are efficiently delivered in homes and become public charges when seeking legally entitled. Several commenters communities (the current public charge admission or adjustment of status might stated that immigrants make significant rule only requires consideration of thereafter reasonably find themselves in contributions to the economy, and the Medicaid-funded institutional long-term need of public benefits. Consequently, proposed rule would prevent care).’’ Commenters said that because in PRWORA, Congress made limited immigrants from partaking in programs non-emergency benefits were included, allowances for that possibility. that their tax dollars support. Other the proposal would make it nearly Nevertheless, if an alien subsequent to commenters said that individuals impossible for immigrants with receiving public benefits wishes to covered by Medicaid or CHIP paid more disabilities to become citizens unless adjust status in order to remain in the in taxes and collected less in Earned they are independently wealthy. Many United States permanently or leaves the Income Tax Credit (EITC) payments. commenters indicated that the federal United States and later wishes to return, According to a commenter, one study resources individuals with disabilities the public charge inadmissibility reviewing Medicaid expansion during and their families depend on, such as consideration (including consideration the 1980s and 1990s estimated that, Medicaid, SNAP, and housing vouchers, of receipt of public benefits) would based on children’s future earnings and would be included in the determination again come into play. In other words, tax contributions alone, the government of public charge under the rule. A although an alien may obtain public would recoup 56 cents of each dollar commenter also noted that ‘‘[p]eople benefits for which he or she is eligible, spent on childhood Medicaid by the with disabilities would be the receipt of those benefits may be time the children turned 60. disproportionally impacted by the considered, consistent with IIRIRA and Response: Paying taxes owed and inclusion of housing and food assistance PRWORA, for future public charge filing tax returns is legally required for in the public charge test.’’ One inadmissibility determination purposes. commenter stated that ‘‘[b]y deeming DHS recognizes that Congress through all individuals making a sufficient income in the United States.403 The rule immigrants who use such programs a CHIPRA expanded the Medicaid ‘public charge,’ the regulations will coverage for children and pregnant does not penalize those people who fulfill their legal responsibilities to do disparately harm individuals with women who are lawfully residing in the disabilities and impede their ability to United States, including those within so. In addition, people are entitled to use benefits for which they qualify, and maintain the very self-sufficiency the their first five years of having certain Department purports to promote and legal status. In this final rule, DHS has this rule does not prohibit anyone from using a benefit for which they qualify. which the Rehabilitation Act sought to exempted from consideration receipt of ensure.’’ Medicaid by children under 21 and However, DHS believes the use of pregnant women during pregnancy and certain benefits is appropriate to Several commenters stated that 60 days following pregnancy by consider in determining public charge individuals with disabilities rely on amending the definition of public inadmissibility. Congress mandated the non-cash benefits disproportionately, benefit in 8 CFR 212.21(b). public charge assessment.404 But often due to their disability, in order to Comment: Some commenters stated Congress did not stipulate in legislation continue working, stay healthy, and that immigrants’ eligibility for some of that public benefits received by eligible remain independent and productive the public benefits is already restricted, individuals should not be considered members of the community. Some including SSI, TANF, and housing for public charge purposes; instead, commenters stated that Medicaid is programs. Another commenter said the Congress clearly stated the policy that often the only program available to and inclusion of Medicaid in the proposed those coming to the United States must appropriate for people with disabilities rule was unnecessary, since existing law be self-sufficient and not rely on public as many of the services covered by already requires that lawful permanent resources. Therefore, to implement Medicaid, including housing services residents wait five years before Congress’ requirement to consider and community-based services, are becoming eligible for Medicaid or public charge inadmissibility, DHS must often not covered by private insurance. Medicare. consider the receipt of benefits by Many commenters cited the statistic that Response: DHS recognizes that most eligible individuals, as indeed the 1999 about one-third of adults under age 65 aliens are ineligible for the public Interim Field Guidance did. DHS enrolled in Medicaid have a disability, benefits listed in the rule. However, the believes that the public charge rule compared with about 12 percent of public charge inadmissibility strikes an appropriate balance with the adults in the general population. Other determination reviews the likelihood of benefits that are considered. commenters cited the statistic that more a person receiving a public benefit at than one-quarter of individuals who use any time in the future, including points 402 Inadmissibility on Public Charge Grounds, 83 SNAP are also disabled. Several in time when an alien may become FR 51114, 51128–30 (proposed Oct. 10, 2018). commenters stated that individuals with 403 See 26 U.S.C. 1 and 6012(a)(1). disabilities disproportionately 401 H.R. Rep. No. 104–469(I), at 144–45 (1996). 404 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). experience poverty.

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A commenter stated that the rule determinations include consideration of to begin the journey of stabilizing their would require immigrants with whether, in the context of the alien’s lives and achieving self-sufficiency. The disabilities to meet economic standards individual circumstances, the alien has commenter provided a data from a that do not take into account the barriers been diagnosed with a medical survey in 2017, where 85 percent of to employment and wealth condition that is likely to require respondents said that TANF was a accumulation issues that individuals extensive medical treatment or critical resource for domestic violence with disabilities face. Another institutionalization or that will interfere and sexual assault survivors, and that commenter added that food insecurity with the alien’s ability to provide and two-thirds of respondents said that most rates in households that include at least care for himself or herself, such as by domestic violence survivors rely on one disabled working-age adult are working or attending school. As noted TANF to help address their basic needs substantially higher, even where the in the proposed rule, as an evidentiary and to establish safety and stability, and disabled person is working, and that matter, USCIS would rely on medical 45 percent of respondents said the same such food insecurity leads to chronic determinations made by a medical is true of most sexual assault survivors. illnesses. Many commenters stated that professional. This would entail The commenter indicated that financial the rule would cause many individuals consideration of the potential effects of instability poses limited options for with disabilities or families with the disability on the alien’s ability to escaping or recovering from abuse and individuals with disabilities to disenroll work, attend school, or otherwise that access to cash assistance is an from public benefit programs. A support himself or herself. important factor in survivors’ decision- commenter cited research indicating However, it is not the intent, nor is it making about whether and how they that the rate of disability drastically the effect of this rule to find a person can afford to leave a dangerous increases as poverty increases, and that a public charge solely based on his or situation, and in planning how to keep by creating fear around participating in her disability. The public charge themselves and their children healthy, public anti-poverty programs, the inadmissibility determination evaluates fed, and housed. The commenter proposed public charge rule will lead to the alien’s particular circumstances. indicated that the rule risk significant an increase in disability and negative Under the totality of the circumstances physical, emotional, and mental harm to health impacts for an already vulnerable framework, the disability itself would these populations. Commenters community of people. not be the sole basis for an described a survey that found that Response: DHS understands that inadmissibility finding. DHS would nearly 80 percent of service providers individuals with disabilities receive look at each of the mandatory factors, included in the survey reported that public benefits that are listed in the and the affidavit of support, if required, most domestic violence survivors rely rule. However, Congress did not as well as all other factors in the totality on SNAP to establish their safety and specifically provide for a public charge of the circumstances. For example, if an stability. Another commenter stated that exemption for individuals with individual has a disability but there is being able to meet basic food and disabilities and in fact included health no indication that such disability makes nutritional needs provides a means for as a mandatory factor in the public the alien more likely to become a public survivors of domestic violence and charge inadmissibility consideration.406 charge, the alien’s disability will not be sexual assault to take care of themselves Therefore, DHS will retain the considered an adverse factor in the and their children while working to designation of Medicaid and SNAP as inadmissibility determination. This address their trauma and take steps public benefits, notwithstanding the could occur if the individual is not toward independence. potentially outsized impact of such currently enrolled in the designated Other commenters stated that nearly designation on individuals with benefits, has not previously been half a million Asian American and disabilities. With respect to DHS’s enrolled in any designated public Pacific Islander (AAPI) noncitizens rely consideration of the alien’s disability as benefit, and is employed or otherwise on the SNAP program to feed their such, DHS would consider disability as has sufficient income, assets and families, and the rule will lead to less part of the health factor, to the extent resources to provide for himself or food assistance within family units. A such disability makes the alien more herself, or has family willing and able commenter stated that almost 48 percent likely than not to become a public to provide for reasonable medical costs, of noncitizen recipients of SNAP charge. This consideration is not new or the person has private health benefits were women in 2017, compared and has been part of public charge insurance or would soon be able to to 40 percent who were men, and 12 determinations historically.407 Those obtain private health insurance upon percent who were children. Another adjustment of status. commenter stated that 80 percent of 406 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). most domestic violence victims and 55 Vulnerable Populations 407 See, e.g., Ex parte Mitchell, 256 F. 229 percent of most sexual assault victims (N.D.N.Y. 1919) (referencing disease and disability Comment: Some commenters use the program to restore safety and as relevant to the public charge determination); Ex identified specific groups of individuals parte Sakaguchi, 277 F. 913, 916 (9th Cir. 1922) stability in their lives would be heavily (taking into consideration that the alien was an who would be impacted by the affected by limiting access to SNAP. able-bodied woman, among other factors, and inclusion of public benefits in the One commenter stated that the finding that there wasn’t evidence that she was public charge determination. Several proposed rule would disproportionately likely to become a public charge); Barlin v. Rodgers, 191 F. 970, 974–977 (3d Cir. 1911) (sustaining the commenters stated that cash assistance affect communities of color who use exclusion of three impoverished immigrants, the provides crucial support for survivors of public benefits and social services to first because he had a ‘‘rudimentary’’ right hand domestic violence and sexual assault, make ends meet and work towards self- affecting his ability to earn a living, the second and would undermine Federal and State sufficiency. A commenter stated that the because of poor appearance and ‘‘stammering’’ such that made the alien scarcely able to make himself policies to support victims of domestic proposed rule would likely understood, and the third because he was very violence and assault by discouraging disproportionality cause Latinos to lose small for his age); United States ex rel. Canfora v. them to access critical services. A access to SNAP and Medicaid benefits, Williams, 186 F. 354 (S.D.N.Y. 1911) (ruling that an commenter stated that for many exacerbating existing health inequities, amputated leg was sufficient to justify the exclusion of a sixty year old man even though the man had survivors, cash assistance, such as increasing instances of hunger and adult children who were able and willing to TANF or state-funded cash benefits, poverty among this population. support him). provides the crucial support they need Similarly, another commenter described

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the benefits of access to SNAP for the public benefits for a limited period time DHS’s view of self-sufficiency is that Latino community and commented that to escape a dangerous situation, but no aliens subject to the public charge a loss of SNAP benefits would cause longer relies on such benefits, the alien ground of inadmissibility must rely on more Latinos, including children, to should make that clear to DHS, so that their own capabilities and secure experience poverty and suffer from DHS can incorporate into its totality of financial support, including from family hunger and malnutrition. Another the circumstances assessment the fact of members and sponsors, rather than seek commenter stated that including SNAP the alien’s changed circumstances. and receive public benefits to meet their will harm college students, as SNAP is DHS recognizes that it is possible that basic needs. Cash aid and non-cash a critical resource for the many college the inclusion of benefits such as SNAP benefits directed toward food and students who struggle with food and Medicaid may impact in greater nutrition, housing, and healthcare insecurity. numbers communities of color, account for significant Federal Other commenters provided including Latinos and AAPI, as well as expenditure on low-income individuals information on individuals with specific those with particular medical and bear directly on self-sufficiency. medical conditions that need Medicaid, conditions that require public benefits Because of the nature of the public including treating thalassemia (a group for treatment, and therefore may impact benefits that would be considered under of blood disorders) and cardiovascular the overall composition of immigration this rule—which are generally means- disease. A commenter cited studies with respect to these groups. DHS also tested and provide cash for income showing that people with opioid recognizes that consideration of the maintenance and for basic living needs addiction who lacked Medicaid were receipt of public benefits while the alien such as food and nutrition, housing, and half as likely to receive treatment as was a child may also deter some parents healthcare—DHS believes that receipt of those covered by some form of from applying for these benefits on such benefits may render a person a insurance. A commenter said that behalf of their children. But this is not person with limited means to provide parental mental health and substance DHS’s intention in promulgating this for his or her own basic living needs abuse was a strong indicator of child rule. Instead, with this rule, DHS seeks and who receives public benefits is not mistreatment, and the services Medicaid to better ensure that applicants for self-sufficient because his or her provides to combat these issues help admission to the United States and reliance. keep children safe. applicants for adjustment of status who DHS notes that this rule would not Many commenters noted the negative are subject to the public charge ground adversely impact certain victims of impact of including the receipt of of inadmissibility are self-sufficient.408 domestic and sexual abuse, as VAWA, housing assistance in the public charge As provided by Congress, health is a T, and U applicants are generally not determination on a variety of groups, mandatory factor in the public charge subject to the public charge including infants and toddlers, women inadmissibility determination.409 inadmissibility determination, as set and single mothers, large and low- However, DHS will not find an alien forth in 8 CFR 212.23. income families, Latinos, domestic violence survivors, agricultural workers, inadmissible on public charge grounds Comment: Several commenters said low-income communities, people of based solely on an alien’s medical that over 1.1 million noncitizens age 62 color, the Lesbian, Gay, Bisexual, condition or disability. and older live in low- or moderate- Transgender Immigrants (LGBTQ) DHS’s public charge inadmissibility income households. Other commenters community, AAPI, elderly, minority determination evaluates the totality of stated that nearly seven million seniors groups, and disabled persons. Multiple an alien’s individual circumstances. age 65 and older are enrolled in both commenters cited studies and addressed This totality of the circumstances Medicare and Medicaid, and one in five the specific costs of the rule for approach weighs all the positive and Medicare beneficiaries relies on domestic violence survivors, arguing negative evidence related to an alien’s Medicaid to help them pay for Medicare that a survivor’s greatest unmet need is age; health; family status; assets, premiums and cost-sharing. Several housing when recovering from abuse. resources, and financial status; commenters said having health Other commenters commented that the education and skills; required affidavit insurance is especially important for rule would make it more difficult for of support; and any other factor or older adults because they have greater families with multiple children to circumstance that may warrant healthcare needs. This makes Medicare obtain housing due to the prorated consideration in the public charge a lifeline for most seniors, providing system. inadmissibility determination.410 If the coverage for hospital, doctors’ visits, Response: DHS appreciates the factors establish, in the balance, that an and prescription drugs, but many comments. DHS recognizes that some alien is likely at any time in the future immigrant seniors are not eligible for people currently in the United States do to become a public charge, he or she Medicare. in fact depend on the government to will be deemed inadmissible. As noted A commenter stated this age standard meet their needs, and that this rule is in precedent administrative decisions, would result in mistreatment of elders likely to result in negative consequences determining the likelihood of an alien when trying to enter or stay in the for some of those people, and people becoming a public charge involves United States and would undermine like them. Such negative consequences ‘‘consideration of all the factors bearing immigrants’ access to essential are, to some extent, an inevitable on the alien’s ability or potential ability healthcare, nutrition, and housing consequence of more rigorous to be self-supporting’’ 411 in the totality programs. A commenter stated low- application of a statutory ground of of the circumstances.412 income seniors also greatly benefit from inadmissibility that is targeted towards programs such as HCV Program (Section people who receive public benefits to 408 See 8 U.S.C. 1601(2). 8) rental assistance and SNAP to meet meet their basic needs. DHS declines to 409 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). their basic needs and if immigrant modify the scope of the rule to 410 See 8 CFR 212.22. families are afraid to access nutrition accommodate all possible Federal and 411 Matter of Vindman, 16 I&N Dec. 131, 132 assistance programs, older adults will be (Reg’l Comm’r 1977). State policies supporting public benefits 412 See, e.g., Matter of Vindman, 16 I&N Dec. 131 food insecure and at risk of unhealthy use by specific vulnerable populations. (Reg’l Comm’r 1977); Matter of Harutunian, 14 I&N eating, which can cause or exacerbate DHS notes that if an alien relied on Dec. 583 (Reg’l Comm’r 1974). other health conditions and

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unnecessarily burden the healthcare and having no need for public benefits, received by U.S. citizens in the public system. that family member or the primary charge inadmissibility determination. Response: DHS recognizes that caregiver for the family member may The valuation of the public benefits is eligibility for certain public benefits facilitate the application for and receipt an individual determination and receipt depends not only on a person’s financial of public benefits for that child or in of public benefits by other members of need but also on a person’s age. relation to the care for that child. a household including U.S. citizens will However, Congress did not specifically Response: The public charge not be considered in an applicant’s exclude aliens of certain ages from the inadmissibility determination evaluates public charge inadmissibility public charge inadmissibility an alien’s particular circumstances. DHS determination. In addition, DHS notes determination and in fact included age is not considering public benefits that this rule does not restrict an alien’s as a mandatory factor in section received by other household members access to public benefits for which the 212(a)(4) of the Act, 8 U.S.C. as part of an alien’s public charge alien is eligible. Rather, this rule 1184(a)(4).413 Accordingly, DHS inadmissibility determination. DHS has explains the criteria that DHS will use proposes to consider the alien’s age further clarified this inclusions of a to determine whether an alien subject to primarily in relation to employment or definition for receipt of public benefits section 212(a)(4) of the Act, 8 U.S.C. employability and secondarily to other which indicates that an alien’s receipt, 1182(a)(4), has met his or her burden of factors as relevant to determining application for or certification for public demonstrating eligibility for the whether someone is likely to become a benefits solely on behalf of another immigration benefit sought. public charge. DHS notes that the public individual does not constitute receipt Receipt of Public Benefits by Children charge inadmissibility determination of, application for or certification for evaluates the alien’s particular such alien. But if the alien is a listed Comment: Several commenters said a circumstances. DHS’s totality of the beneficiary, the alien is considered to child’s use of benefits should not impact circumstances standard involves have received the public benefit. their public charge inadmissibility weighing all the positive and negative DHS’s totality of the circumstances determination, as public benefits are considerations related to an alien’s age; standard weighs all the positive and often vital to the development of health; family status; assets, resources, negative considerations related to an children and for them to become and financial status; education and alien’s age; health; family status; assets, productive members of society. skills; required affidavit of support; and resources, and financial status; Commenters also indicated that a any other factor or circumstance that education and skills; required affidavit child’s use of benefits should not impact may warrant consideration in the public of support; and any other factor or their immigration application once they charge inadmissibility determination.414 circumstance that may warrant come of age. These commenters cited If the negative factors outweigh the consideration in the public charge research demonstrating that the use of positive factors, then the alien would be inadmissibility determination.415 these programs in childhood helps found to be inadmissible as likely to In the definition of household,416 children complete their education and become a public charge; if the positive DHS accounts for both (1) the persons have higher incomes as adults, be factors outweigh the negative factors, whom the alien is supporting and (2) healthy, have better educational then the alien would not be found those persons who are contributing to opportunities, and become more likely inadmissible as likely to become a the household, and thus the alien’s to be economically secure and public charge. assets and resources. DHS believes that contribute to their communities as DHS also notes that receipt of an alien’s ability to support a household adults. Another commenter indicated Medicaid, even if received in is relevant to DHS’s consideration of the that public benefits serve as crucial conjunction with receipt of Medicare, alien’s assets, resources, financial status, levers that reduce the intergenerational would still be considered a public and family status. DHS believes this is transmission of poverty. Commenters benefit in the totality of the an appropriate definition in the limited also noted that ‘‘[b]ecause children do circumstances for public charge immigration context of public charge not decide whether or not to apply for inadmissibility. inadmissibility determinations. Public benefits and because their financial Comment: One commenter indicated benefits received by household situation as children is not necessarily that the rule could allow a young adult members do not count towards the indicative of their financial situation for to be deemed inadmissible as a public alien’s financial assets and income for life, children’s receipt of benefits should charge if at any point within the last purposes of the public charge not be counted in any public charge year the person or a member of the inadmissibility determination.417 determination.’’ Some commenters household or certain members of the Comment: A commenter stated that stated that considering an immigrant’s family received a few of these benefits the rule would deprive U.S. citizens past use of public benefits as a child in for only a period of time. The who live in mixed-status households of the public charge inadmissibility commenter indicated that household their access to assistance programs for determination would deter immigrant definition leaves a very wide array of which they are eligible. parents from obtaining food and potential individuals who may receive a Response: DHS disagrees that the rule healthcare assistance for their children, public benefit through no volition or would deprive U.S. citizens of access to and argued that this would result in interaction of the immigrant applicant assistance programs for which they are adverse outcomes for the children but would, as a result, have an impact eligible. This rule does not include themselves and impose significant costs on the determination of admissibility for consideration of public benefits on society. A commenter stated that the immigrant’s application including a low-income children with immigrant child or a young family member. The 415 See 8 CFR 212.22. parents, including U.S. citizen children, commenter indicated that despite the 416 See 8 CFR 212.21(d). are already less likely to receive applicant providing sufficient support 417 See 8 CFR 212.22(b)(4)(ii), which provides that Medicaid than those with U.S. born USCIS’ considerations when assessing the alien’s parents. assets, resources, and financial status excludes any 413 See INA section 212(a)(4)(B), 8 U.S.C. public benefits received by the alien as well as any Many commenters cited to research 1182(a)(4)(B). public benefits received by another person of the indicating that the use of programs, 414 See 8 CFR 212.22. household. such as SNAP, Medicaid, and CHIP, and

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housing assistance in childhood, helps Military/First Responders or CHIP, indicated that Medicaid children complete their education and Comment: Some commenters enrollment leads to positive health have higher incomes as adults, live in supported the NPRM’s proposal to outcomes. stable housing, receive needed health exclude from the public charge Response: DHS acknowledges that services and consume adequate and determination any public benefits military service members and their families who are applying for an nutritious food, and fosters their future received by active duty service members immigration benefit for which success in education and the workforce. and their families. Some commenters admissibility is required and that is A commenter noted the impact of this also discussed the impact of the rule on subject to section 212(a)(4) of the Act, 8 rule on their work to facilitate healthy military families, including increasing U.S.C. 1182(a)(4), will be required to brain development among children. A food security for active military families demonstrate that they are not likely at few commenters stated that multiple and allowing them to focus on any time in the future to become a studies confirm early childhood or protecting the United States rather than public charge. However, consistent with prenatal access to Medicaid and SNAP on whether they will be able to feed the NPRM, DHS’s public charge analysis improves health and reduces reliance on their family. Commenters stated that too will exclude consideration of the receipt cash assistance. The commenters stated many military families and veterans of any public benefits by active duty that children with access to Medicaid depend on SNAP to make ends meet servicemembers, including those in the have fewer absences from school, are because their military pay is not enough Ready Reserve of the U.S. Armed more likely to graduate from high school to meet their basic needs. One Forces, and their spouses and children. and college, and are more likely to have commenter, citing to data from FY 2013, As noted in the NPRM, the U.S. higher paying jobs as adults. Another stated that current and former military Government is profoundly grateful for commenter stated that children with members and their families redeemed the unparalleled sacrifices of the health insurance are more likely to have approximately $104 million in SNAP members of our armed services and routine healthcare, improved health benefits at commissaries—a 300 percent their families. Servicemembers who, outcomes, and improved success in increase since 2007. The commenter during their service, receive public education. One commenter said that further stated that for military families benefits, in no way burden the public; lack of access to affordable housing who do not have base-housing and live indeed, their sacrifices are vital to the remains one of the main barriers to in high-cost areas, like those in public’s safety and security. The DOD economic stability for many families California, accessing SNAP can be has advised DHS that many of the aliens and the proposed rule would further complicated and this has led military who enlist in the military are early in limit access to housing assistance for families across the country to turn out their careers, and therefore, consistent families with children. The commenter of desperation to food pantries and food with statutory pay authorities, earn cited research that shows rental banks—many operating on base or relatively low salaries that are assistance for households with children nearby military installations—for supplemented by certain allowances results in significant positive effects for emergency food assistance. The and tax advantages.418 Although data future child outcomes and family commenter further stated that in recent limitations exist, evidence suggests that economic security. A few commenters years the Department of Defense (DOD) as a consequence of the unique stated this proposal could undermine and the Department of Veterans Affairs compensation and tax structure afforded the access to healthcare for children of (VA) have issued policies to address by Congress to aliens enlisting for immigrants or their aging family high rates of hunger among low-income military service, some active duty alien members. military and veteran families, because servicemembers, as well as their Response: DHS recognizes that many military leaders understand that soldiers spouses and children, as defined in of the public benefits programs aim to are less prepared to serve their country section 101(b) of the Act, may rely on better future economic and health if they are hungry or worried about their SNAP 419 and other listed public outcomes for minor recipients, and that families going hungry. They also know parents may decide to disenroll their that when veterans are largely living in 418 See, e.g., 37 U.S.C. 201–212, 401–439 (Basic children from public benefits programs poverty with unmet basic needs, it is Pay and Allowances Other than Travel and to avoid negative immigration more difficult to convince young people Transportation Allowances, respectively); Lawrence consequences. However, this rule is who live in their communities to sign Kapp, Cong. Research Serv., Defense Primer: aimed at better ensuring that aliens who Regular Military Compensation 2 tbl.1 (Dec. 17, up. 2018), available at https://fas.org/sgp/crs/natsec/ are subject to the public charge ground A commenter also cited to 2013 IF10532.pdf (reporting average regular military of inadmissibility are self-sufficient. USDA data, and reported that in that compensation of $41,384 at the E–1 level in 2018, DHS also recognizes that children year, $103.6 million of groceries were comprised of $19,660 in average annual basic pay, who receive public benefits are not purchased with SNAP benefits at plus allowances and tax advantage) (last visited July 26, 2019); Lawrence Kapp et al., Cong. Research making the decisions to apply for such military commissaries, and that between Serv., RL33446, Military Pay: Key Questions and benefits. However, DHS notes that that 2,000 and 22,000 military households Answers 6–9 (2019), available at https://fas.org/sgp/ Congress did not exclude children from received SNAP benefits. The commenter crs/natsec/RL33446.pdf (describing types of the public charge ground of stated that a Department of Defense military compensation and federal tax advantages) (last visited July 26, 2019). inadmissibility unless the child is Education Activity (DoDEA) showed 419 See U.S. Gov’t Accountability Office, GAO– seeking a status that Congress expressly that in September 2015, 24 percent of 16–561, Military Personnel: DOD Needs More exempted from public charge 23,000 children in DoDEA schools were Complete Data on Active-Duty Servicemembers’ inadmissibility and, moreover, eligible for free meals, while 21 percent Use of Food Assistance Programs (July 2016), available at https://www.gao.gov/assets/680/ specifically required that DHS consider were eligible for reduced-price meals. 678474.pdf (reporting estimates ranging from 2,000 an applicant’s age in the public charge Commenters, citing the 2.4 million active duty servicemembers receiving SNAP to inadmissibility determination. children from military families who 22,000 such servicemembers receiving SNAP) (last Nonetheless, as explained more fully in were enrolled in Medicaid or CHIP, visited July 26, 2019). Effective FY16, Congress noted that many families with family implemented a recommendation by the Military the discussion of Medicaid, DHS will Compensation and Retirement Modernization not consider the receipt of Medicaid by members enlisted in the military Commission to sunset DOD’s Family Subsistence children under the age of 21. benefitted from enrollment in Medicaid Continued

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benefits. As a result, the general the very same salary, the public benefit Comment: Some commenters standard included in the proposed rule exemption would no longer apply and suggested that the exemption that could result in a finding of thus be ineligible for admissibility and applies to individuals serving in the inadmissibility under section 212(a)(4) adjustment of status. The commenter Armed Forces should apply to other when such aliens apply for adjustment stated military service members should individuals, such as members of the of status. be not be subject to public charge the public who have jobs of comparable As noted in the NPRM, following moment they depart the military. A importance to national security. The consultation with DOD, DHS has commenter said the rule would have an commenter stated as an example that concluded that such an outcome may unintended negative impact on veterans there is no exemption for non-uniform give rise to concerns about of the U.S. military who do not have support members working for or on servicemembers’ immigration status or permanent status because they have behalf of the U.S. military, those the immigration status of access to the public benefits outlined in working for State or local law servicemembers’ spouses and children the rule. The commenter stated that enforcement, those working for prisons, as defined in section 101(b) of the Act, their need for access to benefits may be or working as firefighters or as 8 U.S.C. 1101(b), which would reduce directly tied to injuries resulting from emergency medical technicians. The troop readiness and interfere their service. commenter stated that there is no doubt significantly with U.S. Armed Forces A commenter stated that while the U.S. ‘‘Government is profoundly recruitment efforts. This exclusion is applying the proposed rule to grateful for the unparalleled sacrifices’’ consistent with DHS’s longstanding servicemembers would have negative of police officers, firefighters, and policy of ensuring support for our policy consequences, the DHS lacks emergency medical technicians, but the military personnel who serve and legal authority to exempt the ‘‘public rule does not exclude the public sacrifice for our nation, and their charge’’ analysis from a whole segment benefits received from these families, as well as supporting military of the population. The commenter individuals. Other commenters readiness and recruitment. stated that the relevant statute regarding indicated that the failure to exempt first Accordingly, DHS has excluded the ‘‘public charge’’ applies to ‘‘[a]ny alien,’’ responders and veterans or other groups consideration of the receipt of all and DHS stated no basis on which it can was irrational, because military service benefits listed in 8 CFR 212.21(b) from exclude certain individuals from the members are not the only ones serving the public charge inadmissibility generally applicable proposed definition in roles important to national security. determination, when received by active of ‘‘public charge.’’ The commenter Response: DHS refers the commenters duty servicemembers, including those stated that the rule would almost to the explanations above regarding this in the Ready Reserve, and their spouses certainly apply to servicemembers like rule’s treatment of active duty and children. If a service member has the rest of the population and therefore servicemembers, including those in the since retired or otherwise been DHS should abandon the rule. Ready Reserve, and their spouses and discharged from military service, receipt Response: DHS appreciates the children. DHS recognizes that many of public benefits while in the service comments and certainly appreciates the professionals, including first will not be counted in the public charge sacrifices that veterans have made for responders, also provide important consideration. Only public benefits the United States. Among other factors, services for the public, and make receipted after discharge from the current servicemembers have a unique sacrifices that are critical and worthy of military would be considered. pay structure implemented by Congress our gratitude. However, DHS believes Applicants that fall under this exclusion that may involve the use of public that Armed Forces members and their must submit proof that the benefits, and DHS has accordingly spouses and children are uniquely servicemember is serving in active duty excluded the public benefits as listed in positioned in this context, and that DHS or the Ready Reserve. DHS believes this the rule for active duty service members should not extend similar treatment to should minimize any impact to military in order to limit a possible impact on other categories of applicants based on readiness. military readiness. DHS does not believe their employment or public service. the same considerations are presented Comment: Some commenters b. Supplemental Security Income suggested that the exemption that for veterans, as they do not currently applies to individuals serving in the serve, are not directly affected by the Comment: Multiple commenters Armed Forces should apply to other military compensation structure, and opposed the inclusion of SSI and stated individuals, such as veterans and stated have access to a specific benefits that SSI supports children with that failure to include military veterans scheme that Congress has designed for disabilities, and that a child who begins within this carve-out is arbitrary and them (and that is not designated in this receiving SSI is less likely to fall below capricious. The commenter stated that rule). Further, in light of that unique the poverty line. The commenters stated once an individual leaves active or salary and benefit scheme created by that the inclusion of SSI in the public reserve duty, upon the completion of his Congress for active service members and charge rule threatens the health, safety, or her enlistment, is honorably their families, DHS disagrees with the and well-being of the children and families that receive it. One commenter discharged, and takes up a private job at commenter that it lacks authority to exempt use of the designated public stated that SSI benefits represented 1.4 Supplemental Allowance Program within the benefits for such individuals and percent of the Federal Budget in FY United States, Puerto Rico, the U.S. Virgin Islands, families from the definition of public 2012, and there is no reason to believe and Guam; SNAP reliance may have increased charge. Rather, DHS has determined that that the complete data recited in the somewhat following termination of the program. it would be unreasonable, and contrary ‘‘one analysis’’ relied on by the DHS for See Public Law 114–92, div. A, section 602, 129 Stat. 726, 836 (Nov. 25, 2015); Military Comp. & to congressional intent, to include use of 2017 would be any different. The Ret. Modernization Comm’n, Final Report 187 (Jan. public benefits by such individuals commenter stated that SSI was 0.33 2015) (‘‘The [Family Subsistence Supplemental within the definition, where doing so percent of GDP in the years 2011 to Allowance Program] should be sunset in the United could undermine the careful salary and 2012, and expected to decline to 0.23 States, Puerto Rico, Guam, and other U.S. territories where SNAP or similar programs exist, thereby benefits structure established by percent in 2037. Further, the commenter reducing the administrative costs of a duplicative Congress and negatively affect said 86 percent of SSI benefits are paid program.’’). recruitment and readiness. to the disabled, concluding that it is

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irrational to exclude individuals with (under 25 percent of all poor families definition of public benefit for purposes disabilities by claiming that they are with children) and the rule would of this rule. likely to become a public charge. In further restrict access. The commenter Comment: One commenter stated that contrast, other commenters asserted that also indicated that the rule fails to TANF ‘‘child-only’’ grants should be only U.S. citizens should receive SSI. recognize that States are increasingly exempted from the proposed rule as Response: DHS appreciates the choosing to provide TANF to working they support the needs of children comments, however, DHS has families who earn too much to qualify raised by extended relatives without determined that it will consider SSI as for the basic cash assistance programs parents. The commenter indicated that described in the rule. DHS notes that and that research has shown that such unlike TANF family grants, ‘‘child- this decision is consistent with the 1999 policies, which ‘‘make work pay,’’ only’’ grants are based solely on the Interim Field Guidance, and that, as improve employment outcomes because income of the child and are only to meet discussed in the NPRM, SSI represents they serve as an effective incentive for their needs whether outside or inside one of the largest Federal expenditures families to find and keep jobs. the foster care system. The commenter for low-income people.420 As provided stated that many children living with Response: DHS appreciates the in the NPRM, SSI was included as relatives in foster care are only offered comments; however, DHS has public benefit because it provides TANF child-only support, since many determined that considering TANF in monthly income payments for people states do not routinely license relatives the rule, consistent with the 1999 with limited resources, is financed and the children are consequently Interim Field Guidance, is important in through general revenues, and has high ineligible for foster care maintenance ensuring that aliens are self-sufficient expenditures.421 DHS has determined payments. and rely on their own capabilities and that considering SSI in the rule, Response: DHS appreciates the the resources of their families, their consistent with the 1999 Interim Field comments, but notes the ‘‘child-only Guidance, is important in ensuring that sponsors, and private organizations. As grants’’ are based solely on the needs of aliens are self-sufficient and rely on provided in the NPRM, TANF was the child (i.e., does not take the adults’ their own capabilities and the resources included as public benefit because it needs into account when calculating the of their families, their sponsors, and provides monthly income payments for assistance benefit)’ as opposed to the private organizations. low-income families and is intended to income of the child.424 TANF cash foster self-sufficiency, economic assistance provided to a child is c. Temporary Assistance for Needy stability for families with children and considered a public benefit under this 422 Families has high expenditures. rule. States may fund a variety of child Comment: Several commenters Comment: Some commenters added welfare activities using TANF funds, opposed the inclusion of TANF in the that TANF helps families enroll their including services for family rule. One commenter stated that TANF children in childcare, which is a lifeline reunification, parenting education, in- helps families achieve self-sufficiency for working families. A commenter home family services, and crisis through support that allows parents to explained that, while the Child Care and intervention.425 TANF is only send their children to high-quality child Development Fund (CCDF) is the considered in the public charge care programs, and that including primary source of public funding for inadmissibility determination if it is in consideration of TANF could therefore child care, a state may transfer up to 30 the form of cash assistance for income harm families. Some commenters stated percent of its TANF funds to CCDF, or maintenance. Again, non-cash TANF that TANF is the only source of Federal directly allocate its TANF funds, to funded services are not included in the cash assistance for families with provide child care subsidies to families rule. States may transfer TANF funding children, and that research shows that in need. The commenter went on to to other benefits including childcare, children make up about 77 percent of provide statistics on the number of which is not being considered in the recipients. The commenters went on to children in child-care and discussed the rule. However, as previously discussed, state that families use cash assistance to child-care support that TANF provides there is no public charge exemption for aid in achieving economic security and for working families. The commenter children, therefore, any cash benefit working towards upward mobility, and also provided data on the number of receipt, including TANF, by a child that the inclusion of TANF in the children in childcare and that one in six generally would still be considered as a proposed rule will be detrimental to children eligible for CCDF services gain public benefit in public charge children during their developmental access to quality care. inadmissibility determination. years. The commenters stated that Response: States may transfer TANF families who disenroll from TANF d. State, Local and Tribal Cash funding to other benefits including Assistance would lose their eligibility to receive childcare, but this not considered cash free school meals, which would result Comment: A commenter provided TANF.423 As only the ‘‘cash assistance in hungry children, homeless and information on various Washington for income maintenance’’ portion of precariously housed families, sicker State programs designed to provide TANF is considered in the public charge adults and children, and reduced access individuals and families with the inadmissibility determination, direct to behavioral health services. Another resources and support. The commenter TANF spending on child care and commenter indicated that while the transfers to CCDF are excluded from the majority of TANF recipients are 424 See U.S. Department of Health and Human children, there is a current decrease in Services, Temporary Assistance For Needy 422 See Inadmissibility on Public Charge Grounds, Families, 12th Report to Congress Fiscal Years 2014 children receiving cash assistance 83 FR 51114, 51166 (proposed Oct. 10, 2018). and 2015, available at https://www.acf.hhs.gov/ 423 See PRWORA, Public Law 104–193 (Aug. 22, sites/default/files/ofa/12th_annual_tanf_report_to_ 420 See Gene Falk et al., Cong. Research Serv., 1996). See HHS, Office of Family Assistance, 2014 congress_final.pdf (last visited July 23, 2019). R45097, Federal Spending on Benefits and Services Child Care Reauthorization and Opportunities for 425 HHS, Child Welfare Information Gateway, for People with Low Income: In Brief (2018), TANF and CCDF (Feb. 19, 2016), available at Temporary assistance for Needy Families (TANF), available at https://fas.org/sgp/crs/misc/R45097.pdf https://www.acf.hhs.gov/ofa/resource/tanf-acf-im- available at https://www.childwelfare.gov/topics/ (last visited July 26, 2019). 2016-02-2014-child-care-reauthorization-and- management/funding/program-areas/prevention/ 421 See Inadmissibility on Public Charge Grounds, opportunities-for-tanf-and-ccdf (last visited July 26, federal/nondedicated/tanf (last visited July 26, 83 FR 51114, 51166 (proposed Oct. 10, 2018). 2019). 2019).

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stated that in the FY 2017, particularly at school. The commenters school nutrition programs, and would approximately one in four Washington explained that some benefits received at not stop the child and school from residents needed cash, food, child school (e.g., free school meals) are accessing these programs through support, child care, and other services linked to enrollment in SNAP benefits existing enrollment processes other than and that each day, more than two and could be impacted. A commenter direct certification. This rule would not million individuals receive the support stated that the proposed rule is prevent a child from applying for or and resources they need from the state inhumane, affecting families’ ability to receiving any school related nutrition to transform their lives. The commenter access SNAP to get the adequate food program. stated that Washington invests general and nutrition they need. The commenter Comment: A couple of commenters state funds to assist individuals and stated that hunger and malnutrition said the rule would violate the families who are ineligible for Federal affects a person’s ability to focus, prohibition in Section 8(b) of the Food programs to include lawfully present function, and fight off disease and that and Nutrition Act from considering non-citizens who fail to meet federal hunger is already a serious problem in SNAP benefits as income or resources. eligibility qualifications established in the United States. The commenter stated For example, commenters stated that the the PRWORA. The commenter that aiding the hunger epidemic through inclusion of SNAP is inconsistent with described the following programs: State the consideration of SNAP is against the the SNAP statute that states that ‘‘the Family Assistance; Food Assistance public interest and the progression of value of benefits that may be provided Program for Legal Immigrants; Aged, our society. A commenter said the under this chapter shall not be Blind, or Disabled Cash Assistance; onerous restrictions initially placed on considered income or resources for any Pregnant Women Assistance; immigrant participation in SNAP during purpose under any Federal, State, or Consolidated Emergency Assistance the 1996 reforms were reversed at the local laws.’’ Commenters also stated that Program; Refugee Cash Assistance; next available opportunity—the 2002 the inclusion of SNAP is inconsistent Housing and Essential Needs Referral; Farm Bill—which illuminates the sound with congressional intent to expand Diversion Cash Assistance; and State public policy of ensuring that every SNAP eligibility to immigrant children. Supplemental Payment. The commenter family living in the United States has Similarly, a commenter stated that indicated that the rule would access to the resources necessary to feed SNAP should be excluded from the undermine the success of these their children.426 A commenter stated public charge definition because the programs that involve cash or non- that only 40 percent of eligible citizen legislative history of SNAP indicates monetized benefits and eligible children living in households with that SNAP was intended to be applicants may refuse to receive these immigrants received SNAP benefits after supplemental in nature. The commenter benefits. changes to immigration and welfare law suggested that it would be unreasonable Response: DHS appreciates the in the 1990s. to consider receipt of a supplemental comments; however, DHS has Response: DHS appreciates the benefit to be sufficient to render a determined that considering state cash comments and recognizes the person a public charge. Discussing the assistance in the rule, consistent with importance of SNAP. DHS also legislative history surrounding the past the 1999 Interim Field Guidance, is acknowledges that some people may four Farm Bills, a commenter stated that important in ensuring that aliens are choose to disenroll from SNAP. SNAP enjoys bipartisan support and self-sufficient and rely on their own However, this rule does not change the Congress has rejected efforts to reduce capabilities and the resources of their eligibility requirements of SNAP and its reach. The commenter stated that the families, their sponsors, and private does not prohibit individuals from proposed rule would reduce benefits for organizations. The programs listed by receiving SNAP. In addition, this rule low-income children of immigrant the commenter that provide cash does not include school lunch or parents and that this was inconsistent assistance would be considered public breakfast programs in the definition of with congressional intent. A commenter benefits in the public charge public benefit. Further, the expansion of said the onerous restrictions initially inadmissibility determination even if SNAP provisions for children under 18 placed on immigrant participation in the funding is provided by the state established by the 2002 Farm Bill,427 is SNAP during the 1996 reforms were unless they are provided to individuals only applicable to the five-year waiting reversed at the next available not subject to public charge such as period; therefore children who become opportunity—the Farm Security and Refugee Cash Assistance or are not for lawful permeant residents do not need Rural Investment Act of 2002 (the 2002 general income maintenance (e.g., if to wait five years before being eligible Farm Bill)—which illuminates the they are not means-tested or if they are for SNAP.428 However, DHS will sound public policy of ensuring that provided for some specific purpose that consider SNAP as part of the public every family living in the United States is not for food and nutrition, housing, or charge inadmissibility determination. has access to the resources necessary to healthcare). For example, LIHEAP (Low DHS has determined that considering feed their children. Income Home Energy Assistance SNAP is important in ensuring that Response: DHS disagrees that the rule Program) and emergency disaster relief aliens are self-sufficient and rely on is contrary to congressional intent. The would not be considered as a public their own capabilities and the resources fact that Congress has expanded which benefit in the public charge of their families, their sponsors, and aliens can receive certain public inadmissibility determination even private organizations. DHS believes that benefits does not indicate a though they may be considered as a even though children and schools may congressional intent that those benefits cash or cash equivalent benefits. no longer benefit from direct should not be considered in certification for school nutrition determining public charge. The rule e. Supplemental Nutrition Assistance abides by the statutory requirement as Program programs, a child’s disenrollment from SNAP due to this rule would likely have provided in section 212(a)(4) of the Act, Comment: Many commenters stated no effect on the child’s eligibility for 8 U.S.C. 1182(a)(4), and is consistent that the rule’s inclusion of public with congressional policy statements benefits such as SNAP affects other 427 See Public Law 107–171, section 4401, 116 relating to self-sufficiency in 8 U.S.C. public benefits including children’s Stat. 134, 333 (May 13, 2002). 1601. In these policy statements, ability to access other needed benefits, 428 See 8 U.S.C. 1612(a)(2)(J). Congress confirmed that the

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immigration policy continues to be that, Comment: Several commenters said longstanding Federal commitment to ‘‘aliens within the Nation’s borders not that this rule conflicts with USDA’s helping those who struggle to have depend on public resources to meet 1999 input as part of the 1999 proposed enough healthy food. Commenters their needs, but rather rely on their own rule,435 which advised that special stated that the proposed rule is capabilities and the resources of their nutrition programs should not be inconsistent with clear congressional families, their sponsors, and private considered in public charge analysis. A intent regarding eligibility for means- organizations.’’ 429 commenter cited to the 1999 Interim tested programs because it undermines Further, DHS disagrees that the Field Guidance, and stated that those very rules set by Congress in law. inclusion of SNAP as one of the historically, the receipt of SNAP One commenter stated that ‘‘Congress designated public benefits violates the benefits (or the typical use of Medicaid) has made explicit choices to expand Food and Nutrition Act of 2008. While does not indicate that an immigrant is eligibility (or permit states to do so),’’ Federal law allows certain qualified or is likely to become primarily and increase immigrant access to alien children under 18 to receive SNAP dependent on the Government for programs like SNAP, CHIP and benefits,430 this rule does not prohibit subsistence. The commenter stated that Medicaid, and therefore, ‘‘[t]he anyone from receiving a benefit for to qualify for benefits, a SNAP administration must defer to which they qualify. However, Congress household’s income generally must be [c]ongressional intent on this issue.’’ did not prohibit the consideration of at or below 130 percent of FPG, the Response: DHS does not agree that the public benefits as part of any of the household’s net monthly income (after inclusion of SNAP as a public benefit factors to be considered in the public deductions for expenses like housing considered in the public charge charge inadmissibility determination. and childcare) must be less than or inadmissibility determination is DHS believes the use of certain benefits equal to 100 percent of the FPG, and its inconsistent with congressional intent. is appropriate to consider in assets must fall below limits identified The rule intends to abide by the determining public charge in Federal regulations. The commenter statutory requirement as provided in inadmissibility. To implement Congress’ further stated that the average monthly section 212(a)(4) of the Act, 8 U.S.C. requirement to administer the public benefit per household is $253, and the 1182(a)(4), and consistent with charge ground of inadmissibility, DHS average monthly benefit per person is congressional statements relating to self- inevitably must consider benefits which $125 per month, or $1.40 per meal. sufficiency in 8 U.S.C. 1601: individuals are eligible to receive, as did Response: As indicated in the Specifically, that, ‘‘aliens within the the 1999 Interim Field Guidance. DHS proposed rule, DHS determined that Nation’s borders not depend on public believes the rule strikes an appropriate receipt of SNAP is relevant to the resources to meet their needs, but rather balance as to which benefits are determination of whether or not the rely on their own capabilities and the considered. alien is self-sufficient, and therefore not resources of their families, their 437 Further, DHS disagrees that the rule likely to become a public charge. The sponsors, and private organizations.’’ violates the restrictions in section 8(b) 1999 proposed rule, and the associated As discussed in the NPRM, benefits of the Food and Nutrition Act, 7 U.S.C. letters, related to a proposed definition directed toward food and nutrition, 2017(b). That section provides that the of public charge that this rule would housing, and healthcare are directly value of SNAP benefits ‘‘shall not be change. Furthermore, while INS relevant to public charge inadmissibility considered income or resources for any consulted with the relevant public determinations, because a person who purpose under any Federal, State, or benefit granting agencies in 1999, DHS needs the public’s assistance to provide for these basic necessities is not self- local laws.’’ 431 The rule does not was not bound by those agencies’ sufficient.438 In addition, these benefits consider SNAP as income or resources. recommendations, but adopted them account for significant Federal The rule explicitly excludes the value of based on its interpretation of the term expenditure on low-income individuals public benefits including SNAP from public charge, as well as certain public policy objectives articulated in that rule. and bear directly on self-sufficiency, as the evidence of income to be 439 432 DHS believes including the program is discussed in the NPRM. considered. Likewise, the Comment: A commenter stated that consideration of the assets is limited to consistent with Congress’ intention that aliens should be self-sufficient.436 DHS the proposed rule’s characterization of cash assets and resources and other individuals receiving SNAP benefits assets and resources that can be recognizes that some public benefits have higher income thresholds than the even for modest periods of time as a converted into cash within 12 public charge is inconsistent with 433 income thresholds that this rule months. Assets and resources do not extensive research showing that SNAP identifies as most relevant to the totality include SNAP benefits, which are not provides supplemental assistance to a of the circumstances determination. cash, and selling SNAP benefits is large number of workers, both while 434 However, the general income threshold illegal. they are employed in low-paying jobs of 125 percent of the FPG in the public and during brief periods of 429 charge totality of the circumstances See Personal Responsibility and Work unemployment. The commenter stated Opportunity Reconciliation Act of 1996, Public Law determination is just one factor; DHS that most non-disabled adults who 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, will not exclude consideration of any 1996) (codified at 8 U.S.C. 1601(2)). participate in SNAP, including eligible benefit that does not match that 430 See 8 U.S.C. 1612(a)(2)(J). immigrants, work in a typical month or 431 Congress has also exempted children under 18 threshold. within a year of that month. Comment: One commenter noted that from sponsor deeming requirements for purposes of Specifically, the commenter asserted SNAP receipt, 7 U.S.C. 2014(i)(2)(E), but this the rule is inconsistent with SNAP that over half of the individuals who provision does not affect the core reimbursement eligibility. Commenters stated that the obligation. In the latter respect, this provision is proposed rule undermines materially different than the CHIPRA provision 437 See Public Law 104–193, section 400, 110 Stat. regarding Medicaid for children under 21 and congressional intent and the 2105, 2260 (Aug. 22, 1996) (codified at 8 U.S.C. pregnant women, discussed above. 1601(2)). 432 See 8 CFR 212.22(b)(4)(ii)(A) & (C) (‘‘excluding 435 See Inadmissibility and Deportability on 438 See Inadmissibility on Public Charge Grounds, any income from public benefits’’). Public Charge Grounds, 64 FR 28,676, 28,688 83 FR 51114, 51159 (proposed Oct. 10, 2018). 433 See 8 CFR 212.22(b)(4)(ii)(D) & (E). (proposed May 26, 1999). 439 See Inadmissibility on Public Charge Grounds, 434 See 7 U.S.C. 2024(b). 436 See 8 U.S.C. 1601(1). 83 FR 51114, 51166 (proposed Oct. 10, 2018).

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were participating in SNAP in a typical necessities, and promote self- considered in the public charge month in mid-2012 were working in sufficiency. Commenters also provided inadmissibility determination. that month, and 74 percent worked in information and data on the benefit of Comment: A commenter stated that the year before or after that month. the programs. Many of these receipt of a housing subsidy does not on Similarly, many other commenters commenters stated that housing is a its own accurately measure self- stated that the large majority of SNAP basic necessity and is or should be a sufficiency, citing that 34 percent of recipients who can work do work. human right. Several commenters assisted households are working and Response: DHS recognizes that people discussed the administrative burden contributing to their housing costs. The who are working may also lack self- and costs the potential rule will have on commenter also stated that housing sufficiency. The person’s employment housing providers, including local rule programs do not constitute an incentive does not negate that the person is makers, housing agencies, and private for immigration. The average number of receiving the public benefit and the landlords who administer public months a household spends on an employment is not reimbursing the vouchers, such as the dissemination of agency waiting list before being public benefit-granting agency for the information to tenants and providing admitted to the public housing or cost of the public benefit. Under this them with evidentiary information. housing choice voucher program is 18 rule, DHS would not treat past receipt Other commenters raised concerns that and 32, respectively. A commenter also of SNAP—or any other benefit—as DHS did not sufficiently address the stated that rental assistance is best outcome-dispositive. Instead, will assess potential costs to the housing market, understood as a supplemental benefit such past receipt in the totality of the including the inundation of homeless that reduces housing costs for low- circumstances, to determine whether shelters, and the loss of Government income households but does not the alien is likely to become a public funds going to the private market. A provide support for all of an charge in the future. commenter raised concerns that the rule individual’s basic needs, instead recipients are generally required to CalFresh will divert funds from direct housing and resident services to help U.S. provide housing costs up to 30 percent Comment: A commenter stated that Department of Housing and Urban of their income. A commenter stated one in ten Californians receive nutrition Development (HUD) residents that a small share of individuals and assistance through CalFresh, which is understand the new rule. households eligible for housing California’s SNAP program. The Response: DHS appreciates the assistance actually receive it because of commenter stated that CalFresh is comments and recognizes the local housing conditions, wait list sizes, California’s food stamp program and importance of housing programs. DHS and preferences, DHS will not be able to increases the food buying power in low has determined that considering predict that someone seeking status income households. The commenter housing programs, such as Section 8 adjustment or lawful entry is likely to stated that if this proposed rule is Vouchers, Section 8 Rental Assistance receive housing benefits. enacted, school districts will see more Response: DHS understands that there and public housing, in the rule is children coming to school hungry are many conditions that may affect important in ensuring that aliens are because noncitizen families, regardless whether a person ultimately receives self-sufficient and rely on their own of whether the rule would affect their public housing. As previously capabilities and the resources of their situation, will be afraid to apply for food indicated, DHS has determined that families, their sponsors, and private stamps, either by deciding not to enroll, considering housing programs, such as organizations. These programs have or by disenrolling current recipients. Section 8 Vouchers, Section 8 Rental high expenditure and relate to the basic Response: As CalFresh is the Assistance, and public housing, in the living need of housing, and therefore the Federally-funded SNAP program under rule is important in ensuring that aliens the State of California, it would be receipt of such housing related public are self-sufficient and rely on their own benefit suggests a lack of self- considered as a public benefit under 440 capabilities and the resources of their this rule. As discussed with respect to sufficiency. DHS will therefore families, their sponsors, and private SNAP generally, CalFresh is relevant to consider the housing programs listed in organizations. As previously indicated, the determination of whether or not the the rule in the public charge the past receipt of one public benefit alien is self-sufficient, and therefore not inadmissibility determination. The rule will not on its own make a person likely to become a public charge. DHS intends to abide by the statutory inadmissible based on public charge understands that some people may requirement as provided in section grounds. Instead, DHS would review all disenroll from SNAP/CalFresh and 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), the factors in the totality of the other SNAP funded State benefits. and be consistent with congressional circumstances. However, this rule does not change the statements relating to self-sufficiency in Comment: Some commenters stated eligibility requirements for these 8 U.S.C. 1601. As Congress indicated, that, by including housing programs, the benefits and DHS believes that the the immigration policies continue to be rule directly contradicts the mission of inclusion of State SNAP benefits is that, ‘‘aliens within the Nation’s borders public housing as public housing consistent with congressional not depend on public resources to meet programs are meant to serve families statements relating to self-sufficiency in their needs, but rather rely on their own and provide for housing. 8 U.S.C. 1601. capabilities and the resources of their Response: DHS appreciates that the families, their sponsors, and private mission of public housing is to provide f. Housing organizations.’’ 441 However, housing low-income affordable housing to Comment: Commenters opposed programs that provide mortgage families. DHS also has a mission to including project-based Section 8 assistance or credits will not be abide by congressional mandates to housing in the definition of public review the inadmissibility of all aliens charge, because the vouchers can help 440 See Inadmissibility on Public Charge Grounds, including based on public charge and ease the burden of rent in high-cost 83 FR 51114, 51167 (proposed Oct. 10, 2018). congressional statements relating to self- 441 See Personal Responsibility and Work cities, help alleviate homelessness, Opportunity Reconciliation Act of 1996, Public Law sufficiency in 8 U.S.C. 1601. promote economic stability, allow the 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, Comment: A commenter stated that flexibility for families to pay for other 1996) (codified at 8 U.S.C. 1601(2)). the rule would waste affordable housing

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resources, including subsidized rental receiving rental assistance are Comment: A few commenters asked housing programs such as Low-Income employed, arguing that they are whether homeownership programs are Housing Tax Credit (LIHTC) housing, therefore self-sufficient. included under the rule. Section 515 rural housing, and Section Response: DHS appreciates the Response: The rule does not consider 514/516 farm labor housing, leading to comment and recognizes that the homeownership programs, such as the especially severe, negative impacts in availability of public benefits for aliens Housing Choice Voucher rural California, and the commenter is limited. The purpose of the public Homeownership program,444 in the stated that the rule would further charge rule is, however, to ensure that public charge inadmissibility destabilize the farmworker population those seeking admission to or determination. DHS will only consider in our agricultural regions. The adjustment of status in the United States public housing benefits as listed in the commenter indicated that from 1964 to do not become public charges by using rule. 2004, Section 514 and 516 housing the public benefits in the future. The Comment: A commenter requested programs managed by USDA financed public charge inadmissibility that DHS add benefits received pursuant nearly 35,000 homes for farmworkers determination is correspondingly one of to Project Rental Assistance Contracts and rehabilitated thousands more and an alien’s likelihood of becoming a (PRAC), USDA rental assistance that that in the period that followed, public charge through receipt of benefits projects, or all HUD benefits to the farmworker housing development in the future even if the person is public benefits definition. continued to be backed by annual employed. Further, as previously Response: DHS appreciates the Federal appropriations in the tens of indicated, DHS recognizes that people comment, however, DHS will not millions of dollars. The commenter receiving public benefit may include additional housing programs. stated that housing programs have had The programs listed by the commenters nonetheless be working, but as they are 445 varying eligibility requirements that receiving public benefits, such aliens have low expenditures. In addition, DHS has removed have allowed individuals with a variety are not self-sufficient. Therefore, DHS references to 42 U.S.C. 1437u, the of immigration statuses and mixed- will continue to consider the public Family Self-sufficiency program, and 24 status families to secure stable, benefits as listed in the rule. CFR part 402 Section 8 Project-Based affordable housing; and the rule would Comment: A commenter stated that Contract Renewal, which is a program therefore lead to significant dislocation DHS should specify in its rule that of immigrant families, away from associated with housing but is not itself individuals in mixed-status families a housing program. housing that was built precisely for their who are not recipients of Federal use. Comment: A commenter associated financial housing assistance do not with the City of Los Angeles reported Response: This rule does not include receive a public benefit for public LIHTC housing, Section 515 rural that the beneficiaries of many city charge determination purposes. housing programs and policies will be housing, and Section 514/516 farm labor Response: DHS will not consider a housing as public benefits. Further, directly negatively impacted by the person who lives in any one of the listed proposed public charge rule. The although the rule may affect whether housing programs as receiving public individuals apply for housing, the rules benefits unless the public benefit- 444 does not change the eligibility See 24 CFR part 982, subpart M, 24 CFR granting agency actually designated the 982.625–982.643. See also HUD.gov, requirements for any public benefit. benefit for the applicant as a Homeownership Vouchers, available at https:// _ _ _ DHS also notes that under 20 CFR beneficiary, such as in a contract, lease, www.hud.gov/program offices/public indian 655.122(d)(1), the employer must housing/programs/hcv/homeownership (last visited or other documentation. provide housing at no cost to the H–2A April 19, 2019). Comment: A commenter stated that 445 workers (temporary workers performing For example, Supportive Housing for the including housing to the public charge Elderly, the 2019 Request for Outlays is agricultural services), and those workers determination will cause recipients of $659,000,000, see HUD, Housing, Housing For The in corresponding employment who are Elderly (Section 202), 2019 Summary Statement public housing to be treated differently not reasonably able to return to their and Initiatives, available at https://www.hud.gov/ due to their immigration status, in sites/dfiles/CFO/documents/25%20- residence within the same day. Further, contradiction to the Fair Housing Act 442 %20FY19CJ%20-%20HSNG%20-%20Housing% under 20 CFR 655.122(d)(4), if public of 1968’s prohibition against 20for%20the%20Elderly%20%28Section% housing provided for migrant 20202%29%20-%20Updated.pdf (last visited May discrimination. agricultural workers under the auspices 31, 2019); for Supportive Housing for Persons with of a local, county, or State government Response: DHS does not believe that Disabilities, the 2019 Request for Outlays is the rule is contrary to the $188,000,000, Housing, Housing For Persons With is secured by the employer, the Disabilities (Section 811), 2019 Summary Statement antidiscrimination provisions of the Fair and Initiatives, available at https://www.hud.gov/ employer must pay any charges 443 normally required for use of the public Housing Act. The antidiscrimination sites/dfiles/CFO/documents/26%20-% provisions prohibit discrimination on 20FY19CJ%20-%20HSNG%20-%20Housing% housing units directly to the housing’s 20for%20Persons%20with% management. DHS would not consider grounds covered by the Fair Housing Act by lenders, property sellers, and 20Disabilities%20%28Section%20811%29%20- such housing under the definition of %20Updated.pdf (last visited May 31, 2019); for public benefit as the employer is others covered by that law. In contrast, Housing for Persons With AIDS (HOPWA), the 2019 required by regulation to pay for any this rule is applicable in the Request for Outlays is $353,448,000, see immigration context where an alien Community Planning And Development Housing associated costs. Opportunities For Persons With Aids 2019 Comment: A commenter said data must establish that he or she is Summary Statement And Initiatives, available at refuted the notion that immigrant admissible and is not inadmissible as https://www.hud.gov/sites/dfiles/CFO/documents/ families rely disproportionately on all likely at any time in the future to 17%20-%20FY19CJ%20-%20CPD%20-% become a public charge under section 20Housing%20Opportunities%20for forms of public assistance, citing a study %20Persons%20with% indicating that just 4.2 percent of 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). 20AIDS%20%28HOPWA%29.pdf (last visited May immigrant households with children 31, 2019); and for USDA Multi-Family Housing utilize housing assistance as compared 442 See 42 U.S.C. 3604. Rental Assistance, the 2019 appropriated funds is 443 See Title VIII (Fair Housing Act, as amended) $1,331,400,000, see FY 2019 Appropriated Funds, to 5.3 percent of U.S.-born households. of the Civil Rights Act of 1968, Public Law 90–284, available at https://www.rd.usda.gov/newsroom/ A couple of commenters cited research 82 Stat. 73 (April 11, 1968) (codified in 42 U.S.C. fy2019-appropriated-funding (last visited May 31, showing that most able-bodied adults 3601–19). 2019).

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commenter cited programs such as commenter indicated that many of the grounds. As explained in the NPRM,448 permanent support housing, including funds used for lead abatement programs the U.S. Government subsidizes health Section 8 Vouchers; Housing are HUD grant dollars, and to the extent insurance, which pays for expenses Opportunities for Persons With HIV/ that these payments are made available associated with the institutionalization. AIDS; Domestic Violence Shelter based upon the income of the renter, The receipt of these benefits to provide Operations; and Family Source Center they could have an impact on the renter for the cost of institutionalization services. The commenter indicated that from a public charge standpoint. indicates a lack of self-sufficiency in the rule will either dissuade immigrants satisfying basic living needs of food and Response: DHS will not consider any who legally qualify for public assistance nutrition, housing, and healthcare. subsidies or grants provided to test for from seeking the necessary services or Additionally, institutions are residential lead to high level of disenrollment. The lead paint or to ameliorate homes with facilities that assume the total care of commenter indicated that some program lead paint issues in the public charge the basic living requirements of officials could not confidently offer determination. DHS will only consider individuals who are admitted, including aliens clear guidance on the those public housing programs room and board. However, DHS immigration consequences of accessing enumerated in 8 CFR 212.21(b). HUD’s understands that the language in the certain services. The commenter stated Lead-Based Paint and Lead Hazard NPRM could be interpreted as inclusive that the rulemaking would exacerbate Reduction Demonstration Grant of other public benefits not listed in the homelessness and has already led to a Programs are regulated under 24 CFR rule, such as Social Security retirement ‘‘chilling effect.’’ The commenter also part 35, and do not fall under the list of benefits or Medicare. Therefore, DHS stated that the proposed rule was enumerated benefits. Therefore, has removed the reference to long-term inconsistent with the commenter’s subsidies or grants for lead abatement institutionalization within the commitment to ensure fair housing for programs are not considered a public definition of public benefit, as the long- its residents, and threatens its ability to benefit for purpose of the public charge term institutionalization benefits that enforce housing rights for local inadmissibility determination. DHS has in the past considered, and residents. The commenter stated that intends to consider under this rule, are such commitment includes a g. Institutionalization already part of the public benefit requirement by HUD to certify that it Comment: A commenter asked that definition, i.e., TANF, SSI, and would affirmatively further fair housing. institutionalization for long-term care be Medicaid. Response: The public charge rule does removed as a consideration in the Further, DHS disagrees that not prevent aliens from obtaining continuing to consider public charge determination because the benefits they are legally entitled to institutionalization for long-term care at country has made progress with under PRWORA. Given Congress’ strong government expense indicates that the deinstitutionalization over the past interest in an immigrant’s self- United States does not welcome people several administrations. The commenter sufficiency 446 and based on the fact that with disabilities. DHS reiterates that a Congress did not exempt the receipt of also stated that there is no evidence that child or a person who is severely such benefits from consideration for people with significant disabilities are disabled or who has a severe medical purposes of section 212(a)(4) of the Act, taking advantage of the Medicaid condition and who lives in a long-term 8 U.S.C. 1182(a)(4),447 DHS will system. The commenter stated that the care facility at government expense consider public benefits as listed in the rule’s potential effects on individuals would not be found inadmissible on the rule. DHS notes that other housing with disabilities created an implication public charge ground solely on account programs not listed in the rule, such as that individuals with disabilities were of the past institutionalization. Instead, Section 202 Supportive Housing for the not welcomed citizens of the United DHS will, in the totality of the Elderly, Section 811 Supporting States, and stated that this was an circumstances, take into account Housing for Person with Disabilities, ‘‘appalling message.’’ A commenter whether there are sufficient assets and Housing Opportunities for Persons With stated that despite deinstitutionalized resources to provide for his or her future AIDS (HOPWA), USDA Multi-Family supports and services becoming more care in a privately-financed setting, Housing Rentals, and home loan and and more prevalent, most people with including resources provided by grant programs, will not be considered disabilities receiving any Medicaid guardians or relatives who may have the in the public charge inadmissibility supports must first prove that they are ability to support the alien and provide determination. at risk of institutionalization. The for the alien’s future care. Comment: A commenter asked commenter stated that the requirement Comment: One commenter stated that whether the following benefits received to prove risk of institutionalization most of the population would as part of a lead paint abatement applies to virtually every individual eventually require long-term care in program would be considered public with an intellectual and/or nursing homes. A commenter stated that benefits for purposes of public charge; developmental disability in the United including benefits provided for any stipend received as part of the States regardless of immigration status. institutionalization is a virtually blanket program, including stipends or gift The commenter stated that inclusion of conclusion that all immigrants are cards that are offered to encourage institutionalization in the public charge ‘‘likely’’ to become public charges, families to get their children tested for rule would thus automatically cast a because a huge percentage of aging lead; the use of a city-operated lead safe mark against a person with a disability individuals in the United States will house to which families may move under the proposed rule. ultimately require some form of during renovation of their home to institutional care. The commenter cited Response: DHS appreciates the remove lead; or receipt of HUD grant to data that, according to the comments. DHS does not believe that all funds used to pay a landlord of a rental commenter, indicated nursing homes individuals with an intellectual or unit to rehabilitate a unit that has been alone will ultimately care for 35 percent developmental disability will found to have poisoned a child. The of the population. The commenter said necessarily be institutionalized, be likely to be institutionalized, or be 446 As expressed in 8 U.S.C. 1601. 448 See Inadmissibility on Public Charge Grounds, 447 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). inadmissible based on public charge 83 FR 51114, 51171–72 (proposed Oct. 10, 2018).

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considering these services as public benefits. Social Security retirement resident status, who are subject to the benefits would render all immigrants benefits, SSDI, Medicare and veteran’s public charge ground of inadmissibility inadmissible. A commenter stated that benefits are considered earned benefits or are nonimmigrants applying for an institutionalization cannot be predicted in that individuals pay into the extension of stay or change of status, are and asked what would happen if an programs as part of their employment self-sufficient and do not rely on public alien previously deemed admissible and must work for a certain period of resources to meet their needs, but rather later became disabled, but documented time before being eligible. Therefore, rely on their own capabilities and the that they will not need benefits at any DHS is removing the provision for resources of their families, sponsors, time in the future. public benefits for long-term care at and private organizations.450 Further as Response: DHS understands that government expense as a separate previously discussed, the public charge people may need long-term care with provision in the definition of public inadmissibility rule is not inconsistent age; however, DHS does not believe that benefits. Because the benefits with PRWORA, nor does it contravene everyone will need to be supported by considered for institutionalization or overrule PRWORA.451 the Government. For example, an alien under the rule are already within the or his or her family may have sufficient As indicated in Table 10 of the rest of the list in the public benefit 452 assets or resources to ensure that the definition, DHS does not believe the NPRM, the total Federal expenditure alien has the necessary care, even in a additional provision is necessary and its for the Medicaid program overall is by circumstance where the alien cannot deletion avoids confusion with other far larger than any other program for 453 work or must be institutionalized. Or benefits that are not considered in the low-income people. In addition, the the alien could have adequate insurance rule. Further, when a person is focus of this public charge rule is to to support institutionalization for long- institutionalized and the person or a ensure self-sufficiency that covers the term care, whether through a private relative is paying for any cost associated basic necessities of life, such as food insurer or through Medicare. with the institutionalization without the and nutrition, housing, and The public charge inadmissibility use of public benefits, DHS would not healthcare.454 Medicaid is a federal determination calls for a determination consider the institutionalization as a benefits program that provides for a that it is more likely than not, in the public benefit being received. DHS person’s health insurance to cover the totality of the circumstances, that the notes that institutionalization would costs of healthcare, which, is a basic alien will become a public charge. For otherwise be generally be considered as necessity of life that is directly relevant this reason, DHS would consider it part of the health factor as described in to public charge. unreasonable to assume, for purposes of the rule. However, DHS credits the many the public charge determination, that all h. Medicaid comments that DHS received regarding individuals will eventually live in the receipt of Medicaid and CHIP by nursing homes subsidized by the Comment: Many commenters stated children and pregnant women, as well government. USCIS will not deny a that Medicaid should not be considered as the states that have expanded their person based on public charge solely in public charge determinations. Medicaid programs to allow access to because of a remote possibility that a Commenters stated that the rule such groups without a waiting period. person will need such care in advanced contradicts one of PRWORA’s main DHS has decided to exclude age. DHS also clarifies that the public policies, which extends Medicaid consideration of Medicaid received by charge inadmissibility determination benefits to immigrants, as well as other all aliens under the age of 21. The age laws that allow certain children and does not necessarily involve a review of limit of 21 for exempting Medicaid pregnant women to access Medicaid whether the person has actually receipt from consideration reflects without a waiting period. One received a public benefit after DHS has Congressional intent to allow states to commenter stated that DHS should made its determination. DHS further extend coverage to this population exempt up to two years of Medicaid understands that the language in the (along with pregnant women as when the individual has shown past regulation may indicate that other discussed below) without requiring ability and earning potential. The public benefits not otherwise listed that them to wait five years as required by commenter did not provide a reason for may be used to fund PRWORA, and without triggering a the proposed two-year period, but stated institutionalization, including State reimbursement requirement for the that when a person applies for health benefits, Social Security retirement alien’s sponsor under an affidavit of benefits, SSDI, or Medicare. When insurance on the Affordable Care Act referring to public benefits used for (ACA) marketplace, and is eligible for Medicaid, ‘‘the marketplace 450 See 8 U.S.C. 1601(2). long-term care at government expense, 451 See Part III, Section D, Comments Regarding the 1999 Interim Guidance listed SSI, automatically forwards an application Legal Authority/Inconsistency with Congressional TANF, and Medicaid as examples of on their behalf to Medicaid, even if they Intent. public benefits for long-term never intended to apply for Medicaid, 452 See Inadmissibility on Public Charge Grounds, institutionalization at government leaving them with no choice in the 83 FR 51114, 51160 (Oct. 10, 2018). 453 See Table 26–1 Policy, Net Budget Authority expense that would be considered in the matter at all!’’ The commenter did not provide evidence to support his by Function, Category, and Program, available at public charge inadmissibility https://www.whitehouse.gov/wp-content/uploads/ determination.449 Likewise, under this statement regarding how the ACA 2018/02/26-1-fy2019.pdf (last visited July 26, 2019). rule, DHS would consider such benefits marketplace works. Some commenters Expenditure amounts are net outlays unless otherwise noted. See also Gene Falk et al., Cong. as part of long-term institutionalization supported the inclusion of Medicaid in the rule. Research Serv., R45097, Federal Spending on at Government expense and did not Benefits and Services for People with Low Income: Response: DHS will continue to intend to consider other benefits may be In Brief (2018), available at https://fas.org/sgp/crs/ consider Medicaid. DHS agrees that used such as Social Security retirement misc/R45097.pdf (last visited July 26, 2019). Note Medicaid is beneficial to those who however that neither HHS nor DHS are able to benefits, SSDI, Medicare or veteran’s receive it. DHS, however, seeks to better disaggregate emergency and non-emergency Medicaid expenditures. Therefore, this rule 449 See Inadmissibility and Deportability on ensure that applicants for admission to considers overall Medicaid expenditures. Public Charge Grounds, 64 FR 28689 (May 26, the United States and applicants for 454 See Inadmissibility on Public Charge Grounds, 1999). adjustment to lawful permanent 83 FR 51114, 51159 (proposed Oct. 10, 2018).

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support.455 The age limit also aligns support. Finally, Medicaid also funds benefits) above the threshold in order with the limit most states offer free the delivery of certain services through for the alien to be likely to become a public education to children, and the educational system, which DHS public charge, DHS does not believe that provides appropriate certainty to intends to exempt. Therefore, DHS a two-year ‘‘exemption period’’ is educators, parents, and children with believes that it is appropriate to exclude necessary. respect to use of health care programs Medicaid for individuals under the age Comment: Some commenters said the by children.456 of 21 from the public benefit definition. durational limits on the use of Medicaid DHS recognizes Congress did not In addition, and consistent with the did not align with how Medicaid exclude children from the public charge foregoing, DHS has decided to exempt recipients use the program, and said determination. But as noted in the Medicaid received by pregnant aliens that health insurance should be treated proposed rule, the fact that an alien during pregnancy and during the 60-day differently than other welfare programs. received public benefits as a child is a period beginning on the last day of the A commenter stated that the proposed relevant consideration when pregnancy. This exemption aligns the 12-month threshold for Medicaid would determining the likelihood that the alien rule with the exclusion of CHIP from produce absurd results when applied to will receive public benefits in the consideration, as CHIP also provides a real-world context. The commenter future. As alien children approach or coverage to pregnant women and stated that some treatments and services reach adulthood, they may age out of children, and ensures parity under this are intensive and span months, if not eligibility for certain benefits, choose to rule for this population across two years. For example, a Medicaid enrollee disenroll from such benefits (for which Federal benefits (Medicaid and CHIP). It with cancer could have a debilitating their parents may have enrolled them), also aligns the rule with the special year-long treatment regimen. The or increase their chances of becoming treatment that Congress afforded proposed rule would force such an self-sufficient depending upon whether children under 21 and pregnant women individual into an impossible situation they acquire education and skills, in under 42 U.S.C. 1396b(v)(4). Again, where continued treatment would count secure employment, and accumulate that authority allows states to extend against them for immigration purposes. assets and resources. As a consequence, coverage to pregnant women, and Some commenters said insurance past receipt of public benefits as a child children under the age of 21, without through programs like Medicaid reduces may be less indicative of future receipt, regard to the 5-year limit under the likelihood that an individual will as compared to past receipt as an adult. PRWORA, and without imposing become bankrupt, and that the proposed DHS recognizes that Medicaid and reimbursement obligations on an alien’s rule may cause previously self-sufficient CHIP benefits for children also provide sponsor through an affidavit of support individuals to become reliant on for other services or funding for in- (as discussed above). DHS believes that government assistance. One commenter school health services and serve as an Medicaid received by pregnant aliens, stated that individuals may be enrolled important way to ensure that children while providing a short-term benefit for in Medicaid by hospitals without their receive the vaccines needed to protect the alien herself, in many cases knowledge if they are in an accident or public health and welfare. In addition, ultimately benefits the U.S. citizen presented to the ER with a serious children may be enrolled in Medicaid child(ren) who is born to such alien. health condition. The commenter said through the school system or other DHS appreciates the suggestion to that at times, the patients do not even programs which are required by law to incorporate a two-year ‘‘exemption know that they are being enrolled in provide services which may affect period’’ for Medicaid. However, DHS Medicaid and just think they are being school budgets. will not include a two-year period in the enrolled into a sliding scale program. In sum, while children are not exempt rule. Although DHS agrees that through The commenter stated that looking at from public charge inadmissibility, the health insurance marketplace, an past receipt of Medicaid is too there are strong legal and policy reasons eligible person may be referred for complicated and unhelpful in to assume that Congress did not intend Medicaid eligibility, DHS understands determining if a person may become a DHS to treat receipt of Medicaid by that generally the referral must still be public charge, and recommended that if alien children under the age of 21 in the approved by the State and accepted by DHS insists in including Medicaid then same way as receipt of Medicaid by the potential beneficiary.457 The person the period of time should be reduced to adult aliens. Congress expressly has a choice in accepting Medicaid a look back of maximum 12 months. authorized states to expand Medicaid through the health insurance Response: DHS disagrees that eligibility for aliens under the age of 21 marketplace. In addition, all individuals Medicaid as health insurance should be without a waiting period, and expressly may voluntarily disenroll from treated differently. Medicaid has a large provided that receipt of such Medicaid Medicaid at any time.458 As DHS will federal expenditure impact, similar to would not trigger a reimbursement only consider Medicaid received after other public benefit programs included 459 application under an affidavit of the effective date of the rule, and in the rule. DHS believes the benefit requires the alien to be likely to receive programs considered in the public 455 Children’s Health Insurance Program Medicaid (or other designated public charge determination are appropriate as Reauthorization Act of 2009, Pub. L. 111–3, section they directly relate to self-sufficiency, 214, 123 Stat. 8, 56 (Feb. 4, 2009) (Permitting States to Ensure Coverage Without a 5-Year Delay of 457 See Kalman Rupp and Gerald F. Riley, State since they are providing basic Certain Children and Pregnant Women Under the Medicaid Eligibility and Enrollment Policies and necessities of life such as food and Medicaid Program and CHIP) (codified as amended Rates of Medicaid Participation among Disabled nutrition, housing, and healthcare. at 42 U.S.C. 1396B(v)(4)). Supplemental Security Income Recipients, Social Because of the nature of the public 456 State laws generally provide a maximum age Security Bulletin, Vol. 76 No. 3, 2016, available at limit for free public education. The limit ranges https://www.ssa.gov/policy/docs/ssb/v76n3/ benefits that would be considered under between 17 (Alabama) and 26 (Texas). As of 2017, v76n3p17.html (last visited June 14, 2019). this rule—which are generally means- 25 states allow for free public education until age 458 See CMS, Medicare-Medicaid Plan Enrollment tested and provide cash for income 21. Department of Education, National Center for and Disenrollment Guidance (June 14, 2013), maintenance and for basic living needs Education Statistics, Table 5.1 Compulsory school available at https://www.cms.gov/Medicare- attendance laws, minimum and maximum age Medicaid-Coordination/Medicare-and-Medicaid- such as food and nutrition, housing, and limits for required free education, by state: 2017 Coordination/Medicare-Medicaid-Coordination- https://nces.ed.gov/programs/statereform/tab5_ Office/Downloads/MMPFinalEnrollGuidance.pdf 459 See Inadmissibility on Public Charge Grounds, 1.asp (last visited July 17, 2019) (last visited July 26, 2019). 83 FR 51114, 51160 (proposed Oct. 10, 2018).

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healthcare—DHS believes that receipt of of proving the disability. The created a Medicaid Buy-In Program for such benefits is an important factor to commenter stated that costs and delays Working People with Disabilities consider, in the totality of the associated with obtaining such proof specifically to allow working people circumstances, when making a public ‘‘would lead to fewer tenants being with disabilities to earn more income charge determination. This is because a allowed to bring forward the defenses to without risk of losing their health person with limited means to satisfy which they are legally entitled, and insurance. The commenter stated that basic living needs who uses government would lead to further evictions in the many people qualify for Medicaid assistance to fulfill these needs greater Boston area.’’ because an injury or disability has made frequently will be dependent on such Response: DHS recognizes that an them unable to work. Medicaid often assistance to such an extent that the individual who disenrolls from covers services that are unavailable person is not self-sufficient. Medicaid, Medicaid (or foregoes initial enrollment) through private insurance, such as as a government subsidized health- as a consequence of this rule may face medical equipment, long-term care, and insurance program, provides means to additional challenges in providing proof certain specialist care services. The ensure sufficient healthcare. Regarding of disability for purposes of reasonable commenter stated that the NPRM the concern that individuals may be accommodation. As noted by the undermines the goals of these programs enrolled in Medicaid without their commenter, however, Medicaid is not a by broadly including ‘‘health’’ as a knowledge when receiving emergency precondition to obtaining such proof of factor in the public charge room services, DHS notes that the rule disability. An alien who relies on determination and by heavily weighting excludes consideration of emergency Medicaid for healthcare (including receipt of health-related benefits as a Medicaid. Additionally, individuals potential documentation of disabilities) negative factor in public charge who are enrolled in Medicaid receive for the period of time that meets the determinations without distinguishing documentation informing them of their requisite threshold (more than 12 Medicaid recipients with disabilities. enrollment and may at any time months in the aggregate during any 36- Response: DHS appreciates that some disenroll from the public benefit. month period) may be found to be a people may be eligible for Medicaid DHS acknowledges the positive public charge, notwithstanding that based on other eligibility criteria or a outcomes associated with public such outcome may have negative higher income threshold, however, such benefits programs, but the goals of downstream effects for such alien or Medicaid programs would also be programs such as Medicaid are different others. included within the definition of public from the objectives of immigration in Comment: A couple of commenters benefit for the purposes of the public admission of aliens into the United said there was no reason to distinguish charge inadmissibility determination. States. The rule, therefore, abides by the between private and public health DHS does not intend to undermine the statutory requirement as provided in insurance in making a determination goals of Medicaid or Medicaid Buy-In section 212(a)(4) of the Act, 8 U.S.C. about self-sufficiency, and that private programs in this rule. However, 1182(a)(4), and is consistent with insurance for working-class people is Congress provided for the mandatory 461 congressional statements relating to self- often subsidized by the government factors, including health. The sufficiency in 8 U.S.C. 1601. As through such mechanisms as special tax interpretation of the public charge Congress indicated, the immigration treatment for employer-provided provision has long included policy continues to be that, ‘‘aliens insurance and refundable tax credits for consideration of the alien’s receipt of within the Nation’s borders not depend private health insurance plans under the government-funded healthcare 462 on public resources to meet their needs, ACA. programs. Medicaid Buy-In programs Response: DHS appreciates the but rather rely on their own capabilities are optional state Medicaid programs for comments but disagrees. Medicaid can and the resources of their families, their workers with disabilities who have impose substantial costs on multiple sponsors, and private organizations.’’ 460 earnings in excess of traditional levels of government and generally 463 Therefore, the public charge Medicaid rules. These programs are indicates a lack of ability to be self- still using the same source of inadmissibility ground and this rule sufficient in satisfying a basic living serve to ensure that those coming to the government funding; the main need, i.e., healthcare. As noted in the difference is that they contain different United States will be self-sufficient. NPRM, by at least one measure, this Comment: One commenter opposed eligibility requirements, such as a program entails some of the largest higher income threshold. Further, DHS, including Medicaid in the definition of overall Federal expenditure for low- public benefit and stated that such as previously discussed, understands income people, by far. Although DHS that people may be employed and still inclusion will harm the ability of agrees that government subsidies for disabled individuals to access receive public benefits and are therefore private health insurance plans may also not self-sufficient. Aliens should be reasonable accommodations. The be amenable to consideration for public commenter stated that such inclusion charge purposes, DHS believes it is a 461 will result in individuals disenrolling See INA section 212(a)(4)(B), 8 U.S.C. reasonable approach to only designate 1182(a)(4)(B). from Medicaid and may adversely affect Medicaid at this time. 462 See, e.g., Ex parte Nunez, 93 F.2d 41 (9th Cir. individuals’ ability to obtain proof of Comment: Several commenters 1937). 463 disability from a doctor that is necessary remarked that states have implemented See Medicaid.gov, Medicaid Employment to secure reasonable accommodations in Initiatives, available at https://www.medicaid.gov/ programs, such as Medicaid Buy-In medicaid/ltss/employment/index.html (last visited housing. The commenter noted that programs, to allow individuals with June 24, 2019). See also for example, New York such an individual, potentially with the disabilities to retain the necessary State, Medicaid Buy-in Program for Working People assistance of social service or other Medicaid coverage while participating with Disabilities, available at https:// organizations serving the individual, www.health.ny.gov/health_care/medicaid/program/ in the labor force. A commenter stated buy_in/index.htm (last visited June 24, 2019). In would have to find an alternative means that Medicaid is one of many order to qualify under the New York State program, government programs that provide a person must have a disability as defined by SSA, 460 See Personal Responsibility and Work be engaged in paid work, and have a gross income Opportunity Reconciliation Act of 1996, Public Law targeted assistance to individuals with that may be as high as about $63,492 for an 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, disabilities. The commenter provided individuals and $86,575 for a couple, among other 1996) (codified at 8 U.S.C. 1601(2)). the example of New York, which requirements.

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obtaining private health insurance other Medicaid administered by other states governed by laws relating to the specific than Medicaid in order to establish self- will also be considered in the public public benefits program and are not sufficiency. charge inadmissibility determination to within the scope of this regulation. Comment: A commenter indicated the same extent as described above, Further, as part of the public charge that the rule is unclear on the meaning regardless of the name used for inadmissibility determination, DHS of Medicaid and unclear whether Medicaid in such state. A state medical does not intend to request information programs that are funded only by the insurance program, funded exclusively from schools that was collected by such state and provided under the auspices of by the state, is not included in the school for program eligibility, Medi-Cal would be considered definition of public benefit under 8 CFR allocation, or qualification purposes. Medicaid for the purposes of a public 212.21(b), and will not be considered as Instead the students, or students’ charge analysis. a public benefit in the public charge parents or guardians would provide Another commenter stated that inadmissibility determination. To the documentation related to any Medicaid Medicaid is a Federal-State program; it extent that States give the same name to or SNAP, or other public benefit, is funded jointly by the Federal their Federal Medicaid program and the application, documentation, or Government and the States, and each state-only funded health insurance verification information collected by a state operates its own program within program, aliens will not be required to public school for program eligibility, broad Federal guidelines. The report the receipt of the state-only allocation, or qualification purposes. commenter indicated that States have funded health insurance. USCIS would numerous options as to the people and Individuals With Disabilities Education assume that any Medicaid identified on Act benefits they cover and a great deal of the Form I–944 is Federal Medicaid. flexibility in designing and Comment: A commenter agreed with Comment: Multiple commenters administering their programs. The the exception for school-based services, stated that children with special commenter stated that consequently, but said it underscores the need for healthcare needs (disabilities) depend Medicaid eligibility and benefits vary clarification stating that public benefit on Medicaid, and that while the widely from state to state. For example, programs and services provided to proposed rule includes exceptions for the commenter stated that Wisconsin is school children by public school services funded by Medicaid but the only non-expansion state to cover systems will not be considered in provided through IDEA, no plan has childless adults at any income level. immigration status determinations for a been put forward that would enable this The commenter further stated that family member or member of the carve-out to work in practice. immigration authorities would have no household. Moreover, the commenter Many commenters discussed the positive effects of children being way of predicting which states said further clarification is needed that enrolled in Medicaid and the ‘‘chilling individuals would likely live in any application, documentation, or effect’’ or disenrollment associated with throughout their lives and therefore verification information collected by a the proposed rule, and warned that would not know which income public school for program eligibility, decreased participation in Medicaid thresholds would be relevant to allocation, or qualification purposes would lead to decreased utilization of consider when making a public charge would not be requested or subject to preventative services, worse health determination, potentially leading them disclosure by the local education outcomes for families and children, and to assume that most people could end agencies or the student and their parents significant economic costs. Many up using Medicaid at some point. or guardians for DHS public charge Response: Medicaid is a Federal-State commenters said the proposed rule’s consideration. exemption of school-based health partnership under which the Federal Response: DHS reiterates that only the services was insufficient given the larger Government provides matching funds to public benefits listed in 8 CFR 212.21(b) repercussions of the ‘‘chilling effect’’ states for certain expenditures at varying are considered public benefits for and the likelihood that many children percentages (depending on the state). purposes of the public charge would be disenrolled. Some The form of Medicaid covered by this inadmissibility determination. DHS also commenters indicated that under IDEA, rule is any Medicaid program operated reiterates that under this rule, Medicaid- under the authority of Title XIX of the schools serve as a health care provider funded school-based benefits provided reimbursed by Medicaid but are not Social Security Act Amendments of to children who are at or below the 1965 (Pub. L. 89–97), for which the state eligible for reimbursement if a family oldest age of children eligible for chooses not to enroll their child. A seeks reimbursement from the Federal secondary education as determined Government. In other words, any commenter provided data on the under State law are not considered funding school districts receive from Medicaid benefit for which a state seeks public benefits for purposes of the reimbursement from the Federal Medicaid for school-based health public charge determination, as are services, and the numbers of students Government will be considered in the Medicaid-funded IDEA programs and public charge determination regardless who benefit from these programs. The Medicaid for children under the age of commenters pointed out that this of which state administers the program. 21 are not included the are definition of Medi-Cal is how the State of California funding is tied to the number of public benefit. Additionally, public Medicaid-eligible students enrolled. delivers Medicaid to its residents.464 benefits received by household Schools said they already struggle to Any Medi-Cal receipt will therefore be members are not considered in an receive consent for school-based, considered in the totality of the alien’s public charge inadmissibility Medicaid-reimbursable services, and circumstances in the public charge 465 determination. Confidentiality or warned that the proposed rule would inadmissibility determination, unless non-disclosure provisions relating to exacerbate this problem. A commenter the Medi-Cal is provided to the alien applications for or receipt of certain expressed concern that, even though under a state-only authority at no public benefits programs are generally medically necessary special education expense to the Federal Government. services provided to eligible children at 465 If a household member is obtaining public 464 Ca.gov, Medi-Cal, available at https:// benefits, however, that amount will not be counted school would be excluded under the www.dhcs.ca.gov/services/Medi-cal/pages/ toward the household’s annual gross income rule, the fear of being labelled a public default.aspx (last visited Mar. 29, 2019). determinations. See 8 CFR 212.22(b)(4)(ii)(A). charge would cause some immigrant

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parents to refrain from securing these covered benefits and that school-based charge inadmissibility statute.469 DHS services for children. A few commenters programs also include services such as considers any disability or other were concerned that the proposed rule dental and vision services, (for example medical condition in the public charge would worsen health outcomes, under the Early Periodic Screening inadmissibility determination to the increase food insecurity, and reduce Diagnostic and Treatment (EPSDT)) extent the alien’s health makes the alien educational attainment. benefit or other preventative services.467 more likely than not to become a public A commenter supported the exclusion DHS believes that by excluding any charge at any time in the future. USCIS’ of benefits under IDEA, but stated that Medicaid received by an alien under the consideration of health-related issues it remained concerned about these age of 21 (as well as any and all CHIP will be largely limited to those services being used against parents who benefits), and retaining the exemptions conditions that are identified on the refuse to sign a specific consent form. for (1) services or benefits funded by Form I–693 and affect an applicant’s Multiple commenters stated that Medicaid but provided under the IDEA ability to work, attend school, or children with special healthcare needs, and for (2) school-based benefits otherwise care for himself or herself. As including children with disabilities, provided to children who are at or noted in the proposed rule, after depend on Medicaid. These commenters below the oldest age of children eligible assessing Federal statutes and indicated that children with special for secondary education, DHS has regulations protecting individuals with needs cannot and do not receive effectively addressed many of the disabilities from discrimination, DHS Medicaid for educational services alone objections that commenters raised believes that this rule’s treatment of and the exclusion of Medicaid-funded related to the potential indirect effects disability in the public charge context is IDEA services will likely do little to of this rule on school funding. With not inconsistent with such statutes and encourage families who are fearful of these changes, DHS believes that it has regulations.470 participating in Medicaid to maintain created a workable framework for Comment: A commenter stated that their enrollment. A commenter stated purposes of the public charge many of its members are childcare that IDEA funding is often insufficient assessment and the benefits these providers and child-care center teachers and requires states to rely on Medicaid programs provide for school-age who raised questions about whether or to fill funding gaps. The commenter children. not certain child-specific services added that if schools lost Medicaid Comment: A commenter stated that through Medicaid and CHIP would be funding, it could result in special DHS’s reasoning for excluding a excluded. The commenter stated that education and even general education program like IDEA should apply to the children received essential services services being withheld and the loss of other benefits DHS proposes adding to through these programs, including the school nurses, whose salaries are the public charge determination. For EPSDT benefit, which is a federally subsidized by Medicaid. (Special example, according to the commenter, mandated benefit, and ensures coverage education assistance programs, such as the proposed rule stated or implied that for developmental assessments for the New Jersey Special Education DHS proposed to exclude IDEA to avoid infants and young children with the Medicaid Initiative addressed by one of discriminating against people with routine and preventive care services the commenters, are school-based disabilities. The commenter stated that they need to grow into healthy adults. Medicaid reimbursement programs that DHS should consider other ways the Response: The EPSDT benefit is not a allow school districts to obtain federal proposed rule discriminates against separately funded Medicaid program, reimbursement of actual costs of vulnerable populations. Some but an integral part of the Medicaid Medicaid covered services under the commenters specifically requested that benefit for children, as described in IDEA).466 One commenter who public benefits received by individuals section 1905(r) of the Social Security generally supported the rule stated with disabilities be excluded or that Act. As EPSDT is a Medicaid program, opposition to the Medicaid exclusion DHS exclude Medicaid and SNAP. and DHS determined that any services under IDEA and recommended that all Several commenters reasoned that provided to aliens under the age of 21 disabilities should be individually individuals with disabilities rely on based on Medicaid and CHIP will not be assessed. non-cash benefits disproportionately, considered as part of the public charge Response: DHS recognizes the public often due to their disability, in order to determination, any benefits under benefits listed in the rule may be continue working, stay healthy, and EPSDT would also not be considered in associated with other programs and that remain independent and productive the public charge inadmissibility eligibility for other programs or members of the community. determination. reimbursements to organizations may be Response: As indicated in the NPRM, dependent or automatically provided DHS excluded services provided under Emergency Services Exclusion based on the receipt of one of the IDEA that are generally funded in whole Comment: A commenter opposed the enumerated public benefits. DHS also or in part by Medicaid to ensure that exclusion of emergency services, stating understands that it is possible that a schools continue to receive financial that the failure to provide financially for parent would not be aware of which resources to cover the cost of special the receipt of emergency services was a services in an Individualized Education education and related services which strong indicator of a lack of self- Plan or any other education plan set up they would be legally required to reliance. Another commenter stated that by a school for a child with disabilities provide at no cost regardless of the emergency Medicaid’s applicability to are reimbursed by Medicaid or a outcomes of the rulemaking.468 But DHS births creates an immigration incentive different funding source. Parents may also recognizes that Congress did not by advertising a service, which will not receive notification that Medicaid exclude applicants with disabilities or ultimately assist aliens’ immigration was billed for services provided at other medical conditions in the public process (by providing them with a new school. In addition, DHS recognizes that U.S. citizen as a family member). The Medicaid’s assistance programs go 467 Medicaid payments for necessary health commenter further stated that DHS beyond mere special education services are covered under section 1905R of the Social Security Act, 42 U.S.C. part 441, Subpart B. assistance under IDEA for Medicaid 468 See Inadmissibility on Public Charge Grounds, 469 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 83 FR 51114, 51170 (proposed Oct. 10, 2018). These 470 See Inadmissibility on Public Charge Grounds, 466 See 20 U.S.C. 1400 et seq. services are typically not income-based. 83 FR 51114, 51184 (proposed Oct. 10, 2018).

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misconstrued 8 U.S.C. 1611(b), and did emergency for purposes of Medicaid department anticipated that not consistently recognize the and that determination may be promulgation of the rule, as written in distinction in legislative intent to inconsistent throughout states. the NPRM, will result in decreased provide benefits to aliens that may However, DHS does not have the utilization of children’s healthcare, nevertheless be considered as negative authority to determine whether a including vaccinations, which will factors in a public charge determination. medical condition is an emergency or increase the risk for vaccine preventable In contrast, some commenters supported whether a state must provide Medicaid diseases. According to the commenter, the exclusion of emergency Medicaid. for a particular medical condition. these effects will pose an immediate risk Some commenters indicated that Congress enacted the EMTALA to to the health of individual immigrants immigrants would still be reluctant to ensure public access to emergency and is also likely result in increased access emergency services because services regardless of ability to pay.472 transmission of tuberculosis or other many will not be aware that emergency Medicare-participating hospitals that infectious diseases, increasing the services are excluded, or may not know offer emergency services must provide a likelihood of an outbreak. if someone in their household was medical screening examination and Some commenters stated that since experiencing a true medical emergency. provide stabilizing treatment regardless many immigrants live in communities Response: DHS appreciates and of an individual’s ability to pay.473 DHS alongside people of the same national understands the commenters’ concerns. acknowledges that increased use of origin, reduced vaccinations could However, DHS will exclude emergency emergency rooms and emergent care as result in unvaccinated or under- Medicaid benefits in the rule, consistent a method of primary healthcare due to vaccinated clusters of individuals. with the policy underlying the delayed treatment is possible and there Commenters warned that research PRWORA exclusion for care and is a potential for increases in shows that uninsured individuals are services that are necessary for the uncompensated care in which a much less likely to be vaccinated. One treatment of an emergency medical treatment or service is not paid for by commenter stated that a recent study condition. In 8 U.S.C. 1611(b), Congress an insurer or patient. However, DHS found that even a five percent reduction specifically excluded this category of does not have specific estimates on the in vaccine coverage could trigger a benefit from the definition of public increase cost for such services. significant measles outbreak. A benefits and as a result from allows non- commenter stated that many immigrant qualified aliens to receive such Vaccinations families were already cancelling emergency public benefits. DHS did not Comment: Commenters indicated that appointments for flu vaccinations, and propose to designate any public benefits the public charge rule would make referred to a Centers for Disease Control that are not defined as public benefits in immigrant families afraid to seek health- and Prevention (CDC) estimate of the PRWORA, because those exclusions care, including vaccinations against number of flu-related deaths in 2018 to may reflect a congressional judgment communicable diseases, and therefore, underscore the severity of this issue. A regarding the importance of ensuring endanger the U.S. population. The commenter indicated that the proposal that those benefits remain available to commenters stated that mass will cause worse health outcomes, otherwise eligible aliens. DHS prefers to disenrollment from Medicaid would increased use of emergency avoid any appearance of interfering with greatly restrict access to vaccines, which departments, and increases in aliens’ willingness or ability to access would result in adverse effects for the communicable diseases due to less such public benefits. Accordingly, DHS immigrant and general population, and vaccination. Another commenter stated excludes receipt of Medicaid under would harm the public and the national that the rule would increase the these provisions if the State determines security of the United States. For incidence of childhood diseases like that the relevant treatment falls under example, a commenter stated that in the chickenpox, measles, mumps and ‘‘emergency medical conditions.’’ 471 event of a novel influenza outbreak, a rubella and deter parents from Comment: A commenter stated that critical first step would be to get vaccinating their children. Response: With this rulemaking, DHS hospitals are compelled to provide individuals access to healthcare, which does not intend to restrict the access of emergency services due to their mission requires trust in governmental public vaccines for children or adults or intend and laws like the Emergency Medical health authorities. The commenter to discourage individuals from Treatment and Active Labor Act indicated that engaging with the public obtaining the necessary vaccines to (EMTALA), but those services will go health system was critical to ensuring prevent vaccine-preventable diseases. uncompensated if patients are robust immunization to protect the The purpose of this rulemaking is to disenrolled from Medicaid due to the population overall; if a subset of the chilling effect. A commenter stated that ensure that those seeking admission to community were fearful to access the United States are self-sufficient and the emergency services exemption government healthcare services, would not be uniformly applied across rely on themselves or family and friends regardless of whether a specific type of for support instead of relying on the states, resulting in hospitals bearing the service qualified for a narrow exception, unpaid costs of medical care. One government for subsistence. As noted it would have a significant impact on above, this final rule does not consider commenter said different states will the country’s ability to protect and make different determinations about receipt of Medicaid by a child under age promote the public health. Another 21, or during a person’s pregnancy, to what constitutes an emergency, and this commenter indicated that its health uncertainty will cause individuals with constitute receipt of public benefits. This should address a substantial chronic, involuntary medical conditions 472 See CMS.gov, Emergency Medical Treatment & portion, though not all, of the to be denied admission or avoid Labor Act (EMTALA), available at https:// treatment out of fear. www.cms.gov/Regulations-and-Guidance/ vaccinations issue. Response: DHS understands that the Legislation/EMTALA/index.html (last visited May Vaccinations obtained through public states determine whether a medical 31, 2019). benefits programs are not considered 473 See CMS.gov, Emergency Medical Treatment & public benefits under 8 CFR 212.21(b), condition would be determined to be an Labor Act (EMTALA), available at https:// www.cms.gov/Regulations-and-Guidance/ although if an alien enrolls in Medicaid 471 See Inadmissibility on Public Charge Grounds, Legislation/EMTALA/index.html (last visited May for the purpose of obtaining vaccines, 83 FR 51114, 51169 (proposed Oct. 10, 2018). 31, 2019). the Medicaid itself qualifies as a public

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benefit. DHS also notes that free or low benefit. Commenters stated that elderly residents who have worked and cost vaccines are available to children inclusion of the Medicare Part D LIS paid taxes for 10 or more years for using who are not insured or underinsured may result in greater poverty and a benefit as modest as the Medicare Part through the Vaccines for Children (VFC) sickness, lack of access for seniors to D LIS. Program.474 In addition, local health prescription drugs, health services, A commenter stated that the effect of centers and state health departments worse health outcomes for Medicare the proposed rule may to increase the provide preventive services that include enrollees and higher costs for Medicare costs, which according to the vaccines that may be offered on a non-drug spending. Commenters stated commenter was not considered in the sliding scale fee based on income.475 that Medicare Part D LIS helps seniors NPRM, paid for under Medicare Part A Therefore, DHS believes that vaccines with chronic conditions, including and B or C because the increased would still be available for children and breast cancer. Commenters also stated medication use and adherence achieved adults even if they disenroll from the rule, by including Medicare Part D through expanded drug coverage for Medicaid. LIS, targets disabled people, who use seniors have been associated with the program at higher rates than the decreased spending for nondrug Substance Abuse general population. Commenters stated medical care and reduced Comment: Several commenters stated that the rule would force ‘‘millions’’ of hospitalization rates among Medicare that the proposed rule would also seniors to disenroll from Medicare Part enrollees. The commenter stated that discourage people from utilizing D, making it harder to afford necessary the rule would adversely affect substance abuse disorder treatment prescriptions. A commenter indicated Massachusetts where 74 percent of services for which Medicaid is the that low- and moderate-income seniors Medicare enrollees in Massachusetts largest insurer. who have been paying into Social were enrolled in Part D plans, and 35 Response: DHS does not intend to Security like all other taxpayers would percent of Medicare Part D recipients discourage people from utilizing not be able access Medicare Part D also receive the LIS. substance abuse disorder treatment subsidies. Commenters stated that Several commenters stated that services. DHS acknowledges however prescription medication is very immigrants contribute more into the that, once this rule is effective, expensive and seniors who cannot Medicare system than they take out of individuals may choose to disenroll afford having their prescriptions filled it, and pay more out of pocket for care from public benefits or not seek to will end up in emergency rooms which than citizens, thus subsidizing the receive such public benefits. DHS will only cost their communities even system. Commenters stated that the would like to note that local health more. Medicare Part D LIS may be more centers and state health departments A commenter indicated that the heavily supported by general revenues, may provide certain health services Medicare Part D LIS program has higher but funding for the entire Medicare Part addressing substance abuse and mental financial eligibility thresholds than cash D program comes mostly from general disorders.476 Additionally, state-funded welfare programs and is available to revenues, with premiums covering rehabilitation centers may offer more than the indigent, making it a bad about one-quarter of all costs. The affordable options, even if an individual indicator of dependence on the commenter provided data intended to disenrolls from Medicaid.477 Benefits government. Citing a Kaiser Family show that for 2019, Medicare’s actuaries from local and state health departments Foundation report,478 the commenter estimate that Medicare Part D plans will or state-funded rehabilitation centers are stated that individuals with income up receive direct subsidy payments generally not considered public benefits to 150 percent of the FPL, and countable averaging $296 per enrollee overall and under this rule, unless they are obtained assets of $14,100 for an individual or $2,337 for enrollees receiving the LIS; through Medicaid. Therefore, DHS $28,150 for a couple, qualify for employers are expected to receive, on believes that substance abuse disorder Medicare Part D LIS in 2018. The average, $553 for retirees in employer- treatment will continue to be available commenter further stated that the scope subsidy plans. The commenter stated to individuals even if they disenroll of Medicare Part D LIS is limited to that the average Medicare Part D LIS from Medicaid. assistance in the cost of drugs which beneficiary is receiving added does not indicate dependence on government assisted benefits of only i. Medicare, Medicare Part D Low government subsistence. $1,784 per year compared to retirees in Income Subsidy Commenters indicated that most non- employer plans, which would be less Comment: Commenters opposed citizen Medicare enrollees are lawful than the 15 percent of FPG threshold DHS’s proposal to include the Medicare permanent residents, but that that would have applied under the Part D Low Income Subsidy (Medicare individuals who are ‘‘lawfully present’’ proposed rule had the Medicare Part D Part D LIS) in the definition of public (e.g., immigrants with TPS) and have a LIS been considered a ‘‘monetized’’ ten-year work history or have end-stage benefit. Commenters stated that almost 474 See CDC, Vaccines For Children (VFC), renal disease (ESRD) may also be one in three Medicare beneficiaries available at https://www.cdc.gov/vaccines/ eligible. A commenter indicated that enrolled in Medicare Part D prescription programs/vfc/index.html (last visited May 15, 2019). See also CDC, VFC Detailed Questions and individuals over the age of 65 and drug coverage get ‘‘extra help’’ with Answers for Parents, available at https:// young individuals with disabilities who their premiums, out-of-pocket www.cdc.gov/vaccines/programs/vfc/parents/qa- meet the income and employment prescription costs, copays or percentage detailed.html#eligibility (last visited May 15, 2019). guidelines are eligible for Medicare Part of the drug’s costs through LIS. The 475 See HHS, vaccines.gov, How to Pay, available D LIS. A commenter stated that it is commenter further stated that one in at https://www.vaccines.gov/getting/pay (last visited May 15, 2019). difficult to see any purpose to a rule that five people with Medicare (11.7 million) 476 See Substance Abuse and Mental Health would deny admission to long term rely on Medicaid to afford their monthly Services Administration (SAMHSA) https:// Medicare Part B premiums or cost- www.samhsa.gov/find-treatment (last visited July 478 See Kaiser Family Foundation, Medicare Part sharing. Nearly 12 million older adults 22, 2019). D: An Overview of the Medicare Part D Prescription and people with disabilities are enrolled 477 See SAMHSA, Directory of Single State Drug Benefit (Oct. 12, 2018), https://www.kff.org/ Agencies for Substance Abuse Services (Dec. 16, medicare/fact-sheet/an-overview-of-the-medicare- in both Medicare and Medicaid. A 2016), https://www.samhsa.gov/sites/default/files/ part-d-prescription-drug-benefit/ (last visited July commenter stated that ‘‘Extra Help’’ is ssadirectory.pdf (last visited June 4, 2019). 26, 2019). estimated to be worth approximately

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$4,000 per year per individual which is Medicare recipients regardless of receipt. If an alien reports past Medicaid a substantial support for medications income, health status, or prescription receipt as part of an adjustment of status that are often necessary to prevent drug usage.483 DHS agrees with the application, the alien can also show that disease or manage a chronic illness. The commenters and removed Medicare Part the alien is no longer receiving commenter stated that to forego needed D subsidies from consideration in the Medicaid and explain why the alien’s medications due to cost will not only be public charge inadmissibility past receipt of Medicaid does not make a harm to an elderly person or someone determination. DHS also notes that it it more likely than not that the alien living with a permanent disability, but has not designated any other aspect of will receive any public benefit in the to our overall healthcare system that Medicare for consideration in the public future. will be burdened with more costly charge inadmissibility determination. j. Additional Considerations hospital-based and emergency care. However, any receive of Medicaid as a However, another commenter agreed subsidy for Medicare would be Exhaustive List with DHS’s assertion that utilization of considered receipt of a public benefit in Comment: An individual commenter Medicare Part D LIS was an indicator of the public charge inadmissibility stated that the agency should a lack of ability to remain self-sufficient determination. emphasize, in light of future in covering medical costs. Comment: A commenter stated that in congressional action, that the list Response: DHS appreciates the order to mitigate the negative public comments and recognizes the outlined in the proposed rule is not health consequences associated with exhaustive and any definition of public importance of Medicare and the deterring use of public health insurance Medicare Part D LIS, as well as the benefit would be best left to agency benefits, Medicaid and Medicare Part D discretion, or be defined in a separate heightened eligibility threshold for LIS should comprise a separate set of those programs. Someone who is not rule. A commenter stated that the list in programs that may only be given the rule is hardly exhaustive when it entitled to Medicare Part A and/or Part ‘‘minimal negative weight’’ in the B is not eligible for Medicare Part D or comes to potential programs. The totality of the circumstances, whether commenter stated that by one count, the LIS.479 In general, to be eligible for they are currently received at the time premium-free Medicare Part A, a person there are a total of 89 separate means- of application or were received at some tested welfare programs spread across must be age 65 or older and worked (or point in the 36 months prior to the spouse worked) and paid Medicare 14 departments and agencies, paid for application and for whatever factor in by the Federal Government. The taxes for at least 10 years.480 A person the totality of circumstances their must be a U.S. resident and either a commenter provided examples receipt is being considered. The including that more than $30 billion is citizen or an alien lawfully admitted for commenter stated that this would mean lawful permanent residence who has spent annually by the Federal that a person could not be determined Government on Refundable Premium resided in the United States to be a public charge when receiving or continuously for the five-year period Assistance and cost-sharing tax credits having received those benefits in the 36 to assist low-income people with buying immediately preceding the month the months prior to applying without also application is filed in order to qualify health insurance and named other having a heavily weighted negative public benefits. The commenter stated for Medicare Part B and, therefore, the factor present in his or her case. The associated Medicare Part D. An that States also spend some $6 billion commenter stated that with this annually on their own as part of their individual who is not a United States modification in place, noncitizens citizen or is not lawfully present in the Medicaid General Assistance programs applying for visas, lawful permanent and another $34 billion on other United States is not eligible for resident status, or other status could Medicare Part D and may not enroll in programs to help low-income people expect to financially ‘‘rehabilitate’’ receive care, particularly at hospitals. a Medicare Part D plan.481 themselves without fear that receipt of In addition, the Medicare Part D LIS The commenter stated that the vast public benefits in the remote past might number of overlapping and linked lowers the premium and cost-sharing weigh negatively against them. amounts owed by Medicare Part D plan welfare programs means that recipients Additionally, the commenter indicated seldom use just one program. enrollees; as such, individuals not that with this change, the rule would enrolled in a Medicare Part D plan are In contrast, a commenter stated that effectively make receiving public health the inclusion of a ‘‘catch-all’’ provision not able to access the benefits of the insurance benefits the ‘‘lightest’’ subsidy. While included in the NPRM could leave the rule open to negative factor to be considered and constitutional challenges. Additionally, because of the large Federal provide noncitizens with assurance that expenditure,482 Medicare Part D other commenters stated that DHS seeking coverage will have only a small should not allow public benefits that are prescription drug coverage only impact on their admissibility which provides medical prescription coverage, not explicitly enumerated in the rule to would mitigate the deterrent effect of be weighted negatively in the totality of and not health insurance as a whole. considering receipt of these benefits. Since 2006, it has been available to all the circumstances review. Commenters Response: As provided in the opposed to a ‘‘catch-all’’ provision previous response, DHS is not including suggested that its inclusion would 479 The Centers For Medicare And Medicaid Medicare Part D LIS in the definition of Services, Guidance To States On The Low-Income remove the certainty an exhaustive list Subsidy (February 2009), available at https:// public benefit and therefore, there is no provides and would introduce a great www.cms.gov/Medicare/Eligibility-and-Enrollment/ need to address the weight given to potential for confusion as well as call LowIncSubMedicarePresCov/Downloads/StateLIS Medicare Part D LIS. With respect to into question whether the members of Guidance021009.pdf (last visited July 26, 2019). Medicaid, DHS refers the commenter to 480 See HHS, Who is eligible for Medicare?, the regulated public have had sufficient available at https://www.hhs.gov/answers/ the specific discussion above regarding notice that a certain benefit may be medicare-and-medicaid/who-is-elibible-for- the basis for considering Medicaid considered negatively in a public charge medicare/index.html#main-content (last visited determination analysis, thus triggering June 25, 2019). 483 See Medicare.gov, How to get drug coverage, due process concerns. Several 481 See 42 CFR 423.30. available at https://www.medicare.gov/drug- 482 See Inadmissibility on Public Charge Grounds, coverage-part-d/how-to-get-drug-coverage (last commenters said they opposed the 83 FR 51114, 51172 (proposed Oct. 10, 2018). visited June 14, 2019). future inclusion of any ‘‘unenumerated

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benefits’’ into the scope of the proposed determination. DHS understands that declines to expand the rule in this rule since the proposed rule already the Washington State Alien Emergency manner. DHS notes that although an improperly considers non-cash benefits Medical Program 484 is separate from inadmissibility determination is made and because the addition of any more Medicaid and is funded by Washington for each person individually, the alien’s programs would increase harm to State, and is not a program listed in the income is reviewed in terms of the individuals, families, and communities. public benefit definition in the rule. household, and the alien’s family status A commenter stated that DHS’s request Further, emergency Medicaid is also not is considered as well, as the statute for public comment to expand the list of considered a public benefit for purposes requires. The ultimate question under other benefits in the totality of of the public charge inadmissibility this rule, however, is whether the alien circumstances was a ‘‘catch-all determination. Therefore, the (rather than his or her dependents) is provision’’ that would allow the agency Washington State Alien Emergency likely to receive public benefits in the to consider all benefits an alien receives, Medical Program would not be future above the applicable threshold. regardless of whether they are listed in considered a public benefit for purposes Tax Credits the regulation or not. Other commenters of the public charge inadmissibility wrote that it is highly likely that determination. Comment: Some commenters stated individuals using the benefits outlined that non-citizens should be unable to Dependents in the proposed rule are also using benefit from the EITC or the Additional additional benefits not included in the Comment: A commenter indicated the Child Tax Credit (ACTC). Similarly, a rule. new regulations should include welfare few commenters said the exclusion of Response: For clarity and consistency, use by dependents. The commenter the refundable tax credits is problematic DHS has specifically listed the public indicated that the very idea of self- since the refundable portion of EITC benefits that will be considered. The list sufficiency means that people can and ACTC cost over $80 billion of designated benefits is exhaustive, provide for themselves and their combined in 2016. The commenters avoiding the Constitutional concerns children and spouses without assistance asserted that these tax credits meet the raised by the commenters that may from taxpayers. The commenter definition of a means-tested anti-poverty arguably come with a non-exhaustive indicated that excluding the children’s benefit. list. Indicating that the list is non- benefits including Medicaid, WIC, and In contrast, another commenter stated exhaustive would add vagueness and free school lunch, from not being that the receipt of EITC and Child Tax confusion as to what public benefits considered for public charge is like Credit (CTC) credits, which are funded would be considered. This does not having an income tax that excludes all through TANF and are actually preclude DHS from updating the list of income from second jobs, investments, employment incentives, should be benefits through future regulatory and rental properties. The commenter explicitly exempted from the rule in action. DHS believes that the rule is analyzed the 2014 public-use SIPP data order to eliminate possible adequately protective as drafted. and indicated that in 39 percent of misconceptions and prevent immigrants immigrant-headed households (legal from failing to file their income tax Additional Programs and illegal) receiving TANF, only the returns out of fear of being disqualified Comment: Many commenters opposed children receive the payments. The from future citizenship. Another the inclusion of any additional commenter indicated that much of the commenter said inclusion of EITC programs in the rule. Commenters stated immigrant welfare use of this program would punish hardworking immigrants. that the inclusion of additional would be missed if dependents are not Response: DHS appreciates the programs would lead to further negative considered. Another commenter stated comments regarding the EITC, ACTC, health impacts on families and children. that any receipt of means-tested anti- and CTC. Only public benefits as Response: DHS appreciates the poverty benefits by immigrants or their defined in 8 CFR 212.21(b) will be comments. DHS has not designated dependents should count toward the considered in the public charge additional public benefits for public charge determination. Other inadmissibility determination. Although consideration under this final rule. commenters stated that DHS should EITC and ACTC benefits provide what Comment: A commenter asked that never attribute to an alien applicant the may be considered cash assistance, DHS public benefits provided by State and receipt of benefits by the alien’s did not propose to include EITC or local governments to non-qualified dependents, including U.S. citizen ACTC as public benefits in the public aliens under authority of PRWORA be children. The commenters stated that charge inadmissibility determination. specifically included in the codified list. considering receipt of benefits by an DHS is not including tax credits because The commenter said these benefits are alien’s U.S. citizen children could give many people with moderate incomes provided from ‘‘appropriated funds’’ rise to constitutional issues. and high incomes are eligible for these and with few exceptions are accessed on Response: DHS appreciates the tax credits, and the tax system is an individualized basis using means- comments. DHS believes that the rule structured in such a way as to encourage tested criteria. A commenter said its addresses self-sufficiency adequately taxpayers to claim and maximize all tax state had created a program called Alien without introducing consideration of a credits for which they are eligible. In Emergency Medical Program, which was third party’s receipt of public benefits, addition, DHS is unable to determine designed to offer coverage to newly potentially to include U.S. citizen third how much of the taxpayer’s refund is arrived immigrants, or those who had parties such as non-custodial children. attributable to any one tax credit, as resided in-state for less than five years. In consideration of these issues, as well compared to other aspects of the tax The commenter said the proposed rule as the many comments regarding the return (such as non-designated credits would target those who qualify for the potential effects of the rule on U.S. or deductions) or to any one person, as program. citizen children, DHS respectfully opposed to a spouse filing jointly. Response: A state medical insurance Finally, these tax credits may be program that is not included in the 484 See Washington State Department of Social combined with other tax credits rule’s definition of public benefit will and Health Services, Alien Emergency Medical between spouses. One spouse may be a Program, available at https://www.dshs.wa.gov/esa/ not be considered as a public benefit in community-services-offices/alien-emergency- U.S. citizen and the tax return may be the public charge inadmissibility medical-programs (last visited July 22, 2019). filed jointly. Therefore, DHS would not

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be able to determine whether the alien benefits. As discussed in section III.R of Additionally, the commenters provided or the U.S. citizen received the tax this preamble, DHS has added a heavily further examples of Medicaid cost- credit. DHS has revised the regulatory weighted positive factor for private savings associated with WIC. text to make clear that ‘‘cash assistance health insurance appropriate to the Another commenter cited to data and for income maintenance’’ does not expected period of admission. This stated that 74.9 percent of WIC include any tax credit programs. heavily weighted positive factor would participants are adjunctively eligible for Comment: One commenter stated that not apply in the case of a plan for which SNAP and Medicaid, thereby reducing DHS should exempt up to two years of the alien receives subsidies in the form initial certification requirements and the ACA premium subsidy, also known of premium tax credits. paperwork. Commenters added that the as the Premium Tax Credit (PTC), usage decreased participation in Medicaid or when the individual has shown past Special Supplemental Nutrition SNAP among WIC families would have ability and earning potential. In Program for Women, Infants, and a significant impact on WIC’s addition, the commenter indicated that Children certification process because income the ACA premium subsidies are applied Comment: Many comments opposed certification through adjunctive based on income levels without the the potential inclusion of WIC, stating eligibility was more efficient than individual choosing to apply for the that consideration of benefits such as income screening involving pay stubs subsidies. Another commenter WIC would have a negative impact on and other financial documents. The suggested that DHS should not consider the health and nutrition of families and commenters, citing data and multiple PTC for purchasing individual market individuals. Some commenters studies, provided a state’s estimate that coverage in a public charge indicated that families and individuals income screening with financial determination at all. One commenter should not have to choose between documents costs $12.50 per participant, stated that, in addition to continuing to benefits such as WIC and an whereas the income screening with exclude exchange programs such as immigration status. Other commenters adjunctive eligibility is $3.75 per ACTC under the ACA 485 from public stated that programs like WIC help participant. The commenters stated that charge consideration, DHS should provide essential nutrition to children, the increased costs would place a strain clarify the interaction between pregnant women, and mothers, and on WIC’s state budgets, which would applications for exchange programs and result in improved health outcomes. undercut WIC’s efforts to improve other potentially impacted benefits. The Commenters provided anecdotes about efficiency, streamline certification commenter explained that marketplaces how they or their family members’ processes, and focus WIC services on its are required by law to feature a uniform access to WIC helped them or their core public health mission. application process for Medicaid and children thrive and become productive Other commenters said Congress has non-Medicaid health programs and members of American society. Several never sought to inhibit WIC’s ability to stated that this could cause confusion commenters provided rationale, serve immigrant populations due to the because an individual attempting to research, or data relating to important overriding public interest in promoting apply for exchange insurance and public health goals and the benefits of access to health services and nutrition programs could inadvertently be seen as WIC enrollment, including the assistance. A commenter noted that a ‘‘Medicaid applicant.’’ reduction or prevention of preterm birth participating clients can only spend a In contrast, some commenters and infant mortality, iron deficiency maximum of five years on this program suggested that DHS should reconsider anemia, malnourishment, as well as and receive limited benefits (only whether immigrants wishing to reside in increases in breastfeeding rates and supplemental foods) not qualifying the United States will have the ability hemoglobin levels of enrolled children. them a public charge. Some commenters to support themselves, and any Other commenters provided that the said the rule would impact their ability subsequently born children, without WIC food package with its nutritional to serve eligible WIC participants. using benefits like subsidies under the value increased public health, In contrast, some commenters ACA. Another commenter indicated that specifically for Hispanics who have suggested that USCIS reconsider serious consideration should be given to lived in the United States for less than whether immigrants wishing to reside in adding subsidies that underwrite more five years. Sourcing research articles the United States will have the ability than 50 percent of premium costs to the and studies, some commenters to support themselves, and any list in 8 CFR 212.21(b). The commenter described that WIC’s 2009 food package subsequently born children, without stated that these benefits are provided changes lead to a modest decline in using benefits like WIC. The commenter from appropriated funds and, with few severe childhood obesity among young said these benefits are provided from ‘‘appropriated funds’’ and with few exceptions, are accessed on an children, and that children who exceptions are accessed on an individualized basis using means-tested received SNAP or Medicaid were more individualized basis using means-tested criteria. likely to finish high school and grow up Response: DHS has decided not to to be successful adults. criteria. Response: WIC was not included in consider ACA subsidies or health A commenter stated that the reduction in programs like WIC will end the public benefits designated for insurance received through the health up costing taxpayers much more than consideration in public charge insurance marketplace outside of they might save in the short term, as inadmissibility determinations. Only Medicaid as public benefits in the healthcare costs will increase. public benefits as defined in 8 CFR public charge inadmissibility Commenters stated that a decrease in 212.21(b) will be considered in a public determination, due to the complexity of WIC participation will have short and charge inadmissibility determination. assessing the value of the benefit and long-term economic implications. The DHS understands that aliens subject to the higher income eligibility thresholds commenters stated that for every dollar the public charge inadmissibility associated with the benefit, as compared spent on WIC there is an associated ground may choose to disenroll from to the eligibility thresholds for other savings in Medicaid costs during the public benefits, even if the benefit is not 485 Patient Protection and Affordable Care Act, first 60 days after birth from $1.77 to listed in 8 CFR 212.21(b). However, this Public Law 111–148, Section 1401(a), 124 Stat. 119, $3.13 for newborns and mothers, and rule does not, and cannot, preclude 213 (2010) (codified at 26 U.S.C. 36B). $2.84 to $3.90 for newborns alone. individuals from requesting or receiving

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any public benefits for which they of a family in which a pregnant woman participating in any health and nutrition qualify. As discussed in the NPRM, or infant is certified as eligible to program will jeopardize their benefits directed toward food and receive Medicaid may be deemed immigration status. A commenter stated nutrition, housing, and healthcare are adjunctively eligible for WIC. DHS notes that children who qualify for SNAP, or directly relevant to public charge that households receiving WIC would be live with a child who receives SNAP, inadmissibility determinations, because adjunctively eligible only through are automatically qualified for free a person who needs the public’s noncitizen participation in SNAP or meals under the NSLP ‘‘direct assistance to provide for these basic Medicaid for those age 21 and over (or certification’’ under 42 U.S.C. necessities is not self-sufficient.486 receiving Medicaid while pregnant) 1758(b)(12) and that when a family WIC 487 provides federal grants to States which would only apply to a very small disenrolls a child from the SNAP for supplemental foods, healthcare percentage of households receiving benefits, the school district may be referrals, and nutrition education for WIC. Any costs associated with changes unable to ‘‘directly certify’’ that child or low-income pregnant, breastfeeding, in adjunctive eligibility would be a his/her siblings for free meal status. and non-breastfeeding postpartum consequence of DHS’s decision to Response: Although school lunch women, and to infants and children up designate SNAP, which DHS has programs provide for nutrition similar to age five who are found to be at explained earlier in this preamble. to SNAP, these benefits account for a nutritional risk.488 But overall relatively low overall expenditure, are School Breakfast/Lunch Programs expenditures for WIC are low, and WIC specific to children in a school setting, is authorized under the Child Nutrition Comment: A few commenters and are administered by schools. In Act of 1966,489 which is excluded under recommended that DHS include the addition, assistance or benefits under the limitations for qualified aliens from National School Lunch Program (NSLP) the National School Lunch Act, (NSLP federal means-tested public benefits. and School Breakfast Program (SBP) for and the SBP) 490 and the Child Nutrition Therefore, DHS believes WIC is purposes of a public charge Act of 1966 are excluded under the appropriately excluded. determination. The commenters stated limitations for qualified aliens from Additionally, as discussed later in that receiving public benefits indicates federal means-tested public benefits.491 DHS’s responses to comments related to a person is not self-sufficient. Some Under 8 U.S.C. 1613, qualified aliens the economic analysis and in the commenters suggested that USCIS are generally not eligible for ‘‘means- economic analysis itself, DHS agrees reconsider whether immigrants wishing tested public benefits’’ until after five that some entities, such as State and to reside in the United States will have years of entry. However, the child local governments or other businesses the ability to support themselves, and nutrition programs, including the NSLP, and organizations would incur costs any subsequently born children, are excluded from this ineligibility. In related to the changes commenters without using benefits from the NSLP. addition, the law prescribes that a identify. However, these costs are The commenter said these benefits are person who receives free public considered to be indirect costs of the provided from ‘‘appropriated funds’’ education benefits under State or local rule since this rule does not directly and with few exceptions are accessed on law shall not be ineligible to receive regulate these entities and does not an individualized basis using means- benefits provided under the school require them to make changes to their tested criteria. A commenter stated that lunch program under the Richard B. business processes or programs. in their local school district, hundreds Russell National School Lunch Act 492 Therefore, DHS considers these indirect of families had not reapplied for free/ or the SBP under section 4 of the Child costs as qualitative, unquantified effects reduced meal program, which resulted Nutrition Act of 1966 493 on the basis of of the final rule since it is unclear how in tens of thousands of dollars in lost citizenship, alienage, or immigration many entities will choose to make revenue to its food service program, a status.494 Therefore, DHS believes the administrative changes to their business negative impact to the farming NSLP is appropriately excluded. In processes and the cost of making such community, and children who are addition, the other school related changes. DHS agrees that there could be hungry at school who cannot perform nutrition programs mentioned by the WIC applicants who are not well. The commenter indicated that commenter, including Seamless adjunctively eligible due to families were fearful of government Summer Option, Afterschool Meal disenrollment from Medicaid or SNAP assistance and the risk of being Supplement, Special Milk Program, although an individual who is a member separated from their families or Child and Adult Care Food Program, deported. A commenter stated that Summer Food Service Program, and the 486 See Inadmissibility on Public Charge Grounds, Federal nutrition assistance programs Fresh Fruit and Vegetable Program, 83 FR 51114, 51159 (proposed Oct. 10, 2018). play a vital role in improving the 487 See Lewis v. Thompson, 252 F.3d 567, 583 (2d would not be considered public benefits nutritional well-being and food security under the public charge inadmissibility Cir 2001). Although WIC may provide benefits to of targeted segments of the United States a pregnant woman’s whose unborn child would determination. otherwise be eligible for public benefits after birth population. The commenter stated that Further, DHS understands that a child based on U.S. citizenship, at least one circuit has the California Department of Education may no longer automatically enroll in determined that the denial of prenatal care to an Nutrition Services Division administers unqualified alien pregnant woman had a rational the school lunch programs or be basis and therefore did not violate equal protection. the NSLP, SBP, Seamless Summer automatically certified for the school The court indicated that there were ‘‘three Option, Afterschool Meal Supplement, programs. However, the child would rationales for the denial of prenatal care to Special Milk Program, Child and Adult unqualified alien pregnant mothers: deterrence of Care Food Program, Summer Food illegal immigration, self-sufficiency, and cost 490 See USDA, The School Breakfast Program, savings. The first alone suffices for rational basis Service Program, and the Fresh Fruit available at https://fns-prod.azureedge.net/sites/ review.’’ and Vegetable Program, which provide default/files/sbp/SBPfactsheet.pdf (last visited July 488 See USDA, Food and Nutrition Service, nutrition for low-income children. The 26, 2019). Special Supplemental Nutrition Program for commenter provided the number of 491 See Public Law 104–193, Section 403, 110 Stat. 2105, 2266 (Aug. 22, 1996) (codified at 8 Women, Infants, and Children, available at https:// children receiving benefits under the www.fns.usda.gov/wic/women-infants-and- U.S.C. 1613(c)(2)(D)). children-wic (last visited June 14, 2019). programs and indicated that the rule 492 See 42 U.S.C. 1751 et seq. 489 See Public Law 104–193, section 423, 110 Stat. could create confusion and a chilling 493 See 42 U.S.C. 1773. 2105, 2271–2247 (Aug. 22, 1996). effect on families’ perception that 494 See 8 U.S.C. 1615.

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still qualify for the programs based on a person’s self-sufficiency. In contrast, a Food Assistance Program (TEFAP), as the eligibility criteria and this rule does commenter objected to the proposed this program also qualifies as a means- not change the programs’ eligibility rule based on the commenter’s tested federal program and illustrates a criteria or restrict who may apply for the assessment that programs such as Head person’s lack of self-sufficiency. programs. Start and WIC will be impacted by the Commenters made similar points with respect to additional programs, such as State and Local Benefits proposed changes and their ‘‘chilling effect.’’ Commenters indicated that programs that provide grants to Comment: Referring to the PRWORA participation in Head Start programs has localities or organizations to alleviate definition of public benefits,495 a been shown to result in better homelessness, programs that provide commenter asked that public benefits educational and health outcomes as supplemental nutrition assistance to include State and local governments’ well as lower rates of incarceration, specific populations, and programs that public benefits provided to non- ultimately saving local, state, and provide low-income energy assistance qualified aliens under the authority of federal tax dollars. A commenter stated or weatherization assistance.498 Some PRWORA. This commenter also that in Michigan farmworker families commenters recommended that DHS referenced federal and state retirement, one or both parents work and receive exclude these and similar programs to health, disability, postsecondary low wages enough to for their children avoid a range of costs that might be education, and unemployment benefits, to qualify for Head Start. incurred by individuals, communities, indicating that the eligibility for these Response: DHS appreciates the and government agencies, if DHS benefits is generally determined using comments and understands other included some or all of these programs. individualized adjudications of need, programs also provide for nutrition and Response: As stated earlier in this typically means-based. The commenter healthcare. DHS believes that the focus section, DHS believes that the focus of advised that in order to avoid APA of the rule is best served in considering the rule is best served in considering challenges to the or certain general benefits directed toward certain general benefits directed toward arbitrary exclusions, DHS should food and nutrition, housing, and food and nutrition, housing, and include all of the statutory benefits that healthcare that have high expenditures. healthcare, which have high can be accessed individually by needy DHS has decided to continue to exclude expenditures, and generally excluding persons. In contrast, other commenters Head Start. DHS notes that when emergency services or support. None of stated that benefits funded by states Congress reauthorized the Improving these programs have overall should not be included in public charge Head Start for School Readiness Act,496 expenditures approaching the levels of determinations. in 2007, it focused, in part, on ways to the other listed benefits, and some Response: While the proposed rule make Head Start services more provide emergency services or support, included state and local and tribal cash accessible to migrant and seasonal or involve providing funding to benefits for income maintenance, DHS farmworker families. Because both organizations, without an individual excluded state, local, and tribal non- parents typically work in the fields, enrollment mechanism. In the interest cash benefits from consideration in the Migrant and Seasonal Head Start of administrability, DHS will not public charge inadmissibility (MSHS) programs offer 12 weeks to consider these benefits at this time. determination because of the number of year-round, full-day services to public benefits that exist and the Pell Grants accommodate local agricultural administrative burden such a rule Comment: Although several industries and harvest season workers. would have imposed on DHS and the commenters were generally pleased that To be eligible for MSHS services, a state and local public benefit granting the proposed rule did not include family’s income must come primarily agencies. In addition, including all state public education benefits such as Pell from agricultural work and the family and local benefits would add vagueness Grants or other financial aid, one must be eligible otherwise for Head and confusion as to what public benefits commenter stated that fear and Start services (i.e., poverty, would be considered. Consistent with confusion generated by the rule could homelessness, or foster care).497 Head the proposed rule, DHS will continue to deter greater numbers of immigrant Start also has a low expenditure in exclude state, local, and tribal benefits youth or children of immigrants eligible comparison to other benefits. Therefore, that are not cash-benefits for these for federal and state-funded aid DHS believes Head Start is reasons. Further, DHS would not programs from applying to college. A appropriately excluded. consider federal and state retirement, commenter indicated that the proposed Social Security retirement benefits, Healthy Start, The Emergency Food rule could effect changes in the U.S. Social Security Disability, Assistance Program, and Similar talent pipeline that would ultimately postsecondary education, or Programs undermine our nation’s global unemployment benefits as public Comment: A few commenters asked competitiveness and regional growth, benefits under the public charge that DHS include Healthy Start. The and indicated that a highly educated inadmissibility determination as these commenters stated that this program workforce spurs economic growth and are considered to be earned benefits also qualify as a means-tested federal strengthens state and local economies. through the person’s employment and The commenter stated that the rule specific tax deductions. program and illustrates a person’s lack of self-sufficiency. Some commenters would discourage and may decrease the Head Start asked that DHS include The Emergency number of U.S.-citizen youth with non- U.S. citizen parents, lawful permanent Comment: A few commenters asked 496 residents, and undocumented that DHS include Head Start, because See Public Law 110–134, 121 Stat. 1363 (Dec. 12, 2007). immigrant youth who are long-term this program also qualifies as a means- 497 See Office of Head Start Administration for residents of the United States from tested federal program and goes toward Children and Families U.S. Department of Health completing college degrees and and Human Services, Migrant And Seasonal Head pursuing areas of national need 495 Includes public benefits ‘‘provided by Start Report To Congress (no date), available at appropriated funds of the United States’’ or ‘‘a state https://eclkc.ohs.acf.hhs.gov/sites/default/files/pdf/ or local government.’’ 8 U.S.C. 1611(c)(1), migrant-seasonal-congress-report-2009-2011.pdf 498 Such as LIHEAP and Weatherization 1621(c)(1). (last visited July 26, 2019). Assistance Program (WAP).

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particularly true in the fields of science, overcome trauma and address physical commenters cited data on the number of technology, engineering, and injuries inflicted by their abusers. people who would disenroll from CHIP. mathematics (STEM). Another Many commenters generally warned Many commenters suggested that those commenter requested that DHS that CHIP should not be included in foregoing CHIP coverage due to the rule, explicitly exclude Title IV federal public charge assessments because may visit emergency departments for student aid programs from the list of doing so would cause significant harm, care that could have otherwise been those considered for a public charge including serious health consequences, obtained in a primary care setting and determination. costly long-term expenses for health would cause a rise in the number of Response: Pell grants and student aid care providers and patients, and food uninsured people and charity care, programs will not be considered in the insecurity in children, which is thereby transferring the financial burden public charge inadmissibility especially detrimental to the health, to hospitals, and forcing hospitals to determination. As previously discussed, educational performance, development, reduce the healthcare services that they DHS’s list of public benefits included in and well-being of children. A are able to provide to communities. the regulation is an exhaustive list and commenter stated that including CHIP Several commenters stated that by only those benefits listed will be would lead to parents having to choose including CHIP, USCIS would be able to considered in a public charge between their child’s health, and the specifically target families with children inadmissibility determination. The public charge determination and who may be eligible for CHIP even if the focus of the rule is public benefits immigration status. Numerous family surpasses the 125 percent of the programs that provide cash assistance commenters said including CHIP in FPL standard laid out in the proposal. for income maintenance or support food public charge assessments would be Numerous commenters stated that CHIP nutrition, housing and healthcare with a contrary to Congress’ explicit intent in addresses a critical coverage gap, relatively high overall expenditure. Pell expanding coverage to lawfully present targeting working families that earn too grants and student aid programs are children and pregnant women for public much to be eligible for Medicaid but education-based and DHS is not health, economic, and social benefits. A cannot afford traditional private considering them in the public charge commenter stated that the higher insurance. Commenters stated that inadmissibility determination. DHS income thresholds for Medicaid and the making the receipt of CHIP coverage a decided to not include a list of those Children’s Health Insurance Program negative factor in the public charge test, benefits that are not considered for Reauthorization Act of 2009 (CHIPRA) or including it in the definition of public charge purposes because they are state option represents a clear intent by ‘‘public charge,’’ would place coverage too numerous and benefits programs Congress to ensure that pregnant for children out of reach. Other may change over time. immigrant women have access to the commenters stated that including CHIP medical services necessary to ensure a in the final rule will create additional Children’s Health Insurance Program healthy pregnancy and positive birth financial pressures on working families, Comment: A commenter asked that outcomes. Other commenters stated that and would penalize those who are USCIS consider the inclusion of including CHIP, a benefit explicitly moving toward self-sufficiency, as they additional welfare programs such as created for working families, in public do not qualify for Medicaid due to their CHIP. Some commenters noted that charge assessments would be contrary to increased income. A few commenters CHIP ought to be part of a public benefit the historical meaning of public charge stated that past use of CHIP is not a determination because it is still part of as a person who depends on the predictor of future dependence on the determining an applicant’s overall self- government rather than working. Many Government for subsistence as an adult. sufficiency. Another commenter stated commenters stated that Congress and Many commenters stated that DHS’s that CHIP should be included in the states have historically demonstrated a reasons for not including CHIP in the public charge determination for high level of commitment to promoting proposed rule have nothing to do with consistency purposes, because CHIP is a health for lower-income children a public charge determination because form of government support and through CHIP, with 49 states now CHIP does not involve the same level of applying consistent standards ensures electing to cover children though expenditures as other programs; the Government’s goal of promoting CHIPRA and the Legal Immigrant commenters stated that government self-sufficiency. Children’s Health Improvement Act expenditures are irrelevant to the In contrast, numerous commenters (ICHIA). assessment of whether an individual requested that CHIP be explicitly Commenters stated that penalizing the may become a public charge. Some exempt from public charge; these use of CHIP undercuts the sound public stated that DHS’s reasons for not commenters cited to studies and policies many states have put in place including CHIP indicates that DHS indicated that millions of children and to ensure basic healthcare services are recognizes that immigrants do not over- thousands of pregnant women rely on available to immigrants to protect their utilize the CHIP program and, thus, the program for health coverage. Others health and to promote healthy including CHIP in the final rule would also discussed the importance and communities. Another commenter cited only serve the purpose of denying benefits of CHIP for children, such as a study indicating that the inclusion of immigrant children a benefit that providing vaccinations; keeping CHIP in the final rule would have supports their basic health needs. Other children healthy; reducing the rate of significant public health and economic commenters stated that Federal CHIP uninsured children across the United ramifications, including lower rates of funding is capped and, thus, reduced States; and improving children’s health, healthcare utilization and poorer health spending in states with larger immigrant education, and outcomes later in life; as among immigrants and their dependents populations will not reduce overall well as long-term economic benefits into as well as higher uncompensated care Federal spending, but will disadvantage adulthood such as job attainment and costs to federally qualified health those states relative to states with a paying more in taxes. Several centers and public hospitals. Many smaller immigrant population. Another commenters stated that CHIP provided a commenters stated that including CHIP commenter stated that while the critical link for children who have in a public charge determination would proposal exempts CHIP, it was unclear experienced abuse or who are in homes lead to many parents of eligible children what would happen to beneficiaries in where domestic violence is present to foregoing CHIP benefits and some states that have opted to implement

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CHIP as part of a Medicaid expansion SNAP) should be excluded from the NPRM,504 the language of section rather than a separate program. public charge determination to allow 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), Response: DHS appreciates the families or persons who have requires a predictive assessment. Terms comments and recognizes the experienced a catastrophic disaster, such as ‘‘become’’ and ‘‘likely at any importance of CHIP. DHS determined such as a fire or a hurricane, to receive time’’ indicate that the assessment that it will not include CHIP in the D–SNAP benefits without fear of being should be based on factors that tend to public charge inadmissibility subject to a public charge reasonably show that the burden of determination. States can use CHIP inadmissibility determination. supporting the alien is likely to be cast funding to cover children at higher Response: D–SNAP and other on the public.505 As established in the incomes under CHIP.499 CHIP enrollees emergency disaster relief assistance NPRM, case law supports this view and have a higher income and states have programs are not included in the rule. is therefore consistent with the pre-1999 greater flexibility in the benefit package DHS also notes that, as provided in the approach to public charge and the provided.500 An individual must be NPRM, not all cash assistance would definition of ‘‘likely at any time in the ineligible for Medicaid to quality for qualify as cash assistance for income future to become a public charge’’ as CHIP. CHIP primarily covers children, maintenance under the proposed rule. added to 8 CFR 212.21(c).506 While including lawfully residing children, For instance, DHS would not consider Congress could have added ‘‘in the and in a handful of states and covers Stafford Act disaster assistance, future,’’ Congress’ wording of the public pregnant women.501 Eligible families including financial assistance provided charge provision clearly indicates have higher incomes (between 133–400 to individuals and households under prospective determination; DHS added percent FPL).502 In addition, states (and the Federal Emergency Management the words to clarify that any time is in turn the Federal Government) tend to Agency’s Individuals and Households prospective and forward looking.507 spend less per person on CHIP than on Program, 42 U.S.C. 5174, as cash Comment: Commenters stated that the Medicaid because the families have a assistance for income maintenance. The proposed rule is impermissibly vague by higher income and thus fewer same would hold true for comparable failing to define ‘‘likely’’ as the term is healthcare needs, and because children disaster assistance provided by State, used in ‘‘likely to become a public are less expensive to cover. Overall local, or tribal governments. charge.’’ One commenter indicated that expenditures are also lower than DHS failed to define ‘‘likely’’ although Social Security Disability Insurance Medicaid.503 Finally, exclusion of CHIP it used the term throughout the entire is consistent with this rule’s changes Comment: A commenter stated that rule. The commenter indicated that DHS with respect to Medicaid received by a the rule should not consider Social used a specific dollar amount for child under the age of 21 and receipt Security Disability Insurance (SSDI) as purposes of the public charge during an alien’s pregnancy. Therefore, part of the public charge inadmissibility determination, yet, DHS failed to DHS believes it is appropriate to determination because SSDI is an provide a threshold amount for exclude CHIP from the public benefit earned benefit which may be a parent of adjudicators to use to assess the definition in the public charge a child. likeliness of becoming a public charge inadmissibility determination. Response: DHS will only consider in the future. Additionally, the those public benefits as listed in the commenter also indicated that although Disaster Supplemental Nutrition DHS provided numerous statistics on rule. SSDI is not one of the benefits Assistance benefits use rates, DHS never clarified listed under the definition of public what likelihood is high enough to justify Comment: A commenter benefits for purposes of public charge a denial.508 Therefore, the commenter recommended that Disaster inadmissibility and therefore will not be suggested defining the term ‘‘likely’’ as Supplemental Nutrition Assistance (D– considered as part of the rule. a ‘‘probability of becoming a public 499 CHIP-funded Medicaid coverage generally can 3. Likely at Any Time To Become a charge equal to or greater than 75 be used for children whose income is above the Public Charge percent.’’ Medicaid income standard in effect in the state in Response: DHS appreciates the 1997, when the CHIP program was first established. Comment: A commenter stated that comment and agrees that the meaning of 500 Medicaid.gov, CHIP Eligibility, available at DHS interprets ‘‘likely at any time to likely at any time in the future to https://www.medicaid.gov/chip/eligibility- become a public charge’’ to mean become a public charge needs standards/index.html (last visited June 13, 2019). ‘‘likely at any time in the future to 501 clarification. However, DHS will not See Medicaid.gov, Medicaid and CHIP receive one or more public benefits. . . Coverage of Lawfully Residing Children and Pregnant Women, available at https:// based on the totality of the 504 See Inadmissibility on Public Charge Grounds, www.medicaid.gov/medicaid/outreach-and- circumstances,’’ and DHS does not 83 FR 51114, 51174–75, 51178–79 (proposed Oct. enrollment/lawfully-residing/index.html (last propose to establish a per se policy 10, 2018). visited June 13, 2019). whereby an alien is likely to become a 505 See, e.g., Matter of Martinez-Lopez, 10 I&N 502 See Medicaid.gov, Medicaid, Children’s public charge if the alien is receiving Dec. 421 (Att’y Gen. 1964). Health Insurance Program, & Basic Health Program 506 See Inadmissibility on Public Charge Grounds, Eligibility Levels, available at https:// benefits at the time of the application. 83 FR 51114, 51174–75, 51178–79 (proposed Oct. www.medicaid.gov/medicaid/program-information/ The commenters stated that DHS’s 10, 2018). medicaid-and-chip-eligibility-levels/index.html (last reasoning is ‘‘less than transparent’’ and 507 See Inadmissibility on Public Charge Grounds, visited July 27, 2019). conflicts with both pre-1999 practice 83 FR 51114, 51174–75, 51178–79 (proposed Oct. 503 See U.S. Dep’t of Health and Human Servs. 10, 2018). (HHS), Centers for Medicare & Medicaid (CMS), and statutory interpretation. A 508 The commenter referred to a 1999 Central Expenditure Reports from MBES/CBES. Available at commenter stated that Congress could Intelligence Agency study in which was concluded https://www.medicaid.gov/medicaid/finance/state- have added the phrase ‘‘in the future’’ that NATO military officers did not interpret the expenditure-reporting/expenditure-reports/ but has repeatedly declined to do so. words ‘‘likely’’ or ‘‘unlikely’’ in a consistent manner index.html (last visited July 27, 2019). For a list of showing a wide variation. See Richard J. Heuer, Jr., federal expenditures by program, see FY 2016 data Response: DHS disagrees with the Psychology of Intelligence Analysis, Central from table 2 of Gene Falk et al., Cong. Research commenter that the interpretation of Intelligence Agency (1999), p. 155, https:// Serv., R45097, Federal Spending on Benefits and ‘‘likely at any time in the future’’ www.cia.gov/library/center-for-the-study-of- Services for People with Low Income: In Brief conflicts with the statutory wording and intelligence/csi-publications/books-and- (2018), available at https://fas.org/sgp/crs/misc/ monographs/psychology-of-intelligence-analysis/ R45097.pdf (last visited July 27, 2019). pre-1999 practice. As explained in the PsychofIntelNew.pdf (last visited July 26, 2019).

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accept the suggestion that likely at any charge at 212.21(c) to clarify that a their own definition of household as time to become a public charge means person is likely to become a public discussed in the NPRM. a 75 percent likelihood that the alien charge if it is ‘‘more likely than not’’ Furthermore, as discussed in the would become a public charge at any that the individual at any time in the NPRM, DHS is not fully adopting the time in the future. As with other key future will receive one or more public IRS definition of ‘‘dependent.’’ 516 That terms in the statute, Congress did not benefits, as defined in 8 CFR 212.21(b), definition would generally require some define or otherwise describe what it based on the totality of the alien’s type of relationship to the person filing meant by likely at any time to become circumstances.512 (including step and foster children and a public charge. DHS believes likely in their children) whether or not the 4. Household the context of likely at any time to dependent is living with the person become a public charge is best Comment: Several commenters filing and the amount of support being considered as probable, i.e., more likely expressed concern with the new provided by the person filing (over 50 than not. Although, as the commenter definition of ‘‘household.’’ A percent).517 For tax purposes, noted, the term ‘‘likely’’ has been commenter stated that this new dependents may include U.S. citizens, inconsistently defined in some definition is designed to apply to as U.S. resident aliens, U.S. nationals, and contexts,509 equating likely at any time many people as possible and would be residents of Canada or Mexico.518 DHS’s to more likely than not is nonetheless the most expansive definition of definition would adopt the IRS consistent with the approach many ‘‘household’’ within the Executive consideration of the amount of support courts have taken in the determining the Branch. A few commenters asserted that being provided to the individuals (50 meaning of likely.510 DHS believes that the proposed rule rejects both the HHS percent) as the threshold for considering defining likely at any time to mean and the IRS definitions of ‘‘dependent’’ an individual as part of the household ‘‘more likely than not’’ is consistent and ‘‘household’’ in favor of arbitrary in the public charge determination, with how the DHS regulations standards set by DHS. Another rather than consider any support being implementing withholding of removal commenter indicated that different provided.519 As discussed in the NPRM, and deferral of removal under the agencies have their own definition of a DHS believes that the ‘‘at least 50 Convention Against Torture have used ‘‘household,’’ which leads to variance percent of financial support’’ threshold ‘‘more likely than not’’ interchangeably and an uneven application of the law. as used by the IRS is reasonable to apply with ‘‘likely to.’’ 511 Response: DHS disagrees that the to the determination of who belongs in Therefore, DHS has amended the definition of household would be the an alien’s household, without regard to definition of likely to become a public most expansive in the Executive Branch whether these individuals physically or that it acts as a penalty. As discussed reside in the alien’s home. This would 513 509 For example, a review of state laws on in the NPRM, the poverty guidelines include those individuals the alien may determining when sex offenders are ‘‘likely’’ to do not define who should be considered not have a legal responsibility to reoffend found that ‘‘states vary greatly on how they part of the household, and different define likely’’ with some states define it as greater support but may nonetheless be than 50 percent or substantially probable while agencies and programs have different supporting. DHS believes that an alien’s others have expressly rejected standard based on standards for determining household ability to support a household is percentages. Jefferson C. Knighton, Daniel C. size.514 For example, and as explained Murrie, Marcus T. Boccaccini, & Darrel B. Turner, 515 relevant to DHS’s consideration of the in the NPRM, SNAP uses the term alien’s assets, resources, financial status, How Likely is ‘Likely to Reoffend’ in Civil Sex ‘‘household’’ and includes everyone Offender Commitment Trials, 38 Law & Hum, and family status. Behav. 293, 294–96 (2014). N.B. DHS is referencing who lives together and purchases and Comment: Several commenters sex offender statutes to show the lack of clarity in prepares meals together, which is more expressed concern with the definition defining the word likely; DHS is not implying, in expansive than the definition that DHS any way, any similarity between those who commit classifying people as household sexual crimes to those who are subject to public is adopting. DHS further disagrees that members if the alien contributes 50 charge. the standard is arbitrary. However, DHS percent or more to their financial 510 See, e.g., Southwest Sunsites, Inc. v. F.T.C., does agree that different agencies have 785 F.2d 1431 (9th Cir.) (‘‘First, the FTC must show support. A commenter said that this probable, not possible, deception (‘likely to requirement is vague and too expansive, 512 This change clarifies the definition of likely to mislead,’ not ‘tendency and capacity to mislead’).’’ become a public charge, but it does not alter the asserting that many families live in (emphasis in the original)), cert. denied, 479 U.S. burden that adjustment applicants bear in 828 (1986); Fermin v. Pfizer Inc., 215 F. Supp. 3d demonstrating that they are admissible. As with any 516 See 26 U.S.C. 152; see also Inadmissibility on 209, 211 (E.D.N.Y. 2016) (‘‘The term ‘likely’ other ground of inadmissibility, an applicant for Public Charge Grounds, 83 FR 51114, 51176 indicates that deception must be probable, not just adjustment of status still has the burden of (proposed Oct. 10, 2018), discussing IRS possible.’’); Siderca, S.A.I.C. v. United States, 28 C.I.T. 1782, 350 F. Supp.2d 1223, 1226 (Ct. Int’l demonstrating that he or she is clearly and beyond Publication 501 (Jan 2, 2018), available at https:// Trade 2004) (‘‘The common meaning of ‘likely’ is doubt entitled to be admitted to the United States www.irs.gov/pub/irs-pdf/p501.pdf (last visited May ‘probable,’ or, to put it another way, ‘more likely and is not inadmissible. See Matter of Bett, 26 I&N 8, 2019). than not.’’’); In re G.H., 781 NW2d 438, 445 (Neb. Dec. 437, 440 (BIA 2014). Adjustment applicants 517 See Inadmissibility on Public Charge Grounds, 2010) (holding that ‘‘ ‘probable,’ in other words, have the burden to show that they clearly and 83 FR 51114, 51176 (proposed Oct. 10, 2018), more likely than not’’ satisfies the ‘‘likely to engage beyond doubt satisfy the standard of not being more discussing IRS Publication 501 (Jan 2, 2018), in repeat acts of sexual violence’’ standard under likely than not to become a public charge in the available at https://www.irs.gov/pub/irs-pdf/ Nebraska law.). future. See generally House v. Bell, 547 U.S. 518, p501.pdf. 538 (2006) (discussing habeas petitioner’s burden of 518 511 Compare 8 CFR 208.16(c)(4) (‘‘If the See Inadmissibility on Public Charge Grounds, immigration judge determines that the alien is more showing ‘‘more likely than not’’ with the standard 83 FR 51114, 51176 (proposed Oct. 10, 2018), likely than not to be tortured in the country of of ‘‘no reasonable juror would find him guilty discussing IRS Publication 501 (Jan 2, 2018), removal, the alien is entitled to protection under beyond a reasonable doubt.’’) available at https://www.irs.gov/pub/irs-pdf/ the Convention Against Torture.’’) with 8 CFR 513 See Inadmissibility on Public Charge Grounds, p501.pdf. 208.17(b)(2) (‘‘The immigration judge shall also 83 FR 51114, 51176 (proposed Oct. 10, 2018). 519 See Internal Revenue Serv., Dependency inform the alien that removal has been deferred 514 See Inadmissibility on Public Charge Grounds, Exemptions, available at https://apps.irs.gov/app/ only to the country in which it has been determined 83 FR 51114, 51176 (proposed Oct. 10, 2018), vita/content/globalmedia/4491_dependency_ that the alien is likely to be tortured, and that the discussing Annual Update of the HHS Poverty exemptions.pdf (last visited July 26, 2017); see also alien may be removed at any time to another Guidelines, 83 FR 2642 (Jan. 18, 2018). See also Internal Revenue Serv., Table 2: Dependency country where he or she is not likely to be HHS Annual Update of the HHS Poverty Exemption for Qualifying Relative, available at tortured.’’) (emphasis added). See generally Matter Guidelines, 84 FR 1167 (Feb. 1, 2019). https://apps.irs.gov/app/vita/content/globalmedia/ of Chawathe, 25 I&N Dec. 369, 376 (2010) 515 See Inadmissibility on Public Charge Grounds, table_2_dependency_exemption_relative_4012.pdf (discussing the more likely than not standard). 83 FR 51114, 51176 (proposed Oct. 10, 2018). (last visited July 26, 2018).

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extended family and close friend household may be working to support with the commenters that children housing that share the cost of utilities, the household. would be considered a downward factor transportation, food, etc., which can With the definition of household, for determining overall household lead to difficult miscalculations of this DHS aims to account for both the income. DHS’s definition of household 50 percent threshold. Similarly, one persons whom the alien is supporting member adopts the IRS consideration of commenter stated that household size is and those who are contributing to the the amount of support being provided to not predictive of a person’s propensity household to support the alien, and thus individuals (50 percent) as the threshold to become a public charge, but is instead to the alien’s assets and resources.522 for considering an individual as part of the natural consequence of working DHS will consider any of the family the household. Therefore, DHS will people pooling together their resources members supported, including those retain the standard as proposed. to support each other. Other who are supported outside the United Comment: Several commenters commenters provided the example that States and listed on Form I–944. DHS remarked that this assessment would many immigrants provide financial clearly outlined in the regulatory have a disproportionally negative support to family members who remain provision who is included in the impact on immigrant women, asserting in their countries of origin and in some definition of household and therefore that immigrant women are more likely countries, as little as $100 a month can DHS does not agree that the definition than immigrant men to have one of constitute more than 50 percent of an is vague or too expansive, but agrees more children living in the same individual’s financial support, which that it may be, depending on the household, and therefore, more likely to would mean that the person should be specific circumstances of the household, have a large household. Some counted as part of the immigrant’s either over-or under-inclusive. commenters stated this requirement household size, which would drive up Comment: Commenters stated that, directly imposes on an immigrant the earnings they would need to meet although the receipt of benefits by U.S. woman’s bodily autonomy and agency, the threshold by much higher amounts. citizen children would not be a negative particularly if or when to have children, Multiple commenters asserted that factor to their noncitizen parent’s by counting having a large family immigrants could be penalized for application, the mere fact that the against them as part of the public charge providing family support to a sibling children are in the household would be determination. A commenter discussed with disability or parents to whom they a downward factor for determining the definition’s impact on domestic and have no legal obligation. A commenter overall household income. Another sexual violence survivors, asserting that said the definition could cause harm to commenter stated that children should this population could be penalized for larger households who must show larger not be included in the household providing continuing support to former incomes or resources to support the calculation because most support partners or family members if they were involuntarily coerced into providing larger numbers being counted, agreements or orders do not contain such support or have ceased living with regardless of the reality of the financial information to determine whether a them due to abuse. The commenter benefits that households may be potential amount is 50 percent of the added that the rule could penalize providing to society. This commenter financial support of a child. A victims who often seek the help of also stated that it could be especially commenter stated that verifying which family members to alleviate housing and harmful to immigrant families who individuals provide to the applicant at childcare expenses and strengthen their often care for extended family members least 50 percent of their financial support requires a fact-intensive review ties to the United States. in cases of emergencies without being Response: DHS is implementing a of not only cash support, but non-cash legally required to do so. statutory ground of inadmissibility support such as room and board or Response: As explained in the provided by Congress; the goal of the NPRM,520 DHS considers an alien’s payment of utilities that may only be rule is not to penalize but to ensure that household size not only as part of the partly attributable to the noncitizen. The those coming to the United States are alien’s asset, resources, and financial commenters said this overly self-sufficient and not likely depend on status but also for purposes of the family complicates the household size public resources. DHS also incorporated status. As is the case with all of the assessment, particularly as compared to exceptions provided by Congress, factors and consideration, DHS will the relatively straightforward including those applicable to battered consider the impact of the household determination used for the current Form spouses and children.524 Therefore, size as part of the totality of the I–864. DHS disagrees that the rule penalizes circumstances.521 Therefore, having Response: As indicated in the NPRM, domestic and sexual violence survivors. support from other household members as part of the description of the As it is the case for all, the public charge definition of household and family assessment will be made in the totality may be a positive consideration while 523 having assets below the 125 percent status research and data have shown of the circumstance to determine threshold for the household size may be that the number of household members whether an applicant is likely, at any a negative consideration because it may affect the likelihood of receipt of time in the future, to become a public indicates that an alien may be likely to public benefits. However, the number of charge. become a public charge. For these household members may also positively Comment: A commenter said the reasons, DHS considers the household affect the financial status and definition does not allow for the size a relevant consideration in the household, depending on the alien’s exclusion of the alien’s household public charge assessment and predictive and household’s circumstances, include members who are not intending to of the likelihood, within the totality of other member’s employment and immigrate within six months of the the circumstances, that an alien will financial contributions to the immigrant’s application, which holds become a public charge. DHS recognizes household. Therefore, DHS disagrees the applicant fiscally responsible for an that multiple individuals in the individual that they will not be living 522 See Inadmissibility on Public Charge Grounds, with for at least 6 months after 83 FR 51114, 51177 (proposed Oct. 10, 2018). 520 See Inadmissibility on Public Charge Grounds, 523 See Inadmissibility on Public Charge Grounds, immigrating to the United States. 83 FR 51114, 51175 (proposed Oct. 10, 2018). 83 FR 51114, 51176–51178, 51184 (proposed Oct. 521 See 8 CFR 212.22(a). 10, 2018). 524 See 8 CFR 212.23.

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Response: As explained in the NPRM, cash benefit use among noncitizens in inadmissibility determination—these for purposes of the household Table 17 in the NPRM had high factors include the alien’s assets, definition, DHS will take into variance, indicating only that the rates resources, and financial status. While consideration both individuals living in were about one to three percent across the affidavit of support is required for the alien’s home and individuals not family size groups. Therefore, DHS most family-based applications and living in the alien’s home, including believes that the data properly reflects some employment-based applications, it aliens living outside the United States, that receipt of noncash benefits is set apart from those factors, and may for whom the alien, and or the alien’s generally increases with an increase in be considered in a public charge parents or legal guardians are providing, family size. inadmissibility determination as a or are required to provide, at least 50 Comment: A commenter stated that separate consideration.526 This indicates percent of financial support.525 DHS the rule ‘‘contravenes PRWORA and that Congress intended for the affidavit therefore does not focus on the location IIRIRA by drastically limiting how a of support and the public charge of the financially supported person, but sponsor’s income is considered as part determination to serve similar, but not on the fact that the person is receiving of the public charge analysis—even identical functions. more than 50 percent of financial though the sponsor’s commitment is As discussed in the NPRM, DHS support from the applicant, rendering legally enforceable.’’ The commenter chose a definition of household that those funds unavailable to the applicant stated that only considering the takes into account the definitions used for his or her own support and self- sponsor’s income if (i) the sponsor by benefit-granting agencies and that sufficiency. physically lives with the noncitizen, or captures individuals who are financially Comment: A commenter expressed (ii) ‘‘the sponsor is already contributing interdependent with the alien. In their opposition to the NPRM assertion 50 percent or more of the alien’s considering gross household income, that ‘‘the receipt of non-cash benefits financial support,’’ has no basis in USCIS will also consider any monthly generally increased as family size either PRWORA or IIRIRA and ‘‘would or annual income from individuals who increased.’’ This commenter referenced run contrary to the basic logic are not included in the alien’s Table 17 in the NPRM, which the undergirding the sponsor affidavit household, where the support to the commenter stated indicated that non- provisions of both laws’’ because under household has been provided to the cash benefit usage is higher among PRWORA and IIRIRA, a sponsor must household on a continuing monthly or families of three (22.3 percent) than have an income of at least 125 percent yearly basis during the most recent families of four (20.7 percent). The same of the FPL, and both the sponsored calendar year.527 Accordingly, if the commenter cited information claiming noncitizen and benefit-granting agencies sponsor is already providing 50 percent that among noncitizens in ‘‘nonfamily may legally enforce the affidavit of or more of financial support or is households’’ (i.e., individuals), 2.7 support as the sponsor’s promise to otherwise providing income on a percent received cash assistance and maintain a noncitizen above 125 percent monthly or annual basis to the alien that that number steadily decreased in larger of the FPL. In addition, the commenter the alien will rely on to meet the income households with only 1.8 percent of noted that PRWORA requires benefit- threshold, the sponsor’s income or noncitizens in families of five or more granting agencies to include a sponsor’s payments would be included in the receiving any cash benefit. income when determining whether a consideration of the alien’s assets, Response: DHS appreciates the sponsored noncitizen is income-eligible resources, and financial status.528 DHS comment. DHS acknowledges that for means-tested benefits. The certain data were not statistically commenter asserted that discounting the 526 See INA section 212(a)(4)(B)(i) & (ii), 8 U.S.C. significant, which in some cases was a value of an affidavit of support in the 1182(a)(4)(B)(i) & (ii). consequence of small sample sizes. The public charge determination unless the 527 See 8 CFR 212.22(b)(4)(i)(B). 528 statistics cited regarding non-cash See Inadmissibility on Public Charge Grounds, sponsor is closely related to or lives 83 FR 51114, 51177 (proposed Oct. 10, 2018). (‘‘For benefit use among families of sizes three with the noncitizen, would ignore the example, when a child, as defined in INA section and four were not statistically legally enforceable nature of the 101(b), 8 U.S.C. 1101(b)(1), is filing for adjustment significantly different from each other, sponsor’s promise and that the of status as the child of a U.S. citizen or lawful permanent resident, the affidavit of support sponsor so DHS would not conclude that one is sponsor’s income is deemed that of the would also be the parent. Because the parent is part higher or lower. Among noncitizens, the noncitizen. of the household, the parent’s income would be results that were statistically significant Response: DHS disagrees that the rule included as part of the household income. The showed a lower rate of non-cash benefit contravenes PRWORA and IIRIRA with parent’s income would be reviewed as part of the respect to the manner in which DHS assets, resources, and financial status factor based use among nonfamily households, and a on the total household size. However, for example, higher rate of non-cash benefit use will consider a sponsor’s income. DHS if there is a cosponsor, who is the alien’s cousin and among those with a family size bigger neither proposed any changes to how who is not physically residing with the alien, then than five, compared with those having the sponsor’s income is considered with the cousin would not be counted as part of the household and his or her income would not be family sizes of two, three, and four. respect to the enforceable affidavit of included as part of the assets, resources or financial Among citizens, those having family support, nor changed any applicable status unless the sponsor is already contributing 50 sizes of two were shown to have a lower deeming rules. In addition, the INA percent or more of the alien’s financial support. In rate of non-cash benefit use than those requires a distinct public charge addition, if the sponsor is a member of the alien’s household and included in the calculation of the with larger families. These findings assessment for admission and 125 percent of the FPG, DHS would only count the suggest a generally higher rate of non- adjustment of status even where an sponsor’s income once for purposes of determining cash benefit use as family size increases. alien has an affidavit of support. Under the alien’s total household assets and resources. A this rule, the affidavit of support, where sponsor’s income as reported on the affidavit of Regarding the rates of cash benefit use, support would be added to the income of the other the estimates cited for nonfamily required, will still have to comply with members of the alien’s household. The sponsor’s households and those with families of the requirements of section 213A of the income that is added to the alien’s total household size five or more were not statistically Act, 8 U.S.C. 1183a, and 8 CFR part assets and resources would not be increased significantly different. The estimates of 213a. because the sponsor also submitted an affidavit of As noted previously, Congress set support promising to support the alien at least 125 percent of the FPG for the sponsor’s household size. 525 See Inadmissibility on Public Charge Grounds, forth the mandatory factors that DHS For example, assuming the alien and sponsor’s 83 FR 51114, 51176 (proposed Oct. 10, 2018). must consider in the public charge Continued

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declines to otherwise deem the rule will operate as intended and will acknowledges the complexity of this sponsor’s income to the alien in the not lead to inconsistent results. rule. This final rule is intended to public charge context, as this kind of An individual commenter stated that provide greater clarification in response automatic deeming would essentially the existing statutory framework directs to comments. As with any new render meaningless the public charge an adjudicator to consider an regulation, the regulated public may determination for any alien with an immigrant’s personal and financial need to read and become familiar with affidavit of support. DHS does not circumstances to determine the the regulation to understand how it believe Congress would have retained likelihood that they will become applies. DHS will also issue guidance, the public charge ground of dependent on the government in the and may further revise such guidance as inadmissibility, had it intended such a future, which is easily demonstrated by necessary after it has gained experience result. their employment prospects and the with the new regulatory regime. existence of support systems. However, As explained in the NPRM, section H. Public Charge Inadmissibility the commenter stated that the proposed 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), Determination Based on Totality of positive and negative weighted factor provides that an alien who, ‘‘in the Circumstances system was unworkable and provided opinion of’’ the Secretary is likely to Comment: Many commenters no guidance on how these factors would become a public charge is expressed general concern about the be weighted. The commenter also stated inadmissible.529 The Government has discretion that government workers that DHS should allow immigrants to long interpreted the phrase ‘‘in the would be given when making public prove themselves sufficient after opinion of’’ as describing an assessment charge determinations, which would immigrating. A commenter suggested that is subjective and discretionary in result in inconsistent and unfair public DHS provide written documentation of nature.530 While authorizing this charge inadmissibility determinations. the public charge determination and subjective, discretionary assessment, One commenter noted that the rule reasoning to the applicant and his/her however, Congress also mandated that change gives too much discretion to legal representative. A few commenters the public charge determination officers in making inadmissibility described the proposed rule as consider, at a minimum, the alien’s age, determinations. Another commenter extremely vague and open-ended health, family status, assets, resources, noted that because the rule relies on regarding the issues that will be financial status, education, and skills. officer discretion, there will be considered. The commenters also stated Consideration of these mandatory that DHS fails to state how it will inconsistent adjudications and the rule factors requires a case-by-case measure the weighted factors. A is thus arbitrary and capricious. The determination based on the totality of commenter stated the alien must show commenter further stated that this the alien’s circumstances. This final rule by a preponderance of the evidence that proposed standard is also arbitrary and will result in officers conducting a full he or she is eligible for the benefit capricious because the required officer analysis of the factors set forth in the sought but that the rule requires too evaluation would be burdensome and statute and in this rule, and weighing all high a standard of proof with respect to inefficient. A commenter provided an evidence submitted in the totality of the the applicant demonstrating he or she estimate on the number of people circumstances. Both the proposed rule will not become a public charge. and this final rule adequately explain adversely affected by the rule based on Some commenters stated that the how the criteria are to be applied and the factors. proposed rule contained vague what evidence should be considered. Several commenters stated that the standards, required adjudicators to Unlike the 1999 Interim Field ‘‘totality of circumstances’’ test would consider a broad range of factors, and require adjudicators to weigh a afforded such adjudicators significant Guidance, which failed to interpret the potentially unlimited number of discretion. The commenters stated that statutory factors and provided no ‘‘factors,’’ and expressed confusion as a consequence, outcomes will be direction to adjudicators on how to regarding the difference between dependent on the particular adjudicator consider them, this final rule is clear ‘‘factors’’ and ‘‘considerations’’ under making the decision. Commenters about the legal standard and evidentiary the proposed rule. A commenter noted indicated that they were especially burden aliens must meet to demonstrate that ‘‘[a]s a result, there could be an concerned that this lack of predictability that they are not likely at any time in infinite number of factors that will make it nearly impossible for the future to become a public charge. In adjudicators could possibly assess, attorneys to adequately advise their addition, USCIS will be conducting resulting in public charge clients. Commenters stated that such training for adjudicators and, as determinations [that] will inevitably unpredictability would lead to a chilling necessary, issuing sub-regulatory vary from adjudicator to adjudicator effect with respect to aliens’ use of guidance to ensure consistency in even when faced with very similarly public benefits. adjudications. However, to the extent situated cases.’’ Two commenters stated Commenters stated that granting that each alien’s individual that the proposed rule is not USCIS officers the discretion to evaluate circumstances constitute a unique fact quantitative and the ‘‘totality of the totality of circumstances would be 529 circumstances’’ test to determine public inefficient, as they would require new See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 530 See Matter of Harutunian, 14 I&N Dec. 583, charge admissibility is vague and training to evaluate criteria, such as 588 (Reg’l Cmm’r 1974) (‘‘[T]he determination of ambiguous. An individual commenter credit reports, and that other agencies, whether an alien falls into that category [as likely suggested that DHS remove the totality such as DOL, already have education to become a public charge] rests within the of circumstances language to ensure the and skills criteria for work visas. discretion of the consular officers or the Commissioner . . . Congress inserted the words ‘in Response: DHS disagrees with the the opinion of’ (the consul or the Attorney General) household sizes are the same, if the sponsor’s total assertion that the rule provides too with the manifest intention of putting borderline income reported on the affidavit of support is 250 much discretion to adjudicators as a adverse determinations beyond the reach of judicial percent of the FPG for the household size, that result of the totality of the review.’’ (citation omitted)); Matter of Martinez- income would be added to the alien’s assets and Lopez, 10 I&N Dec. 409, 421 (Att’y Gen. 1962) resources; the alien’s total household income would circumstances approach and that the (‘‘[U]nder the statutory language the question for then be at least 250 percent of the FPG, which framework will lead to unfair and visa purposes seems to depend entirely on the constitutes a heavily weighted positive factor.’’). inconsistent determinations. DHS consular officer’s subjective opinion.’’).

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pattern, outcomes in public charge however, that the adjudication of public that increases the alien’s future determinations will appropriately vary. charge inadmissibility is complex and likelihood of an alien receiving one or In addition, DHS disagrees that public that the determination of the likelihood more public benefits above the 12 charge determinations will be at any time in the future to become a aggregate months in a 36-month period burdensome and inefficient. USCIS will public charge is not governed by clear threshold is negative. take care to effectively examine the data regarding whether any given alien USCIS will then weigh all factors evidence presented to determine subject to this determination is more individually and cumulatively. USCIS whether the alien is likely to become a likely than not to receive public benefits will assess the weighted degree to which public charge at any time in the future, for more than 12 months in the each factor is negative or positive—the consistent with the statute. aggregate in a 36-month period at any extent to which the factor affects the DHS also disagrees that the standard time in the future, and therefore would likelihood that the alien will or will not used to determine public charge be inadmissible when weighing all receive one or more public benefits inadmissibility is too high. While the factors in the totality of the alien’s above the threshold. Certain enumerated commenter is correct that, in general, an circumstances. factors will weigh heavily in favor of applicant applying for an immigration To address these concerns, USCIS finding that an alien is not likely to benefit must demonstrate eligibility by a plans to take several steps. For one, to become a public charge or finding that preponderance of the evidence,531 DHS provide its officers with a solid an alien is likely to become a public has not changed that standard of proof foundation and knowledge on public charge. But, for example, depending on with respect to applications subject to a charge inadmissibility determinations, the alien’s specific circumstances, a public charge inadmissibility USCIS plans to issue policy guidance in heavily weighted negative factor can be determination. Those applicants will its USCIS Policy Manual (https:// outweighed by a heavily weighted still, unless otherwise specified, be www.uscis.gov/policy-manual), which positive factor or some combination of required to show by a preponderance of will include information from the positive factors in the totality of the the evidence that they are not likely at NPRM and this final rule and can be circumstances. Otherwise, the weight any time to become a public charge. accessed by potential applicants. In its given to an individual factor not DHS has defined likely at any time to policy guidance, USCIS will direct designated a heavily weighted factor become a public charge in this final rule officers to determine: depends on the particular facts and as more likely than not at any time in • Whether the alien is more likely circumstances of each case and the the future to become a public charge. than not to receive one or more public relationship of the individual factor to Therefore, applicants subject to a public benefits, as defined in 8 CFR 212.21(b), other factors in the analysis. Multiple charge inadmissibility determination at any time in the future; and factors operating together will carry will need to demonstrate by a • Whether the alien’s likely receipt of more weight to the extent those factors preponderance of the evidence that that one or more of the enumerated public in tandem show that the alien is more they are not more likely than not at any benefits is more likely than not to or less likely than not to become a time in the future to become a public exceed 12 months in the aggregate public charge. charge. within any 36 month period (such that, USCIS’ totality of circumstances Additionally, the public charge for instance, receipt of two benefits in assessment will focus on, for instance, inadmissibility analysis is a prospective one month counts as two months) at any the following considerations: • Ability to Earn a Living—The ability determination, as evidenced by the time in the future. words ‘‘likely at any time to become’’ a In making this determination, there is of the alien to earn sufficient income to public charge. Moreover, aliens subject no bright-line test that USCIS officers pay for basic living needs (i.e., food and to the public charge ground of will administer. For instance, past or nutrition, housing, and healthcare), as inadmissibility must demonstrate that current receipt of public benefits may evidenced or impacted by, for example, they are not likely at any time to become make an alien a public charge at the alien’s age, health, work history, a public charge at the time of their present, but past or current receipt of current employment status, future application or a visa, admission, or public benefits, alone, is insufficient to employment prospects, education, and adjustment of status. Therefore, DHS sustain a finding that an alien is likely skills; will not adopt the commenter’s • Sufficiency of Income, Assets, and to become a public charge at any point suggestion that an alien subject to the Resources—The sufficiency of the in the future. public charge ground of inadmissibility alien’s household’s income, assets, and Instead, there must be a nexus should be allowed to wait until after resources to meet basic living needs between the alien’s circumstances and immigrating to the United States to (i.e., food and nutrition, housing and the alien’s future likelihood of becoming demonstrate that he or she is likely at healthcare); a public charge. The mere presence of any time to become a public charge and • Sufficiency and Obligation of any one enumerated circumstance, thereby avoid becoming inadmissible on Sponsorship—The legal sufficiency of alone, is not outcome determinative.532 public charge grounds at the time of the affidavit of support, if required, and USCIS, therefore, will evaluate all of the admission as an immigrant. the likelihood that a sponsor would DHS also believes that the rule alien’s facts, circumstances, and actually provide the statutorily-required provides a clear framework for evidence to determine whether factors amount of financial support to the alien, considering the mandatory factors in a in the analysis are positive or negative. and other related considerations; public charge inadmissibility Any factor that decreases the alien’s • Ability to Overcome Receipt of determination in the totality of the future likelihood of receiving one or Public Benefits or Certification or circumstances. DHS acknowledges, more public benefits above the 12 Approval to Receive Public Benefits months in the aggregate in a 36-month Above the Designated Threshold—The 531 See Matter of Chawathe, 25 I&N Dec. 369, 375 period threshold is positive. Any factor ability of the alien to overcome receipt (2010) (‘‘Except where a different standard is of, or certification or approval to specified by law, a petitioner or applicant in 532 Except that the absence of a sufficient affidavit administrative immigration proceedings must prove of support, where required, will lead to an receive, one or more public benefits for by a preponderance of evidence that he or she is inadmissibility finding. See INA section more than 12 months in the aggregate in eligible for the benefit sought.’’) (citations omitted). 212(a)(4)(C), (D), 8 U.S.C. 1182(a)(4)(C), (D). any 36-month period beginning no

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earlier than 36 months before the If USCIS denies an alien’s application generality at which it may articulate application for admission or adjustment for adjustment of status on public regulations but a regulation is not of status. charge grounds under section 212(a)(4) deemed vague simply because it may Assessing an alien’s ability to of the Act, 8 U.S.C. 1182(a)(4), USCIS contain a factor that is difficult to prove; overcome the heavily weighted negative will explain why the negative factors it may be deemed vague or lacking in factor for recent receipt of, or outweigh the positive factors based on specificity if it is unclear as to what fact certification or approval to receive, one the alien’s individual circumstances in must be proven.535 The NPRM and this or more public benefits above the making the alien more likely than not to rule both make abundantly clear what designated threshold, in particular, will receive one or more public benefits an alien must prove. DHS not only depend on the totality of the alien’s above the designated threshold at any ensured that the public had a circumstances and the existence of time in the future. meaningful opportunity to comment by positive factors that alone or in Furthermore, to ensure consistency clearly articulating which factors USCIS combination could outweigh this and quality control, USCIS will provide will consider as part of the totality of heavily weighted negative factor such training to officers and continue to the circumstances standard, but also by that the alien would not be likely to monitor adjudications. As is the case for illustrating the application of the public become a public charge at any time in any adjudication at USCIS, USCIS will charge determination framework and its the future. For example, the alien’s apply its general quality control factors in the preamble and in Table 33 assets and resources being at or above processes for adjudications involving of the NPRM.536 250 percent of the FPG, the alien being public charge assessments. USCIS DHS also disagrees that the rule healthy and between the ages of 18 and continues its ongoing data collection requires a high standard of proof. 61, the alien being currently employed, efforts on its adjudications as well as Congress established the mandatory and evidence that the alien has other information relevant to the factors that must be considered as part disenrolled or requested to disenroll adjudication, to continually assess and of the public charge determination and from public benefits could play a improve the adjudication processes, DHS is providing guidance on how to significant role in outweighing recent procedures and training. assess these factors.537 Additionally, receipt of, or certification or approval to However, DHS notes that officer Congress established clear burdens and receive, public benefits above the discretion is not a new concept in standards of proof relating to grounds of designated threshold. Where a factor USCIS immigration benefits inadmissibility in immigration includes more than one consideration, adjudications. Several benefits provided proceedings. The alien always has the including evidence related to such under the Act are discretionary in burden to show that he or she is eligible considerations, DHS will consider all nature, and involve an assessment and for an immigration benefit and that he evidence presented by the alien in the weighting of positive and negative or she is not inadmissible.538 In general, totality of the circumstances. For factors. For example, an alien’s an alien must show by a preponderance example, DHS will consider income adjustment of status application to that of the evidence that he or she is eligible above 125 percent and a good credit of lawful permanent resident under for the benefit sought.539 score and report as positive section 245 of the Act, 8 U.S.C. 1255, Finally, DHS understands that considerations in the totality of the requires the officer to weigh all positive commenters believe that the submission circumstances. and negative factors in the alien’s case of Form I–864 provides a method for If USCIS finds that the alien’s positive to ultimately determine whether lawful objective public charge inadmissibility factors outweigh the alien’s negative permanent resident status should be analysis and that the totality of the factors, such that the alien is not likely granted as a matter of discretion.534 DHS circumstances approach is inefficient to receive one or more public benefits disagrees with commenters’ because of training needs and because above the designated threshold at any characterization that the rule overall, other agencies, such as the DOL, already time in the future, then USCIS will the proposed framework for the public evaluate education and skills criteria. It conclude that the alien is not charge determination, and individual is true that the practical focus of DHS inadmissible as likely to become a factors, as published in the NPRM, lack public charge. On the other hand, if required specificity or are 535 See F.C.C. v. Fox Television Stations, Inc., 567 USCIS finds that the alien’s negative impermissibly vague. When creating U.S. 239, 253 (2012); see also Connally v. General implementing regulations under the Constr. Co., 269 U.S. 385, 391 (1926). factors outweigh the alien’s positive 536 See Inadmissibility on Public Charge Grounds, factors, such that the alien is more likely APA, an agency must provide notice 83 FR 51114, 51211 (proposed Oct. 10, 2018). than not to receive one or more public that, among other things, articulates the 537 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). benefits above the designated threshold terms or substance of the proposed rule, 538 See INA section 291, 8 U.S.C. 1361; 8 CFR at any time in the future, then USCIS or a description of the subjects and 103.2(b)(1) (‘‘An applicant or petitioner must issues involved. A notice of proposed establish that he or she is eligible for the requested will find that the alien is inadmissible benefit.’’); Matter of Brantigan, 11 I&N Dec. 493 as likely to become a public charge. rulemaking must contain sufficient (BIA 1966). USCIS, as with other applications, factual details and rationale to permit 539 See Matter of Bett, 26 I&N Dec. 437, 440 (BIA will notify applicants of deficiencies in interested parties to comment 2014) (‘‘To be eligible for adjustment of status, an meaningfully. An agency is accorded applicant has the burden to show that he is clearly their applications with respect to public and beyond doubt entitled to be admitted to the charge inadmissibility in accordance broad deference in selecting the level of United States and is not inadmissible under section with the principles outlined in 8 CFR 212(a) of the Act.’’); Matter of Chawathe, 25 I&N 103.2 and USCIS policy in regard to DHS notes that the failure to submit a completed Dec. 369, 375 (2010) (‘‘Except where a different 533 Form I–944, Declaration of Self-Sufficiency or Form standard is specified by law, a petitioner or notices, RFEs or NOIDs, and denials. I–864, Affidavit of Support with the Form I–485, applicant in administrative immigration Application to Register or Adjust Status, when proceedings must prove by a preponderance of 533 See USCIS Policy Memorandum Issuance of required, may result in a rejection or a denial of the evidence that he or she is eligible for the benefit Certain RFEs and NOIDs; Revisions to Adjudicator’s Form I–485 without a prior RFE or NOID. See 8 CFR sought.’’) (citations omitted). See also Kirong v. Field Manual (AFM) Chapter 10.5(a), Chapter 103.2(a)(7), (b)(8)(ii). Mukasey, 529 F.3d 800, 803–804 (8th Cir. 2008) 10.5(b), PM–602–0163 (Jul. 13, 2018) (https:// 534 See INA section 245, 8 U.S.C. 1255; see also (concluding that as an applicant for adjustment of www.uscis.gov/sites/default/files/USCIS/Laws/ USCIS Policy Manual Guidance on Adjustment of status, the alien is put into the position of an alien Memoranda/AFM_10_Standards_for_RFEs_and_ Status under INA section 245, Volume 7, Part B, seeking admission and must prove that he or she NOIDs_FINAL2.pdf (last visited June 21, 2019). 245(a) Adjustment. is clearly and beyond doubt admissible).

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in a public charge inadmissibility positive factors. Therefore, these charge.545 DHS also discussed, in detail, determination previously had been commenters believed that it would the relevance of each factor in the primarily on the sufficiency of an appear more likely an applicant could public charge determination and affidavit of support submitted on the be disqualified based on weighted supported its finding with relevant data. alien’s behalf. DHS, however, clarified negative factors even if their application DHS, therefore, disagrees that it failed to the relationship between the Form I–864 contains both positive and negative provide a reasonable explanation why and a public charge inadmissibility factors. Several commenters cited the the factors are relevant. determination in the NPRM.540 As MPI’s analysis of American Community Finally, although section 212(a)(4) of explained in the NPRM, given that the Survey (ACS) data from 2012–2016, that the Act, 8 U.S.C. 1182(a)(4), lists statute 541 differentiates between the identified immigrants that are lawful required factors that must be affidavit of support requirement and the permanent residents with fewer than considered, it does not preclude USCIS mandatory factors of the public charge five years of residency in the United from considering other considerations assessment, DHS considers it States. The study showed that a relevant in an applicant’s case. DHS inconsistent with the statutory language significant number of these lawful agrees that officers will encounter to solely use the affidavit of support as permanent residents would have one or various circumstances not specifically a means to determine public charge more negative factors counted against accounted for in the regulation, but inadmissibility. Similarly, while certain them, indicating substantial reduction plans to give officers the necessary tools employment-based immigrant categories in the number of potential green cards through guidance and training to fairly are required to obtain labor issued if the proposed rule was adjudicate such cases, and believes that certifications from the DOL and to finalized. officers are able to exercise their submit evidence of job qualifications, Multiple commenters stated that, in judgment appropriately. As noted these requirements focus on an alien’s order to improve one’s education and above, Congress specifically provided ability to meet qualifications of the job skills and to be self-sufficient, it is often for the agency’s discretion to account for offered and the employer’s ability to pay necessary to draw on short-term all aspects in an individual’s case.546 the proffered wages 542 rather than an supportive services, but drawing on DHS disagrees with the commenters that alien’s likelihood of becoming a public such means-tested public benefits indicated that positive and negative charge because of age, health, financial would be a negative consideration in the factors are not treated equally because status, education, skills, etc. Therefore, totality of the circumstances test. Thus, DHS in its regulations listed more DOL’s assessments and certifications the rule sets up a contradictory situation negative factors than positive ones. obtained by DOL are not redundant to in which individuals attempting to Although having more negative factors or a suitable substitute for public charge strengthen their positive factors may may be a basis for finding a person determinations. instead add to the negative factors for inadmissible based on public charge, Comment: Several commenters stated their case. A commenter stated that the the number of negative factors does not that, although the proposed rule weighted factors used in the ‘‘totality of by itself lead to a conclusion that a acknowledges that the public charge circumstances’’ test to determine person is likely to become a public determination is intended to be inadmissibility is the ‘‘only charge. USCIS will consider and weigh prospective, the proposed criteria are interpretation that would be consistent each factor presented in an alien’s case actually retrospective and offered with the governing statutory language in the totality of the circumstances.547 without any evidence that they are and established methods of statutory DHS notes that it has added an relevant to the determination of whether construction.’’ additional heavily weighted positive an immigrant will become dependent on Response: DHS disagrees that it is at factor in section III.R. of this preamble. the Government for support in the all problematic for DHS to consider Comment: Some commenters also future. Some commenters stated that the events in the alien’s past as part of a indicated that it appeared more likely proposed rule completely ignores an prospective inadmissibility that applicants would be disqualified individual’s ability to learn, work, determination. As explained in the based on heavily weighted negative develop skills, and support himself or NPRM, DHS’s proposed totality of the factors even though their application herself and his or her family. Several circumstances standard involves the contains both positive and negative commenters recommended that DHS weighing of positive and negative factors. conduct research about the probability considerations in relation to the alien’s Response: DHS agrees that some that an individual would be self- age, health, financial assets, education applicants may be found in the totality sufficient or not based on the weighted and skills as well as the required of circumstances likely to become a factors included in the public charge affidavit of support and any other factor determination. 545 See Matter of Vindman, 16 I&N Dec. 131 (Reg’l that warrants consideration in the Comm’s 1977) (consideration of past public benefits One commenter agreed with the use alien’s case. The totality of the in determining the likelihood of becoming a public of data in Table 33 on the Totality of circumstances approach, including charge in the future); Matter of Martinez-Lopez, 10 Circumstances Framework for Public consideration of events and I&N Dec. 409, 421–22 (BIA 1962; Att’y Gen. 1964) Charge Determinations in the NPRM,543 (in determining whether a person is likely to circumstances in the alien’s past, is become a public charge, factors to consider include but this commenter and many others consistent with the approach taken by age, health, and physical condition, physical or stated that positive and negative the former INS, the BIA, and Article III mental defects which might affect earning capacity, weighted factors are not treated the case law.544 Thus, although these factors vocation, past record of employment, current same, as there is an extensive list of employment, offer of employment, number of may require some retrospective dependents, existing conditions in the United negative factors and a short list of evaluation at the time of adjustment of States, sufficient funds or assurances of support by status, Congress and courts deemed the relatives or friends in the United States, bond or 540 See Inadmissibility on Public Charge Grounds, alien’s past as relevant to the alien’s undertaking, or any specific circumstances 83 FR 51114, 51197 (proposed Oct. 10, 2018). reasonably tending to show that the burden of 541 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). likelihood of becoming a public supporting he alien is likely to be case on the 542 See 20 CFR part 656. public.) 543 See Inadmissibility on Public Charge Grounds, 544 See Inadmissibility on Public Charge Grounds, 546 See INA section 212(a)(4), 8 U.S.C. 1184(a)(4). 83 FR 51114, 51211 (proposed Oct. 10, 2018). 83 FR 51114, 51179 (proposed Oct. 10, 2018). 547 See 8 CFR 212.22(a).

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public charge even if they present receive public benefits. DHS relied on examine program payment rate error positive factors. If negative factors in the such data for all heavily weighted information for this purpose. DHS alien’s case (factors that increases an factors. For instance, in proposing the sought comment on its use of the SIPP alien’s likelihood of becoming a public heavily weighted negative factor for lack data, and whether alternative reliable charge) outweigh positive factors of employability, DHS relied not only data sources are available.549 The (factors that decrease the alien’s on the reasonable premise that ‘‘[s]elf- commenter did not identify an likelihood of becoming a public charge), sufficiency generally involves people alternative reliable data source that DHS would conclude, in the totality of being capable and willing to work and controls for whether an alien is subject the circumstances, that the applicant is being able to maintain gainful to the public charge ground of inadmissible for likely becoming a employment,’’ but also on Census inadmissibility. public charge. Therefore, it may be that Bureau data showing that individuals Even if the commenter had identified an alien is found inadmissible in light with full-time work were less likely to such data, however, adjudicators would of a heavily weighted negative factor receive means-tested benefits during the not have been able to rely heavily on even if he or she may be able to present year (ranging from 4.5 percent to 5.1 such data, because the public charge positive factors. percent) than those with either part-time assessment requires a prediction based Comment: One commenter work (ranging from 12.6 percent to 14.2 on an assessment of the alien’s recommended that DHS provide percent) or those who were unemployed particular circumstances within the guidance on how the ‘‘totality of (ranging from 24.8 percent to 31.2 framework of multiple statutory factors, circumstances’’ and likelihood percent).548 and any other relevant considerations. A determination should be reached using That said, DHS cannot satisfy the data set tailored to such particular evidence-based methods, namely using commenter’s request that DHS ‘‘estimate individuals’ circumstances may not be a base rate as a prior probability which . . . base rates—both before the rule available, and in any event was not can be updated based on the evidence takes effect and again after a sufficiently identified by the commenter. about a given alien. The commenter long interval to account for DHS acknowledges that the predictive stated that starting from the ‘‘inside disenrollment—for the proportion of analysis it will be conducting based on view’’ of the evidence about a given aliens non-exempt from public charge an individual’s particular circumstances alien rather than the ‘‘outside view’’ of inadmissibility.’’ This is because as DHS leaves some room for error, however, so base rates about the reference class of all acknowledged in the proposed rule, would any predictive algorithm or data- aliens would likely lead DHS to DHS lacks access to data regarding the based ‘‘outside view’’ analysis, significantly more false positive specific categories of aliens that are particularly given the data limitations determinations. The commenter stated subject to the public charge ground of DHS encountered and the likelihood that DHS should estimate a base rate— inadmissibility, let alone data regarding that even if comprehensive data sets both before the rule takes effect and such aliens’ public benefits use as it existed that could be utilized in the again after a sufficiently long interval to relates to the statutory factors. For fashion the commenter suggests, they account for disenrollment—for the instance, the proposed rule explained would not be detailed enough or proportion of aliens non-exempt from that much of the data that DHS relied sufficiently timely to account for public charge inadmissibility who upon came from the 2014 Panel of the changes in trends. For example, a would be considered public charges. SIPP. The SIPP Panel includes dataset from the 2008–2010 timeframe This base rate should then be respondent-provided data on nativity, may predict an appreciably higher rate considered the prior probability that an citizenship status, and initial of benefit receipt based on certain alien is likely to become a public immigration status, but does not provide individual circumstances than a dataset charge. The commenter also stated that data on current immigration from 2015–2017. Therefore, in the DHS should also estimate average levels classification. Additionally, the absence of adequate tools that would of receipt, duration, and other kinds of categories represented in the SIPP allow DHS to use a comprehensive evidence in the totality of the immigration status item do not align quantitative framework for individual circumstances so that officials may precisely with the populations covered public charge inadmissibility compare any given alien’s evidence to by this rule—for instance, the results determinations, USCIS officers will rely average levels and make appropriate include refugees, asylees, and other on their training and USCIS guidance to updates in the right direction. Another populations that may access public assess the relationship between factors commenter suggested weighing factors benefits but are not subject to the public and the likelihood to receive public using valid statistical methods, using charge ground of inadmissibility. benefits above the designated threshold administrative survey data to create a Finally, the SIPP data and DHS’s at any time in the future. This analysis factor model to precisely calculate the analysis of this data do not examine will include an assessment of all probability of future use, and making whether the receipt of public benefits evidence provided by the alien in the factor model available online for was authorized, and DHS did not support of his or her application, applicants to utilize before applying. including any credible and probative Response: The factors contained in 548 See Inadmissibility on Public Charge Grounds, this rule are based, in significant part, 83 FR 51114, 51198 (proposed Oct. 10, 2018) (citing data that is relevant to the assessment. on data regarding the relationship Jeongsoo Kim, Shelley K. Irving, & Tracy A. Furthermore, to the extent USCIS is able Loveless, U.S. Census Bureau, Dynamics of between the minimum statutory factors to identify credible and probative data Economic Well-Being: Participation in Government sources that would provide context for and a person’s likelihood of receiving Programs, 2004 to 2007 and 2009—Who Gets public benefits. In the preamble to the Assistance? 12 (July 2012), available at https:// 549 proposed rule, for each positive and www2.census.gov/library/publications/2012/demo/ See Inadmissibility on Public Charge Grounds, p70–130.pdf (last visited July 26, 2019); Shelley K. 83 FR 51114, 51160–61 (proposed Oct. 10, 2018). negative factor, DHS included Irving & Tracy A. Loveless, U.S. Census Bureau, The commenter also suggested that DHS generate supportive reasoning that related to Dynamics of Economic Well-Being: Participation in such data. But, it does not seem possible to estimate either inferences regarding self- Government Programs, 2009–2012: Who Gets the probability of becoming a public charge by sufficiency or empirical data regarding Assistance? 10 (May 2015), available at https:// following up with aliens who were subject to the www.census.gov/content/dam/Census/library/ determination. For instance, many of those who the relationship between the factor and publications/2015/demo/p70–141.pdf) (last visited were denied a benefit may not reside in the United the likelihood that a person would July 26, 2019). States at a later date.

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adjudicators in evaluating one or more domestic violence, trafficking and other when coming to the United States or mandatory factors, USCIS may provide crimes. DHS therefore included these seeking to adjust status. such data sources to adjudicators and exemptions in this rulemaking.552 Notwithstanding, DHS will be bound by ensure consistent application through Comment: A few commenters cited its own regulations in making public guidance and training. the MPI study, which stated that of the charge inadmissibility determinations Comment: A few commenters over 2 million individuals granted based on the totality of the alien’s provided feedback on the review lawful permanent residence status in circumstances, which includes process. One commenter stated that the past five years (between 2012 and considering and weighing all relevant immigration officers will have a limited 2016), 69 percent of recent lawful factors that are favorable to the alien. amount of time to properly review permanent residents who are not Comment: Commenters indicated that documents and employment letters, and refugees or other humanitarian it is impossible to predict future self- will not undertake an effective, case-by- admissions would have had at least one sufficient behavior based on current case appraisal of applications. Similarly, negative factor under the proposed new resources of individuals who are, by commenters indicated that supervising definition, 43 percent at least two definition, in transition (or trying to be) officers will not have enough time to negative factors, and 17 percent had at from living in another country to review each denial thoroughly. least three negative factors.553 The same finding and creating opportunity in the Response: DHS understands the analysis reported that 39 percent of United States. concerns that the public charge recent lawful permanent residents did Response: DHS disagrees that it is determination could increase the not speak English well or not at all, 33 impossible to predict whether an adjudication time of immigration percent had household incomes below individual is likely to become a public benefits and that individuals, including 125 percent of the FPG, 25 percent did charge in the future based on the factors attorneys, may have additional not have a high school diploma, and 12 outlined in INA section 212(a)(4) of the questions. DHS and USCIS are percent were under age 18 or over age Act, 8 U.S.C 1182(a)(4). The committed to putting the necessary 61. The analysis also estimated that 39 commenters’ quarrel is with Congress, resources into place, including percent of recent lawful permanent not DHS. While DHS acknowledges that additional adjudicators, to minimize residents had incomes at or above 250 the public charge determination is a any impact on current immigration percent of the FPG. complex assessment, DHS described at benefits adjudications and to provide for Response: DHS thanks commenters length in the NPRM how it would thorough consideration of each case and for citing the findings of the MPI study, evaluate an alien’s individual appropriate supervisory review. which also highlighted that ‘‘the rule circumstances, including the minimum Comment: Many commenters voiced does not specify how many negative statutory factors, as part of the public concern about the disproportionate versus positive factors someone must charge determination. In Table 33 of the negative impact of the application of the have for their application to be NPRM, DHS also outlined in detail the mandatory factors on marginalized 554 denied.’’ While an alien may have totality of the circumstances assessment communities. This included negative one, two, three, or more negative factors, and when the evidence in the totality of effects on immigrants belonging to the the mere fact that the alien’s negative the circumstances may be indicative of LGBTQ community, HIV positive factors outnumber the alien’s positive the individual becoming a public immigrants, immigrants with chronic factors is not a sufficient basis to find charge. In this final rule, as explained health conditions and disabilities, the alien inadmissible. DHS must find below, DHS has further clarified and immigrants of color, Latino immigrants, that the alien’s negative factors expanded on its approach. AAPI immigrants, immigrants from outweigh the alien’s positive factors Comment: Commenters pointed out countries that are poor and largely based on the totality of circumstances that many who would be subject to the people of color, senior citizens, women, analysis, such that the alien is more public charge rule are already barred and victims of domestic violence and likely than not at any time in the future from receiving public benefits for at sexual abuse. to receive one or more public benefits, least 5 years due to past welfare reform Response: Regardless of whether this as defined in 8 CFR 212.21(b), for more efforts. rule will impact the groups specified in than 12 months in the aggregate within Response: The commenters correctly these comments, DHS is not any 36-month period. pointed out that under PRWORA and promulgating this rule for a Once effective, DHS is aware that this other laws, most immigrants and discriminatory purpose. Rather, this rule will likely result in more findings nonimmigrants are not eligible for rule will better ensure that aliens of public charge inadmissibility and certain public benefits for a duration of seeking to enter or remain in the United may result in fewer overall admissions at least five years. The public charge States either temporarily or permanently and approved adjustment of status ground of inadmissibility, however, are self-sufficient, and rely on their own applications to the United States, as does not have any temporal limits in capabilities and the resources of their DHS seeks to better enforce the public this regard and is prospective in nature; family, sponsors, and private charge ground of inadmissibility and to Congress directed the administering organizations, rather than the ensure that aliens are self-sufficient agencies to determine, for admissibility government.550 DHS will determine an purposes, whether the alien is likely, ‘‘at individual’s inadmissibility on public 552 See 8 CFR 212.23. any time’’ to become a public charge. charge grounds of inadmissibility in the 553 MPI, Gauging the Impact of DHS’ Proposed totality of the circumstances, based on Public-Charge Rule on U.S. Immigration (Nov. I. Age the statutorily mandated factors.551 2018), https://www.migrationpolicy.org/research/ impact-dhs-public-charge-rule-immigration (last 1. Standard Additionally, Congress did not make visited July 25, 2019). applicable the public charge ground of 554 See Capps, Randy et al, ‘‘Gauging the Impact Comment: A commenter expressed inadmissibility to certain classes of of DHS’ Proposed Public-Charge Rule on U.S. support for the proposed designation of aliens, including certain victims of Immigration,’’ Migration Policy Institute. the age range 18–61 as a positive factor (November 2018). Available at: https:// www.migrationpolicy.org/research/impact-dhs- and stated that there is a strong 550 8 U.S.C. 1601(2)(A). public-charge-rule-immigration (last visited July 26, correlation between this prime working 551 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 2019). age range and a much lower rate of use

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of public benefits, compared to Engineering, and Medicine 556 for the also acknowledges that certain individuals outside that age range. The proposition that second-generation individuals, depending on their status commenter also added that that both child immigrants are the most fiscally and circumstances, may not be eligible minors and elderly aliens, like their positive of all immigrants to the United for public benefits in the near term and citizen counterparts, are more likely to States. would take that fact into consideration be financially dependent on resources Another commenter, in opposition to in the public charge inadmissibility other than employment income. One the age standard, said the question is determination. DHS disagrees with the commenter suggested that DHS conduct not whether all children are likely to suggestion that USCIS provide a more a more lenient ‘‘Public Charge Check’’ receive benefits, but rather whether lenient review of public charge for those for aliens younger than 21 or older than children applying for lawful permanent below 21 and above 55. USCIS will 55 (if one is needed at all), and a more resident status will. The commenter apply the same public charge framework thorough check for aliens aged between indicated that DHS cites no authority for for all cases subject to public charge. 21 and 55. A commenter stated that its assertion that applicants who obtain DHS disagrees that there was no since the 19th century, courts have lawful permanent resident status are justification in the NPRM for the age recognized that it would be absurd to more likely to become public charges range and will maintain the age ranges exclude every child from our shores, simply due to their being under 18 years as identified in the NPRM. As since no child, by his personal efforts of age at the time of application. The established by Congress, an alien’s age alone, can take care of himself.’’ 555 commenter stated that because most is a mandatory factor that must be Another commenter said the rule aliens are not eligible for means-tested considered when determining whether provides no justification for why a public benefits for at least the first five an alien is likely to become a public 559 minor under 18 years old should be years after obtaining such status, the age charge in the future. As discussed in scrutinized when they are not expected range is too high. The commenter also the NPRM, a person’s age may impact to be self-sufficient, or why immigrants stated that, for decades, DOS has used his or her ability to legally or physically over the age of 61, many of whom work the age of 16 as the cut-off for when the work and is therefore relevant to the or provide support to the rest of their child will be able to show employable likelihood of an alien becoming a public 560 family, should be penalized merely job skills. The commenter sought charge. because of their age. The commenter justification for the change. One In addition, regardless of an alien’s stated that the rule did not explain why commenter stated that DHS bases this age, DHS recognizes, consistent with these age thresholds are predictors of age standard on the minimum age at longstanding case law, that the alien which one can start to claim retirement may have financial assets, resources, future public benefit use. One benefits under social security; however, benefits through employment, education commenter stated that these age-range this was never meant to be used to say or skills, family, or other means of requirements are overly broad, ignore that people are unable or even unlikely support that decrease his or her the possibility of a familial sponsor, and to work after that age. Some commenters likelihood of becoming a public charge. raise the income requirements in a cruel stated that many over 61-year-olds are Therefore, age is but one factor in the way that is detrimental to society. One able to, willing to, and do work after totality of the circumstances. As commenter asserted that DHS’s analysis immigrating. discussed in the NPRM,561 the 18 for an age standard overlooks the Response: DHS agrees that the age through 61 age range is based on the substantial benefits that minor children range is appropriate due to the general ages at which people are generally able bring to a family, including future correlation between the 18–61 age range to work full-time before being able to potential working capacity. One and a lower rate of use of public retire with some social security commenter similarly stated that the rule benefits, and that people outside of this retirement benefits under Federal does not factor in the potential children age range are, in general, more likely to law.562 DHS notes that considering 18 have to add value to society and also be financially dependent on others.557 years old as the earliest age in which stated that seniors often play a critical DHS agrees that generally, most aliens one is expected to be able to work is caregiver role which allows others to are not eligible for means-tested public consistent with current DOS guidance work. Another commenter added that an benefits for at least the first five years which directs consular officers to alien’s unemployment at age 16 or 17 after obtaining such status; however, consider what skills individuals 18 provides no evidence of their future there are certain exceptions under years of age or older have to make a employability. One commenter gave an PRWORA, including the availability of living.563 DHS declines the request from example that 16-year old high-school SNAP for children under 18.558 DHS the commenter to justify why this rule students are not likely to be employed is contrary to past DOS guidance since for many years in the future, but once 556 See National Academies of Sciences, that guidance is from another they complete their education they can Engineering, and Medicine, The Economic and Department and never was binding on Fiscal Consequences of Immigration (2017). reach their true potential. A commenter DHS. DHS understands that children stated that, although those under the age 557 The rate of receipt of cash and noncash benefits among noncitizen children age 0–17 may continue their education and of 18 are less likely to work since they decreased with the removal of Medicaid from obtain employment in the future. DHS will be in school, and therefore are more consideration for that age group, changing from would not make a determination of likely to become a public charge, those about 40 percent when the benefit was included to about 20 percent when it was not. The receipt rate individuals typically learn English very of cash and noncash benefits among noncitizen 559 See INA section 212(a)(4)(B), 8 U.S.C. quickly, integrate readily, and after children age 0–17 was no longer significantly 1182(a)(4)(B). completing their education (often different from that of noncitizens aged 18–61 when 560 See Inadmissibility on Public Charge Grounds, including higher education), go on to Medicaid was included only for the older age 83 FR 51114, 51179–81 (proposed Oct. 10, 2018). group, and both of these age groups had much 561 See Inadmissibility on Public Charge Grounds, work, contribute, and pay taxes in the lower receipt of benefits than noncitizens aged 62 83 FR 51114, 511179–81 (proposed Oct. 10, 2018). United States for decades. A few and over. However, due to the restrictions on 562 See 29 U.S.C. 213(c), 42 U.S.C. 416(l)(2) commenters cited a report by the employment by minors and the fact that children (‘‘Early retirement age’’ for social security National Academies of Sciences, are dependent on their parents or legal guardians, purposes). as discussed in the NPRM, DHS still consider the 563 See 9 FAM 302.8–2)(B)(2), paragraph d, age range appropriate. available at https://fam.state.gov/FAM/09FAM/ 555 See In re Day, 27 F. 678 (S.D.N.Y. 1886). 558 See, e.g., 8 U.S.C. 1612(a)(2)(J). 09FAM030208.html (last visited May 15, 2019).

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inadmissibility based on public charge have to send money abroad for their not be deemed inadmissible on public solely based on the age of a child. care in their home country, which may charge grounds. Instead, USCIS would also review the require expensive residential care, DHS recognizes the tangible and support provided by a parent or other financially hampering citizens and intangible value to individuals and source in the totality of the sending those dollars outside of the U.S. communities of strong family bonds and circumstances. economy. support across generations. DHS notes Comment: Commenters stated DHS that where an alien can establish that he One commenter stated there is a based the proposed age standard on the or she is not likely to become a public priceless emotional benefit to U.S. minimum age at which one can start to charge in light of all the relevant citizens having their parents nearby for claim retirement benefits under social factors—including, for example, the love, support, and for their families to security; however, this was never meant support of one or more family to be used to say that people are unable be whole and enriched through the members—the alien would not be found or even unlikely to work after that age. joyful and sorrowful life events of the inadmissible as a public charge. Several commenters explained that if birth of grandchildren and the passing Accordingly, DHS does not believe that DHS finalized the rule as proposed, of family elders. A commenter stated this rulemaking will necessarily render many U.S. citizens would no longer be that some U.S. citizens bring their it impossible for individuals to care for able to welcome their own parents into elderly parents to the United States family members. Rather, the rule seeks the country because it would be difficult because caring for them here will ease to ensure that aliens rely on themselves for older adults to pass the ‘‘public the burden of worrying about their care and on private sources, including their charge’’ test under the new criteria. A in countries that are many thousands of families, to meet their needs, rather than commenter stated that applications for miles away. The commenter added that relying on public benefits. DHS does parents account for almost 30 percent of the ability to care for loved ones at the acknowledge that the rule could affect a all family-based applications. Some end stages of life is an important marker family member’s admissibility or commenters stated that many seniors for all communities and nationalities, eligibility to adjust status in some cases, immigrate to the United States in order which would be nearly impossible if but notes that such effect would be a to help care for children and other DHS finalized the rule as proposed. consequence of the statutory scheme, family members. Commenters stated Response: DHS disagrees that the age under which the family member is this rule fails to recognize the value of standard is arbitrary. As provided in the subject to the public charge ground of intergenerational families who support NPRM,564 there is a correlation between inadmissibility. each other and the proposed rule the prime working age range and lower Comment: A commenter asserted the ‘‘callously’’ labels parents and rates of public benefit use. As indicated statistics DHS used to establish the 18– grandparents as a burden because of in the NPRM,565 the 18 through 61 age 61 age standard do not distinguish their age or health needs and ignores the range is based on the ages at which between those who are refugees and critical roles many grandparents play in people are generally able to work full- asylees and those who obtained legal caring for their grandchildren and other time before being able to retire with status through a family or employment- family members, often enabling others some social security retirement benefits based petition. The commenter added to work. under Federal law.566 The age of 18 is that lawful permanent residents who A few commenters stated that the based on the general age to be able to immigrate or adjust through other proposed rule fails to accord start working full-time; 567 the age of 61 means are barred for their first five years appropriate dignity and respect to is the year before the minimum ‘‘early from accessing SSI, and they are subject community elders seeking immigration retirement age’’ for social security to sponsor-to-alien deeming of income relief by treating them as economically purposes 568 (62 as of 2017). DHS will thereafter. The commenter stated that it disposable, and would have the effect of still consider the alien’s age in relation is inappropriate to lump this latter straining and fracturing families who to whether it makes the alien more or group of lawful permanent residents in seek to maintain seniors within the less likely to become a public charge, with refugees and asylees, who are in familial unit. such as by impacting the alien’s ability fact encouraged to participate in Federal A commenter said having older adults to work. DHS is not establishing the age benefit programs, and it is disingenuous at home can eliminate the cost of range as a statement that people outside to use it as a basis to make age above childcare, which is one of the highest that range are unable to work. DHS 61 years a negative factor. budget items for many families and can acknowledges that people under the age Response: As discussed in the NPRM, approach 20 percent of household of 18 and over the age of 61 may be DHS recognizes that the statistics income for low-income families. Citing working or have other adequate means provided do not distinguish the studies, a commenter stated that of support, such as from family immigrant status of the alien, and ‘‘the limiting the age of workers has been members. DHS would recognize such results include refugees, asylees, and shown to have a negative economic means as positive factors. In other other populations that may access impact on society. Another commenter words, a senior who establishes to public benefits but are not subject to the remarked that the proposed rule could DHS’s satisfaction that she or he is not public charge ground of prevent many American citizens from 569 likely to become a public charge would inadmissibility.’’ The SIPP data and maintaining the dignity of their families DHS’s analysis of this data do not due to ‘‘exclusionary factors’’ assigned 564 See Inadmissibility on Public Charge Grounds, examine whether the receipt of public to advanced age or receipt of life-saving 83 FR 51114, 51180 (proposed Oct. 10, 2018). benefits was authorized, and DHS did medical savings under Medicare Part D. 565 See Inadmissibility on Public Charge Grounds, not examine program payment rate error The commenter also stated that this 83 FR 51114, 51180 (proposed Oct. 10, 2018). information for this purpose. illustrates a critical flaw in the proposed 566 See 29 U.S.C. 213(c), 42 U.S.C. 416(l)(2). Notwithstanding these limitations, DHS rule: it undervalues the important role 567 See 29 U.S.C. 213(c); 29 CFR part 570; see also believes the SIPP data on noncitizen a parent or grandparent contributes to a Dep’t of Labor, Table of Employment/Age Certification Issuance Practice Under State Child participation is instructive with respect family. A few commenters stated that if Labor Laws, available at https://www.dol.gov/whd/ U.S. citizens are unable to bring their state/certification.htm (last visited July 26, 2019). 569 See Inadmissibility on Public Charge Grounds, parents to the United States, they would 568 See 42 U.S.C. 416(l)(2). 83 FR 51114, 51160 (proposed Oct. 10, 2018).

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to the receipt of non-cash benefits by the card recipients. The MPI study circumstance that may warrant noncitizen population overall. estimated that among recent green card consideration in the public charge Comment: A few commenters stated recipients, about 45 percent of the inadmissibility determination.572 If the this proposal could undermine access to children would have had two or more negative factors outweigh the positive healthcare, nutrition, and housing negative factors if the proposed rule had factors, then the alien would be found programs for children of immigrants and been applied to them.571 DHS inadmissible as likely to become a their aging family members. One appreciates the input on the potential public charge; if the positive factors commenter said the proposed impact. As indicated in the NPRM, outweigh the negative factors, then the consideration of age could contribute to however, DHS is not able to quantify the alien would not be found inadmissible family separations. The commenter number of aliens, including children, as likely to become a public charge. added that by weighing age negatively who would possibly be denied 2. Age Discrimination in the totality of circumstances, admission based on a public charge immigrant children younger than 18 determination under this rule. Again, Comment: Some commenters stated years of age are likely to see their green DHS is qualitatively acknowledging this that rule discriminates against people of card or visa applications denied, which potential impact. certain ages. Commenters stated that the could lead to members of the same DHS would like to clarify, however, age standard is not only discriminatory family obtaining differing immigration the following aspects of the towards children, but is also logically statuses, with some members unable to inadmissibility determination in inconsistent as children have a lifetime remain in the United States. A few relation to children under the age of 18: of productive years ahead of them. commenters said the rule could increase DHS understands that children may Commenters stated that adding age and family separation, which can cause continue their education and obtain disability discrimination into our emotional stress and trauma in children employment in the future. As indicated immigration regulations would unjustly that leads to negative health outcomes. throughout this preamble, DHS would deny U.S. citizens the ability to reunite Another commenter cited an MPI not make a public charge with, receive support from, and if analysis, which found that 45 percent of inadmissibility determination solely necessary, provide support to their children who recently received green based on the age of a child. Instead, family members. cards had two or more negative factors. USCIS will review the support provided Response: DHS does not agree that The commenter added that depriving by a parent or the parents, and any other this rule adds discrimination based on children, including U.S. citizens, of evidence addressing the resources and age or disability. An alien’s age is a access to public benefits that would assets available to the child in the mandatory factor that must be otherwise increase their families’ ability totality of the circumstances when considered when determining whether to thrive will lead to deep stress, which determining whether the child is more an alien is likely to become a public studies show then in turn leads to likely than not at any time in the future charge in the future.573 Therefore, the reduced outcomes throughout life. A to become a public charge. DHS has also rule includes this factor. As DHS noted commenter indicated that being a child made a number of changes and in the NPRM, a person’s age may impact should not weigh against an individual clarifications in this final rule that are his or her ability to legally or physically in a public charge determination. The relevant to the rule’s effects on children, work and is therefore relevant to being commenter stated that because children including (1) excluding receipt of self-sufficient, and the likelihood of generally are not allowed to work, it is Medicaid by children under age 21, and becoming a public charge. An alien’s unlikely they could have an income or (2) clarifying that receipt of benefits by likelihood of becoming a public charge assets on their own equal to 125% or another beneficiary’s behalf is not is prospective and based on the totality more of the FPG. attributed to the person who received it of the alien’s circumstances. If an alien’s Response: DHS understands that (such as a parent or legal guardian, for positive factors outweigh the negative individuals, including children, will be example). DHS does not anticipate factors, then the alien would not be impacted by this rulemaking, once outcomes that would require family found inadmissible as likely to become effective. When codifying section members to live in different countries, a public charge. No one factor, apart 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), so long as any family members who from the failure to submit a sufficient Congress did not generally exempt have applied for an immigration benefit affidavit of support where required, is children from the public charge for which admissibility is required can outcome determinative. inadmissibility ground and an alien’s demonstrate that they are not Additionally, to the extent that this age is a mandatory, statutory factor that inadmissible. rule may result in the denial of some DHS must be considered when Overall, DHS notes that the public applications filed by relatives of U.S. determining whether an alien is likely at charge inadmissibility determination citizens, DHS disagrees that this rule any time in the future to become a requires DHS to evaluate the alien would deny U.S. citizens the ability to public charge.570 Accordingly, DHS will child’s particular circumstances. DHS’s reunite with, and support, their consider whether the alien’s age makes totality of the circumstances standard families. DHS acknowledges that the the alien more likely than not to become involves weighing all the positive and rule could affect a family member’s a public charge, such as if the alien’s age negative considerations related to an admissibility or eligibility for affects an alien’s ability to work. DHS alien’s age; health; family status; assets, adjustment of status, but such effect understands that children are in a resources, and financial status; would be a consequence of the statutory unique position in some respects, education and skills; required affidavit scheme, under which the family especially as it relates to employability. of support; and any other factor or member is subject to the public charge The commenter referred to the MPI’s ground of inadmissibility. This rule study, which attempted to measure the 571 See Capps, Randy et al, ‘‘Gauging the Impact does not change the criteria applicable general impact of the proposed rule by of DHS’ Proposed Public-Charge Rule on U.S. to a U.S. citizen filing Petition for Alien Immigration,’’ Migration Policy Institute. examining the situations of recent green (November 2018). Available at: https:// www.migrationpolicy.org/research/impact-dhs- 572 See 8 CFR 212.22. 570 See section INA section 212(a)(4)(B), 8 U.S.C. public-charge-rule-immigration (last visited July 26, 573 See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B). 2019). 1182(a)(4)(B).

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Relative (Form I–130), which does not of future self-sufficiency and full-time nature and extent of the abnormality; require the beneficiary’s admissibility. employment capabilities. Commenters the degree to which the alien is This rule addresses the criteria for noted that advances in medical incapable of normal physical activity; establishing eligibility for admission or technology could make certain and the extent to which the condition is adjustment of status and for conditions, such as HIV/AIDS more remediable . . . [as well as] the demonstrating that the applicant is not manageable in the future, with one likelihood, that because of the inadmissible as likely to become a noting that Type 1 Diabetes was a condition, the applicant will require public charge. In other words, even if an disabling condition in the 1950s but extensive medical care or alien may be eligible statutorily to be now adults and children with Type 1 institutionalization.’’ 579 In addition, the granted adjustment of status based upon Diabetes lead full, productive, and CDC Technical Instructions for Medical the approval of a Form I–130 filed by a independent lives. Examinations of Aliens, directs U.S. citizen relative, the alien is not Conversely, one commenter agreed physicians to provide information about entitled to be admitted to the United that the proposed health factor approach Class B conditions, which, although do States or granted adjustment,574 and the is appropriate for public charge not ‘‘constitute a specific excludable U.S. citizen is not entitled to be purposes, so long as the inquiry is condition, represents a departure from reunified with the applicant. limited to whether aliens are likely to be normal health or well-being that is able to pay for health-related expenses significant enough to possibly interfere J. Health for themselves and any household with the person’s ability to care for 1. Standard dependents without the use of public himself or herself, to attend school or resources. work, or that may require extensive Comment: Several commenters stated Response: DHS recognizes that an that the rule perpetuates the ‘‘false medical treatment or institutionalization individual with medical conditions may in the future.’’ 580 Such an assessment assumption’’ that a medical diagnosis is provide significant contributions to solely determinative of an individual’s would necessarily account for any society. As established by Congress, an recent advancements in treating the current abilities and future prospects, alien’s health is a factor that must be with some asserting that chronic illness medical condition, and goes directly to considered when determining whether the prospect of the alien being able to is not an accurate indicator of future an alien is likely to become a public self-sufficiency and full-time care for himself or herself and being charge at any time in the future.575 As able to attend school or go to work. And, employment capabilities. One indicated in the NPRM, the mere commenter stated that this policy of course, the alien could provide presence of a medical condition would further information with the assumes that the presence of a physical not render an alien inadmissible.576 or mental condition is a financial risk to application. Instead, DHS would consider the Comment: One commenter stated that, the state and fails to recognize the existence of a medical condition in light while health has always been a factor in significant contributions that people of the effect that such medical condition the public charge test, the proposed rule with chronic health and other is likely to have on the alien’s ability to codifies and unduly weighs the specific conditions can and do make as provide and care for himself or herself; standard for evaluating an individual’s professionals and community members. DHS will weigh such evidence in the health. Similarly, another commenter One commenter stated the that totality of the circumstances. DHS stated that the proposed rule essentially consideration of disability in the health officers will not be making medical counts the same health status as two factor was a per se rule that is determinations or determining the negative factors and also as a heavily inconsistent with the fact that ‘‘health effects of the conditions. Instead, weighted negative factor: Once as a status is far from necessarily predictive officers will review any required Form negative health factor; again as a of a person’s ability to engage I–693 or applicable DOS medical negative assets, resources and financial productively in work and other aspects 577 examination form submitted in status factor; and then again as a heavily of community life.’’ Another commenter support of the application for the weighted negative factor if the non- stated that DHS failed to consider that diagnosis of medical conditions citizen is uninsured. A different with access to health insurance (e.g., according to the procedures established commenter said the combination of Medicaid), preventive medical 578 by HHS; or any other evidence of a penalizing someone’s medical condition treatment, and health care professionals, medical condition that is likely to individuals with chronic medical require extensive medical treatment or 579 42 CFR 34.4(b)(2) (Class A); 42 CFR 34.4(c)(2) conditions can exhibit drastic institutionalization after arrival, or that (Class B). improvements in their health and will interfere with the alien’s ability to 580 See Ctrs. for Disease Control & Prevention, productivity. A different commenter care for himself or herself, to attend Required Evaluations—Other Physical or Mental stated that counting conditions that school, or to work. The HHS regulations Abnormality, Disease, or Disability, Technical Instructions For Medical Examination Of Aliens, require extensive medical treatment direct physicians conducting the available at https://www.cdc.gov/immigrant and/or hospitalization as negative immigration medical examinations for refugeehealth/exams/ti/panel/technical- factors ignores the reality that a Class A either Class A or Class B conditions to instructions/panel-physicians/other-physical- or B medical condition, especially a explain on the medical report ‘‘the mental.html (last updated Nov. 23, 2016) (last visited July 26, 2019); Ctrs. for Disease Control & curable one, is not an accurate indicator Prevention, Required Evaluation Components Other 575 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). Physical or Mental Abnormality, Disease or 574 See Mudric v. Att’y Gen. of U.S., 469 F.3d 94, 576 See Inadmissibility on Public Charge Grounds, Disability, Technical Instructions for the Medical 98 (3d Cir. 2006) (‘‘While an alien may be eligible 83 FR 51114, 51181–84 (proposed Oct. 10, 2018). Examination of Aliens in the United States, for a grant of . . . adjustment of status under the 577 This is currently the Immigrant or Refugee available at https://www.cdc.gov/immigrant immigration laws, he is not entitled to such benefits Application (Form DS–2054). refugeehealth/exams/ti/civil/technical-instructions/ as a constitutional matter.’’); see also, Matter of Ho, 578 The medical examination documentation civil-surgeons/required-evaluation-components/ 19 I&N Dec. 582, 589 (BIA 1988) (holding that indicates whether the applicant has either a Class other-disease-disability.html (last updated Aug. 3, ‘‘[a]pproval of a visa petition is but a preliminary A or a Class B medical condition. In addition, the 2010) (last visited July 26, 2019). The HHS step in the visa or adjustment of status application alien must provide a vaccination record as part of regulations require physicians conducting medical process, and the beneficiary is not, by mere the medical examination. Class A and Class B examinations for an alien to comply with the CDC’s approval of the petition, entitled to an immigrant medical conditions are defined in the HHS Technical Instructions for Medical Examinations of visa or to adjustment of status.’’) regulations. See 42 CFR 34.2. Aliens. 42 CFR 34.3(i).

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and negatively weighting use of benefits rule contained vague wording. One applicant has a ‘‘reasonable prospect of and services that help to treat that commenter stated that considering ‘‘any future employment.’’ A different medical condition will create an physical or mental condition’’ as part of commenter said the rule would insurmountable bar for many older the individual’s health is overly broad authorize non-medically trained adults and people living with chronic and open to interpretation. Another personnel to overrule a medical illnesses or disabilities. Another commenter stated that the rule would professional’s determination about commenter said health and disability stretch the INA’s public charge language whether a person’s health should be a are factors that are improperly beyond recognition by adding vague barrier to admission. Another considered twice under the rubric of the references to ‘‘extensive medical commenter said immigration officials proposed rule. treatment’’ and ‘‘interference’’ with an lacking any specialized medical Response: DHS disagrees that the individual’s ability to work, attend knowledge would rely on hastily review of the health factor in the public school, or otherwise be self-sufficient. composed medical reports (frequently charge inadmissibility determination is The commenter stated that the manner from medical providers who would an insurmountable bar for people with in which DHS proposed to consider the have no established medical chronic illness or disabilities. The mere health of an immigrant in making a relationship with an individual) to presence of a medical condition would forward-looking public charge exclude a noncitizen from the not render an alien inadmissible. determination leaves so much room for immigration benefit solely because of Instead, DHS would consider the discretion that it renders the health the presence of a particular illness or existence of a medical condition in light factor consideration meaningless. A disability that may appear ‘‘grave’’ or of the effect that such medical condition different commenter objected to using ‘‘costly’’ based on preconceived and is likely to have on the alien’s ability to the standard of whether a health often erroneous assumptions. Some attend school or work, and weigh such condition ‘‘interferes with work or commenters said the proposed rule evidence in the totality of the school’’ as too broad, vague, and biased discounts future advancements in circumstances. As part of the assets, against people of color who will be medical science and social norms by resources and financial status factor, prejudiced by this generic standard. The allowing DHS officials to make present- DHS would also consider whether the commenter stated that social day judgements about an individual’s alien has the resources to pay for determinants of health are one of the future capabilities. A couple of associated medical costs. main inequalities between whites and commenters stated that the rule does not As stated in the NPRM, an alien is at persons of color. A commenter said that provide meaningful guidance on high risk of becoming a public charge if the proposed rule’s consideration of permissible and impermissible he or she does not have the resources to medical conditions ‘‘likely’’ to require considerations when factoring in a pay for reasonably foreseeable medical extensive medical treatment in the person’s disability during a public costs, including costs related to a future was highly speculative, and that charge inadmissibility finding, which medical condition that is likely to medical predictions about the future are leaves immigration officials with require extensive medical treatment or notoriously inaccurate. seemingly open-ended interpretation. institutionalization or that will interfere One commenter stated that, although Response: DHS disagrees that the with the alien’s ability to provide care the rule claims to use a physician’s wording regarding the health factor is for himself or herself, to attend school, medical examination/report with two vague and does not provide guidance on or to work.581 classes of medical conditions, it is the consideration of disability. DHS’s The mere presence, however, of any vague, provides the physician with great language mirrors the language as one enumerated circumstance, would latitude, and does not provide a clear provided by HHS regulations and CDC not alone be determinative. A heavily definition of which medical conditions guidance. In identifying a Class A weighted factor could be outweighed by would be considered as a negative medical condition, the HHS regulations countervailing evidence in the totality factor. This commenter stated that this direct physicians conducting the of the circumstances. DHS also suggests that any pre-existing condition immigration medical examinations to disagrees that it is impermissibly may be counted against a green card explain on the medical report ‘‘the counting factors twice. DHS applicant regardless of whether it will nature and extent of the abnormality; acknowledges that multiple factors may seriously undermine an individual’s the degree to which the alien is coincide or relate to each other and self-sufficiency. incapable of normal physical activity; emphasizes that the public charge Some commenters provided input on and the extent to which the condition is determination reviews all factors in the the role of DHS adjudicators as it relates remediable . . . [as well as] the totality of the circumstances. Therefore, to the health factor. Several commenters likelihood, that because of the the fact that a person has a medical questioned the ability of an adjudicator condition, the applicant will require condition that prevents him or her from to determine if someone living with a extensive medical care or working or going to school and lacks chronic condition will be a public institutionalization.’’ 582 private health insurance is considered charge in the future. One commenter A Class B medical condition is in the totality of the circumstances said authorizing DHS personnel to make defined as a physical or mental without assigning a point system or projections about whether a person’s condition, disease, or disability serious value to various factors. Finally, as health condition could, in the future, in degree or permanent in nature.583 discussed in section III. R. of this affect their ability to work, study or care Currently, the CDC Technical preamble, DHS has added a heavily for themselves or require expensive Instructions for Medical Examinations weighted positive factor for private treatment invites unbridled speculation of Aliens, which direct physicians to health insurance appropriate to and discrimination against persons with provide information about Class B intended the duration of the alien’s stay. disabilities or other observable physical conditions, describe a Class B condition Comment: Some commenters conditions. Another commenter stated as one that, although it does not expressed concern that this aspect of the that USCIS lays out no standards for ‘‘constitute a specific excludable determining whether a disability or 581 See Inadmissibility on Public Charge Grounds, other serious health condition will lead 582 42 CFR 34.4(b)(2). 83 FR 51114, 51182 (proposed Oct. 10, 2018). the agency to decide whether an 583 See 42 CFR 34.2(b)(2).

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condition, represents a departure from opportunity for the alien to provide the impermissible use of regulatory normal health or well-being that is full context surrounding his or her authority. As part of the public charge significant enough to possibly interfere health. determination, Congress directed with the person’s ability to care for Comment: Another commenter stated agencies to consider, among other himself or herself, to attend school or that the Form I–693 medical exam could factors, the health of the alien.586 As work, or that may require extensive not be expected to detect ailments or explained in the NPRM,587 prior to medical treatment or institutionalization conditions not indicated on Form I–693, Congress establishing health as a factor in the future.’’ 584 and therefore, DHS may never be made for the public charge determination, the As discussed in the NPRM,585 as part aware of many health conditions among courts, the BIA and INS had also held of the immigration medical future applicants and petitioners. The that a person’s physical and mental examination, when identifying a Class B commenter further indicated that an condition was of major significance to medical condition, civil surgeons and individual could delay seeking the public charge determination, panel physicians are required to report treatment for a condition, and could generally in relation to the ability to on certain disabilities, including the delay application for Medicaid or earn a living.588 Accordingly, DHS nature and severity of the disability, its Medicare until after naturalizing. proposed that when considering an impact on the alien’s ability to work, Another commenter expressed concern alien’s health, DHS will consider attend school, or otherwise support that the list of medical conditions whether the alien has any physical or himself or herself, and whether the included in the Form I–693 medical mental condition that, although not disability will require hospitalization or exam may be subject to additions after considered a condition or disorder that institutionalization. DHS would only finalization of the proposed rule would render the alien inadmissible consider disability as part of the health threatening the hard-won progress under the health-related ground of factor to the extent that such disability, towards ending many epidemics in the inadmissibility,589 is significant enough in the context of the alien’s individual United States. to interfere with the person’s ability to circumstances, impacts the likelihood of Response: DHS’s general reference for care for himself or herself or to attend the alien becoming a public charge; i.e., review of the health factor is the Form school or work, or that is likely to the rule calls for a consideration of the I–693. Civil surgeons test for Class A require extensive medical treatment or potential effects on the alien’s ability to and Class B conditions and report the institutionalization in the future. work, attend school or otherwise findings on the Form I–693, as directed USCIS-designated civil surgeons and support himself or herself. Further, if an by the CDC Technical Instructions; an DOS-designated panel physicians immigration medical examination by a officer would review the civil surgeon’s examine whether an alien has a civil surgeon or panel physician is findings in the totality of the condition that renders the alien circumstances. However, DHS would required, officers will generally defer to inadmissible on medical grounds (a also take into consideration any the report when assessing whether an Class A medical condition according additional medical records or related individual’s medical condition will HHS regulation) 590 or whether the alien information provided by the alien to affect a person’s ability to care for has a medical condition that is clarify any medical condition included himself or herself, work, or go to school. significant enough to interfere with the on the medical form or other DHS would generally defer to such person’s ability to take care of himself information that may outweigh any report, unless there is evidence that the or herself, to attend school or to work negative factors. Such documentation report is incomplete. DHS has amended and would likely receive extensive may include, for instance, a licensed the regulatory text consistent with this medical treatment (a Class B doctor’s attestation of prognosis and approach. Consistent with the NPRM, condition).591 If the alien is required to however, DHS will also permit the alien treatment of a medical condition. DHS would consider the evidence in the to submit other documentation 586 See INA section 212(a)(4), 8 U.S.C. 1182. regarding the alien’s medical conditions totality of the circumstances. DHS 587 See Inadmissibility on Public Charge Grounds, to assess whether the alien’s health acknowledges that this approach is 83 FR 51114, 51181–84 (proposed Oct. 10, 2018). makes the alien more likely than not to imperfect, but believes that it 588 See, e.g., Matter of Martinez-Lopez, 10 I&N become a public charge at any time in appropriately implements the statute in Dec. 409, 421–23 (Att’y Gen. 1964); see also Matter the context of adjudicators’ limited of A-, 19 I&N Dec. 867, 869 (Comm’r 1988) (citing the future. This should provide ample Matter of Harutunian, 14 I&N Dec. 583 (Reg’l expertise. Comm’r 1974); Matter of Vindman, 16 I&N Dec. 131 584 See Ctrs. for Disease Control & Prevention, Comment: A commenter said the (Reg’l Comm’r 1977)). Required Evaluations—Other Physical or Mental rule’s inclusion of Class B medical 589 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1). Abnormality, Disease, or Disability, Technical conditions as impacting admissibility is 590 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1). Instructions For Medical Examination Of Aliens, an impermissible use of regulatory 591 A Class B condition is defined as a physical available at https://www.cdc.gov/immigrant power. Specifically, the commenter said or mental condition disease or disability serious in refugeehealth/exams/ti/panel/technical- degree or permanent in nature. See 42 CFR instructions/panel-physicians/other-physical- the proposed rule seeks to create a new 34.2(b)(2). The Technical Instructions for the mental.html (last updated Nov. 23, 2016) (last ground of inadmissibility by finding Medical Examination of Aliens directs physicians visited July 26, 2019); Ctrs. for Disease Control & those who are not inadmissible under to provide information about Class B conditions in Prevention, Required Evaluation Components Other section 212(a)(1) of the Act, the medical forms submitted as part of the Physical or Mental Abnormality, Disease or immigration benefits application. See Ctrs. for Disability, Technical Instructions for the Medical inadmissible under section 212(a)(4) of Disease Control & Prevention, Required Examination of Aliens in the United States, the Act and is attempting to substitute Evaluations—Other Physical or Mental available at https://www.cdc.gov/immigrant medical determinations by Abnormality, Disease, or Disability, Technical refugeehealth/exams/ti/civil/technical-instructions/ congressionally enabled civil surgeons Instructions For Medical Examination Of Aliens, civil-surgeons/required-evaluation-components/ available at https://www.cdc.gov/immigrant other-disease-disability.html (last updated Aug. 3, and panel physicians with its own refugeehealth/exams/ti/panel/technical- 2010) (last visited July 26, 2019). The HHS determination about medical instructions/panel-physicians/other-physical- regulations require physicians conducting medical inadmissibility. mental.html (last updated Nov. 23, 2016) (last examinations for an alien to comply with the CDC’s Response: DHS disagrees with the visited July 26, 2019); Ctrs. for Disease Control & Technical Instructions for Medical Examinations of Prevention, Required Evaluation Components Other Aliens. See 42 CFR 34.3(i). commenter that considering Class B Physical or Mental Abnormality, Disease or 585 See Inadmissibility on Public Charge Grounds, medical conditions as part of the public Disability, Technical Instructions for the Medical 83 FR 51114, 51181–84 (proposed Oct. 10, 2018). charge determination is an Continued

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undergo an immigration medical resources available to the State and the this rule would discriminate against examination, USCIS will generally defer needs of others with mental individuals with chronic health to the findings from the civil surgeon or disabilities.593 At issue was whether the conditions such as heart disease, which panel physician made in the state interpreted the reasonable tend to disproportionally impact immigration medical examination report accommodation provision properly or communities of color. One commenter (unless the report appears incomplete) incorrectly continued to institutionalize noted that the very definition of in regard to the determination of the the plaintiff because community disability, a condition that ‘‘ ‘interferes’ medical condition and its impact on the placement would have been costly.594 with a person’s ability to do such things person’s ability to take care of himself Title II of the ADA does not govern as go to school or work,’’ means that or herself, to attend school or to work, DHS’s actions in this context. In ‘‘virtually every person with a health or whether the condition requires addition, unlike in the ADA provision condition affecting her or his life could medical treatment. USCIS may also use and the regulatory provision discussed be deemed a public charge, no matter other evidence of medical conditions in in Olmstead, Congress did not single out how well the person has coped with the the alien’s file.592 disability in section 212(a)(4) of the Act. condition.’’ A couple of commenters As explained in the NPRM,595 DHS has warned that the discrimination against 2. Health and Disability Discrimination carefully considered the interaction individuals with disabilities would have Comment: A commenter said the between various federal laws and the unintended consequence of splitting inclusion of ‘‘interfere[nce] with the regulations with respect to up families, even in an asylum seeking alien’s ability to provide and care for discrimination and determined that application, or penalizing family him- or herself’’ at 8 CFR 212.22(b)(2)(i) considering, as part of the health factor, members providing support for in the NPRM also raises concerns under an applicant’s disability diagnosis, in individuals with disabilities. Olmstead v. L.C., 527 U.S. 581 (1999), the context of the alien’s individual Several commenters stated that the which recognized that the Americans circumstances and how it affects his or rule penalizes and discriminates against with Disabilities Act (ADA) mandate her ability to work, attend school, or individuals with serious medical provides people with disabilities a life otherwise care for himself or herself, is conditions, such as cancer, cystic in the most integrated setting not inconsistent with these laws. The fibrosis, multiple sclerosis, heart, lung appropriate to their needs. Relatedly, a alien’s disability is treated just like any disease. Commenters also stated that, commenter stated that the proposed rule other medical condition that affects an under this proposed policy, an codifies discriminatory standards for alien’s likelihood, in the totality of the individual cancer survivor would be evaluating a noncitizen’s health and circumstances, of becoming a public penalized, regardless of the individual’s may be in violation of the ADA. The charge—it is neither singled out nor type of cancer, period of survivorship, commenter also indicated that treated differently and, within the or long-term health outcome, which is individuals with disabilities who would totality of the circumstances, is also not discriminatory. An individual have been institutionalized before the sole basis for an inadmissibility commenter said the classification of Olmstead live at home with their finding.596 Similarly, DHS does not arthritis and heart disease as serious families, go to school, and hold jobs single out or treat differently any one health conditions seems overly even though they cannot solely care for health-related or medical condition over exaggerated and extreme, since almost themselves. Therefore, the commenter another but has continuously 50 percent of individuals over 65 have indicated that the ‘‘ability to care for emphasized that all factors will have to doctor reported arthritis and healthy oneself’’ factor excludes many people be considered in the totality of the lifestyle can help reduce the negative who are not public charges and is likely alien’s circumstances and that no one consequences of heart disease. to generate the kind of discrimination factor is determinative. Multiple commenters said the that Olmstead seeks to prevent. Comment: Several commenters proposal would equate any person with Response: DHS disagrees with the expressed concern that the proposed a serious health condition as effectively commenter’s assertion that the rule, as changes would be discriminatory having a ‘‘pre-existing condition’’ that proposed, would generate the kind of against or penalize immigrants based on disqualifies them for immigration, discrimination that Olmstead sought to their health status, particularly those asserting that this would have a prevent. In Olmstead, the Court held with chronic health conditions and profound impact on racial and ethnic that, in accordance with Title II of the disabilities and the elderly. One minorities who, because of many social ADA, and under the implementing commenter noted that ‘‘[w]hile it is determinants of health, regulations, states are required to illegal to discriminate against someone disproportionately experience a number provide community-based treatment for on the basis of disability, the proposed of chronic conditions (with many citing persons with mental disabilities when rule encourages this form of studies as support). One commenter the State’s treatment professionals discrimination, and furthers the idea pointed to studies indicating that social determine that such placement is that some people are more worthy than determinants of health are one of the appropriate, the affected persons do not others.’’ A commenter expressed that main inequalities between whites and oppose such treatment, and the individuals with the misfortune of persons of color. placement can be reasonably suffering serious health issues or living Numerous commenters expressed accommodated, taking into account the with a disability will be at risk of a high general concern about the rule’s rate of application denials under this negative effects on aliens with Examination of Aliens in the United States, proposed rule. One commenter stated disabilities and their families. Many available at https://www.cdc.gov/immigrant commenters also expressed concern refugeehealth/exams/ti/civil/technical-instructions/ civil-surgeons/required-evaluation-components/ 593 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, over the negative assessments that other-disease-disability.html (last updated Aug. 3, 607 (1999). individuals with intellectual and 2010) (last visited July 26, 2019). The HHS 594 See Olmstead v. L.C. ex rel. Zimring, 527 U.S. developmental disabilities, psychiatric regulations require physicians conducting medical 581, 598 (1999). disabilities, or physical disabilities examinations for an alien to comply with the CDC’s 595 See Inadmissibility on Public Charge Grounds, Technical Instructions for Medical Examinations of 83 FR 51114, 51184 (proposed Oct. 10, 2018). would receive under the ‘‘health’’ factor Aliens. 42 CFR 34.3(i). 596 See Inadmissibility on Public Charge Grounds, in public charge determination. The 592 See 8 CFR 212.22(b)(2)(ii). 83 FR 51114, 51184 (proposed Oct. 10, 2018). commenters indicated that the rule

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discriminates against immigrants with without working, then the alien may not the proposed rule ‘‘reflects the types of disabilities because a range of medical be likely to become a public charge. bias and ‘‘archaic attitudes’’ about conditions that constitute disabilities, as Comment: A commenter stated the disabilities that the Rehab Act was well as the existence of a disability, rule should require immigration meant to overcome.’’ Other commenters would be unduly weighted in the officials to take the letter and spirit of stated that the proposed rule determination of whether an immigrant federal anti-discrimination laws into discriminates against individuals with is likely to become a public charge. account when determining public disabilities. An individual commenter Multiple commenters remarked that charge. Multiple commenters stated that stated that, while DHS states that the individuals with disabilities often lack the rule ‘‘disfavor[s] people with impact of using health as a factor in private health insurance and are disabilities in the public charge determining if they will become a currently using or recently used analysis,’’ and will deem, public charge would not violate IDEA or Medicaid, which are two heavily inappropriately, people with the ADA, it is hard to see how DHS weighted negative factors. Other disabilities, who contribute to the actually thinks that will happen given economy, public charges. that a disability is concretely being commenters expressed concern that the Several commenters stated that the rule’s health standard is overbroad, deemed a negative factor which needs to rule is contrary to decades of bipartisan be ‘‘rectified’’ by ability to work. This specifically in its inclusion of congressional lawmaking regarding and other commenters said DHS’s individuals with chronic health disability inclusion, including the ADA, interpretation seems to violate 6 CFR conditions, like heart disease, cancer, Section 1551 of the ACA, Fair Housing 15.30(b)(1)(i) by denying a benefit on trauma, mental disorders, and Act, and the Rehabilitation Act of 1973 the basis of disability. pulmonary conditions, and potentially (Rehab Act). A few commenters, in Response: DHS disagrees with the individuals who may need particular, warned that the rule would comments stating that the rule Individualized Education Plans to study echo the types of bias and archaic discriminates against individuals with or reasonable accommodations to work. attitudes about disability that the Rehab disabilities or those with specific Some commenters stated that the rule Act was meant to overcome. One medical conditions. As noted in the would perpetuate the false notion that a commenter stated that, while the NPRM, in enacting section 212(a)(4) of medical diagnosis is solely proposed changes to the totality of the Act, 8 U.S.C. 1182(a)(4), Congress determinative of an individual’s current circumstances would especially affect required DHS to consider, as part of the abilities and future capabilities. people with disabilities, excluding them public charge inadmissibility Response: DHS neither proposed to from the United States by claiming they determination, an alien’s health. exclude from the United States are more likely to need government Although Congress has, over time, individuals who have specific health assistance, the Rehab Act makes it significantly reduced the prohibitions conditions, nor sought to unlawful to discriminate against anyone on immigration for persons with mental disproportionally impact communities on the basis of disability, whether or not and physical disabilities and also of color or people with disabilities. DHS they are a citizen. Some commenters amended PRWORA to restore the ability is required by statute to consider in the stated that the proposed rule’s broad of certain aliens with disabilities to totality of the circumstances whether reading of the statutory health and receive certain public assistance, such any health condition an alien may have resources factors for public charge as SSI,597 Congress has never would make the alien likely to become determinations are inconsistent with correspondingly prohibited the Section 504’s prohibition on disability- a public charge. This determination application of the public charge based discrimination. takes into account any health condition inadmissibility ground to aliens with One commenter stated that the rule is disabilities who receive, or are likely to in the context of the alien’s ability to inconsistent with the intent of the 1990 support himself or herself and like all of receive, disability benefits for which amendments to the INA, which ensured 598 the mandatory factors, is highly fact- they are eligible. that individuals were not deemed As noted in the NPRM, this rule is not specific; i.e., dependent on the alien’s inadmissible based on their disability precise circumstances. For example, an inconsistent with federal statutes and status by deleting the prior grounds of regulations with respect to alien may have a health condition that exclusion for, among others, paupers does not impact the alien’s ability to discrimination against aliens with and those with a physical disability. disabilities, as an alien’s disability is work or secure employment or The same commenter stated that the constitute a drain on the alien’s rule is also contradictory to Section 597 See generally Mark C. Weber, Opening the financial resources, and therefore such 504’s bar on disability-based Golden Door: Disability and the Law of health condition would not make the discrimination in DHS’s programs and Immigration, by 8 Journal of Gender, Race, and alien likely to become a public charge. activities. Justice at pp. 4–5, 8 (Spring 2004) (discussing Similarly, an alien may have a health historical changes in 1986 and 1990 immigration A couple of commenters stated that laws that removed various prohibitions on aliens condition that if unmanaged would the rule would violate the with mental and physical disabilities, unless they affect the alien’s ability to work but if Developmental Disabilities Assistance represented a threat to themselves or others; successfully managed would not impact and Bill of Rights Act. One commenter describing restoration of SSI disability benefits to the alien’s ability to work or find aliens who had been receiving them before Aug. 22, noted that ‘‘that further clarification is 1996). See also John F. Stanton, The Immigration employment or constitute a drain on the needed explaining precisely how DHS Laws from a Disability Perspective: Where We Were, alien’s financial resources. In those will consider certain factors like a Where We Are, Where We Should Be, 10 Geo. cases, USCIS would look at whether the disability ‘‘to the extent that such Immigr. L. J. 441 (Spring, 1996) (pre-PRWORA alien has or is likely to obtain private disability . . . would entail analysis). 598 Congress did permit a waiver of INA section health insurance or any other means to consideration of the potential effects on 212(a)(4), 8 U.S.C. 1182(a)(4), for aliens seeking pay for medical treatment. Finally, even the alien’s ability to work, attend school lawful permanent resident status under the if an alien has a health condition that or otherwise support himself or legalization provision of the Immigration Reform precludes employment, if the alien has herself.’’ Other commenters stated that and Control Act of 1986 (IRCA) if they met the age, blindness, or disability standards for SSI. See INA the financial means to pay for medical the rule needs to make accommodations section 245A(d)(2)(B)(ii)(IV), 8 U.S.C. treatment and is able to be self-sufficient for individuals with disabilities and that 1255a(d)(2)(B)(ii)(IV).

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treated just as any other medical grounds of exclusion with the grounds minority backgrounds are fully included condition that affects an alien’s of inadmissibility. The rule is not in all activities provided under this likelihood, in the totality of the recreating the prior grounds of title.’’ circumstances, of becoming a public excludability that, prior to 1990, Based on the language in the DD Act, charge. A diagnosis of a disability is included persons certified to have a DHS believes that services under the DD related to an alien’s health, and ‘‘physical defect, disease, or disability’’ Act are not public benefits as defined in therefore is properly considered as part who is required to work.602 Rather, the the rule, because all individuals with of the public charge analysis. rule is providing guidance to the public developmental disabilities, without An alien’s health is not outcome charge inadmissibility ground as it has regard to income, are eligible for determinative—that is, an alien’s health existed since the 1990 amendments to services that the DD Act allows. cannot be the sole basis for a finding the INA.603 DHS further does not believe that the that an alien is inadmissible as likely to As to the comment that the public rule violates the DD Act. While the become a public charge. As such, a charge inadmissibility rule violates the policy of the DD Act is to offer diagnosis that an alien has a disability, Developmental Disabilities Assistance protections and advocacy to individuals alone, will never result in a public and Bill of Rights Act of 2000 (DD Act) with developmental disabilities, and charge inadmissibility finding. As with (42 U.S.C. 15001 et seq.),604 the statute while the services provided pursuant to any other medical condition identified was enacted to ensure that individuals the DD Act would not make an in the alien’s application and with developmental disabilities and individual a public charge, DHS does supporting documentation, the alien’s their families ‘‘participate in the design not believe the DD Act would govern disability will be considered in the of and have access to needed DHS’s public charge determination totality of the circumstances framework. community services, individualized regarding other benefits. The DD Act is An alien with a disability will neither supports, and other forms of assistance silent regarding the issue of whether an be treated differently nor singled out, that promote self-determination, individual can be considered a public and the disability itself would not be the independence, productivity, and charge based upon receipt of services sole basis for an inadmissibility finding. integration and inclusion in all facets of that do not fall under the DD Act. Other In other words, as with any other community life, through culturally HHS disability and aging statutes and mandated factor and consideration in competent programs. . . ’’ 605 The programs such as the Traumatic Brain the public charge inadmissibility programs within the DD Act are funded Injury Act, Limb Loss Act, Older determination, DHS would look at each through congressional appropriations Americans Act, and the Christopher and of the mandatory factors, and the for the Administration for Community Dana Reeves Paralysis Act do not affidavit of support, if required, as well Living, which are not related to receive Medicaid or Medicare funds and as all other relevant factors in the Medicaid or TANF appropriations or do not have restrictions on immigration totality of the circumstances. Therefore, other federal benefit programs covered or citizenship status. consideration of a disability in the by the proposed public charge rule. The Comment: Some commenters context of the totality of circumstances State Councils on Developmental suggested that the USCIS should does not violate the Rehabilitation Act’s Disabilities, Protection and Advocacy estimate the extent to which any prohibition on denying a benefit ‘‘solely Systems, University Centers of regulatory changes will impact the by reason of [an applicant’s] Excellence in Developmental number of otherwise eligible applicants disability.’’ 599 Disabilities, and Projects of National with disabilities when compared to the Likewise, DHS does not believe the Significance participate in capacity current and historical baselines, and rule is in violation of or inconsistent building, systems change, advocacy, then reconsider other less harmful with the other cited authorities. For protect legal and human rights of people alternatives. Response: As indicated in the NPRM, example, the rule is not inconsistent with developmental disabilities, DHS would only consider disability as with the regulation that prohibits DHS conduct research, provide inter- part of the health factor to the extent from denying benefits to a ‘‘qualified disciplinary training for students and that such disability, in the context of the individual with a disability . . . by fellows, leadership training, direct alien’s individual circumstances, reason of his or her disability.’’ 600 support services training, community impacts the likelihood of the alien Public charge determinations will be based training, and clinical or other becoming a public charge.607 made based on the totality of training to strengthen the workforce that Although circumstances and not on the basis of a serves individuals with developmental a study of the correlations between disability, and the regulatory definition disabilities. different disabilities and the array of The DD Act is intended for all of a ‘‘qualified individual with a positive and negative factors were not individuals with developmental disability’’ requires a person to ‘‘meet included in the text of the rule, DHS disabilities and their families regardless the essential eligibility understands that those correlations may of immigration status.606 The DD Act exist and may also be affected by the requirements.’’ 601 The essential type and severity of the disability. requirements in the context of states that: ‘‘there is a need to ensure However, DHS would not distinguish admission and adjustment of status that services, supports, and other between Medicaid recipients who are require that an applicant not be likely at assistance are provided in a culturally disabled from those who are not any time in the future to become a competent manner that ensures that disabled. Instead, DHS would look to public charge. individuals from racial and ethnic DHS does not believe the rule is the information provided in the medical 602 inconsistent with the 1990 amendments See section 212(a)(7) of the Act, 8 U.S.C. certification as to whether it would 1182(a)(7) (1988). affect the person’s ability to work or to the INA and its revision of the prior 603 See Immigration Act of 1990, Public Law 101– attend school. DHS provided estimates 649, section 601, 110 Stat. 4978, 5072 (Nov. 29, 599 29 U.S.C. 794(a). 1990). of benefit use by an array of 600 6 CFR 15.30(a). See also 6 CFR 15.30(b)(1)(i) 604 Public Law 106–402, 114 Stat. 1677 (Oct. 30, characteristics in the NPRM, and does (prohibiting denying a benefit ‘‘on the basis of a 2000). disability’’). 605 Id. 607 See Inadmissibility on Public Charge Grounds, 601 6 CFR 15.3(e)(2). 606 See INA section 101(b) and 101(c). 83 FR 51114, 51183 (proposed Oct. 10, 2018).

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not believe additional tables for As discussed in the NPRM,609 DHS will potentially forego subsidized disability are needed in the justification has determined that considering, as part healthcare treatment due to this rule, for the rule. of the health factor, an applicant’s resulting in substantial negative health Comment: Numerous commenters disability diagnosis that, in the context outcomes, not only to affected cited to the impact on individuals with of the alien’s individual circumstances, individuals but also the community at disabilities and children with affects his or her ability to work, attend large. Multiple commenters stated that disabilities. Many commenters cited the school, or otherwise care for himself or reports are already emerging of statistic that roughly 2.6 million herself, is not inconsistent with federal individuals who are considering waiting children in immigrant families have a statutes and regulations with respect to to begin life-saving treatment in the disability or special healthcare need. discrimination, as the alien’s disability belief that this will ensure their Numerous commenters asserted that is treated just as any other medical eligibility. children with special health and condition that affects an alien’s Several commenters stated that the developmental needs require medical, likelihood, in the totality of the rule sends the signal that individuals behavioral, and educational services circumstances, of becoming a public with HIV/AIDS and other chronic health above and beyond typical children, charge. Under the totality of the conditions are ‘‘undesirable.’’ A couple which makes immigrant families circumstances framework, an alien with of commenters said the proposal will vulnerable to economic hardship. Many a disability is not being treated create a ‘‘backdoor means’’ of excluding commenters cited the fact that children differently, or singled out, and the those with HIV from the United States with disabilities are more likely to live disability itself would not be the sole by classifying HIV/AIDS as a Class B in low-income households experiencing basis for an inadmissibility finding. medical condition that can be used as a food insecurity and housing instability. DHS would look at each of the negative factor in determining public Multiple commenters concluded that mandatory factors, and the affidavit of charge. Some commenters said the access to Medicaid is uniquely critical, support, if required, as well as all other inclusion of HIV as a negatively as children with disabilities rely on the factors in the totality of the weighted factor undoes congressional public health coverage for occupational, circumstances. intent in removing HIV as a ground of Therefore, an applicant’s disability physical, or speech therapies and inadmissibility and draws disturbing could not be the sole basis for a public prescription drugs. One commenter parallels to the 1987 HIV travel and charge inadmissibility finding. In 610 stated that, although there is a Medicaid immigration ban overturned in 2010. addition, DHS recognizes that the ADA, exception for foreign-born children A commenter said the rule could the Rehabilitation Act, IDEA, and other adopted by U.S. citizens, there is not operate as a de facto ban on admission laws provide important protections for one for special needs children that are of HIV positive immigrants because it individuals with disabilities, including foreign-born with immigrant parents. would be difficult for an HIV positive with respect to employment One commenter stated that individuals noncitizen to withstand the revised opportunities. Furthermore, as it relates public charge analysis. This commenter with disabilities will be uniquely to a determination of inadmissibility affected by the rule because of the also said the de facto ban on HIV under section 212(a)(4) of the Act, 8 positive noncitizens runs against the inclusion of Medicaid-funded services, U.S.C. 1182(a)(4), when the alien is including services in the home and in stated goal of the Trump Administration applying for the immigration benefit, to lead a global effort against HIV/AIDS communities, and will be DHS does not stand in the position of disproportionately impacted by the and undermines U.S. leadership in this an employer or school where additional area. inclusion of housing and food assistance provisions of the ADA and Rehab Act or programs. Many commenters said the rule IDEA would apply. ignores the reality that suffering from a Response: DHS appreciates the Comment: Numerous commenters chronic illness such as HIV/AIDS is not numerous programs that provide expressed concern about the impact this an accurate indicator of future self- services to individuals with disabilities. rule would have on individuals living sufficiency and full-time employment As discussed in the NPRM,608 as part of with HIV/AIDS. A commenter said most capabilities. One commenter stated that the immigration medical examination, applicants with HIV will automatically a large portion of people living with when identifying a Class B medical have two heavily weighted negative HIV/AIDS have incomes below the condition, civil surgeons and panel factors: Having a health condition poverty line, which is not due to their physicians are required to report on without private insurance to cover the inability to work due to health certain disabilities, including the nature cost of treatment and receiving a public conditions, but rather due to the and severity of the disability, its impact benefit in the form of Medicaid. Some continued stigma of HIV/AIDS on on the alien’s ability to work, attend commenters expressed concern that, people’s ability to get work. school, or otherwise support himself or because treatment is prohibitively Another commenter stated that the herself, and whether the disability will expensive unless subsidized by disproportionate negative impact on require hospitalization or government programs, these individuals people living with HIV/AIDS will also institutionalization. DHS would only would be subjected to additional cause a disproportionate negative consider disability as part of the health constraints regarding the enrollment of impact on LGBT immigrants who apply factor to the extent that such disability, health insurance (i.e., they would be for admission to the United States in the context of the alien’s individual forced into buying non-subsidized because they account for a large portion circumstances, impacts the likelihood of medical coverage, which does not of the HIV diagnoses. the alien becoming a public charge; i.e., typically cover anti-retroviral therapy, For similar reasons expressed above a consideration of the potential effects or buying additional coverage due to relating to HIV, some commenters on the alien’s ability to work, attend lack of adequate coverage from their expressed concerns about the rule’s school, or otherwise support himself or government-subsidized plan). Multiple impact on individuals with Hepatitis B herself. commenters said immigrants with HIV 610 74 FR 56547 (Nov. 2, 2009) (removing HIV 608 See Inadmissibility on Public Charge Grounds, 609 See Inadmissibility on Public Charge Grounds, from the list of communicable diseases of public 83 FR 51114, 51182–84 (proposed Oct. 10, 2018). 83 FR 51114, 51182–84 (proposed Oct. 10, 2018). health significance at 42 CFR 34.2).

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and Hepatitis C. One commenter said alien’s household as the primary proposed 8 CFR 212.21(d). As with the the proposed rule would undermine its element of the family status factor, other factors, household size, on its approach, as a State agency, to adding that this factor appropriately own, would never dictate the outcome combating HIV/AIDS and Hepatitis C. involves the assessment of whether an of a public charge inadmissibility Response: As indicated in the alien has a household to support, or is determination. Household size is also NPRM,611 DHS will consider any being supported by another household, not an inherently negative factor under medical condition diagnosed in the when calculating the alien’s household DHS’s regulations, as certain totality of the circumstances. The fact size. The commenter also stated that the commenters indicate. If an alien that an alien has been diagnosed with a NPRM correctly notes research showing demonstrates that the alien’s household medical condition would not serve as that receipt of non-cash benefits structure and members offer advantages the sole factor considered when increases as family size increases. that decrease the alien’s likelihood of determining whether an alien is likely at Response: DHS is required by statute receiving one or more public benefits at any time in the future to become a to consider an applicant’s family status any time in the future above the 12 public charge.612 The consideration when determining whether the alien is aggregate months in a 36-month period entails whether, in light of the alien’s likely at any time in the future to threshold, then DHS will consider health, the alien will be able to care for become a public charge.616 As discussed household size a positive factor. himself or herself, to attend school, or in the NPRM, DHS will consider The rule also permits consideration of to work.613 Relatedly, as part of the whether the alien has a household to the alien’s family status within the assets, resources and financial status support or whether the alien is being context of assessing the alien’s factor, DHS would consider whether the supported by another household and household income, assets, and resources alien either has sufficient household whether the alien’s household size instead of simply the alien’s own assets and resources, including but not makes the alien more or less likely to income, assets, and resources. limited to private health insurance, to become a public charge.617 The receipt Therefore, an alien may present cover any reasonably foreseeable of non-cash benefits generally increases evidence of how the alien’s household medical costs.614 The rule does not as family size increases 618 and is provides advantages relevant to focus on any specific medical condition relevant to assessing self-sufficiency. consideration under income, assets, and and people living with certain Therefore, DHS will retain the resources and makes the alien less likely conditions may still be able to care for household size as a consideration in the at any time to become a public charge. themselves, attend school, or go to public charge inadmissibility For instance, an alien who is part of a work,615 which the medical professional determination. large family may have more household would be able to affirm in the medical Comment: A commenter stated that assets and resources available to use or certification. DHS does not provide sufficient data or may have his or her own income or explanation for stakeholders to access to additional assets and resources K. Family Status meaningfully comment on the way it that would assist in supporting the Comment: Several commenters will evaluate family status in a public household. DHS would take these requested family size be removed from charge determination, so the family status-related considerations into consideration as a public charge. One requirement to provide sufficient notice account when examining the totality of commenter indicated that the proposal under the APA has not been met. A few the alien’s circumstances. would be harmful to families, including commenters stated that the rule fails to Comment: A commenter expressed all members of the nuclear family, and provide any evidence that larger concern for how family status could may prohibit nuclear families from household sizes results in lack of self- impact families that have a member immigrating. sufficiency, pointing to research with chronic conditions because family A few commenters voiced concerns showing that household size, by itself, members would be spending a about the statement that the applicant’s is not an indicator of future public significantly higher proportion of their household size would be counted in benefit use or self-sufficiency. Another income and resources on the family both the family status factor and the commenter said an extended family member with that condition, which assets, resources, and financial status structure offers many advantages, under the proposed rule would be factor, claiming the rule has the including stability, coherence, and weighted as a negative factor against potential to double-count negative physical and psychological support, those families. factors. Another commenter stated that particularly in times of need and should Response: DHS recognizes that family status should not count as a not be counted as a negative factor. chronic conditions may impact a negative factor if an immigrant has Response: DHS disagrees that the person’s income availability. However, sufficient income and resources. NPRM does not provide data or an an applicant’s family status is a factor Conversely, a commenter expressed explanation about family status. The that must be considered when support for considering the size of an NPRM states that ‘‘Table 16 and Table determining whether the alien is likely 17 show that among both U.S. citizens to become a public charge in the 620 611 See Inadmissibility on Public Charge Grounds, and noncitizens, the receipt of non-cash future. As explained in the NPRM, 83 FR 51114, 51183 (proposed Oct. 10, 2018). benefits generally increased as family DHS’s proposed totality of the 612 See Inadmissibility on Public Charge Grounds, size increased.’’ 619 Based on that data, circumstances standard would involve 83 FR 51114, 51183 (proposed Oct. 10, 2018). DHS would consider the number of weighing all the positive and negative 613 See Inadmissibility on Public Charge Grounds, people in a household as defined in the considerations related to an alien’s age; 83 FR 51114, 51183 (proposed Oct. 10, 2018). health; family status; assets, resources, 614 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51183 (proposed Oct. 10, 2018). 616 See 8 CFR 212.2; see also INA section and financial status; education and 615 See HIV.gov, Aging with HIV available at 212(a)(4)(B)(i)(III), 8 U.S.C. 1182(a)(4)(B)(i)(III). skills; required affidavit of support; and https://www.hiv.gov/hiv-basics/living-well-with-hiv/ 617 See Inadmissibility on Public Charge Grounds, any other factor or circumstance that taking-care-of-yourself/aging-with-hiv (last visited 83 FR 51114, 51184 (proposed Oct. 10, 2018). may warrant consideration in the public January 17, 2019); and HIV.gov, Working with HIV, 618 See Inadmissibility on Public Charge Grounds, available at https://www.hiv.gov/hiv-basics/living- 83 FR 51114, 51184–85 (proposed Oct. 10, 2018). charge inadmissibility determination. well-with-hiv/taking-care-of-yourself/employment- 619 Inadmissibility on Public Charge Grounds, 83 and-health (last visited January 17, 2019). FR 51114, 51184 (proposed Oct. 10, 2018). 620 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

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However, DHS would not consider the As previously indicated Congress support someone else rather than medical conditions of a member of the established that family status would be themselves. An individual commenter alien’s household. DHS would only a factor in the public charge said the proposed rule would affect consider the household size in inadmissibility determination.622 spouses of individuals seeking a ‘‘green relationship to the FPG level for the Having a larger family does not card’’ because the proposed rule assets, resources and financial status necessarily lead to a conclusion that the requires the couple’s income to be at factor. person is likely to be a public charge. $41,000. Therefore, the commenter said Regardless of household size, an alien The household may have multiple that this rule would result in making may present other factors (e.g., assets, sources of income that increase the decisions on whom to marry based on resources, financial status, education, income, assets, and resources of the a potential spouse’s income, which and skills) that weigh for or against a household allowing the person and could increase fraudulent marriages. finding that the alien is likely to become household to be self-sufficient. In contrast, one commenter voiced a public charge. For instance, an alien Alternatively, a single person may or general support for the proposed who is part of a large household may may not have additional income, assets, threshold of 125 percent of the FPG, and have his or her own income or access or resources to be self-sufficient. While another commenter suggested that the to additional assets and resources that the receipt of non-cash benefits rule include a provision that requires would assist in supporting the generally increases as family size applicants to show that they make an household which would also be increases as discussed in the NPRM,623 income high enough that neither they considered in the totality of the DHS will never determine that a person nor their dependents qualify for public circumstances. is likely to become a public charge benefits. Comment: One commenter said this based on family size alone. DHS Response: Even though this rule rule would punish applicants who have recognizes that family status can also considers an applicant’s income in the larger families, thus creating another have positive benefits and would take totality of the circumstances, which may disincentive to have children. Another all relevant factors into account when negatively impact low-income aliens, commenter stated the rule would assessing the totality of the DHS disagrees with comments that this discriminate against immigrants from circumstances regarding the alien’s rule is aimed at denying the admission countries whose cultural or religious likelihood to become a public charge. or adjustment of status of low income traditions encourage larger and multi- aliens. Instead, this rule is aimed at generational families, disregarding L. Assets, Resources, and Financial Status better ensuring the self-sufficiency of whether such interdependence was aliens seeking to reside in the United required or recognized by law. 1. Income Standard States. Similarly, a commenter suggested that Comment: Multiple commenters As noted elsewhere in this final rule, Asian Americans would be most expressed general concern that the an alien’s income is one of many pieces affected by this rule because they are the income assessment would penalize low- of evidence that DHS will consider in most likely to live in multigenerational income immigrants. One commenter the totality of the circumstances. As homes. Another commenter said this said that the income threshold is provided in the NPRM, DHS will aspect of the proposed rule would have arbitrary. Using hypotheticals to generally consider whether the alien has the greatest impact on applicants from illustrate that someone seeking to adjust a gross household income of at least 125 Mexico and Central America (71 status might still be found to be likely percent of the FPG based on the alien’s percent), Africa (69 percent), and Asia to become a public charge despite household size. If the alien’s household (52 percent)—regions that typically minimal use of benefits and adequate income is less than 125 percent of the account for substantial numbers of family support, a commenter stated that FPG, DHS will generally consider Muslim immigrants. The commenter having a low income and multiple whether the alien has assets and stated this aspect would have negative or heavily weighted negative resources is at least five times the substantially lower impacts on factors had no clear correlation to self- difference between the household European or Canadian applicants. One sufficiency, and that the rule slanted income and 125 percent of the FPG commenter stated that DHS has not toward denials. One commenter stated based on the household size.624 DHS adequately analyzed the adverse impact that the assets, resources, and financial also disagrees that the standard is this proposal would have on families status factors are not realistic given the unconnected to becoming a public seeking lawful permanent residence for realities of low-wage work. Another charge or should be raised to other a spouse or a child. One commenter commenter said that the proposed levels. DHS is adopting the standard asked if DHS would consider it more assets, resources, and financial status established by Congress with the beneficial to be single and unmarried factor ignores the cultural and economic affidavit of support, which has long than to be in a committed relationship value of immigrants. Several served as a touchpoint for public charge with children and/or parents living with commenters stated that having an inadmissibility determinations.625 An the family. income threshold is in conflict with the alien subject to section 213A of the Act, Response: DHS appreciates the American ideal of upward mobility. comments but disagrees that the rule Other commenters stated that the 624 This is consistent with the provisions for punishes people with larger families. As proposed income threshold of 125 assets under the affidavit of support in 8 CFR discussed in the NPRM, DHS will percent of the FPG lacked rational basis 213a.2(c)(2)(iii)(B)(3). As explained below, in consider whether the alien has a certain cases, the standard applied may be less than in that the affidavit of support standard five times under 8 CFR 213a.2(c)(2)(iii)(B)(1) and household to support, or whether the is unconnected with the likelihood of an (2). To be fully consistent with the affidavit of alien is being supported by another applicant becoming a public charge and support provisions, DHS also applies the other household and whether the alien’s relates to whether the sponsor can standards for purposes of the public charge household size makes the alien more or determination and amended the provision accordingly. 621 less likely to become a public charge. 622 See INA section 212(a)(4)(B)(i)(III), 8 U.S.C. 625 See INA section 213A(f)(1)(E), 8 U.S.C. 1182(a)(4)(B)(i)(III). 1183a(f)(1)(E); see Inadmissibility on Public Charge 621 See Inadmissibility on Public Charge Grounds, 623 See Inadmissibility on Public Charge Grounds, Grounds, 83 FR 51114, 51187 (proposed Oct. 10, 83 FR 51114, 51184 (proposed Oct. 10, 2018). 83 FR 51114, 51184–85 (proposed Oct. 10, 2018). 2018).

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8 U.S.C. 1183a, who does not have a a gross household income 629 of at least regards to income level used and sponsor capable of supporting himself 125 percent of the FPG for the amended the provision to reflect that or herself, the household, and the alien household size, and alternatively, those aliens on active duty, other than would currently be found inadmissible whether the applicant has substantial in training, in the U.S. Armed Forces based on public charge grounds. assets as described in the rule and the have to establish household income DHS also notes that to the extent that FPG for the household size, because it reflecting 100 percent of the most recent aliens will make marriage decisions has long served as a touchpoint for FPG for the alien’s household size. based how much income a potential public charge inadmissibility Additionally, to be more consistent spouse earns in order to avoid any determination and the enforceable with the affidavit of support regulations, negative consequences that might stem affidavit of support.630 The suggestion DHS also decided to define significant from having household income under to reduce the standard to a ratio of two assets for purposes of the assets and 125 percent of the FPG, aliens who enter times was also a comment in response resources factor in the public charge into marriage for the sole purpose of to the Affidavit of Support Rule inadmissibility determination, using a circumventing the immigration laws promulgated in 2006 and was not similar standard, as that outlined in 8 have not entered into a valid marriage incorporated because the purpose of the CFR 213a.2(c)(2)(iii)(B), but applying it for immigration purposes and would not requirement was ‘‘to ensure that a to the public charge rule and the alien’s be eligible for adjustment of status.626 sponsor whose income is not sufficient household. According to 8 CFR Comment: One commenter opposed will nevertheless be able to provide the 213a.2(c)(2)(iii), if the sponsor is unable DHS’s proposal that an alien who fails needed support until the sponsorship to meet the 125 percent of the FPG (100 to demonstrate income greater than 125 obligation ends.’’ 631 Similarly, the percent for those on active duty, other percent of the FPG may overcome the significant assets provision in this rule than training, in the U.S. Armed Forces) deficiency by providing evidence of allows an alien whose income is below income requirement, he or she can use assets totaling at least five times the the applicable income threshold to significant assets to make up the difference between the household demonstrate sufficient assets to support difference between the sponsor’s income and 125 percent of the FPG for himself or herself, thereby reducing the income and the required FPG standard the household size. This commenter likelihood of becoming a public charge. according to a particular formula indicated that DHS failed to provide any The five times the FPG was chosen for similarly in 8 CFR 213a.2(c)(iii)(B)(1), arguments or evidence as to why this the Affidavit of Support because ‘‘[i]n (2), and (3), as applicable to the threshold is appropriate or relevant to most cases, an alien is not eligible for sponsor’s household. In applying this provision for the public charge determination. A naturalization until he or she has been purposes of the public charge commenter suggested that if the rule a permanent resident alien for at least 5 632 determination, the rule provides that an must include a ratio of assets to the years,’’ to show that the sponsor has alien may establish ownership of difference between household income the assets to support the beneficiary until they generally qualified for significant assets, such as savings and 125 percent of the FPG, it should be naturalization. In addition to being accounts, stocks, bonds, certificates of a ratio of two times. The commenter similar to the support obligation, five deposit, real estate or other assets, in stated that this would enable the times would also be consistent with the which the combined cash value of all individual or household to have a two- reasoning behind the bond cancellation the assets (the total value of the assets year period of financial security during authority under 8 CFR 103.6(c)(1) in less any offsetting liabilities) exceeds: which they may be able to increase their 1984. As explained in the NPRM, INS (1) If the intending immigrant is the income. reasoned that if an alien is self- spouse or child of a United States Response: DHS disagrees that it failed sustaining for a five-year period, it citizen (and the child has reached his or to outline the appropriateness of the would not be probable that the alien her 18th birthday), three times the standard and that the standard is would become deportable as a public difference between the alien’s arbitrary and capricious. DHS will also charge after five years because an alien household income and 125 percent of not incorporate the commenter’s is deportable as a public charge only if the FPG (100 percent for those on active suggestion to change the standard to a the reason for the becoming a public duty, other than training, in the U.S. ratio of two times. DHS disagrees that charge is based on factors in existence Armed Forces) for the alien’s household two times the FPG is more appropriate prior to admission as an immigrant.633 size; because the commenter’s reasoning After further consideration and (2) If the intending immigrant is an relies on increasing income in the future consistent with the explanation in the orphan who will be adopted in the and as discussed in the NPRM, whether proposed rule, however, DHS has United States after the alien orphan a person may be qualified for public decided to adjust the amount to match acquires permanent residence (or in benefits frequently depends on where the affidavit of support provision in whose case the parents will need to seek the person’s household income falls a formal recognition of a foreign 627 with respect to the FPG. 629 Gross income includes ‘‘all income you adoption under the law of the State of As explained in the NPRM,628 DHS receive in the form of money, goods, property, and the intending immigrant’s proposed will consider whether the applicant has services that isn’t exempt from tax. It also includes residence because at least one of the income from sources outside the United States or from the sale of your main home (even if you can parents did not see the child before or 626 See Matter of Patel, 19 I&N Dec 774 (BIA exclude all or part of it).’’ See IRS Publication 17, during the adoption), and who will, as 1988). Your Federal Income Tax, page 5 (2018), available a result of the adoption or formal 627 The poverty guidelines are updated at https://www.irs.gov/pub/irs-pdf/p17.pdf (last recognition of the foreign adoption, periodically in the Federal Register by HHS. The visited July 26, 2019). U.S. Census Bureau definition of family and family 630 See Inadmissibility on Public Charge Grounds, acquire citizenship under section 320 of household can be found in U.S. Census Bureau, 83 FR 51114, 51187 (proposed Oct. 10, 2018); see the Act, 8 U.S.C. 1431, the difference Current Population Survey 2017 Annual Social and also INA sections 213A(f)(1)(E) and between the alien’s household income Economic Supplement (ASEC) 9–1 to 9–2, available 213A(f)(6)(A)(ii), 8 U.S.C. 1183a(f)(1)(E) and and 125 percent of the FPG (100 percent at https://www2.census.gov/programs-surveys/cps/ 1183a(f)(1)(E) and 8 CFR 213a.2. techdocs/cpsmar17.pdf (last visited July 26, 2019). 631 See 71 FR 35731, 35739. for those on active duty, other than 628 See Inadmissibility on Public Charge Grounds, 632 See 71 FR 35731, 35739. training, in the U.S. Armed Forces) for 83 FR 51114, 51187 (proposed Oct. 10, 2018). 633 See 49 FR 24010, 24011. the alien’s household size; or

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(3) In all other cases, five times the difficult and less predictable to extend Some commenters warned that the difference between the alien’s the status of highly skilled workers on proposed income threshold would be household income and 125 percent of H–1B nonimmigrant (skilled worker) nearly impossible for immigrants from the FPG (100 percent for those on active visas or recruit students, unless the very poor countries to achieve, and duty, other than training, in the U.S. employer offers a salary of more than would therefore disproportionately and Armed Forces) for the alien’s household the newly created 250 percent negatively affect immigrants from size. threshold, or risk that the worker is not poorer regions of the world compared to Comment: Many commenters able to renew the work visa given the immigrants from wealthier regions, such expressed general concern that the complex and subjective considerations as Europe and Canada. A commenter income assessment would penalize low- from USCIS adjudicators. stated that the proposed income income immigrants, low-wage workers, Additionally, some commenters thresholds are arbitrary and members of ‘‘marginalized groups,’’ and stated that if the proposed income tests unreasonable and will be compounded families and farmworkers. A commenter are applied to U.S. citizens, many by income inequality and variations in stated that counting wealth and income would fail the test and therefore the cost of living in the United States. as indicators of a person’s future tests should not be applied. Another Some commenters stated that the rule contribution amounts to a sea change in commenter further stated that if the will have a disproportionate effect on U.S. immigration policy. Other proposed public charge test is applied to low income workers, leading to commenters stated that the proposed U.S. born citizens, only five percent shortages in industries in which income thresholds are biased against would meet the criteria, as compared to immigrants make up a substantial low and middle-income immigrants 29 percent under current guidance. portion of the workforce. while unfairly favoring wealthy Another commenter indicated that Response: DHS understands that the immigrants; disregard and devalue low currently, 21 percent of immigrants rule changes the public charge wage-workers and their contributions to nationally fall below the 125 percent inadmissibility determination as set society; and ignore the ability of threshold and 17 percent of citizens do forth in the 1999 Interim Field immigrants to raise their wages over as well. The commenter asserted that if Guidance. However, Congress mandates time. A few commenters said the 125 the current public charge rule was that, as part of the public charge percent income threshold is too high. applied to all Kentuckians, just 8 inadmissibility assessment, officers Others provided data on starting salaries percent would fall into the ‘‘public consider the applicant’s assets, and on some of the fastest growing charge’’ category, but under the resources, and financial status, which, occupations that are in fields with low proposed rule 33 percent of all as explained in the NPRM, includes wages. A commenter stated that six of Kentuckians would. consideration of whether the applicant’s the 20 largest occupational fields in the Some commenters provided data on household income is at or above 125 country have median wages close to or the number of people in the United percent of the FPG income. DHS chose below the poverty threshold for a family States living below 125 percent of the the 125 percent of FPG threshold (100 of three. According to the commenter, FPL and facts about the affected low- percent for an alien on active duty, this means that lawfully present non- income population. Other commenters other than training, in the U.S. Armed citizens who have jobs in these sectors stated that the 125 percent income Forces) standard because Congress through an employment visa may not be threshold would be incredibly difficult imposed it as part of the affidavit of able to renew that visa. Another for young adults working in entry-level support, which has long been a commenter indicated that immigrants jobs to overcome. A commenter noted touchpoint for the public charge ground increasingly are needed to fill middle- that the 125 percent of FPG standard has of inadmissibility.634 Therefore, DHS skill level jobs, referring to those jobs been the income threshold to be met by disagrees that the threshold is arbitrary. that require more than a high school sponsors who are required to submit an DHS also disagrees that if a sponsor diploma but less than a four-year affidavit of support, not by the is expected to demonstrate an income of degree. Therefore, the commenter immigrant subject to the public charge 125 percent of the FPG, the alien should asserted, businesses that largely employ inadmissibility determination. The not be subject to the same standard. As individuals at low wages would suffer, commenter questioned why, if a sponsor noted elsewhere in this rule, Congress as legally present non-citizens could is expected to care for his or her own did not add the affidavit of support become too encumbered to continue needs and the person he or she is requirements as a substitute for a public their employment, and those who have sponsoring based on an income of 125 charge inadmissibility determination or low wages would be penalized because percent of the FPG, the same standard to supplant the mandatory factors set they use benefits to supplement their would apply individually to the forth in section 212(a)(4)(B), 8 U.S.C. wages, which allows them to thrive. intending immigrant. 1182(a)(4)(B). Instead, Congress added One commenter indicated that the Several commenters indicated that the affidavit of support as an additional threshold for household income would those working for minimum wage assurance that the alien will not become have a large impact on the eligibility for would not be able to meet the proposed a public charge at any time in the future. admission of intending immigrants and threshold even if working full time, and As Congress believed that 125 percent make it very difficult for entry level that the minimum wage has not kept was an appropriate minimum threshold workers and other individuals to seek pace with changes in the cost of living in the affidavit of support context, DHS admission to the United States; this in the United States. A commenter does not believe the threshold should be would harm the U.S. economy, stated that basing entry into this country lowered. Although Congress believed educational institutions and businesses, and adjustment of status solely on the that 125 percent of the FPG based on the and sends a message that only those basis of wealth is not only anathema to sponsor’s household income was a with financial resources are welcome longstanding American values of reasonable minimum threshold in the although study after study has shown upward mobility, but it also destabilizes affidavit of support context to support that immigrants are job creators and financial security of immigrant families the sponsored alien and the sponsor’s provide a net benefit to the United already in the United States, household, it does not necessarily States. Another commenter indicated particularly in instances of family-based that U.S. employers will find it more green card petitions. 634 Under INA section 213A, 8 U.S.C. 1183a.

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follow that Congress believed that half be considered.636 If such a Federal the circumstances, render the alien that amount (assuming the sponsor used income tax return transcript is admissible. half the amount to support himself or unavailable, DHS will consider other Comment: A few commenters stated herself), or any amount lower than 125 credible and probative evidence of the the proposed threshold could lead to percent of the FPG, would be sufficient household member’s income, including greater family separation and to demonstrate that the alien is not more an explanation why the evidence is not undermine family unity. Another likely than not to become a public available,637 which may include Form commenter stated that the rule will have charge. Rather, Congress’ retention of W–2, Wages and Tax Statement, Social an immediate and direct effect on the public charge inadmissibility Security Statements, or Form SSA– families and their ability to stay united, determination indicates that Congress 1099, Social Security Benefit Statement. and could lead to the separation of U.S. believed it was necessary to consider Concerning nonimmigrants seeking citizen children from their immigrant the alien’s assets, resources, financial extension of stay or change of status, parents. The commenter stated that U.S. status (including, of course, income), DHS notes that the rule does not require citizens will also be directly harmed by and other relevant factors in addition to them to demonstrate that they have the rule, as they will be unable to requiring the affidavit of support. income over 125 or 250 percent of the petition for and sponsor family Further, household income below 125 FPG. That threshold is a heavily members. The commenter provided an percent of the FPG would be reviewed weighted negative factor in the public example of a U.S. citizen mother and along with the other factors in the charge inadmissibility determination, wife, who relies on the income of her totality of the circumstances such that which is not applied to extension of stay non-U.S. citizen husband who entered on its own, such income would not be and change of status. Further, as the U.S. on a visa and who would be a basis for a public charge previously indicated, DHS is no longer unable to sponsor her husband under inadmissibility determination. reviewing whether the alien is likely to the NPRM because she has no income. DHS disagrees that the rule bases receive public benefits in the future in The commenter stated that if the U.S. entry into this country and adjustment extension of stay and change of status citizen’s husband cannot demonstrate of status solely on wealth. DHS notes determinations, and therefore, none of sufficient assets or earnings, she would that it must consider an applicant’s the factors in the public charge need to find another sponsor for her assets, resources, and financial status in inadmissibility determination will be husband. Other commenters stated that the making a public charge inadmissibility considered for nonimmigrants. Comment: A few commenters stated proposed income threshold would determination, which includes that the heavy positive weight assigned negatively affect U.S. citizen children, consideration of the applicant’s to household income 250 percent above as having children would make meeting household income.635 However, DHS the poverty level discriminates against the standard more difficult, which is does not intend the rule to penalize or persons with disabilities because counter-productive to encouraging self- negatively affect any particular group, individuals with disabilities and their sufficiency because family-based and being a low-income worker would families are more likely to live in immigration has a positive impact on not necessarily in itself render an poverty than those without disabilities, immigrant success. A couple of applicant inadmissible on public charge and that such individuals will commenters said that the proposed grounds. The rule abides by the consequently not have the benefit of the income threshold particularly affects statutory requirement as provided in heavily-weighted positive factor to multigenerational households, a section 212(a)(4) of the Act, 8 U.S.C. offset any negative factors. In the same common practice among Asian 1182(a)(4), and is consistent with vein, commenters stated that American families, and that it would congressional statements relating to self- individuals with disabilities will be discourage people from supporting sufficiency in 8 U.S.C. 1601, when disproportionately affected by the family members. An individual Congress declared it to be the United negative weight associated with commenter suggested that placing an States’ continued immigration policy incomes that fall below 125 percent of income threshold at 125 percent FPG that ‘‘aliens within the Nation’s borders the poverty level. would decrease the number of not depend on public resources to meet Response: DHS disagrees that immigrant families with a stay-at-home their needs, but rather rely on their own considering household income at or parent, despite the benefits to the family capabilities and the resources of their above 250 percent of the FPG a heavily of having a stay-at-home parent. families, their sponsors, and private weighted positive factor in the totality Response: DHS disagrees that the 125 organizations.’’ Further, the data in the of the circumstances discriminates percent income threshold standard NPRM shows that the percentage of against persons with disabilities. DHS would lead to family separation, or people receiving these public benefits recognizes that any income threshold otherwise undermines family unity. The generally goes down as the income may affect aliens with low-income. rule is not intended to separate families percentage increases. Therefore, DHS However, DHS did not intend, in adding or otherwise undermine the family, but will maintain the 125 percent of the this income threshold as a heavily instead ensures that the statutory FPG (100 percent for an alien on active weighted positive factor, to discriminate requirements, as provided in section duty, other than training, in the U.S. against applicants on the basis of their 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) Armed Forces) standard. After applicant’s race, nationality, medical are implemented, which mandate that consideration of the comments, DHS condition, disability, or membership in USCIS must consider an applicant’s also believes it necessary to clarify that any protected class. Even if applicants assets, resources, and financial status in when assessing the alien’s annual gross who have low income are unable to get making a public charge inadmissibility household income, DHS will consider the benefit of this heavily-weighted determination. This approach is also as evidence the most recent tax-year positive factor to offset any negative consistent with congressional policy transcripts from the IRS, U.S. Individual factors, the presence of any other statements relating to self-sufficiency in Tax Return (Form 1040) from each positive factors could, in the totality of 8 U.S.C. 1601, which provides that, household member whose income will ‘‘aliens within the Nation’s borders not 636 See 8 CFR 212.22(b)(4)(ii)(A)(1). depend on public resources to meet 635 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). 637 See 8 CFR 212.22(b)(4)(ii)(A)(2). their needs, but rather rely on their own

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capabilities and the resources of their many older and disabled Americans more effective implementation of the families, their sponsors, and private without access to caregivers. congressionally mandated self- organizations.’’ 638 As discussed in the Response: DHS understands that some sufficiency policy aims as articulated in NPRM,639 DHS chose a household applicants or some families may have this rule are paramount. income of at least 125 percent of the household members or family members Comment: A few commenters stated FPG (100 percent for an alien on active that provide services within the family, this portion of the rule would strongly duty, other than training, in the U.S. such as caregivers, stay at home parents, impact farmworkers and their families. Armed Forces), which has long served and others who will not be readily able Other commenters cited to a family as a touchpoint for public charge to document either their work or income below 100 percent FPL and that inadmissibility determinations.640 As income. To account for this, DHS will farm labor’s wages are among some of discussed in the NPRM, DHS also cited consider the applicant’s household the lowest in the nation. Another data demonstrating that the percentage income, which may include the income commenter indicated that many of their of people who receive public benefits of other household members who are patients, including agriculture workers, generally decreases as income increases. more able to document their income and live below 150 percent FPL. Many In other words, the data established a who provide the applicant with commenters echoed this sentiment and correlation between having low income financial support. Accordingly, an remarked that farmworkers earn an and the receipt of public benefits.641 applicant who provides care to a average of around $17,500 per year. Therefore, DHS will maintain the 125 relative without pay may still be able to With low wages, these workers are percent of the FPG standard. However, demonstrate that his or her household highly unlikely to have assets to rule out as reiterated in other areas, USCIS will income meets the 125 percent FPG this negative factor. Another commenter not make a public charge determination threshold. DHS notes that there is no indicated that the proposed rule would based on one factor alone; rather, a evidence, however, that being a particularly affect farmworkers in determinations will be based on the caregiver of others, or living in a Michigan, as the work is largely totality of the alien’s circumstances. household with a caregiver, in and of seasonal and farmworkers in the state Therefore, in addition to the household itself, is indicative of self-sufficiency or are not subject to the state minimum income determination, the review of lack thereof. Although caregivers may wage if they work on small farms. One public charge inadmissibility takes into benefit the household by eliminating the commenter stated that farmworkers consideration the other factors need for childcare expenses, each provide valuable and skilled labor that enumerated in this rule and all other person must establish he or she is not contributes greatly to our nation’s relevant information. likely to be a public charge based on the agricultural productivity. DHS also disagrees that U.S. citizens totality of the factors based an Response: As previously indicated in will be directly harmed by the rule individual’s circumstances. However, as the section discussing extension of stay because they will be unable to petition discussed further below, DHS has added and change of status, and as explained for and sponsor family members. The a separate provision under the in the notice of proposed rulemaking, rule does not directly impact who may Education and Skills factor that would DHS will not apply the public charge file a family based immigration petition, allow DHS to take into positive inadmissibility grounds under section or the sponsorship requirements under consideration that the alien is a primary 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4) section 213A of the INA, 8 U.S.C. 1183a. caregiver of another person within his to nonimmigrants (including DHS acknowledges that the rule may or her household where there is farmworkers present in the United result in more family members of U.S. evidence that the alien is currently States under the temporary worker citizens being denied adjustment of unemployed, under employed or lacks program for agricultural services (H– status after being found inadmissible on an employment history but expects to 2A)), seeking an extension of their stay public charge grounds, but believes that rejoin the workforce. As discussed in or a change of status to another Congress intended that aliens be self- this final rule, DHS has also defined nonimmigrant classification. Instead, sufficient, and DHS has created through primary caregiver as an alien who is 18 DHS imposes as one of the terms and this rulemaking a fair and robust years of age or older and has significant conditions of granting an extension of standard that is likely to have this this responsibility for actively caring for and stay or change of status, that the alien result in more cases than under the managing the well-being of a child or an establishes that he or she had not received, since obtaining the current policy. elderly, ill, or disabled person in the Comment: One commenter stated that alien’s household. nonimmigrant status that he or she is the proposed income threshold does not Additionally, as discussed elsewhere seeking to extend or change, any public take into account the value of unpaid in the rule, DHS acknowledges that, benefits as defined in 8 CFR 212.21(b), labor a family member may provide, once the rule is effective, it will likely for 12 months in the aggregate within a such as a stay at home parent or result in more adverse determinations. 36-month period. Based on this grandparent providing childcare. DHS also acknowledges the possibility information, USCIS would then issue Commenters also stated that the that this rule, in turn, may impact the the decision on the application for admissions of certain types of workers extension of stay or change of status. proposed rule could cause a shortage in such as direct care workers. Congress Comment: A commenter said that the direct care workers who are unable to did not exempt such workers from the FPL is a poor guideline due to remain in the United States, leaving public charge inadmissibility ground. differences in cost of living throughout DHS anticipates that the employment of the United States. Another commenter 638 See Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law such individuals as direct care workers stated that differences in costs of living 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, may diminish the likelihood that they could mean that two people working 1996) (codified at 8 U.S.C. 1601(2)). will be considered public charges, but, full time at minimum wage could fall 639 See Inadmissibility on Public Charge Grounds, if the totality of the circumstances short of affording adequate housing in 83 FR 51114, 51187 (proposed Oct. 10, 2018). establish they, like any other applicant, the district they represent. Another 640 See INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E). are likely to become public charges, commenter stated that due to the high 641 See Inadmissibility on Public Charge Grounds, consistent with this rule, they will be cost of living in many large cities, 83 FR 51114, 51204 (proposed Oct. 10, 2018). deemed inadmissible. DHS believes a reliance on public assistance is not a

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sign of a lack of self-sufficiency, but and conditions of entry, as well as the commenter stated that taxes paid in the rather a symptom of a high cost of residence of aliens.642 DHS is the past are indicative of ability and future living. Other commenters stated that the Federal agency with the authority to potential, and surely has a strong proposed rule would trap immigrants in establish regulations regarding the correlation with the likelihood of a cycle of poverty instead of giving them public charge inadmissibility drawing from a benefits program in the the opportunity to prosper. determination.643 Section 212(a) of the future. Another commenter stated that Response: DHS agrees that the cost of INA, 8 U.S.C. 1182(a), sets forth the the proposed income threshold would living is different across the United aliens who are ineligible for visas, discourage immigrants from entering the States but disagrees that reliance on admission, or adjustment of status, the country legally. Commenters also public assistance for housing is not a public charge ground of inadmissibility indicated that DHS’s own conclusory sign of lack of self-sufficiency. Through and the minimum factors DHS is assumption that receipt of this level of this rule, DHS has defined public charge required to consider in the public funding represents a lack of self- as an alien who receives one or more charge inadmissibility analysis. DHS sufficiency was rebutted by the ample public benefit as defined in the rule for must consider an applicant’s age, research showing that immigrants pay longer than the designated threshold, to health, family status, assets, resources more into the United States healthcare include public housing or housing and financial status, and education and system than they take out and that most vouchers. HUD programs are based on skills. The statute does not include the immigrant pay taxes. the cost of living in the area, which consideration of race, or any other Response: DHS declines to adopt the denotes that a person is unable to pay characteristics and DHS did not propose commenters’ suggestion to consider the for local rent and therefore unable to be to consider an alien applicant’s race or amount of income taxes paid as an self-sufficient and instead must use any other characteristics when making a indicator of a likelihood to receive public benefits in order to afford the public charge determination. Similarly, public benefits. The public charge rent. Therefore, DHS will consider 125 DHS did not propose to take into inadmissibility determination looks at a percent of the FPG threshold in the account an applicant’s ‘‘social status.’’ person’s individual circumstances to totality of the circumstances rather than With respect to Immigration determine whether he or she is likely to the cost of living. regulations applicable to aliens, the become a public charge in the future. Comment: One commenter stated that rational basis scrutiny applies.644 DHS’s Not everyone is required to pay taxes the proposed factors institutionalize public charge rule is rationally related and even if a person pays taxes, he or income bias and discrimination. to the Government’s interest, as enacted she may be eligible for public benefits. According to the commenter, this in PRWORA, to minimize the incentive Given that Congress reiterated that the income bias disregards the fact that of aliens to attempt to immigrate to the immigration policy continues to be that, many full-time workers earning a United States, or to adjust status in this ‘‘aliens within the Nation’s borders not minimum wage would fall well below country, due to the availability of public depend on public resources to meet the threshold for being accorded benefits, as well as to promote the self- their needs, but rather rely on their own positive weight. This commenter noted sufficiency of aliens within the United capabilities and the resources of their that such a stringent test creates a policy States.645 families, their sponsors, and private that is biased against working families, Comment: A commenter said the sum organizations,’’ 646 DHS believes that the and perpetuates the myth that total of past income taxes paid by an proposed rule has properly and immigrants are a drain on our society individual, and their contribution to the consistently balanced the value of assets and overly dependent on Government welfare programs, should be balanced and resources of the public charge benefits. Some commenters stated that against the total value of benefits determination to ensure that those the proposed income threshold of 125 received by the individual. The seeking status in the United States do percent FPG would have an outsized not become a public charge. With this and disproportionate impact on 642 Mathews v. Diaz, 426 U.S. 67, 81–82, (1976). rule, DHS is not seeking to deter members of marginalized groups 643 See Homeland Security Act of 2002 section immigration but to implement the including children; families; immigrants 102, 6 U.S.C. 112; INA section 103, 8 U.S.C. 1103. congressional mandate given in section 644 Korab v. Fink, 797 F.3d 572, 577–79 (9th Cir. of color; survivors of domestic violence 2014) (‘‘[F]ederal statutes regulating alien 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). and sexual assault; people with classifications are subject to the easier-to-satisfy Comment: A commenter stated that disabilities; elderly; low-wage workers; rational-basis review . . . Although aliens are employment alone was not sufficient AAPI; South Asian Americans; Latino protected by the Due Process and Equal Protection evidence of an immigrant’s self- Clauses, this protection does not prevent Congress immigrants; those living with HIV and from creating legitimate distinctions either between sufficiency and that the criteria should their families; immigrants with citizens and aliens or among categories of aliens focus on an immigrant’s ability to earn disabilities; older adults and families and allocating benefits on that basis . . . The wages at least three times the FPL. attempting to reunify; LGBTQ difference between state and federal distinctions Response: DHS disagrees with the based on alienage is the difference between the commenter’s suggestions to consider immigrants; and women, especially limits that the Fourteenth Amendment places on women with other intersecting discrimination by states and the power the three times the FPL as the threshold. identities regarding race, ethnicity, and Constitution grants to the federal government over DHS uses the FPG published by the sexuality. Additionally, another immigration.’’) (citation omitted); Lewis v. HHS as a threshold in immigration Thompson, 252 F.3d 567, 570 (2d Cir 2001), citing 647 commenter remarked that the proposed Lake v. Reno, 226 F.3d 141, 148 (2d Cir.2000) (‘‘We matters. As explained in the NPRM, standards would penalize victims of have recently recognized that a ‘highly deferential’ the 125 percent household income sexual and domestic violence; and standard is appropriate in matters of immigration . threshold has long served as a pregnant women. . . .’’). Generally, laws and regulations that neither touchpoint for public charge involve fundamental rights nor include suspect Response: DHS disagrees with the classifications are reviewed under rational basis inadmissibility determinations as part of comments that this rule institutionalizes scrutiny, under which the person challenging the bias and discrimination. The Federal law must show that the government has no 646 See Personal Responsibility and Work Government is responsible for legitimate interest in the law or policy or that there Opportunity Reconciliation Act of 1996, Public Law is no rational link between the interest and the 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, ‘‘regulating the relationship between the challenge law or regulation. Heller v. Doe by Doe, 1996) (codified at 8 U.S.C. 1601(2)). United States and our alien visitors,’’ 509 U.S. 312, 319 (1993). 647 See Inadmissibility on Public Charge Grounds, which includes regulating the manner 645 See 8 U.S.C. 1601. 83 FR 51114, 51187 (proposed Oct. 10, 2018).

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affidavits of support and public charge. honest and accurate information and Federal, State, or tribal public benefits. Therefore, DHS will continue to apply requires information to be provided DHS also acknowledges the possibility the 125 percent of the FPG threshold. under penalty of perjury. DHS reiterates that individuals, including those aging DHS agrees, however, with the that not providing truthful information out of foster care, may be likely to commenter that employment alone is on immigration applications according disenroll from public benefits because insufficient evidence of self-sufficiency. to the best of an applicant’s knowledge of this rulemaking. DHS notes, however, The public charge determination and ability may have immigration that individuals are typically placed in reviews all factors in the totality of the consequences, including denial of the out-of-home care, such as foster care, circumstances and one factor alone, benefit or ineligibility for benefits in the because of abuse, neglect or other except for an insufficient affidavit of future. violence. U.S. law provides certain support when required, will not DHS acknowledges that this protections and statuses for aliens who conclude that an alien is inadmissible rulemaking may discourage certain have become victims of violence, such based on public charge. An alien’s aliens from seeking adjustment of status as refugee or asylee status, T education and skills, which reflect a that of a lawful permanent resident in nonimmigrant status for certain victims person’s ability to earn wages, are also the United States. However, with this of human trafficking, U nonimmigrant considered in the totality of the rulemaking, DHS seeks to better enforce status for victims of certain crimes, circumstances. the public charge ground of VAWA protections for victims of battery Comment: One commenter suggested inadmissibility codified by Congress. or extreme cruelty, and-Special that community involvement be Additionally, DHS is also seeking to Immigrant Juvenile status for victims of included when considering evidence of ensure that those seeking admission in child abuse, neglect, abandonment, or a assets and resources. the United States are self-sufficient similar basis under State law. Generally, Response: DHS recognizes that upon admission and not likely to the public charge inadmissibility community involvement may be an become a public charge at any time in ground does not apply to these asset to the community as a whole and the future. individuals and therefore, the level of appreciates the suggestion. However, Comment: Commenters indicated that income or the receipt of public benefits community involvement does not the proposed rule seeks to set an income would be a consideration. establish the person’s self-sufficiency or standard for income above 125% of the 2. Evidence of Assets and Resources evidence of income, assets or financial FPG, making it extremely difficult for status. low income immigrant young adults Comment: Some commenters stated Comment: A commenter stated that previously in foster care and earning that the proposed rule penalizes the evidence of assets and resources less than 125 percent of the FPL immigrants for having a mortgage, requirement, namely the completion of ($31,375 annually for a family of four), despite real estate being a wise the declaration of self-sufficiency as meeting the new income threshold of investment. Several other commenters proposed in 8 CFR 245.4(b),648 does not the public charge test. Given that youth said the criteria undervalues change the fact that someone could aging out of foster care often need to homeownership. A commenter stated become gravely ill and be unable to access public cash and shelter benefits that home ownership is a gauge of work and never be self-sufficient. The to secure housing or to attend college or middle class status in the United States same commenter stated that the training, this could result in denying and that the longer an immigrant lives evidentiary requirements encourage these young adults lawful permanent in the United States, the more likely people to lie or discourages them from resident status. The commenter they will own a home. Another completing the process of seeking therefore believed that the proposed commenter expressed doubts whether adjustment of status altogether. rule only serves to heavily favor the assets and resources threshold Response: DHS agrees that immigrants with wealth, while would have the required predictive individuals’ future circumstances may punishing low-income immigrants, value for purposes of public charge. be different than the ones that exist at including immigrant young adults who Additionally, the same commenter also the time of adjudication and the public are working in important, but low-wage expressed skepticism that real estate charge assessment. However, the statute jobs to sustain themselves and their could be easily convertible into cash requires DHS to rely on present and past families. within 12 months. This commenter conditions and circumstances as the Response: With this rulemaking, DHS reasoned that such assets are typically best available evidence to determine an is seeking to better enforce the public the residence of the alien or his alien’s likelihood of becoming a public charge ground of inadmissibility household, which cannot be readily charge. Although it is a remote codified by Congress. DHS, therefore, liquidated without imposing offsetting possibility that everyone could become disagrees with the commenters’ new housing costs; and, in case of a sick and not be able to work, DHS is not statement that this rulemaking only commercial property, liquidation within assuming that this will happen. DHS serves to favor wealthy immigrants and twelve months is an unlikely prospect would review reasonable possibilities in to punish those with low-income. The in most U.S. real estate markets. The the future based on the person’s current determination whether somebody is commenter requested a better and parent circumstances. likely at any time in the future to justification for the assets and resources Further, while it is true that some become a public charge is based on the threshold of five times the difference applicants may not provide USCIS with totality of the alien’s circumstances, and between the alien’s household gross honest answers, DHS expects all one factor alone, such as the financial annual income and the FPG for the applicants and petitions to provide status of the alien or the current receipt alien’s household size, and the of public benefits, is not outcome inclusion of real estate as an asset that 648 The commenter referred to 245.5. 8 CFR 245.5 determinative. could be converted into cash within 12 is the regulatory provision addressing the medical DHS acknowledges a possible impact months; or, preferably, the elimination examination of individuals seeking adjustment of of this rulemaking, once effective, on of these standards from the final rule. status. The NPRM proposed to amend 8 CFR 245.4 by requiring a new documentary requirement for those in Federal, State, or tribal foster Response: DHS disagrees that the rule purposes of the public charge determination under care or those who are aging out of foster penalizes immigrants for having INA section 212(a)(4), 8 U.S.C. 1182(a)(4). care but may continue to obtain certain mortgages. There is no requirement that

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an alien have a mortgage-free home; and evidence to support the proposition that determination, the alien’s household an alien with a mortgage could use the an alien would be unable to liquidate income is relevant to the determination total value of the home minus the commercial property within 12 months, of whether the alien’s assets, resources amount of the mortgage to meet the and DHS sees no reason to treat and financial status make the alien more assets threshold. In other words, commercial property differently from likely than not in the totality of the homeownership could help the alien residential property in this context. In alien’s circumstances to become a establish that he or she is meets the addition, 8 CFR 213a.2(c)(2)(iii)(B) does public charge. Whether or not the alien income threshold and is not likely to specifically consider real estate in the engaged in unauthorized employment become a public charge where the alien calculation of significant assets, and it is and any immigration consequences can provide evidence that he or she has similarly reasonable to consider flowing from such unauthorized available assets through value in a home commercial property as assets in this employment is a separate to overcome any negative factors of the context. Therefore, DHS will continue to determination.653 DHS will therefore absence of regular income through use the 12-month standard for consider any past employment and any employment or substantial assets in liquidation of assets. income derived from such employment bank accounts. Comment: A commenter stated that in the public charge inadmissibility The ‘‘five times equivalency’’ test to the income threshold in the NPRM fails determination. In addition, as not all establish significant assets to cover the to exclude income from illegal conduct, income is required to be reported in tax difference between the 125 percent unlike what the commenter states is the returns, DHS will continue to consider standard and the actual income has long definition of income used by DOS.651 additional income that is not listed on been recognized for public charge The commenter reasoned that no alien the IRS forms as provided in the I–944 inadmissibility in the affidavit of may work in the United States without instructions. support context.649 DHS disagrees that authorization, either by operation of law However, DHS does agree that income having assets to cover five times the or by specific application.652 The derived from illegal activities or sources difference between income below 125 commenter strongly recommended that should be excluded from the calculation percent of the FPG and the 125 percent income from unauthorized employment of gross annual household income amount fails to meet any predictive should be excluded from the calculation including, but not limited to, income value, because such assets could be of gross annual household income, in gained illegally from drug sales, readily converted to cash and substitute the same manner as unlawful income gambling, prostitution, or alien for income, thereby helping ensure that from drug dealing, gambling, or smuggling. the alien does not rely on public smuggling. The commenter further benefits to meet his or her basic needs. suggested that no evidence of irregular 3. Public Benefits DHS disagrees that typically the income that is not documented on a tax Comment: Some commenters residence of the alien or his household return or equivalent document, such as referenced DHS’s request regarding cannot be readily liquidated without an IRS Wage and Tax Statement (Form whether use of other benefits should be imposing offsetting new housing costs W–2) or Return of Organization Exempt counted in the totality of circumstances or in case of a commercial property, from Income Tax (Form 990), should be test. Those commenters opposed liquidation within twelve months is an accepted; that income earned under a considering the use of non-listed unlikely prospect in most U.S. real taxpayer identification number rather programs in the totality of estate markets. An alien may be able to than a Social Security number should be circumstances test. Additionally, other liquidate the home and then obtain a presumptively unacceptable; and that commenters stated that DHS should not new lower cost home or start renting. this approach would streamline the allow public benefits that are not Additionally, DHS also disagrees with adjudication of public charge explicitly enumerated in the rule to be the commenter about the assessment of determinations, by eliminating weighted negatively in the totality of the the 12-month benchmark; this consideration of most evidence of circumstances review. Several benchmark is used for affidavit of income other than recognized IRS commenters said that Federal assistance 650 support purposes which, again, has documentation. programs or public benefits should not Response: DHS appreciates the long been part of the public charge be a deciding factor in the public charge comments and would like to clarify that inadmissibility determination. The inadmissibility determination. One an alien’s employment and income affidavit of support permits listing of commenter cited a study showing that derived from employment without an assets that may be liquidated within one immigrants have a lower unemployment employment authorization card or status year only, and specifically includes the rate than native-born citizens and which authorizes employment will be net value of the sponsor’s or the requested the agency’s rationale for sponsored immigrant’s home as a considered as part of the assets, resources and financial status factor and focusing on discouraging immigrants permissible asset. Although the affidavit from using public benefits, despite their of support does not specifically address the education and skills factor. DHS believes that limiting consideration of lower unemployment rate as a commercial property in terms of liquid demographic group. assets, the commenter provided no employment and income to only that derived from authorized employment Some commenters stated that receipt of benefits was not evidence of weak 649 goes beyond the narrow purpose of this See 8 CFR 213a.2(c)(2)(iii)(B). See also 64 FR financial status, as benefits are used 54346, 54348 (October 20, 1997) (explaining the rule, which is ensuring that aliens are rationale for the significant asset rule as part of the self-sufficient and do not rely on the temporarily to help people get back on interim affidavit of support rule) and 71 FR 35732, government to meet their basic living 35739 (June 21, 2006) (explaining the rational for 653 Furthermore, a general limitation of the type adopting the current affidavit of support rule at 8 needs. For purposes of a public charge suggested by the commenter could be in tension CFR 213a, which provides for additional standards with USCIS policy. See USCIS Policy Memorandum for certain aliens). DHS has amended the public 651 The commenter cited to the former FAM PM–602–0119, Qualifying U.S. Work Experience for charge regulatory provision to reflect that DHS will section on public charge at 9 FAM 40.41. The Special Immigrant Religious Workers (July 5, 2015), adopt the three standards used in the significant public charge FAM section is now located at 9 FAM https://www.uscis.gov/sites/default/files/USCIS/ asset provision for purposes of the public charge 302.8. Laws/Memoranda/2015/2015-0705_Lawful_Status_ determination. 652 See INA sections 274A(a)(1), (h)(3), 8 U.S.C. PM_Effective.pdf; Shalom Pentecostal Church v. 650 See Form I–864, Instructions, Part 7. 1324a(a)(1), (h)(3). Acting Secretary DHS, 783 F.3d 156 (3d Cir. 2015).

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their feet. Another commenter stated rates of public benefits receipt among apply for benefits, however, the rule that many of the public benefits aliens as a whole would warrant does not intend to disproportionally considered under the proposed rule abandoning this rule, which applies the affect any group of people as previously would in fact make someone less likely public charge ground of inadmissibility discussed. to be a public charge, especially when to individual aliens. As provided in the Comment: A commenter indicated the benefits are received by children. A NPRM,654 and elsewhere in this that the proposed regulation states only few other commenters expressed regulation, current or past applications that DHS would consider whether a concern that using prior receipt of for, or receipt of, or certification for noncitizen has ‘‘applied for’’ or public benefits as evidence of financial future receipt of public benefits, as ‘‘received’’ benefits or fee waivers, status ignores the role public benefits defined in 8 CFR 212.21(b), suggests without defining those terms. The play in promoting self-sufficiency. A that the alien’s overall financial status is commenter wrote that the proposed rule commenter indicated that past receipt of so weak that he or she is or was unable did not plainly state that DHS will only benefits is not even mentioned by to fully support himself or herself consider a noncitizen’s application for Congress as a factor that should be given without public benefits, i.e., that the benefits on her own behalf. These any weight in the public charge alien will receive such public benefits omissions, according to the commenter, determination. Another commenter in the future. Accordingly, as discussed would allow immigration officers to cited a 1999 letter from HHS stating that more fully in the discussion on the penalize a noncitizen during a public it could not imagine any way in which public benefits threshold section, DHS charge determination when she is the an individual could become primarily believes that it is reasonable to consider formal applicant for, or payee of, dependent on public benefits. Another any application, approval, or benefits for which her children or others commenter asserted that the current certification for, or receipt of, public are the true beneficiaries. provisions surrounding public benefits benefits as a negative factor in the Another commenter expressed are sufficient to be used in public charge totality of the circumstances, as this is concern that many affected families will determinations. A few commenters relevant to determining the likelihood of include U.S. citizens. The commenter stated that counting benefits as a becoming, at any time in the future, a explained that although the proposed negative factor when used by children public charge. DHS understands rule stated that DHS did not intend to in the public charge assessment is however, that certain individuals may consider benefits received by a mixed contrary to the purpose of the public have become self-sufficient over time status household where a noncitizen charge ground of inadmissibility after having received or having been would not be entitled to receive a because benefits providing essential certified to receive public benefits, and benefit or was not counted for purposes health, nutrition and housing assistance therefore, either have disenrolled, or of calculating household size, the prepare children to be productive, have requested disenrollment from the proposed regulatory text did not clearly implement DHS’s stated intent. The working adults; counting it as a negative public benefits. To account for these commenter stated that as a consequence, factor would unfairly base a child’s positive developments in an alien’s life, an immigrant applying for benefits future potential for self-sufficiency on DHS decided to include as a exclusively on behalf of U.S. citizen their use of benefits as a child. A consideration evidence of the dependents could still face adverse commenter stated that using prior disenrollment, or a request for consequences in a public charge receipt of benefits in public charge disenrollment or withdrawal from determination for the family’s receipt of determinations is contrary to the totality public benefit receipt. such benefits, leaving the household of circumstances test. One commenter Overall, however, Congress implicitly with the choice of either not applying indicated that considering the use of recognized that past receipt of public for benefits and facing food and housing public benefits as evidence of financial benefits can be considered in determining likelihood of someone insecurity, or the applying for the status would negatively and benefits and increasing the likelihood of disproportionately impact LGBTQ becoming a public charge when it prohibited consideration of benefits that adverse immigration consequences for immigrants and immigrants with some family members. disabilities. Another commenter stated were authorized under 8 U.S.C. 1641(c) for ‘‘certain battered aliens.’’ 655 Similarly, a commenter stated that the that, since most applications for public proposed regulatory text fails both to assistance consider a wide range of Congress’ prohibition of consideration of prior receipt of benefits by a specific clearly explain how DHS will identify benefits, immigrants would be kept from ‘‘the portion of the benefit that is applying from all benefits, even those class of aliens indicates Congress understood and accepted the agency’s attributable to the alien’’ (for example, not mentioned in the proposed rule. when the individual lives in a Some commenters stated that including consideration of past receipt of benefits in other circumstances. household that receives housing receipt of benefits as evidence of assistance and he or she would not be financial status would lead to a DHS agrees that public benefits play a role in promoting and helping people eligible to receive such assistance). The widespread chilling effect among commenter wrote that the proposed rule immigrants and citizens alike. One obtain self-sufficiency; however, the primary reason people seek public did not plainly state that DHS will only commenter asserted that, unless DHS is consider a noncitizen’s application for willing to compel employers in benefits is the inability to be self- sufficient. In addition, the 1999 Interim benefits on her own behalf. Another agriculture and in other industries to commenter stated that DHS should provide a living wage and health Field Guidance, in which other agencies commented, involved the ‘‘primary commission research on the cash value benefits, it is cruel and unjust to punish equivalence when determining the hard-working immigrants who rely on dependence’’ standard, which is different from the standard set forth in discount factor for housing benefits. public benefits but who also benefit the Response: DHS agrees with United States. this final rule. While DHS understands that some people may choose not to commenters that additional clarification Response: DHS disagrees with the of when DHS will consider application, commenters and maintains that receipt 654 See Inadmissibility on Public Charge Grounds, certification, or receipt of public of public benefits indicates weak 83 FR 51114, 51188 (proposed Oct. 10, 2018). benefits will weigh negatively in the financial status. DHS also disagrees 655 INA section 212(s), 8 U.S.C. 1182(s). totality of the circumstances could be

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helpful. Therefore, DHS has added a received non-monetized benefits for 11 that public benefits and assistance new definition of ‘‘receipt of public consecutive months leading up to an programs exist in other countries. benefits’’ to 8 CFR 212.21(e) to clarify application, even though such fact However, DHS did not propose and will that DHS will only consider the alien to would be directly relevant to whether not consider public benefits provided by have received a public benefit if the the alien is likely to exceed the foreign countries.657 Public benefits in alien is a named beneficiary of the applicable threshold in the future. foreign countries have different benefit but not where an alien is Following careful consideration of the standards and objectives. For example, applying, being certified, or receiving a issue, DHS has determined that it is in some countries, healthcare is public benefit not on his or her own reasonable to consider any application, provided on a national basis irrespective behalf but on behalf of another person. approval, or certification for, or receipt of income or need and is, therefore, not For example, if a parent is applying for of, public benefits as a negative factor in comparable to public benefits or to the a public benefit on behalf of a U.S. the totality of the circumstances, public charge standard in the United citizen child, such application for regardless of whether the benefits States. In addition, the inadmissibility public benefits will not be considered exceed the threshold for becoming a determination addresses whether a negatively against the parent. Similarly, public charge. While DHS does not person is likely to become a public if an alien is the legal guardian or power believe that past receipt of the benefits charge in the United States in the future. of attorney of the alien’s lawful enumerated in this rule for 12 months Additionally, all applicants for permanent resident parent and is or less, on its own, makes the alien admission and adjustment of status applying for a benefit on behalf of such likely to become a public charge in the applicants must demonstrate that they parent, such application and/or future, such receipt will in some cases are clearly and beyond a doubt not associated administration of the public suggest that the alien is not self- inadmissible to the United States.658 benefit on behalf of the alien’s parent sufficient, or may soon lack self- The ground of inadmissibility under will not count negatively against the sufficiency. Accordingly, under the section 212(a) of the Act, 8 U.S.C. 1182, alien. DHS would only count as a public assets, resources, and financial status include the public charge grounds of benefit any benefit for which the alien factor, DHS will consider it to be a inadmissibility under section 212(a)(4) is specifically listed as a beneficiary. negative factor (though not a heavily of the Act, 8 U.S.C. 1182(a)(4). DHS The new definition also clarifies that weighted negative factor) if the alien has explained in the proposed rule that it application for a public benefit is not applied for, been approved or certified provided a more comprehensive the same as receipt but is indicative of for, or has received, public benefits for framework to determining public charge an alien’s intent to receive such a any amount of time.656 The fact that an inadmissibility, including certain and benefit. Similarly, certification is not the alien has in the past applied for, been new paper-based applications, as same as receipt but may impact the approved or certified for, or has additional evidence related to public likelihood that the alien will in the received public benefits for any amount charge considerations.659 DHS also future receive such public benefit. of time, would never be dispositive on explained that, due to operational Comment: Commenters stated, in its own, but would be relevant to differences, this additional evidence response to a call for comments in the assessing an alien’s likelihood of would not generally be required at ports proposed rule preamble, that DHS becoming at any time in the future a of entry.660 Applicants for admission are should not revise the rule to allow public charge. USCIS will consider the inspected by immigration officers at or, adjudicators to consider an alien’s duration, amount, and recentness of an when encountered, between ports of receipt of public benefits below the alien’s past approval or certification for, entry in a timeframe and setting distinct applicable threshold, as part of DHS’s or receipt of, public benefits, when from the adjudications process. This, assessment of whether the alien is likely deciding how much weight to give this however, does not imply that DHS does at any time in the future to become a past activity as part of the prospective not screen applicants for admission for public charge (i.e., to receive benefits totality of the circumstances grounds of inadmissibility, including above the applicable threshold). A determination. public charge grounds of commenter wrote that all individuals, Comment: An individual commenter inadmissibility. Therefore, DHS does citizen or non-citizen alike, may have stated that the proposed assets, not fundamentally treat those who seek emergency situations or unanticipated resources, and financial status factors adjustment of status in the United States job losses that could result in a need for would treat immigrants who have been differently from those seeking benefits on a temporary basis. Another living in the country fundamentally admission to the United States. commenter wrote that if any benefit different than those arriving at ports of Comment: One commenter stated that receipt below the threshold were to be entry and are therefore arbitrary. The the proposed rule ignores that under considered in the totality of commenter indicated that this PRWORA applicants for admission are circumstances, the thresholds would difference in treatment is wholly and will remain ineligible for public become ‘‘entirely meaningless.’’ inequitable and fundamentally wrong benefits even after admission, and that Response: No commenters established because an individual who has applicants for adjustment of status are that receipt of designated public continually received public assistance and will remain ineligible for most benefits below the applicable threshold in a foreign country could potentially be public benefits until they have green has no bearing on whether the alien allowed to enter the United States. In cards for five years. The same may, in the future, receive designated contrast, individuals who are applying commenter stated that the rule’s public benefits above the applicable for adjustment of status within the threshold. In addition, the proposed United States could be denied 657 See 8 CFR 212.21(b). See Inadmissibility on rule, as drafted, would have effectively adjustment of status for a brief, Public Charge Grounds, 83 FR 51114, 51158–51174 required DHS to be willfully blind to temporary use of a low dollar amount of (proposed Oct. 10, 2018). evidence of significant benefits use that public assistance. 658 See INA section 235(b)(2)(A), 8 U.S.C. fell short of the threshold. For instance, Response: DHS disagrees that the 1225(b)(2)(A). 659 See Inadmissibility on Public Charge Grounds, it was unclear whether the proposed proposal is arbitrary. DHS understands 83 FR 51114, 51116 (proposed Oct. 10, 2018). rule would allow adjudicators to 660 See Inadmissibility on Public Charge Grounds, consider the fact that an alien had 656 8 CFR 212.22(b)(4)(ii)(F)(1), (2). 83 FR 51114, 51116 (proposed Oct. 10, 2018).

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‘‘weighing scheme’’ is impermissibly as part of its totality of the for adjustment of status. In making this vague. The commenter pointed to one of circumstances determination. DHS has determination, DHS would take into the examples in the proposed rule as therefore revised the regulatory text to consideration the fact that the alien is indicative of the unpredictable nature of make clear that DHS would consider working while in school and thus that the determination, namely that an evidence from a Federal, State, local, or the nature and hours of employment individual who is in school and tribal agency administering a particular may be limited by his need to attend employed with an income of 120 benefit that shows the alien does not classes. DHS would also look at the percent of the FPG and does not have qualify for the public benefit, so long as likelihood that the alien’s earning health insurance but has no other the alien submits the necessary capacity would increase as a result of negative factors would not be deemed evidence and specifically identifies it as his education—for example, U.S. likely to become a public charge. But relating to eligibility. Census data shows that a college degree the commenter noted that if the For example, an alien could provide nearly doubles earnings.662 Similarly, individual was not precluded by a letter from a benefit-granting agency there is no evidence that the alien had immigration status from receiving indicating that the alien is not eligible previously received, or even attempted public benefits, the individual would be for a particular benefit based on the to apply for, or been certified to receive income-eligible for SNAP, Medi-Cal, alien’s immigration status. In the public benefits.663 Therefore, and Federal housing assistance. The alternative, the alien could provide notwithstanding the commenter’s commenter stated that it is not clear information from a public benefit- observation about potential future why DHS would not deem the granting agency listing the immigration eligibility for such benefits, the alien, individual likely to become a public classifications not eligible for public based on the facts, would not be more charge at any time in the future. benefits and evidence of the alien’s likely than not receive public benefits at Response: DHS disagrees with the prospective immigration status that any time in the future. However, if there commenter that the rule fails to consider together indicate that the alien is not were evidence that, the alien was the alien’s immigration status in eligible for the benefit because the alien discontinuing his or her education, or determining whether an alien could does not have an immigration had a chronic health condition that qualify for public benefits, and has classification that the public benefit- would impair the alien’s ability to work, added language in the rule to clarify. granting agency has identified as or that the alien had attempted to apply DHS also disagrees that the totality of eligible. Similarly, the alien could for public benefits but had been found the circumstances determination is provide evidence of his or her gross ineligible based on his immigration impermissibly vague and unpredictable, household income together with status, such evidence could tip the or that the example the commenter cited information from a public benefit determination the other way and USCIS illustrates the unpredictability of the agency’s website showing the eligibility may determine that the alien is more determination. In the proposed rule, income threshold for the state in which likely than not to receive public benefits DHS established as one of the the alien resides, or will reside upon above the designated threshold at any mandatory regulatory factors the becoming a lawful permanent resident, time in the future. Therefore, DHS consideration of the alien’s prospective that specifically indicates that the appreciates that a real world immigration status and expected period alien’s gross household income exceeds circumstance is likely to include facts of admission. DHS notes that there are the threshold. DHS would consider such beyond those included in the a number of legal and practical evidence in the totality of the hypothetical fact pattern that could lead limitations on DHS’s ability to consider circumstances. DHS notes that an to a different adjudication. eligibility for public benefits as part of assessment that an alien is not currently its totality of the circumstances eligible for any or all designated public 4. Fee Waivers for Immigration Benefits determination. For instance, DHS does benefits may carry some weight in the Comment: Many commenters said the not have the expertise to apply the totality of the circumstances, but will rule overweighs receipt of one-time varied and often complex framework of never be outcome determinative. DHS immigration fee waivers to predict public benefit eligibility criteria, either must consider all statutory factors to whether a person will become a public on a state-by-state basis or according to determine whether the alien is likely at charge by double counting, as use of a general Federal standards; cannot any time in the future to become a fee waiver is a function of income. reliably predict the alien’s likely state of public charge. residence at any time in the future; and With respect to the specific example 662 See College Degree Nearly Doubles Annual cannot assume that all aliens who are cited by the commenter, DHS notes that Earnings: https://www.thoughtco.com/college- degree-nearly-doubles-annual-earnings-3320979 ineligible for the designated benefits in evidence of alien’s income being below (last visited June 27, 2019); U.S. Census Bureau the near-term will not use them in the 125 percent of the FPG or evidence that Educational Attainment in the United States: 2004: long term.661 the alien’s immigration status may not https://www.census.gov/data/tables/2004/demo/ But if an alien provides evidence from be disqualifying, are not necessarily educational-attainment/cps-detailed-tables.html (last visited June 27, 2019); U.S. Census Bureau a Federal, State, local, or tribal agency determinative factors in the totality of Post-Secondary Employment Outcomes (PSEO) specifically identifying that alien does the circumstances. In the example (Beta) https://lehd.ces.census.gov/data/pseo_ not qualify for one or more public commenter discusses (Table 34, beta.html. benefits, USCIS can use that information example A in the proposed rule), DHS 663 Even though some studies show that low income earners receive one or more public benefits would determine that the alien is not at higher rates, DHS would not necessarily find this 661 See, e.g., Medicaid.gov, Medicaid, Children’s likely to become a public charge trend to be outcome determinative in the case of an Health Insurance Program, & Basic Health Program notwithstanding the alien’s lower individual enrolled in a Bachelor’s degree program. Eligibility Levels, https://www.medicaid.gov/ income and lack of health insurance See, e.g., The New York Times, Working, but medicaid/program-information/medicaid-and-chip- Needing Public Assistance Anyway https:// eligibility-levels/index.html (discussing Medicaid because the alien is fundamentally a www.nytimes.com/2015/04/13/business/economy/ eligibility from state to state) (last visited June 5, young and healthy person (age 30) of a working-but-needing-public-assistance- 2019); State TANF Policies: A Graphical Overview working age, with an employment anyway.html (April 12, 2015) (last visited July 26, of State TANF Policies as of July 2016, available at history and education (attending a 2019); U.C. Berkeley Labor Center: High Public Cost https://www.acf.hhs.gov/sites/default/files/opre/ of Low Wages http://laborcenter.berkeley.edu/the- wrd_2016_databook_companion_piece_05_15_18_ Bachelor’s degree program), and the high-public-cost-of-low-wages/ (last visited on June 508.pdf (last visited June 5, 2019). alien is an employment-based applicant 27, 2019).

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Another commenter stated that there is high income, would be counted under that the inclusion of fee waivers in not enough data to determine whether the proposed rule. public charge determinations would one-time receipt of a fee waiver was Response: DHS disagrees that the result in fewer immigrants being willing related to a person being a public consideration of a fee waiver would be and able to seek citizenship. A charge. A commenter noted that a impermissibly retroactive. First, fee commenter stated that many of their separate consideration of the use of a fee waivers applied for or received before clients were worried about whether waiver means that factors such as the effective date will not be using a fee waiver would impact their income would be unfairly counted considered.665 Second, any fee waiver chances of having their applications twice—once based on their household received on or after the effective date of approved. A commenter stated that the income and a second time when the fee the rule, will be considered in the fee waivers would be limiting the waiver is granted because of their totality of circumstances and, alone, options immigrants have to file for income. would not result in a finding that a immigration benefits and would harm Response: DHS disagrees that the person is likely at any time in the future families, citing a story about a client in receipt of a fee waiver for an to become a public charge. In the the process of applying for citizenship. immigration benefit is over weighted. totality of the circumstances analysis, An individual commenter stated that it The fee waivers for immigration benefits evidence of a change in circumstances, is cruel to offer fee waivers and then is only one evidentiary consideration in e.g., steady employment and income, hold the use of said fee waiver against the totality of the circumstances and it would also be taken into consideration. immigrants in their application. is not heavily weighted. As indicated in Third, simply because the regulation Additionally, another commenter stated the NPRM,664 since fee waivers are bases the consideration of public charge that the standards for fee waivers are based on an inability to pay (i.e., receipt in part on an occurrence of a fee waiver often more lenient than the finding of of means-tested public benefits or on or after the effective date of the rule, inadmissibility under the proposed rule, income at the FPG level), a fee waiver does not make the regulation and therefore should not be used in 666 for an immigration benefit suggests an impermissibly retroactive. Through public charge determinations. A inability to be self-sufficient. DHS this regulation, DHS simply specifies different commenter stated that the use recognizes that some of the factors considerations as part of implementing of fee waivers in public charge required to obtain a fee waiver may be the public charge determination, determination would likely similar to those used as part of the according to the best evidence available disadvantage naturalized citizens in public charge determination. These at the time of the adjudication, efforts to reunite their families. A factors, however, are reviewed including past occurrences of a fee couple commenters stated that receipt of a fee waiver often serves as a step differently according to their respective waiver request or grant as a toward self-sufficiency and decreases purposes. For purpose of the public consideration, in the totality of the the likelihood that an immigrant will be charge inadmissibility determination, alien’s circumstances. Finally, and dependent on government assistance in all the factors and circumstances will be similar to the receipt of public benefits, the future. Another commenter stated reviewed in the totality of the DHS will, in the totality of the that fee waivers are often used when circumstances without a counting circumstances, consider how long ago applying for work authorization, as at system currently used for fee waiver the fee waiver was received. If the fee that time immigrants have no income, purposes, in which each factor is waiver was received recently, it would and considering fee waivers would lead individually ranked or scored to assess have more relevance to the public to longer unemployment periods and whether a fee waiver is warranted. As charge determination, whereas if the fee increase use of public benefits. A such, DHS will consider the alien’s waiver was received some time ago, for commenter stated that often immigrants financial liabilities and the request or example, before the alien obtained new, apply for fee waivers when they need to the receipt of a fee waiver as evidence steady employment, the relevance of the file an application in a timely manner, of financial liabilities and status in the fee waiver in the totality of the but do not have the time to save enough totality of the circumstances. Other circumstances would be diminished. money to afford the application fee. evidence may provide the same Comment: Some commenters stated Another commenter stated that information and therefore, DHS would that the rule seemed to reduce or including a fee waiver in public charge consider the evidence as a whole but potentially eliminate the use of the determinations would increase the not individually rank or score the application fee waivers and stated that burden on immigrants. evidence. the fee waiver program is founded on its own policy rationale, which, according Response: DHS disagrees that the rule Comment: One commenter said it is to the commenters, is not the subject of eliminates fee waiver requests. impermissibly retroactive to consider this rule. A commenter stated that fee Applicants would still be able to request the past receipt of a fee waiver because waivers are typically only available for fee waivers in accordance with the ‘‘it impermissibly penalizes applicants applications not subject to the public applicable regulations and form for their financial status on the date of charge ground of inadmissibility and instructions.667 The consideration of a the application for the fee waiver and stated that using fee waivers in public fee waiver in the public charge not on the date of application for charge determinations will only serve to inadmissibility determination is but one admission, adjustment of status, or for a chill overall immigration applications. factor in the totality of the visa.’’ Commenters indicated that often, Another commenter further remarked circumstances. As indicated in the an individual’s economic situation NPRM,668 requesting or receiving a fee improves after receiving immigration 665 8 CFR 212.22(b)(4)(ii)(G). waiver for an immigration benefit benefits for which applicants receive a 666 ‘‘A regulation has retroactive effect ‘when it suggests a weak financial status. Since fee waiver. A commenter stated that takes away or impairs vested rights acquired under fee waivers are based on an inability to even immigrants who applied for a fee existing laws, or creates a new obligation, imposes pay, seeking or obtaining a fee waiver waiver and were rejected for having a new duty, or attaches a new disability, in respect to transactions or considerations already past.’ ’’ See Mejia v. Gonzales, 499 F.3d 991, 995—99 (9th Cir. 667 See 8 CFR 103.7(c). 664 See Inadmissibility on Public Charge Grounds, 2007) (quoting INS v. St. Cyr, 533 U.S. 289, 321 668 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51188 (proposed Oct. 10, 2018). (2001)). 83 FR 51114, 51188 (proposed Oct. 10, 2018).

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for an immigration benefit suggests an a T nonimmigrant at time of admission, between agencies, and that the score inability to be self-sufficient. In and an applicant for, or individual who reported to a consumer may not be the addition, the Senate Appropriations is granted, U nonimmigrant status are same as the score used by lenders. Many Report for the Department of Homeland generally exempt from the public charge commenters asserted that an applicant’s Security for FY 2017, stated that ‘‘the ground of inadmissibility. For reasons credit history could be impacted by Committee is concerned about the discussed earlier in this preamble, DHS factors outside their control from which increased use of fee waivers, as those amended this final rule to clarify that T they may recover. Additionally, a paying fees are forced to absorb costs for nonimmigrants seeking any immigration commenter indicated that credit report which they receive no benefit. In benefit subject to section 212(a)(4) of the and income alone does not depict a addition, those unable to pay USCIS Act, 8 U.S.C. 1182(a)(4), are generally clear picture of an immigrant’s full fees are less likely to live in the United exempt from the public charge ground financial situation or their ability to States independent of government of inadmissibility, as previously raise their credit score. A couple of assistance.669 However, the House discussed. Because these survivors of other commenters stated that credit Report on Department of Homeland human trafficking and domestic reports and scores do not contain Security Appropriations Bill, 2019, said violence are generally exempt from the enough information about an ‘‘USCIS is expected to continue the use public charge inadmissibility ground, individual’s earnings or incomes. of fee waivers for applicants who can they would not be impacted by this rule. Another commenter stated that many demonstrate an inability to pay the Comment: Several commenters stated consumers who are credit invisible or naturalization fee. USCIS is also that the consideration of receipt of a fee unscoreable will be disadvantaged by encouraged to consider whether the waiver would keep immigrants from the rule and provided data on the current naturalization fee is a barrier to accessing their right to justice in population who falls into these groups. naturalization for those earning between immigration proceedings. Many commenters stated that credit 150 percent and 200 percent of the Response: DHS disagrees that the scores are a poor way to evaluate the federal poverty guidelines, who are not consideration of requests for, and past ability to pay bills, since scores do currently eligible for a fee waiver.’’ receipt of, fee waivers would prevent not reflect rent payments, which are Therefore, DHS would not consider the individuals in removal proceedings often the largest recurring expense a request or receipt of reduced fee for the from applying for any benefits for which household or individual will incur. naturalization application as part of the they are eligible. Although request and Some commenters stated that medical public charge inadmissibility. receipt of a fee waiver is a consideration debt is often reflected in credit reports DHS also disagrees that this rule in the public charge inadmissibility and is not an accurate or reliable would deter individuals from applying determination, it is but one factor in the measure of an individual’s financial for U.S. citizenship or otherwise totality of the circumstances, and could status. One commenter stated that credit imposes additional burdens on not, alone, form the basis of an reports should not be included as a applicants. This rule addresses how inadmissibility determination. The negative factor, but that individuals DHS determines inadmissibility of consideration of fee waivers within should be allowed to submit a good aliens on account of public charge; and public charge inadmissibility credit score as a positive factor if they it does not apply to individuals seeking determinations conducted by so choose. An individual commenter to be naturalized who would apply for immigration judges in removal stated that there may be additional a fee waiver request because the public proceeding is more appropriately credit data, which provides for non- charge ground of inadmissibility does addressed by DOJ in the context of their traditional credit activity (i.e., short- not apply to naturalization public charge rulemaking. DHS’s rule term payday lending, rent-to-own, auto proceedings.670 only addresses the consideration of fee lending data) that could be used in For clarification purposes, DHS has waivers in the context of matters before public charge determinations. amended the regulatory text in 8 CFR DHS. Response: A weaker financial status may, in the totality of the 212.21(b) to provide that fee waiver 5. Credit Report and Score requests submitted or granted as part of circumstances, lead to a public charge immigration benefits that are not subject Comment: Several commenters noted determination. As indicated in the to the public charge inadmissibility that a credit scores and credit histories NPRM,671 USCIS would consider an ground under section 212(a)(4) of the are not designed to assess an alien’s alien’s liabilities and information of Act, 8 U.S.C. 1182(a)(4) will not be likelihood of becoming a public charge, such liabilities in a U.S. credit report considered as part of the public charge were not designed to be used in the and score as part of the financial status determination. See 8 CFR immigration context, and do not assess factor in the totality of the 212.22(b)(4)(G). an alien’s self-sufficiency. A commenter circumstances. As provided in the Comment: One commenter stated that also noted that credit reports do not NPRM, a good credit score in the United considering fee waivers would unfairly address at all whether an alien can States is a positive factor that indicates and disproportionately impact survivors financially provide for himself or herself a person is likely to be self-sufficient of human trafficking and domestic because credit reports do not reflect the and support the household. Conversely, violence who are less likely to have the subject’s payment of rent, utilities, a lower credit score or negative credit ability to pay for fee-based forms. income, savings, or other financial history in the United States may Another commenter further remarked resources. A few commenters stated that indicate that a person’s financial status that the use of fee waivers in public a person’s credit history should not is weak and that he or she may not be charge determination would impact their ability to change self-sufficient. Credit reports and credit disproportionately affect women, immigration status. Many commenters scores provide information about a survivors of abuse, and people of color. said there is no correlation between a person’s bill paying history, loans, age Response: As discussed in the NPRM, low credit score and the evaluation of current accounts, current debts, as an alien who is a VAWA self-petitioner, factor. Many commenters stated that well as work, residences, lawsuits, credit reports are highly inaccurate. 669 See S. Rep. No. 114–264, at 125 (2016). Further, a commenter remarked that 671 See Inadmissibility on Public Charge Grounds, 670 See INA section 311–347, 8 U.S.C. 142–1458. credit reporting scores vary widely 83 FR 51114, 51189 (proposed Oct. 10, 2018).

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arrests, collections, actions, outstanding Comment: A commenter expressed be used as a negative factor in a public debts and bankruptcies in the United concern that inclusion of credit history charge determination. States.672 Credit reports generally assist in public charge determinations would Response: DHS would only consider creditors to determine the credit amount to double counting of some of the information included in the latest worthiness or risk of a person, and affect the evidence upon which such reports credit report and score as provided by the terms of the credit the person is and scores are based and would already the alien at the time of adjudication for offered.673 DHS’s use of the credit report factor into the public charge public charge inadmissibility purposes. or scores focuses on the assessment of determination. The fact that some had a previous these debts, liabilities, and related Response: DHS recognizes that some negative or positive score will not be indicators, as one indicator of an alien’s of the factors enumerated in the public taken into account in the public charge strong or weak financial status, so that charge rule may be based on similar inadmissibility determination. in the totality of the circumstances and circumstances; however, some of the Comment: One commenter questioned as part of all considerations affecting the considerations may be reviewed how DHS plans to collect, protect, and alien, the alien is more or less likely to differently depending on the factor. manage sensitive data surrounding become, in the future, a public charge. However, all the factors and credit report scores. Another commenter DHS believes it is useful information in circumstances will be reviewed in the noted that USCIS would be required to totality of the circumstances without determining whether aliens are able to comply with the storage and disposal ranking the factors numerically. DHS support themselves. However, DHS requirements for credit information at would consider the alien’s financial understands that not everyone has a 15 U.S.C. 1681x. liabilities and past receipt of public credit history in the United States and Response: DHS takes seriously its benefits; the credit report and score responsibility to properly protect would not consider the lack of a credit would simply serve as evidence of report or score as a negative factor. DHS sensitive information in its financial liabilities and status. Other 679 also understands that the three main possession. DHS follows the Privacy evidence may provide the same Act requirements, which apply to different credit reporting agencies do information and therefore DHS would not provide identical scores. DHS information that is maintained in a consider the evidence as a whole but ‘‘system of records’’ from which believes that the credit report and score not individually rank or score the are nonetheless sufficiently reliable to information is retrieved by the name of evidence. an individual or by some identifying be useful in reviewing a person’s Comment: One commenter stated that number, symbol, or other identifying financial status in determining whether the guidelines in the proposed rule particular assigned to the individual. an applicant is likely to become a public regarding credit score were broad and The materials in alien files (A-files) are charge.674 As the Consumer Finance ambiguous. A commenter stated that considered permanent records and are Protection Board has said ‘‘A credit using credit scores in public charge transferred to the National Archives and report generally is considered s evaluation would lead to ‘‘arbitrary, Records Administration 100 years after reasonably reliable third-party record . . inconsistent, and unfair’’ public charge the subject’s birth,680 and therefore not . for purposes of verifying items determinations. The commenter further subject to the disposal requirements of customarily found on a credit report, stated that the mechanics of going the Fair Credit Reporting Act (FCRA). such as the consumer’s current debt through immigrants’ credit reports and To the extent that credit information obligations, monthly debts, and credit scores are impractical. subject to the FCRA is maintained in 675 Response: DHS disagrees that the history.’’ Further, if the alien has a other agency records systems, such language on credit scores is broad and confirmed error on the report or score, records will be destroyed in accordance ambiguous or that it would lead to an USCIS would not consider the report a with applicable General and/or Agency arbitrary, inconsistent and unfair public negative factor. USCIS will review the Records Schedules which would be in charge determination. As indicated in latest credit report and score provided compliance with the FCRA the NPRM,676 USCIS would generally by the alien. DHS notes that a credit requirements.681 As with all forms and consider a credit score characterized as report or score alone would not lead to private identifiable information, DHS an inadmissibility determination based ‘‘good’’ or better to be a positive factor as it demonstrates an applicant may be will follow all applicable regulations on public charge because the assessment and procedures to safeguard and protect of public charge is made in the totality able to support himself or herself and any dependents assuming all other any sensitive information. of the circumstances and no one factor Comment: A commenter indicated or consideration (with the exception of financial records are sufficient. A ‘‘good’’ credit report is generally near or that if DHS includes credit reports in an insufficient affidavit of support or no the public charge determination DHS affidavit of support, where required) is slightly above the average of U.S. consumers,677 and therefore the person should not exclude non-U.S. credit outcome determinative for being found reports because credit reporting in the inadmissible based on public charge. may be self-sufficient and less likely to become a public charge. A poor credit United States is exclusively the report is well below the average of U.S. province of private-sector corporations, 672 See USA.gov, Credit Reports and Scores, consumers.678 this is not the case in many countries. available at https://www.usa.gov/credit-reports (last The commenter cited the World Bank, updated July 18, 2019) (last visited July 26, 2019). Comment: Multiple commenters 673 See Inadmissibility on Public Charge Grounds, asked whether past poor credit would which stated that at least 30 countries 83 FR 51114, 51189 (proposed Oct. 10, 2018). 674 See generally Marting Realty, Inc. v. Marks, 676 Inadmissibility on Public Charge Grounds, 83 679 See generally Notice of Modified Privacy Act 1986 WL 4647 (Ohio Ct. App. 9th Dist. 1986) FR 51114, 51189 (proposed Oct. 10, 2018). System of Records, 82 FR 43556, 43564 (Sept. 18, (‘‘Credit reports are held to be highly reliable by the 677 MyFICO, Understanding FICO Scores 5, 2017) (‘‘DHS/USCIS safeguards records in this business world and should be admitted where such available at https://www.myfico.com/Downloads/ system according to applicable rules and policies, reliability is not challenged.’’) (citation omitted). Files/myFICO_UYFS_Booklet.pdf (last visited July including all applicable DHS automated systems 675 Official Interpretation 43(c)(3)-3 to 12 CFR 26, 2019). security and access policies. USCIS has imposed 1026.43(c)(3), published as part of Ability-to-Repay 678 MyFICO, Understanding FICO Scores 5, strict controls to minimize the risk of compromising and Qualified Mortgage Standards Under the Truth available at https://www.myfico.com/Downloads/ the information that is being stored.’’). in Lending Act (Regulation Z), 78 FR 6408, 6607 Files/myFICO_UYFS_Booklet.pdf (last visited July 680 82 FR 43556, 43564. (Jan. 30, 2013). 26, 2019). 681 See 15 U.S.C. 1681w; 16 CFR 682.3.

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operate public credit registries, Response: DHS disagrees that further stated that the only people to including seven nations in the European considering credit scores and reports as prosper from the proposed rule would Union and 17 in Latin America and the a negative factor is directly contrary to be the credit repair industry. Caribbean. the case law established in Howe v. A few commenters stated that credit Response: DHS will not include credit United States ex rel Savitsky.685 In reports are not available in languages reports from other countries in the Howe, the court criticized the public other than English, which can public charge inadmissibility charge determination made by the disadvantage immigrants with limited determination. DHS agrees that credit immigration inspector, finding that English proficiency from accessing their reporting systems vary significantly immigration inspector’s ‘‘latitudinarian score and disputing mistakes made to throughout the world, including but not construction’’ of the term public charge their credit. Adding to this a commenter limited to how they are established, the would render all other grounds stated that immigrants often are not information collected, and the rating redundant because everybody could be aware or are not able to correct errors on policy used.682 As explained in the considered a public charge.686 The court their credit score. One commenter stated NPRM, the information obtained indicated that the public charge that not using credit cards can through a U.S. credit report may be determination could not be simple negatively impact one’s credit score indicative of a person’s financial status conjecture but that there must be some even though not using credit cards can and the person’s self-sufficiency in the indication that an otherwise physically be a financially responsible choice. United States.683 Given that the focus of fit individual were to become a public Adding to this, a few commenters stated the public charge determination is the charge for want of means to support that many people lack credit history alien’s likelihood of becoming a public themselves in the future before he or she because they are frugal which shows a charge to the United States in the future, could be found inadmissible.687 The lack of likelihood of becoming a public DHS believes that the U.S. credit report court did not imply or mandate that any charge. provides the best means to obtain aspect of an individual’s financial Response: DHS recognizes that the relevant information regarding assets, history be excluded from a public credit reports and scores may be resources and financial status. As it is charge determination. Additionally, the unavailable or inaccurate. As provided the case with all factors, USCIS will case was decided based on the 1910 in the NPRM,691 the absence of an assess the information obtained through version of Section 2 of the Immigration established U.S. credit history would a U.S. credit report or score and its Act of 1907; the provision at the time not be a negative factor when evaluating impact on the public charge did not specifically require immigration public charge in the totality of the determination in the totality of the officers to consider the alien’s ‘‘assets, circumstances. Absent a U.S. credit circumstances; USCIS will not base the resources and financial status’’ as part of report or score, USCIS may give positive inadmissibility determination solely on the public charge determination.688 In weight to an alien who can show little the results of the credit report or score. contrast, with the 1996 amendments of to no debt and a history of paying bills Comment: Another commenter IIRIRA, Congress specifically required timely. An alien may provide evidence indicated that considering credit scores immigration officers to consider these of regular and timely payment of bills, and reports as a negative factor is factors as part of the public charge and limited balances on credit cards and directly contrary to case law, citing to determination.689 As explained in the loans. In addition, USCIS would not Howe v. United States ex rel Savitsky, NPRM,690 DHS considers an alien’s consider any error on a credit score that 247 F. 292 (2d Cir. 1917). The liabilities and information of such has been verified by the credit agency in commenter explained that in this case liabilities in the U.S. credit report and determining whether an alien is likely the immigration inspector found the score indicative of the state of an alien’s to become a public charge in the future. alien to be a public charge for having assets, resources, and financial status Comment: Several commenters stated drawn a check abroad which ultimately and the person’s ability to be self- that considering credit scores will proved bad and that in a dispute arising sufficient. disparately affect ‘‘marginalized from contractual matter, the alien had Comment: Many commenters communities.’’ Additionally, a few sold the equipment at issue and kept the remarked that immigrants are more commenters stated that using an proceeds.684 The Second Circuit likely to have no credit history or an immigrant’s credit history in public reversed the decision explaining that insufficient amount of information to charge determinations would have a Congress meant the public charge generate a reliable score. A commenter disproportionate impact on immigrants provision to exclude persons who are stated that in their experience helping of color; women; survivors of sexual and likely to become occupants of enroll immigrant populations in ACA domestic abuse; people with lower almshouses for want of means with open enrollment, credit scores were levels of education; and local which to support themselves in the often either unavailable or inaccurate. A communities where credit scores there future.’’ commenter stated that many immigrants are lower than the national average. A are often victims of financial frauds and commenter stated that the use of credit 682 The commenter cited to Margaret Miller, financial abuse, which could negatively scores in public charge determinations ‘‘Credit Reporting Systems Around the Globe’’ affect their credit score. The commenter (Washington; World Bank, June 2000), available at, may have the unintended consequence http://siteresources.worldbank.org/INTRES/ of trapping immigrants in a cycle of 685 Resources/469232–1107449512766/Credit_ See Howe v. United States ex rel Savitsky, 247 payday loans. Reporting_Systems_Around_The_Globe.pdf (last F. 292 (2d Cir. 1917). 686 Response: DHS disagrees that visited July 24, 2019). See Howe v. United States ex rel Savitsky, 247 683 See Inadmissibility on Public Charge Grounds, F. 292, 294 (2d Cir. 1917). consideration of credit scores will 83 FR 51114, 51189 (proposed Oct. 10, 2018). 687 See Howe v. United States ex rel Savitsky, 247 disparately affect certain groups of 684 Howe v. United States ex rel Savitsky, 247 F. F. 292, 294 (2d Cir. 1917). aliens. DHS must consider an 292 (2d Cir. 1917) (He had drawn a check for $113 688 See Howe v. United States ex rel Savitsky, 247 applicant’s assets, resources, and F. 292, 293 (2d Cir. 1917). See Comp. St. 1916, Sec. before leaving Canada which proved bad and that financial status in making a public in a dispute with one Solomon Cohen arising out 4244. of the purchase of a milk route, Cohen charged him 689 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). with having sold some of the equipment and kept 690 See Inadmissibility on Public Charge Grounds, 691 See Inadmissibility on Public Charge Grounds, the proceeds.) 83 FR 51114, 51188–89 (proposed Oct. 10, 2018). 83 FR 51114, 51189 (proposed Oct. 10, 2018).

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charge determination.692 The rule medical care is vague and impossible to their own capabilities and the resources abides by the statutory requirement as determine fairly. One commenter said of their families, their sponsors, and provided in section 212(a)(4) of the Act, considering lack of private health private organizations.’’ 697 Financial 8 U.S.C. 1182(a)(4), and is consistent insurance seems ‘‘outlandish’’ when means to pay for reasonably foreseeable with congressional statements relating fewer than half of private employers in medical costs is part of being self- to self-sufficiency set forth in 8 U.S.C. the United States provide health sufficient. In evaluating the alien’s 1601. DHS does not believe that the use insurance to their workers. Similarly, a ability to pay for reasonably foreseeable of credit scores will trap people into a commenter said that many people who medical costs, DHS will consider cycle of payday loans since the rule in are employed do not have access to whether the alien has private health general, and the use of credit scores in affordable healthcare coverage. Another insurance (which, on its own, can particular, do not require anyone to commenter stated that immigrants are constitute a heavily weighted positive incur any debts. more likely than citizens to work in factor in certain circumstances, as Comment: A few commenters said low-income industries that do not described below) or other household that if public charge determinations are provide health insurance or pay enough assets and resources. DHS notes that made using credit reports or scores, it for employees to afford health such an evaluation may in some cases must be in compliance with user duties insurance. One commenter suggested require DHS to consider an alien’s under the FCRA. Specifically, the the agency provide more information on publicly funded or subsidized health commenters noted that the FCRA how an immigrant can obtain insurance, insurance that is not defined as a public applies to USCIS as a Government since employer insurance is not always benefit under this rule. As previously agency,693 and that FCRA requires an option. Some commenters stated that indicated, DHS will not base the persons to provide the consumer with a low-wage workers should not be denied inadmissibility determination on simply written notice if it takes an ‘‘adverse status because they lack health one factor but will review all the factors action’’ against that person ‘‘based in insurance. A couple commenters and circumstances in the totality of the whole or in part’’ on a credit report.694 remarked that the lack of private health circumstances without a rating or A USCIS denial would qualify as an insurance in the United States provided numerical standard. ‘‘adverse action’’ since it would be the rationale behind the passing of the Comment: Some commenters stated denying a ‘‘license or other benefit ACA. An individual commenter stated that the proposed rule, with its granted by a governmental that the proposed financial means to statement that ‘‘individuals in poor to pay for medical costs factor introduces instrumentality required by law to fair health are more likely to access a conundrum in deciding which will be consider an applicant’s financial public benefits to treat their medical 695 weighted more heavily: Having private responsibility or status.’’ USCIS condition’’ erroneously suggests that all insurance now or previously having would be required to provide the immigrants suffer from preexisting used public insurance. Another required written notice required under conditions and that they will all access commenter stated that the proposed the FCRA. Some commenters stated that federally subsidized health insurance. standard would be double counting the burden caused by complying with Response: DHS disagrees that the rule the FCRA would outweigh the benefits with other factors in the public charge determination. assumes that all immigrants suffer from from using the credit score. pre-existing conditions and obtain Response: DHS appreciates the Response: As explained in the NPRM, federally subsidized health insurance. comments. DHS agrees that it would be USCIS will consider whether a person Whether a person has a medical subject to FCRA when it relied on whole has health insurance or has the condition is but one factor in the totality or on part on a credit report or credit household assets and resources to pay of the circumstances. DHS will also score obtained from a credit report or for reasonably foreseeable medical 696 consider whether the alien has the other consumer report to deny a benefit. costs. In addition, as discussed in resources to pay for reasonably In such cases, USCIS will include the section III.R. below, based on DHS’s foreseeable medical costs, and DHS will information required by 15 U.S.C. review of the relevant data, DHS has consider it a heavily weighted positive 1681m(a) as part of its communication determined to designate a heavily factor if the alien has private health with applicants. However, DHS weighted positive factor for having insurance, so long as such insurance is disagrees that the burden imposed upon private health insurance, so long as such appropriate for the expected period of USCIS would outweigh the benefits insurance is appropriate to the expected admission and the alien does not from using a credit score and will retain period of admission, and the alien does receive premium tax credits under the the score as part of the rule. not receive premium tax credits under the ACA for such insurance. DHS ACA for such insurance. 6. Financial Means To Pay for Medical understands that certain individuals Comment: Another commenter stated Costs may choose to forego public health that requiring the financial means to pay Comment: One commenter supported insurance, such as Medicaid, because of for medical costs is in direct conflict the proposal to assess whether an the impact on public charge. The rule, with the goals of the ACA. immigrant has private medical however, abides by the statutory Response: DHS disagrees that insurance. Another commenter requirement as provided in section requiring financial means to pay for disagreed with the proposal to include 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), medical costs is in conflict with the financial means to cover medical costs. and is consistent with congressional ACA. Although the ACA provides for A couple commenters stated that the statements relating to self-sufficiency in affordable health insurance for a greater requirement that an immigrant have 8 U.S.C. 1601. As Congress indicated number of people, it also limits coverage sufficient assets to cover the costs of that the immigration policies continues to categories of immigrants eligible for to be that, ‘‘aliens within the Nation’s subsidies and assistance through the 692 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). borders not depend on public resources 693 15 U.S.C. 1681a(b) (including government to meet their needs, but rather rely on 697 See Personal Responsibility and Work agencies in the definition of persons). Opportunity Reconciliation Act of 1996, Public Law 694 15 U.S.C. 1681m(a). 696 See Inadmissibility on Public Charge Grounds, 104–193, section 400, 110 Stat. 2105, 2260 (Aug. 22, 695 15 U.S.C. 1681b(a)(3)(D). 83 FR 51114, 51189 (proposed Oct. 10, 2018). 1996) (codified at 8 U.S.C. 1601(2)).

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ACA.698 DHS is also not limiting the United States for lack of education and Comment: A commenter stated that ability of people to receive subsidized that the new definition of public charge, the proposed rule assumes that health insurance, through the ACA or in general, benefits the wealthy, putting individuals who have a highly other programs. Insurance obtained them above hardworking families that recognized degree or a unique skill are from a private health insurance provider actually help the country’s economy. more likely to succeed in the United through the ACA marketplace would be Another commenter equated the States, but these individuals often considered private health insurance education requirement to a wealth test experience downward mobility post- under this rule, although, as explained with no bearing on an individual’s migration because their foreign degrees, more fully in section III.R below, private potential. In contrast, a commenter credentials, and work experience are not health insurance for which the alien stated that education should be directly transferable to the United States receives premium tax credits under the considered in a public charge job market. The commenter further ACA would not qualify as private health determination because it is a key stated that recent data shows education insurance for purposes of the heavily indicator of welfare use. The commenter is a misguided factor in a public charge weighted positive factor. added that, while the majority of determination citing one study that Comment: A commenter stated that immigrants come for work and most are found that even though many first- the agency should provide the data used employed, their lack of education generation Americans may face issues to determine the cost of caring for results in low average income and heavy with lower education levels, subsequent chronic disease treatment and that the use of means-tested benefits programs. generations dramatically improve their agency should further their analysis to The commenter expressed support for educational profiles. Another reflect the cost to taxpayers. They an even higher standard and suggested commenter stated that being employed further stated that DHS should illustrate that if an applicant has only a high or currently enrolled in STEM (science, how immigrants could access health school education or did not graduate technology, engineering, and insurance. high school, the burden must be on the mathematics) or information technology Response: The NPRM included a applicant to show they will not be a (IT) fields should be listed as a positive discussion of healthcare costs, and the public charge. Another commenter factor. importance of considering an stated that, while the proposed Response: As previously indicated, individual’s health when making the evidentiary criteria to support the education and skills is a mandatory determination of public charge. DHS education requirement are all factor established by Congress.701 DHS does not believe a more detailed reasonable to consider as contributing would individually review a person’s analysis of the costs associated with factors, it is critical that they not be education and skills to determine chronic disease treatment is necessary. treated as separate elements, but as whether they are able to maintain or DHS does not have current information distinct ways to prove education and obtain employment to avoid becoming a on all available health insurance plans, skills. The commenter concluded that public charge. As occupations vary in however, an applicant can seek treating each of these elements as education and skills requirements, DHS information through HHS or through separate factors is inconsistent with is not limiting its review to specific their local government. congressional intent and the general education or occupations. Therefore, Comment: Many commenters stated concept of a totality of the DHS does not find it necessary to that this factor would negatively and circumstances approach. specify in the rule education and disproportionately affect people with Response: When Congress amended occupations in STEM or other similar disabilities; people with chronic health section 212(a)(4) of the Act, 8 U.S.C. fields. It is DHS’s intent that officer conditions; immigrants of color; Asian 1182(a)(4), it directed officers to should examine every consideration, Americans; victims of human consider the alien’s education and including education and skills, set forth trafficking; farmworkers; and survivors skills, and the rule implements by the alien in the totality of the of sexual abuse and violence. Congress’s directive on this mandatory circumstances when ascertaining Response: DHS does not intend to statutory factor. Additionally, DHS cited whether an alien is likely to become a disproportionately affect such groups. in the NPRM to various studies and data public charge based upon the The rule abides by the requirements as supporting the concept that a person’s applicability of the alien’s education provided in section 212(a)(4) of the Act, education and skills, including skills in and skills to available employment at 8 U.S.C. 1182(a)(4), and is consistent the English language, are correlated to the time of adjudication. with congressional statements relating an individual’s self-sufficiency and Comment: Commenters stated that the to self-sufficiency in 8 U.S.C. 1601. As therefore a positive factor.699 The goal of education requirement discriminates Congress indicated that the immigration this rule is to ensure an alien’s self- against farm workers and other trade policies continues to be that, ‘‘aliens sufficiency and therefore, the workers because they may not have a within the Nation’s borders not depend implementation of this factor, as formal education, but could have been on public resources to meet their needs, proposed by the NPRM, is consistent working in the United States for many but rather rely on their own capabilities with congressional statements relating years. A commenter indicated that, and the resources of their families, their to self-sufficiency in 8 U.S.C. 1601. DHS while individuals that lack a high sponsors, and private organizations.’’ will review and consider evidence school or equivalent education generally brought forward by the applicant, earn less than persons with more formal M. Education and Skills including, but not limited to, evidence education, they have many 1. Education of the alien’s employment history; an opportunities for gainful employment. The commenter noted that there are Comment: A commenter said that it alien’s degrees; occupational skills, licenses or certifications; and evidence numerous jobs with no formal should be unlawful to preclude educational requirement, primarily in individuals from immigrating to the of the alien’s and proficiency in English.700 the agricultural, food processing and preparation, and building trades sectors, 698 See Healthcare.gov, Immigration status and the Marketplace, available at https:// 699 See Inadmissibility on Public Charge Grounds, which are essential to the economy. www.healthcare.gov/immigrants/immigration- 83 FR 51114, 51189–96 (proposed Oct. 10, 2018). status (last visited July 24, 2019). 700 See 8 CFR 212.22(a). 701 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

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Another commenter said consideration Salvador, and China, are less likely to lawful permanent resident status unless of an immigrant’s educational level is have completed high school, and are the applicant holds a skill that is in high impermissible under the governing therefore, less likely to overcome a demand and for which the market pays statute, in light of that factor’s failure to negative assessment based on this a high salaries. Additionally, DHS accurately predict a likelihood of factor. Similarly, a commenter stated disagrees that it does not give sufficient reliance on public benefits. The that the negative weight for lack of a weight to the education standard: The commenter suggested that studies have high school diploma and lack of public charge assessment considers each shown that low-skilled and low- employment history would impact a factor and circumstance applicable to educated immigrant men demonstrate significant portion of women from the alien and each factor is accordingly ‘‘substantially higher rates of Asian countries who are adjusting their weighted to determine whether an alien employment’’ than do comparable status. will be self-sufficient while in the native-born men, particularly because of Response: DHS will examine the United States. The DHS standard migrant selectivity in deciding where to totality of the individual’s recognizes, consistent with the statute, locate and work. The commenter circumstances, regardless of the that it is possible that an alien’s other concluded by saying lack of a formal individual’s nationality, sex or other positive factors may outweigh the lack secondary education does not indicate, characteristic, to assess whether the of formal education with the result that among immigrant populations, a individual is likely to become a public an alien is not deemed to be likely at likelihood of becoming a public charge charge in the future. Among the factors any time in the future to become a and indicates the contrary. to consider, education and skills is but public charge. Response: As indicated above, one factor and is not outcome Comment: Several commenters education is one of the mandatory determinative on its own. When expressed concern over the negative factors in section 212(a)(4) of the Act, 8 evaluating whether the alien has assessments that individuals with U.S.C. 1182(a)(4) that DHS must adequate education or skills to either disabilities may encounter under the consider in the public charge obtain or maintain employment, USCIS’ education and skills factor in public determination. Employment history will considerations include, but are not charge determination. One commenter also be considered in the public charge limited to the alien’s past employment noted that in order to work and go to inadmissibility determination to history; whether the alien has a high school, many individuals with determine whether the alien may obtain school degree or its equivalent, or any disabilities rely upon Medicaid-funded or maintain employment. Therefore, higher education; whether the alien has services that would be considered in the while the lack of formal education such any occupational skills, certifications or public charge inadmissibility as the lack of a high school diploma or licenses; and the alien’s proficiency in determination’s assets, resources and other education, are generally a negative the English or other languages in financial status factor, and will also consideration, the alien’s employment addition to English. DHS also impact the education and skills factor. history as well as any occupational encourages the applicant to bring skills, certifications or licenses are forward any consideration he or she A few commenters added that generally positive considerations. DHS believes are relevant to the unemployment rates for individuals agrees that there are many opportunities determination whether the alien has with disabilities are drastically higher for gainful employment, but DHS sufficient education or skills to not than those for individuals without disagrees that consideration of an become a public charge at any time in disabilities. Many commenters immigrant’s educational level is the future. addressed how the education impermissible as it is part of Congress’ Comment: A commenter stated that requirements might negatively affect mandatory factors to consider in section the level and quality of the education immigrants with disabilities, arguing 212(a)(4) of the Act, 8 U.S.C. 1182(A)(4). attained by a prospective immigrant can that disparity in education and Additionally, the NPRM showed a clear help predict how likely they are to educational barriers for people with a link between increased education and become a public charge and suggested disability have been ongoing in the increased employability, employment prioritizing higher education in the United States for generations, resulting productivity, as well as earnings, and a immigration process. The commenter in lower rates of high school reduction in public benefits use.702 stated that immigrants with a high completion, and great disparities exist DHS will consider a range of evidence school education or less should not when comparing the attainment of as to education and skills. To clarify qualify for a green card unless the higher-level degrees. A couple of additional types of documentation that applicant holds a skill(s) that is in high commenters said attaining education establishes a steady employment demand and can be expected to earn a and employment are areas where many history, DHS has revised the evidentiary high enough salary that they would not people with disabilities often face considerations in the rule to indicate need to enroll in any welfare programs. significant discrimination based on their that applicants should include federal Another commenter said not enough disability. tax return transcripts for the previous 3 weight is being given to an education Response: DHS appreciates the years, if applicable, or, if the alien was standard, noting that while 37 percent comments and understands that not required to file federal income taxes, of households headed by noncitizens employment opportunities individuals other probative evidence of the alien’s with at least some college use welfare, with disabilities are different. Officers employment history including Form W– the rate rises to 81 percent for will not find an individual inadmissible 2 for the previous 3 years. households headed by noncitizens with solely on account of his or her Comment: Some commenters stated only a high school diploma or less. education, skills, or his or her disability. that an education requirement would be Response: Congress legislates which Rather, officers will assess, based on the more difficult for immigrant women, individuals should be qualified for totality of the circumstances, whether stating that immigrant women from lawful permanent resident status, and the individual is likely to be self- certain countries, such as Mexico, El not DHS. Therefore, DHS cannot sufficient. As indicated in the NPRM,703 implement the suggestion that 702 See Inadmissibility on Public Charge Grounds, immigrants with a high school 703 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51189–97 (proposed Oct. 10, 2018). education or less should not qualify for 83 FR 51114, 51184 (proposed Oct. 10, 2018).

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Federal laws 704 and regulations prohibit factors in the public charge identifies a substantial burden on his, discrimination against individuals with determination, the commenter her, or an organization’s exercise of disabilities. DHS recognizes that expressed concern that religious religion such that the RFRA may require individuals with disabilities and other workers would be immediately specific relief from any provision of this conditions make substantial disadvantaged. rule may assert such a claim.707 contributions to the American economy. Additionally, the commenter Among the requirements for a special DHS has analyzed these laws and expressed concern about the immigrant religious worker, the regulations, and has determined that administrative and economic burden sponsoring religious organization must assessing an alien’s education and imposed on religious organizations to provide an attestation, attesting, among skills, including work history, is not demonstrate that special immigrant other things, that the employee will be inconsistent with adhering to non- religious workers are not likely to employed at least 35 hours a week, and discrimination requirements with become a public charge. The commenter that the worker will be provided a respect to individuals with disabilities. indicated that sponsors of religious complete package of salaried or non- Comment: A commenter expressed workers may not possess the financial salaried compensation.708 As part of the concern that adjudicators would apply ability of typical U.S. employers. The petition, the employer provides detailed the education and skills factor commenter also stated that the evidence as to the compensation inconsistently with respect to the imposition of additional documentary package being offered to the religious mission and duties of certain religious and form requirements to demonstrate worker, which may include salaried and workers. The commenter stated that that a religious worker is not likely to non-salaried compensation, such as qualifying religious workers come from become a public charge would increase room, board and other remuneration.709 diverse educational backgrounds and costs to the religious worker sponsor. Additionally, as part of the attestation, perform a diverse range of work duties, The commenter indicated that these the sponsoring religious organization depending on the nature and mission of organization will maximize their also has to demonstrate the ability and the religious order. The commenter resources to serve their mission in the intention to compensate the alien at a stated that work duties may include Catholic Church, and that to impose level at which the alien and duties that do not produce any income additional economic burdens on U.S. accompanying family members will not at all, such as meditation and prayer, in religious organizations seems contrary become public charges, and that funds those orders that pursue a more to American values of religious freedom to pay the alien’s compensation do not monastic way of life. Another and liberty. include any monies obtained from the commenter stated that the proposed Finally, the commenter expressed alien, excluding reasonable donations or 710 education and skills factor could concern about the rule’s negative impact tithing to the religious organization. negatively impact those seeking visas as on individuals and communities in the To the extent that the sponsoring United States. The commenter stated religious workers. religious organization complies with that many international religious A commenter suggested that DHS these evidentiary requirements with workers play a vital role in the daily exempt special immigrant religious respect to the religious worker’s lives of individuals and families in the worker category 705 from public charge compensation package, DHS does not United States. In addition to the inadmissibility determinations or clarify anticipate, in general, that special spiritual and ministerial role played, that these workers would still be immigrant religious workers, including many religious workers also participate admissible. The commenter stated that those who have taken a vow of poverty in activities and duties supporting the the regulations define a religious are disadvantaged regarding communities directly. Therefore, the vocation as a ‘‘formal lifetime consideration of their income, assets commenter requested clarification these and resources because the sponsoring commitment . . . to a religious way of special immigrant religious workers life’’ and cover religious workers who religious organization provides continue to qualify for the status or be compensation to the religious worker have taken a vow of poverty. The exempt from public charge. commenter indicated that as part of the such that the religious worker would Response: DHS acknowledges that generally be relying on private rather vow of poverty, many religious workers special immigrant religious workers, relinquish personal property and assets, than on public benefits. and immigrants who perform religious Additionally, DHS does not believe and are not permitted by their religious work generally, provide valuable that considering the education and order to receive compensation. Instead, contributions to the United States and skills of a religious worker applicant their religious order or community are in a special position, as may result in inconsistent adjudications obligates itself to provide non-salaried acknowledged by Congress in the or violate due process. As explained support to its vowed member, such as special immigrant religious worker above, DHS is required to consider an room and board, health insurance, a 706 classification. Congress, however, did applicant’s education and skills as part small allowance, etc. In addition, the not exempt these workers from the of the public charge inadmissibility commenter stated that a religious order public charge ground of inadmissibility determination. As provide in the rule, may be obligated to support this and, therefore, DHS will not exempt when considering an alien’s education member as long as they remain a them in this rule. As noted elsewhere in and skills, DHS will consider whether member. Given that ‘‘assets, resources, this final rule, DHS believes that this the alien has adequate education and and financial status’’ is one of the main regulation, and other provisions of the skills to either obtain or maintain INA and implementing regulations, can 704 See, e .g., the Rehabilitation Act of 1973, Pub. be administered consistently with the L. 93–112, 87 Stat 355 (Sept. 26, 1973) (codified as 707 Note that that individuals ‘‘located outside amended, in pertinent part, at 29 U.S.C. 794), the RFRA. DHS acknowledges that any sovereign United States territory at the time their Americans with Disabilities Act of 1990, Pub. L. individual or organization who alleged RFRA claim arose’’ are not ‘‘person[s]’’ 101–336, 104 Stat. 327 (July 26, 1990) (codified as within the meaning of RFRA. Rasul v. Myers, 512 F.3d 644, 672 (DC Cir.), cert. granted, judgment amended at 42 U.S.C. 12101–12213), and the 706 For example, special immigrant religious vacated on other grounds, 555 U.S. 1083 (2008). Individuals with Disabilities Education Act (IDEA), workers under INA section 101(a)(27)(C), 8 U.S.C. 708 Pub. L. 108–446, 118 Stat 2647 (Dec. 3, 2004). 1101(a)(27)(C) qualify for adjustment of status See 8 CFR 204.5(m)(7)(vi), (vii), and (xii). 705 See INA section 101(a)(27)(C), 8 U.S.C. under INA section 245(a), notwithstanding certain 709 See 8 CFR 204.5(m)(10). 101(a)(27)(C). bars under INA section 245(c). 710 See 8 CFR 204.5(m)(7)(xii).

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employment in a lawful industry with strong connection between better basic relatively large standard error should income that is sufficient to avoid being skills and higher earnings, which means not be interpreted to mean that the more likely than not to become a public that as an immigrant improves their underlying rate being estimated is low. charge. In the context of a special reading, math, and spoken English Findings from the SIPP tables were only immigrant religious worker, the relevant skills, they will be better able to discussed in the text of the NPRM if is question is whether the alien’s skills contribute economically to American they are significant at the 95 percent are suitable for the alien’s intended society. Stating that data demonstrates confidence level. occupation. DHS will not assume that that the use of cash benefits by DHS understands that aliens may the religious worker will be likely to immigrant populations that are not improve their English skills in the receive a public benefit because of the English-proficient is so low as to be future. The Form I–944 does allow a nature of the employment or lack of within the study’s margin of error, a person to identify any courses or income at the indicated threshold. commenter reasoned that many certifications in English. Furthermore, Instead, DHS would consider provisions immigrants with limited English DHS is not mandating English for housing, food, and medical care proficiency (LEP) are taxpaying business proficiency for admissibility. provided by the religious institution as owners, or work in white collar or blue- Proficiency in English is one positive available resources. collar jobs. The commenter further aspect for purposes of the education and Further, this rule is not intended to noted that although lack of English- skills factor to establish an alien’s negatively impact special immigrant speaking skills may be a hindrance to ability to obtain or maintain religious workers or communities in obtaining certain employment, employment and that the alien, which such workers would reside. proficiency in a foreign language may therefore, would be self-sufficient. Lack Rather, this rule is aimed at better bolster an immigrant’s ability to obtain of English proficiency alone would not ensuring that those seeking admission to other employment. One commenter establish public charge inadmissibility, the United States are self-sufficient and suggested investing in English language but would be one consideration in the rely on their own resources and the learning programs instead of totality of the circumstances. resources of their sponsors and private ‘‘punishing’’ immigrants for lack of Comment: One commenter stated that organizations. English language proficiency. Another requiring English language proficiency could extend to all kinds of visas, which 2. Language Proficiency commenter reasoned that the ability to immigrate lawfully increases could have a negative impact on Comment: A commenter said that it opportunities and ability to improve tourism. should be unlawful to preclude English and by limiting access to legal Response: DHS reiterates that is not individuals from immigrating to the immigration, the rule would perpetuate imposing an English proficiency United States because of a language an underclass of immigrants who requirement on nonimmigrants or barrier and that the new definition of continue to be prohibited from service immigrants—it is merely a public charge, in general, benefits the that could improve their lives, including consideration within the totality of the wealthy, putting them above their English. circumstances when determining for an hardworking families that actually help Response: DHS disagrees with the immigrant applying for adjustment of the country’s economy. One commenter commenters’ suggestions to remove status whether the alien is more likely said the United States has no official English language proficiency as a than not to become a public charge in language, so there should be no consideration in the public charge the United States. As previously language requirement. Many inadmissibility determination. DHS is discussed, DHS has removed the commenters stated that requiring not mandating English proficiency for forward-looking aspect of the public English proficiency would mark a admissibility. DHS recognizes that benefits condition for extension of stay fundamental change from the nation’s individuals who lack English and change of status applications. historic commitment to welcoming and proficiency may already participate in Therefore, lack of English proficiency integrating immigrants. A couple of the workforce or may be able to obtain will not impact nonimmigrant visitors commenters stated that the rule employment. However, as discussed in or the tourism industry. Further, acknowledges the centrality of English the NPRM,711 people with the lowest nonimmigrants seeking extension of language skills to economic self- English speaking ability tend to have the stay or change of status are not subject sufficiency, but individuals commonly lowest employment rate, lowest rate of to the public charge ground of improve their English skills through full-time employment, and lowest inadmissibility under section 212(a)(4) participation in education programs and median earnings. Further as illustrated of the Act, 8 U.S.C. 1182(a)(4). rely on Medicaid or other public in Table 24 in the NPRM, among the Nonetheless, B nonimmigrant visitors benefits to enable them to succeed in noncitizen adults who speak a language would have to establish that they have their English language classes. A other than English at home, the maintained their status and that they commenter indicated that the expanded participation rates for both cash and have not received, since obtaining the negative weights for English language non-cash benefits are higher among nonimmigrant status that they are proficiency and educational/skills those who do not speak English well, or seeking to extend or change, any public attainment conflict with longstanding at all, than among those who speak the benefits as defined in 8 CFR 212.21(b), policy and principles that support language well. The margin of error of an for 12 months in the aggregate within a upward mobility and self-sufficiency. estimate, and likewise its standard error, 36-month period. Some commenters indicated that are affected by the number of people Comment: A few commenters stated individuals who rely on Medicaid or surveyed to construct the estimate, that most people who settle here other public benefits to enable them to which in the case of a percentage or rate permanently will develop English succeed in their English language will include those who respond that proficiency by the time they become classes could be discouraged from they have the characteristic and those citizens. These commenters reasoned continuing their education and who respond that they do not. A that this is why is there is no English improving their employability by fear of language test until an individual is being found a public charge. Some 711 See Inadmissibility on Public Charge Grounds, being naturalized and that this method commenters cited research showing a 83 FR 51114, 51195–96 (proposed Oct. 10, 2018). provides several years for immigrants to

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immerse themselves in the English individuals who communicate through force than men and more than twice as language. Another commenter stated assistive devices, and immigrants with likely to work in low-wage service that Congress made English proficiency intellectual and developmental occupations as women with English a requirement for citizenship and not disabilities. proficiency, and older immigrants with the initial stage of becoming a legal Response: DHS disagrees that the rule LEP. Another commenter stated that the permanent resident and that imposing discriminates against deaf immigrants or proposed rule will cause additional an English proficiency requirement in other disabilities. DHS does not harm to trafficking survivors who have this rule bypasses Congress. A mandate English proficiency as a pre- yet to gain proficiency in English commenter stated that the rule penalizes requisite for legal immigration or as a because they have newly entered the people for speaking languages other determinative factor within the public United States or have been intentionally than English, an English proficiency charge inadmissibility determination. barred from learning English or requirement places strain on shared Adjudicators would not consider it a accessing education by their traffickers. heritage as a source of social support negative factor for a deaf immigrant to Another commenter said that DHS’s and resiliency, as well as creates read and write English but not speak it. analysis fails to account for the fact that redundancy given that our immigration And in view of ADA requirements many immigrants reside in systems requirement of English fluency applicable to employers, adjudicators multigenerational households where the for citizenship. A commenter asserted would give equal weight to a deaf English-speaking capacity of younger that while English has long been a immigrant’s ability to communicate generations serves to benefit older requirement for those seeking to become through American Sign Language. An generations that do not speak English as naturalized citizens of the United States, alien’s Form I–693 may also establish readily. The commenter also noted that the rule would create an English that a person has a hearing or speech the vast majority of immigrants to the language requirement for nonimmigrant disorder, for which DHS would provide United States have not been English- visas, family-based, and employment- the appropriate accommodation for any speaking and this has not prevented based visas, even when a language interview. Although DHS may consider immigrants from becoming contributing requirement is already a consideration, any medical condition in the totality of members of their communities. Some and even where it is irrelevant. A the circumstances, the fact that an alien commenters addressed the adverse commenter stated that the proposed is deaf or hard of hearing or has hearing impact of the rule on immigrants of English-language proficiency factor or speech disabilities, communicates Asian descent because nearly three out would reduce family reunification. through assistive devices, or that the of four speak languages other than Response: DHS is not imposing an alien has intellectual and English at home and 35 percent have English proficiency requirement or as a developmental disabilities will not limited English proficiency. Other factor that is outcome determinative in alone lead to a determination of commenters stated that this requirement the public charge determination. inadmissibility based on the public favors immigrants from wealthier, English proficiency is among the charge ground. European countries and potentially considerations evaluated when Comment: Some commenters stated disfavor immigrants from Latin assessing education and skills; the alien that USCIS does not have the authority America, Africa, Asia, the Caribbean, may submit any evidence relevant to the to impose an official language and that Asia, South America and more. factor. there is no law that allows the Response: DHS disagrees that the rule DHS understands that certain Government to prefer those who speak imposes a language requirement or individual’s English will improve over English over those with LEP. Others impedes LEP individuals from entering time in the United States and that the stated that considering English the United States. DHS is not imposing ability to read, write and understand the proficiency in the public charge an English proficiency requirement for English language is tested as part of determination violates constitutional admission to the United States, but naturalization proceedings. However, and statutory mandates prohibiting solely uses English proficiency as one DHS has established, through data language-based discrimination, which consideration among others when presented in the NPRM, that an the Supreme Court has interpreted as a assessing an alien’s education and individual’s inability to speak and form of national origin discrimination. skills. Additionally, DHS disagrees that understand English may adversely affect One commenter stated that by considering an alien’s proficiency in the an alien’s employability, and may discriminating based on English English language as a consideration increase receipt of public benefits.712 language proficiency the proposed rule impermissibly discriminates on the Therefore, DHS will consider the violates laws banning national origin basis of national origin or otherwise applicant’s proficiency as one of the discrimination. Several commenters violates the Equal Protection Clause. consideration for purposes of assessing cited several Federal civil rights acts Courts have applied rational basis education and skills; DHS will consider that show LEP persons are protected scrutiny to immigration regulations any factor applicable to the alien in the from discrimination on the basis of applicable to aliens,713 and there is a totality of the circumstances. DHS English proficiency and those acts would also consider whether the alien included Title VI, the Civil Rights Act, 713 Korab v. Fink, 797 F.3d 572, 577–79 (9th Cir. is already employed or has education the ACA, and more. Other commenters 2014) (‘‘[F]ederal statutes regulating alien indicated that the INA, the U.S. classifications are subject to the easier-to-satisfy and skills that would allow the alien to rational-basis review . . . Although aliens are obtain or maintain employment and Constitution’s Equal Protection Clause protected by the Due Process and Equal Protection avoid becoming a public charge. and other authority demonstrate that Clauses, this protection does not prevent Congress Comment: Some commenters individuals cannot be discriminated from creating legitimate distinctions either between citizens and aliens or among categories of aliens suggested that including English against on the basis of LEP. and allocating benefits on that basis . . . The proficiency in the factor discriminates Many commenters stated that difference between state and federal distinctions against deaf immigrants, individuals consideration of English language based on alienage is the difference between the with hearing or speech disabilities, proficiency would disproportionately limits that the Fourteenth Amendment places on impact women with LEP, citing to discrimination by states and the power the Constitution grants to the federal government over 712 See Inadmissibility on Public Charge Grounds, studies indicating that women with LEP immigration.’’) (citation omitted); Lewis v. 83 FR 51114, 51190–97 (proposed Oct. 10, 2018). are less likely to participate in the labor Continued

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rational and non-discriminatory basis level of self-sufficiency as jobs that may rule and in Form I–944, which includes for consideration of English proficiency be held by an individual who are able questions on education and language as an element of the education and to effectively communicate in English skills. In general, certifications in a skills factor. As explained in the NPRM, and who may be employed in a higher language or other evidence consideration of English proficiency in skilled, higher paying job. Therefore, demonstrating an alien’s education in determining whether an applicant is DHS has retained the consideration of the English and any other languages, for likely to become a public charge is English proficiency. example, may demonstrate that the alien based on the fact that an inability to The consideration of English has attained some proficiency in the speak and understand English may proficiency is thus based on the English language or another language. adversely affect whether an alien can factually neutral likelihood of someone DHS is not requiring an English obtain employment,714 which is obtaining sufficient employment to proficiency written test or provide a consistent with the Census Bureau avoid becoming a public charge and not reading or writing test. Instead, DHS study cited in the NPRM.715 During the on a discriminatory motive. The alien is would review the documentation of drafting of this final rule, DHS also not precluded from bringing forth any English proficiency such as considered the Social Security other consideration, which will be certifications or an alien’s transcript for Administration analysis published in considered under the circumstances of a course of study that was primarily in that agency’s notice of proposed the particular alien. English (such as a native speaker’s rulemaking that showed high levels of Comment: A commenter stated the secondary school transcript). In labor market participation among agency should indicate how it would addition, USCIS may confirm an alien’s individuals with LEP, and an increase test English language proficiency, as speaking and understanding of the in LEP labor market participants over developing a test similar to the English language through the question time.716 Upon considering this citizenship test would be costly in terms and answer process of the I–485 form information, DHS believes, however, of development, training for during the adjustment of status that while individuals with LEP may be immigration officers, and the time it interview. working in the United States, the jobs takes to conduct the test at each Comment: A commenter stated that these individuals may be holding low individual interview. A few commenters English proficiency is not required for skilled jobs which are typically said the rule has no fair or narrowly employment in the United States and available at lower pay. Because the tailored process for assessing language cited employment statistics that indicate purpose of this rule is to ensure that ability, which will result in arbitrary there is demand for a workforce that is aliens are self-sufficient, such lower decisions and will lead to abuse of not necessarily proficient in English. paying jobs may not denote the same discretion and discriminatory conduct. Other commenters asserted that the The commenters also stated that the proposed rule fails to consider that Thompson, 252 F.3d 567, 570 (2d Cir 2001) (citing proposed rule does not explain how immigrants may travel and secure Lake v. Reno, 226 F.3d 141, 148 (2d Cir. 2000) (‘‘We DHS will make this determination and employment in other areas where have recently recognized that a ‘highly deferential’ does not explain what level of English multiple languages are spoken alongside standard is appropriate in matters of immigration . . . .’’)). language proficiency is needed, how English. Similarly, other commenters 714 Inadmissibility on Public Charge Grounds, 83 individuals can demonstrate that ability, indicated that this rule assumes that FR 51114, 51195 (proposed Oct. 10, 2018). or how staff will verify the appropriate non-English speakers cannot perform 715 See Jennifer Cheeseman Day and Hyon B. level. A few commenters stated that, if jobs where English is not required, Shin, U.S. Census Bureau, How Does Ability to English proficiency is to be considered, citing agriculture as an example and Speak English Affect Earnings? 2 (2005), available there needs to be a clear definition for at https://www.census.gov/hhes/socdemo/language/ claiming the H–2A visa program itself data/acs/PAA_2005_AbilityandEarnings.pdf (last what that means and how it will be does not require English to work visited July 26, 2019). determined and not left to the USCIS’ temporarily in agriculture. Many 716 Removing Inability To Communicate in opinion or sole determination. Another commenters indicated that this rule English as an Education Category, Proposed Rule, commenter expressed similar concerns would improperly reject many people 84 FR 1006, 1008 (Feb. 1, 2009). (‘‘In absolute numbers, the working age population (ages 25–64) over how the English proficiency with practical job skills doing essential with LEP increased from approximately 5.4 to 17.8 requirement would be measured, work in our economy that have limited million between 1980 and 2016, while more than remarking that the NPRM does not formal education and English doubling, from 5.1% to 10.5%, as a percentage of indicate what tests might be employed, proficiency and highlighted the population. Within this group, the number of whether they would be standardized, individuals who spoke no English more than farmworkers as an example. quadrupled from approximately 682,000 to 2.8 what questions might be asked so that Response: DHS understands that million (representing growth from 0.6% to 1.7%, as a test is administered uniformly, English proficiency is not be required to a percentage of the working age population). whether an adjudicator would perform be employed in the United States. DHS Between 1980 and 2016, the number of non-English the test, whether there would be speaking workers in the 25–64 age range grew from is not requiring or mandating English approximately 373,000 to 1.7 million. During the exceptions or accommodations proficiency as a requisite to immigrating same period, the labor force participation rate for available, whether the test would be in to the United States. English proficiency working age individuals who speak no English writing or administered orally, and how is a consideration in the assessment increased from approximately 54.7% to 61.5%.41. an officer would evaluate an applicant’s Notably, considering the working age population whether the alien possesses education with ‘‘less than high school diploma,’’ the 2016 proficiency in other languages. and skills sufficient to maintain or labor force participation rate for those speaking no Response: DHS disagrees with some obtain employment as to not likely to English (60.5%) surpassed the labor force commenters’ assessment that the current become a public charge. As explained in participation rate of those speaking ‘‘only English’’ content of the NPRM and the related 717 (48.9%). In 1980, the reverse was true; working age the NPRM, data on the relationship individuals with less than a high school diploma documents provided as part of the between the level of English proficiency speaking only English had a 60.7% labor force proposed rulemaking insufficiently and employment as well as public participation rate that exceeded the 54.5% rate for outlines the considerations that DHS benefits participation highlights that those speaking no English. The increase in labor will be employing to assessing the force participation by individuals who lack English proficiency in the English language is a proficiency may be in part due to the increase in alien’s education and skills. Evidentiary low-skilled work in the national economy.’’ requirements for purposes of the public 717 See Inadmissibility on Public Charge Grounds, (internal citations omitted)). charge determination are outlined in the 83 FR 51114, 51195 (proposed Oct. 10, 2018).

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relevant consideration. DHS will Current Population Survey data nearly should explicitly indicate that Spanish consider all circumstances of the alien’s 30 years old, which is insufficient to skills have a high market value, at least case and all factors in the totality of the support DHS’s proposed change. in the construction industry. circumstances; therefore, no single Response: DHS analysis showed that Response: DHS will consider the factor is outcome determinative in this lack of English proficiency was a factor ability to speak other languages in assessment, including the lack or the that affected the likelihood of receiving addition to English as part of the totality existence of English proficiency. In welfare. DHS does not dispute that of the circumstances when evaluating individual circumstances, DHS would likelihood of public benefits receipt may all of the relevant skills that apply to an also consider the alien’s employment as also be affected by the state of alien’s employability, education and a positive factor despite lack of residency. DHS’s findings were not skills. The ability to speak a language or proficiency in English. interpreted to suggest that lack of language proficiency may have differing Comment: Many commenters English proficiency necessarily led to impacts depending on the nature of the addressed the 2014 SIPP data about the welfare receipt, or that there was any work and the employer, and is best use of benefits by populations at various causal relationship between the two. As considered individually in the context levels of English language ability cited such, complex inter-relationships such of each alien’s application in the totality by DHS. A commenter asserted that as the one mentioned were not of the circumstances. DHS recognizes DHS failed to provide any causal investigated. The studies provided by that certain professions or employment linkage between the data cited and its DHS regarding English proficiency require that an alien speak another conclusions. A commenter stated that included SIPP data representing U.S. language in addition to English. the survey relied upon cross-sectional noncitizens in 2013,718 as well as a However, the public charge assessment studies that capture information from a study using data from the 2000 is geared toward becoming a public given point in time and that DHS does Census.719 One report that was charge in the United States; the data not cite longitudinal studies that follow referenced was international in its presented in the NPRM 721 clearly the same population and capture scope, and included a discussion of demonstrated a connection between the relevant information over time. The different European countries, as well as inability to speak and understand commenter said DHS cannot predict the United States.720 English in relation to employment, whether an individual non-citizen is Comment: A few commenters stated public benefit receipt, and financial likely to become a public charge in the multilingualism should be considered status. Therefore, DHS retained the future based on such studies. One an asset. Another commenter indicated English proficiency provision. However, commenter cited information showing that DHS based its consideration of nothing in the regulation precludes an that while children of newly- English proficiency or additional alien from presenting evidence and immigrated families speak a non- languages on the assumption that consideration relating to education or English language at home, English English skills are required to enter the skills other than the considerations language learning children are amongst U.S. job market. According to the mentioned in the regulation; all the most successful students at school commenter, however, the large number considerations will be evaluated based in the United States, especially once of Spanish speaking workers in the on the totality of the circumstances.722 they become fully proficient in English. construction industry undermined the 3. Skills The commenter stated that this premise that English skills are required Comment: A commenter indicated information contradicts studies cited by to enter the U.S. job market. The that the expanded negative weights for DHS. commenter acknowledged that DHS educational/skills attainment conflict Response: DHS discusses English would consider other languages with longstanding policy and principles proficiency as an indicator of potential depending on their market value, but that support upward mobility and self- public benefits receipt, which does not that the rule was silent on sufficiency. Another commenter rely on an assumption that the considerations guiding this indicated that DHS failed to describe relationship is cause-and-effect. The determination, such as the market value how DHS will consider, among other cross-sectional analysis showed that not assessment for Spanish skills. Therefore, things, the education and skills being proficient in English is an the commenter suggested that the rule indicator of public benefit receipt in the requirement. The commenter stated that near term, which is considered in the the rule could prejudice the many 718 See Table 24, Inadmissibility on Public Charge public charge determination. The DHS Grounds, 83 FR 51114, 51196 (proposed Oct. 10, foreign-born workers in the construction analysis shows a relationship between 2018). worker industry, who have little formal public benefit receipt and English 719 See Jennifer Cheeseman Day and Hyon B. education but skills that are in high proficiency among adults age 18 and Shin, U.S. Census Bureau, How Does Ability to demand and that these workers earn a Speak English Affect Earnings? 6 (2005), available over, and does not describe outcomes at https://www.census.gov/hhes/socdemo/language/ good wage. The commenter suggested for the population of English language data/acs/PAA_2005_AbilityandEarnings.pdf (last that DHS should change the learning children, so the results of the visited July 26, 2019). requirement that it considers ‘‘no high studies do not appear contradictory. 720 Barry R. Chiswick & Paul W. Miller, Immigrant school diploma or other education or Comment: Multiple commenters Earnings: Language Skills, Linguistic skills’’ as a negative factor in the public Concentrations and the Business Cycle, 15 J. stated that DHS failed to consider Population Econ., 31, 31–57 (2002); Christian charge analysis, and that DHS should alternative reasons that people who are Dustmann, Fluency, Writing Fluency, and Earnings instead consider education only as a LEP may be more likely to access of Migrants, 7 J. Population Econ., 133, 133–156 positive factor. The commenter benefits, adding that that states that (1994); Ingo E. Isphording, IZA Discussion Paper suggested that in the alternative, the No. 7360, Disadvantages of Linguistic Origin: have high numbers of LEP populations, Evidence from Immigrant Literacy Scores (2013), lack of education should only be such as New York and California, also available at http://ftp.iza.org/dp7360.pdf (last considered a negative factor when have high income thresholds for visited July 26, 2019); Org. for Econ. Cooperation coupled with unemployment. The Medicaid. The commenters concluded & Dev./European Union, Indicators of Immigrant commenter stated that DHS fails to Integration 2015: Settling In (2015), available at by stating that three out of the four http://www.oecd.org/els/mig/Indicators-of- studies DHS cited used data derived Immigrant-Integration-2015.pdf (last visited July 26, 721 See 83 FR 51114, 51195–97. from Europe, while the fourth relies on 2019). 722 See 8 CFR 212.22(a) and 8 CFR 212.22(b)(5).

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define ‘‘skills’’ and expressed concern occupations, such as healthcare support be applicable to all job skills. Overall, that the skills that workers have may be and personal care, for which education and skills will be considered difficult to demonstrate as an certification procedures do not exist, but as part of the totality of the evidentiary matter and that this could on which many in the United States circumstances. DHS is not mandating cause DHS adjudicators to improperly may depend. any particular level of education or skill discount skills that often take many Response: Education and skills are to overcome a public charge years to develop. Along with providing mandatory statutory factors as inadmissibility determination. certain data noting that a significant established by Congress under section Comment: One commenter stated that percentage of both foreign-born (over 90 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). using both DOL, which already has percent) and native-born workers (over DHS disagrees that it did not education and skills criteria for 85 percent) in the construction industry sufficiently outline the consideration of immigrants entering the country to do not have a four-year college degree, the factors in the NPRM.723 DHS work, and DHS to evaluate labor needs the commenter pointed out that, for appreciates the suggestions from and skills was redundant, unnecessary, example, a brick layer may be highly commenters, including the suggestions and a waste of public funds. skilled but lacks a way of demonstrating relating to the construction industry. Response: DHS disagrees that the rule a formal certification. The commenter However, DHS will not remove the lack conflicts with DOL’s evaluation of labor requested that the final rule explicitly of a high school diploma or other needs and skills. Under this rule, DHS indicate that Spanish language skills education or skills provisions from the will be considering whether an alien have a high market value, at least for rule as a negative factor in the public possesses education and skills that those in the construction industry. The charge analysis. Further, DHS will would contribute to the alien being commenter also suggested that Form I– consider both the positive and negative employable in the United States and 944 be amended to clarify that DHS will factors associated with education and thus able to be self-sufficient. This consider experience-based construction skills, as described in the NPRM. As determination does not entail skills in the analysis, as the form as evidenced by the commenters determining whether an alien meets an currently drafted largely focuses on the addressing various industries, each employer’s minimum job requirements certification. industry and area of employment may for a particular position or qualifies for Another commenter suggested that be different. The DHS proposed rule is employment in a particular DHS amend its consideration of flexible enough to account for all factors occupational classification. In addition, education and skills as a prerequisite to and circumstances in any particular even if an alien is found to not possess legal immigration because the legal industry and an individual’s case so that any education or skills but instead has immigrants that are entering the direct each alien may set forth the sufficient financial means to support care workforce are entering a career considerations applicable to him or her himself or herself and any dependents, pathway to a successful lifelong career. demonstrating why the individual is not DHS may determine in the totality of the The commenter stated that although likely to become a public charge. circumstances that the alien is not likely many such immigrants have increasing As discussed in the NPRM, education to become a public charge. In contrast, levels of responsibility, the workforce is has been found to have a significant DOL has a statutory mandate to certify not highly skilled. The commenter impact on public benefit usage. As it is before an alien may be admitted in reasoned that preventing some of the possible for an alien to be employed and certain employment-based immigrant most eligible individuals from entering still be a public charge, the mere fact of classifications that there are no able, the United States prevents them from employment cannot categorically willing, qualified, and available U.S. addressing the direct care workforce remove education from an analysis of workers to perform the job for which an deficit, which will negatively impact the totality of the circumstance because employer seeks to hire the alien, and people with disabilities and the elderly education is a statutorily mandated that the alien’s employment will not in the United States, which rely on this factor. Although education would have an adverse effect on the wages and workforce to maintain their well-being certainly weigh positively, the exact working conditions of similarly and quality of life. nature of the education (or lack thereof) employed U.S. workers. In doing so, A couple of commenters stated that and employment would have to be DOL examines whether the alien’s although agricultural work is considered considered. The level and quality of the education, skills, and job qualifications unskilled labor under some technical education attained by a prospective meet the employers’ stated minimum definitions, it is in fact a skilled immigrant can help estimate how likely job requirements. Therefore, the two occupation requiring years of they are to become a public charge. departments fulfill two different experience to gain the necessary Therefore, while not having high school responsibilities in the immigration knowledge, precision, exercise of diploma or other education or skills are process.724 judgment, endurance, and speed that generally a negative factor, the lack of a Comment: A commenter asserted that many of these workers already have and high school diploma, for example, may DHS does not have the ability to which contribute to their employer’s be overcome by skills or other positive adequately evaluate occupational skills, profitability. The commenters circumstances. certifications, or licenses, and many concluded by arguing that that the DHS agrees that skills gained as part occupations do not require them. The proposed rule would improperly reject of employment are positive even when commenter stated that this requirement the value of many farmworkers’ certifications are not available. would cause a great burden on contributions to our economy and Regardless of occupation, an alien may employers and agencies who must society. Similarly, a commenter demonstrate that he or she has skills comply with these new requests. expressed their concern that the ‘‘skills’’ through employment that are positive Response: DHS will evaluate all component of the education and skills factors. This showing will not be occupational skills, certifications, factor is undervalued by the proposed focused on construction, but generally, licenses, and any other evidence that rule. The commenter stated that this narrow view of skilled work will have 723 See Inadmissibility on Public Charge Grounds, 724 See INA section 212(a)(5)(A), 8 U.S.C. a particularly harmful impact on 83 FR 51114, 51189–51196 (proposed Oct. 10, 1182(a)(5)(A), 20 CFR and 656.1 (DOL’s labor immigrants who staff many vital 2018). certification requirements for immigrant workers).

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establishes a skill in an occupation, as country, or volunteer work experience had to quit or were forced to leave their presented by the alien. The alien has the in the United States, that will be job within the first year and stated that burden to establish that he or she considered as part of the totality of the by heavily weighting the lack of qualifies for the immigration benefit and alien’s circumstances. employment, the proposed rule doubly is not inadmissible.725 Generally, forms However, DHS notes that it would penalizes a victim for the economic and their instructions outline, in detail, consider any employment history effects that domestic violence and the necessary evidence to apply for a outside the United States as part of the sexual assault abusers perpetrate. benefit; similarly Form I–944 and its public charge inadmissibility Response: DHS appreciates the instructions outline possible evidence determination. Moreover, USCIS would commenters’ input. As explained in the that an alien can submit to establish that also review the likelihood that the alien NPRM, USCIS will assess the alien’s he or she has the requisite education or will work upon filing for or being education and skills with the focus skills as to be able to maintain or obtain granted adjustment of status, i.e., when whether the alien has adequate employment. If USCIS believes that the authorized to work. In addition, USCIS education and skills to either obtain or alien has not submitted sufficient would consider whether the alien may maintain employment sufficient to evidence to establish that he or she is have sufficient assets and resources, avoid becoming a public charge.727 As not likely to become a public charge, including a pension or a household part of the assessment, USCIS will where applicable, it may issue a RFE or member’s assets and resources, which consider the totality of the alien’s a NOID to obtain clarification.726 may overcome any negative factor circumstances, including any and all related to lack of employment. The factors and considerations set forth by 4. Employment assets and resources would include the alien. Furthermore, T and U Comment: A commenter indicated those of the household, which may nonimmigrants, VAWA self-petitioners, that because immigrants who are in the include a sponsor when the sponsor is and others listed in 8 CFR 212.23, are United States without work part of the household. generally exempt from inadmissibility authorization are not able to work DHS will not, however, include on account of public charge and legally, it will be impossible for many provisions in this rule to provide aliens therefore, they are not likely impacted immigrants to demonstrate their past subject to this rule time to enter the by this regulation. employment history. The commenter country and work before being subject Comment: One commenter stated stated that the proposed rule will to the public charge inadmissibility requiring employment history would be therefore place immigrants in an determination. As noted previously, the problematic for many international impossible situation: if they comply public charge ground of inadmissibility students attending American with the law that prohibits them from applies at the time of the alien’s universities, arguing that that foreign working without having first obtained application for a visa, admission, or nationals on student visas are generally employment authorization, they will adjustment of status. not permitted to work while engaging in forfeit the ability to obtain legal status Comment: Some commenters studies on the F–1 visa. This commenter because they will be unable to show provided input on how the employment stated that nearly one-quarter (20 out of current employment or a recent history history requirements impacts domestic 91) of the billion-dollar startup of employment. Another commenter violence survivors. These commenters companies had a founder who first came stated that DHS cannot accurately assess indicated that DHS disregards the to the United States as an international an individual’s likelihood of becoming reality of many crime survivors who are student, and stated that holding student a public charge if DHS does not first faced with losing their jobs due to loan and credit card debt against the grant work authorization to such an intense trauma, reduced productivity, students could have a negative impact. individual. harassment at work by perpetrators, and The commenter stated that, under the Other commenters stated that certain other reasons stemming from violence. proposed rule, these individuals would visas, such as the K–1 fiance´ visa, do One commenter stated that secure be subject to the public charge test even not permit a grantee to work. Another immigration status can help survivors of as nonimmigrants when seeking to commenter stated that the use of an abuse access employment opportunities, change status from that of a student to employability factor in a public charge escape violent relationships, and help that of an employee on an employment- determination would put many alleviate the trauma they have suffered. based visa. immigrants in a catch-22 where their This commenter stated that the Response: DHS does not require that options would be to either work proposed rule is actually setting up the alien have an employment history as illegally and be denied citizenship or barriers to employment for survivors, part of the public charge determination. not work and be denied immigration which is also a barrier to self- As discussed above, DHS has removed status due to lack of employment. sufficiency. Other commenters stated the forward-looking determination for Another commenter suggested that an that several studies have documented nonimmigrant applicants for extension applicant should be given time to enter how domestic violence perpetrators of stay or change or status. Therefore, the country and work before being deliberately try to sabotage their DHS would not be reviewing the factors subject to the public charge test. victims’ efforts to obtain and keep paid for nonimmigrants applicant for Response: As discussed in the NPRM, employment; that domestic violence extension of stay or change of status, DHS recognizes that not everyone survivors are forced to become such as students. Further, the NPRM subject to this rule is authorized to work dependent on their abusive partners’ indicates that for purposes of the in the United States. Although an incomes; or that some survivors have assessment of employment and skills, applicant may not be authorized for had their work permits or lawful USCIS’ considerations include, but are employment in the United States at the permanent residence cards taken by not limited to the alien’s employment time of filing the adjustment of status their abusers, making it impossible to history.728 In general, students acquire application, he or she may have show that they had legal authorization skills as part of their studies; also, employment history in a foreign to work and had to, at times, pay filing USCIS would not consider it to be a fees to get their replacement documents. 725 See INA section 291, 8 U.S.C. 1361. One commenter stated that half of 727 See 8 CFR 212.22(b)(5). 726 See generally 8 CFR 103.2. women who experienced sexual assault 728 See 8 CFR 212.22(b)(5).

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heavily weighted negative factor if a a mother is not currently employed and employment or recent employment student, applying for adjustment of is raising children, DHS would not history if the alien is not a primary status for a valid basis, is not working exclusively focus on the mother’s lack caregiver. As indicated above, DHS has because she or he lacks employment of current employment. DHS would also also added a definition of ‘‘primary authorization. For these reasons, DHS take into full account other factors that caregiver’’ under 8 CFR 212.21(f) to does not believe that students in could be favorable to the mother and correspond to this provision; primary universities in the United States will be could outweigh her current caregiver means an alien who is 18 adversely impacted by DHS’s unemployment: her household’s years of age or older and has significant consideration of the education and income, assets, and resources; an responsibility for actively caring for and skills factor, as set forth in this rule. affidavit of support and relationship to managing the well-being of a child or an Comment: A commenter stated that her sponsor, if applicable; and her elderly, ill, or disabled person in the pregnant women may be forced to leave reasonable prospects to obtain and alien’s household. the work force and stay home to deal maintain lawful employment based on Comment: Multiple commenters with medical complications of a her age, education, skills, and any wrote that the rule misunderstands the pregnancy or to care for a child during previous work history. This same level nature of low-wage work, indicating that the first months, due to reasons such as of consideration would also apply to there are not simply ‘‘people who work’’ the high cost of out-of-home daycare, other similarly situated parents, and ‘‘people who receive benefits,’’ and that therefore, they will be less guardians, and caregivers who are rather there is an overlap between the likely to show employment history. A currently unemployed or who are two groups. few commenters stated that employed part-time. Response: DHS understands that there consideration of employment history Consistent with the above, and is an overlap between ‘‘people who would unfairly discriminate against following consideration of these and work’’ and ‘‘people who receive women, particularly those who stay other comments about contributions of benefits.’’ People who are employed but home and care for their children. caregivers, DHS is adding under the nonetheless receive public benefits may Another commenter stated that often the Education and Skills factor an not be self-sufficient. However, the fact work of a caregiver, such as a stay-at- additional positive consideration, that an alien who is subject to a public home parent or grandparent, is vitally namely whether the alien is a primary charge inadmissibility determination important for the emotional and caregiver of another person in the has in the past received public benefits financial well-being of a family. One alien’s household. This will be taken is not outcome determinative. Whether commenter remarked that the rule into consideration in the totality of the an alien is inadmissible because he or unfairly penalizes individuals who may circumstances, and is intended to she is likely at any time in the future to have additional caregiving account for difficult-to-monetize become a public charge depends on a responsibilities due to a child’s special contributions by aliens who may lack review of a range of factors, including needs, inability to afford child-care, or current full time employment or recent work history, in the totality of the even religious beliefs. employment history due to their unpaid circumstances. Response: As indicated throughout engagement in the household. As with N. Affidavit of Support all other considerations, the this rulemaking, DHS will assess the Comment: Several commenters stated likelihood of becoming a public charge consideration of whether an alien is a primary caregiver would not alone that the affidavit of support is sufficient based on the totality of the to satisfy the standard because the circumstances of the individual’s case. establish that an alien is not likely at any time in the future to become a sponsor agrees to provide the necessary While there are certain temporary financial support or to reimburse medical conditions or other conditions public charge. Rather, DHS would not consider it a negative factor if an alien providing agencies. One commenter that may require an individual to stated that the Form I–864 already interrupt a certain employment activity of a working age who would normally be employable lacks full time provides a method for objective public or have a temporary absence, one can charge analysis. Many commenters hardly regard such incidents as negating employment, or a recent employment history. This consideration could cover stated that Form I–864 creates a legally an individual’s employment history, or binding contractual agreement between his or her education or skills generally. a range of circumstances, including, for example, a parent who stays at home to the petitioner/sponsor and the Additionally, the applicant may bring government that the intending care for a newborn child, or an adult forward evidence to establish that he or immigrant will not receive public child who stays at home to care for an she has adequate education and skills to benefits. Some of the commenters elderly parent. DHS has limited this either obtain or maintain employment to indicated that relegating the Form I–864 consideration so that only one alien avoid becoming a public charge. to a mere factor and proposing to within the household can be considered DHS acknowledges that an MPI paper replace it with a bond eliminates the the primary caregiver of the same observed that women could encounter true potential of the Form I–864: to person in his or her household. Because difficulty with the totality of deter new immigrants from applying for some commenters responding to various circumstances analysis, because women government assistance. The commenters aspects of the totality of the comprised 70 percent of the over 43 stated that in lieu of the Form I–864, the circumstances analysis raised concerns percent of recent green card holders government now proposes to increase about ‘‘double counting’’ negative who were neither employed nor in the use of public charge bonds and the factors, DHS notes that it will only take school. MPI added that many immigrant bond amount to levels that most the primary caregiver role into women do not work because of child immigrants will not be able to pay, and consideration if relevant, i.e., DHS will care responsibilities and child care involves a third party private bond 729 not use this consideration to negatively costs. In instances such as this where company. One commenter stated that compound the absence of full time the proposed heavily weighted factors 729 See Capps, Randy et al, ‘‘Gauging the Impact of DHS’ Proposed Public-Charge Rule on U.S. www.migrationpolicy.org/research/impact-dhs- do not achieve the stated goals of the Immigration,’’ Migration Policy Institute. public-charge-rule-immigration (last visited July 26, rule; the commenter indicated that the (November 2018). Available at: https:// 2019). agency has not stated a sufficient reason

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why the existence of a binding contract entirely inconsistent with laws and applicant, or any other related from a financially-capable sponsor, such policies in the United States. considerations, is inadequate as it fails as the affidavit of support that used to Another commenter stated that the to provide a standard for evaluating be sufficient for public charge purposes focus should remain on the sponsor and these standards, and will lead to would not satisfy the standard for their ability to maintain the intending inconsistent decisions that are also purposes of public charge, and others immigrant at 125 percent of the FPG, based on officer’s assumptions and stated that this is especially the case, asserting that DHS should only consider biases and exceeds the statutory when the question addressed with the the other heavily weighted factors in wording in regard to affidavits of affidavit of support is whether an ‘‘unusual cases.’’ Another commenter support. Additionally, referring to a immigrant is likely to become a public stated that the proposed rule shifts the 1998 DOS cable on the sufficiency of charge. Another commenter stated that focus of an applicant’s eligibility away affidavits of support, the commenter the affidavit of support, by statutory from an applicant’s sponsor and onto indicated that the proposed provision definition, requires the immigrant to the applicant. upends, without justification, prior demonstrate financial support to ensure Response: DHS rejects the assertion practice that instructed that the intent of that he or she is not a public charge, but that the rule shifts the emphasis away the sponsor and the verification of the the rulemaking arbitrarily relegates the from the affidavit of support, as the sources is not a consideration once a affidavit of support to a non-substantial statute does not require or even permit sufficient affidavit of support has been factor. The commenter disagreed that DHS to focus the public charge presented. The commenter furthermore the affidavit of support should just be inadmissibility determination solely on indicated that DHS justification and one factor and stated that the proposed the affidavit of support. In fact, the evidence—referring to reports that are rule allows for the possibility of a minimum mandatory factors that must nine and sixteen years old—does not heavily weighted factor to outweigh the be considered as part of the public support the agency’s position. Another contractual showing of the sponsorship, charge inadmissibility determination commenter stated that the proposed rule as outlined by Congress. The commenter under section 212(a)(4) of the Act, 8 creates opportunities for arbitrary also stated that without according the U.S.C. 1182(a)(4), do not include the decision-making when assessing one’s affidavit of support any weight, the affidavit of support. Rather, Congress family status or financial status, because NPRM effectively eviscerated the added that any affidavit of support the rule tasks the adjudicator with affidavit of support process and goes under section 213A of the Act, 8 U.S.C. assessing the closeness of the sponsor- against congressional intent to establish 1183a, may be considered in the public alien relationship and with the clear guidelines and a meaningful charge inadmissibility determination.730 assumption that a close family member measure of likelihood of becoming a An affidavit of support is required for ‘‘would be more likely to financially public charge. most family-sponsored immigrant support the alien if necessary.’’ The Two commenters stated this proposed applicants and certain employment- commenter indicated, however, that the regulation diminishes the consideration sponsored immigrant applicants, and closeness of a relationship is a of a sufficient affidavit of support in the the absence of a sufficient affidavit of subjective determination and not determination of likely to become a support will result in an inadmissibility necessarily based on the existence of a public charge, and drastically finding.731 Because the lack of a blood relationship but rather on diminishes the sponsor’s role as they sufficient affidavit of support, when personal connections and history that exist within the current standards. One required, automatically results in a an outside adjudicator would find commenter said the affidavit of support finding of public charge inadmissibility, difficult to comprehend. Similarly, requirement can be hard to meet for it would be inconsistent with the statute another commenter provided that some potential adjustment of status to place an emphasis on the affidavit of evaluating the relationship between a applicants. The commenter said if the support in the public charge sponsor and an applicant may be petitioner’s income and assets are not determination. Under this rule, DHS particularly prejudicial if the agency adequate, it can be difficult to find will give positive weight to a sufficient fails to account for cultural differences another person (a ‘‘joint sponsor’’) who affidavit of support, but it would not, in family dynamics. A commenter stated is willing to hand over their sensitive and cannot under the statute, be that, once an affidavit of support is identification and financial documents outcome determinative. determined to be legally sufficient, DHS and sign a binding contract to ensure Comment: Another commenter should not substitute its agents’ the intending immigrant will not asserted that the proposed rule does not judgment for that of Congress by depend on public benefits. provide any standards for evaluating requiring a different income threshold A few commenters indicated that the factors or the likelihood that the sponsor or encouraging them to speculate about current system already places a high would actually provide the required a sponsor’s relationship to an applicant. burden on petitioners and immigrants, financial support to the alien, and that Another commenter said the guidance and that the affidavit of support system such vagueness invites officers to make in the FAM, which explains that a joint has done a good job in making sure that decisions on the basis of their personal sponsor ‘‘can be a friend or a non- immigrants will not become public assumptions and biases, which will relative who does not reside in and is charges after entry. One commenter said almost certainly result in inconsistent not necessarily financially connected the demotion of the affidavit of support application of the standards. Another with the sponsor’s household’’ was is another way that the re-framed commenter also stated that DHS’s consistent with the statutory language at totality of circumstances would allow justification for independently section 213A of the Act, 8 U.S.C. 1183a only those already with resources to considering the sponsor’s income and that defined the requirements of a enter or remain in this county. resources, relationship to the applicant ‘‘sponsor’’ but does not include a Similarly, commenters stated this rule and the likelihood of supporting the requirement that a joint sponsor have a would make it harder for low-income familial relationship to the immigrant. immigrants to get their green card or Response: DHS does not believe that 730 See INA section 212(a)(4)(B)(ii), 8 U.S.C. visa, and tilt away from family-based 1182(a)(4)(B)(ii). the proposed public charge immigration to a wealth-based system 731 See INA section 212(a)(4)(C) and (D), 8 U.S.C. inadmissibility determination, that would be both deeply unethical and 1182(a)(4)(C) and (D). including the consideration relating to

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the affidavit of support, is not provides the requirements for a valid action against a sponsor who fails to sufficiently detailed or nebulous. DHS affidavit of support. The guidance of fulfill their contract obligations to put forth a detailed assessment of the how to assess it is contained in section support the alien financially. The factors and how they are applied in the 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), commenter stated that integrating this as NPRM. Additionally, DHS provided which specifically provides that the lack a factor or ground would significantly additional information in the proposed of an affidavit of support, where facilitate DHS’s goal of ensuring self- forms and the form’s instructions. As required, renders an applicant sufficiency. The commenter also said provided in the NPRM, a sufficient inadmissible on the public charge the sponsored beneficiary could also affidavit of support does not guarantee ground; the statute further states an meet this obligation if the sponsor was that the alien will not receive public officer may consider any affidavit of sued for reimbursement by the funding benefits in the future and, therefore, support under section 213A of the Act, Government agency. Another DHS would only consider the affidavit 8 U.S.C. 1183a, when assessing the commenter stated that, if the concern of of support as one factor in the totality public charge ground of DHS is to lessen the financial strain of the circumstances.732 The inability or inadmissibility.733 DHS, therefore, Federal public benefit programs create, unwillingness of the sponsor to determined that it will consider the then a more effective and less harmful financially support the alien may be affidavit of support as a factor in the to public-health-and-safety alternative viewed as a negative factor in the totality of the circumstances.734 would be to enforce the affidavit of totality of the circumstances. DHS The statute under section 212(a)(4) of support, which is a binding contract as expects that a sponsor’s sufficient the Act, 8 U.S.C. 1182(a)(4) also does signed. affidavit of support would not be an not mandate how much weight an Response: DHS does not have the outcome-determinative factor in most affidavit of support must be given. authority to create such a required cases; the presence of a sufficient Therefore, it is appropriate for DHS to ground of inadmissibility under affidavit of support does not eliminate regulate that the weight should be authority of section 212(a)(4) of the Act, the need to consider all of the assessed based on the sponsor’s annual 8 U.S.C. 1182(a)(4). Additionally, DHS mandatory factors in the totality of the income, assets, resources and his or her does not believe adding an additional circumstances. financial status, as well as the closeness factor to this rule regarding sponsor USCIS would assess the sponsor’s of the relationship which would be reimbursement of any amount of public annual income, assets, resources, and indicative of the willingness and ability benefits provided by an applicant is financial status, relationship to of the sponsor to financially support the consistent with the public charge applicant, the likelihood that the alien.735 DHS appreciates the reference ground of inadmissibility, or that sponsor would actually provide to DOS’ guidance on that issue, but DOS enforcing the sponsor’s affidavit of financial support to the alien, and any guidance is not binding on DHS. support obligation is relevant to the other related considerations. In order to In sum, the INA does not preclude public charge inadmissibility assess the sponsor’s likelihood of DHS from establishing a framework for determination. meeting his or her obligation to support officers to provide the appropriate DHS notes that while the existence of the alien, DHS would look at how close weight of the affidavit of support within a sufficient affidavit of support, where of a relationship the sponsor has to the the totality of the circumstances. In required to be submitted, is considered alien, as close family members would be cases where the statute requires an alien as a positive factor in any public charge more likely to financially support the to submit an affidavit of support and the inadmissibility determination, the alien if necessary. DHS would also look alien fails to do so, the statute mandates sponsorship obligation set forth on the at whether the sponsor lives with this a finding of public charge affidavit of support does not attach until alien, as this could be indicative of the inadmissibility.736 As explained in the after the application for an immigrant sponsor’s willingness to support the NPRM,737 however, the submission of a visa or adjustment of status is alien if needed. Additionally, DHS sufficient affidavit of support does not granted.738 The subsequent action of would look at whether the sponsor has guarantee that the alien will not receive enforcing the affidavit of support is submitted an affidavit of support with public benefits in the future. The distinct from the actual inadmissibility respect to other individuals, as this may submission of a sponsor’s sufficient determination. Therefore, DHS will not, be indicative of the sponsor’s affidavit of support also does not in adjudicating an adjustment of status willingness or ability to financially eliminate the need to consider all of the application, consider the sponsor’s support the alien. mandatory factors in the totality of the potential future reimbursement in a DHS furthermore disagrees with the circumstances. public charge inadmissibility commenters’ assessment in regard to the Comment: A commenter suggested determination when there is not yet a weight provided to a sufficient and that DHS codify as a ground of reimbursement obligation. Rather, DHS properly executed affidavit of support. exclusion on public charge, that a will consider the existence of a The statute, under section 213A of the beneficiary sue the sponsor for sufficient affidavit of support and the Act, 8 U.S.C. 1183a does not mandate reimbursement of listed public funds likelihood that the sponsor would that the affidavit is outcome received, or else be deemed a public actually provide the statutorily-required determinative, nor does it limit DHS’s charge. The commenter explained amount of financial support to the alien, discretion how to weigh the affidavit in beneficiaries have the option, but not and any other related considerations. the totality of the circumstances: It the obligation, to initiate a private legal Moreover, the statute is forward- simply puts forth that ‘‘[n]o affidavit of looking and requires DHS to determine support may be accepted by the 733 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). whether the alien is likely at any time Attorney General or by any consular 734 See 8 CFR 212.22(b)(7). to become a public charge. While past officer to establish that an alien is not 735 See 8 CFR 212.22(b)(7); see also receipt of public benefits is a factor to Inadmissibility on Public Charge Grounds, 83 FR excludable as a public charge under 51114, 51198 (proposed Oct. 10, 2018). consider, the fact that the beneficiary or section 1182(a)(4) of this title’’ and 736 See INA section 212(a)(4)(C) and (D), 8 U.S.C. the funding Government agency seeks 1182(a)(4)(C) and (D). 732 Inadmissibility on Public Charge Grounds, 83 737 See Inadmissibility on Public Charge Grounds, 738 See INA section 213A, 8 U.S.C. 1183a; 8 CFR FR 51114, 51197 (proposed Oct. 10, 2018). 83 FR 51114, 51198 (proposed Oct. 10, 2018). 213a.2(d).

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reimbursement for such receipt is likely to become a public charge. The factors in public charge determinations. unrelated to an alien’s likelihood of commenter, while noting that benefits The commenter also indicated that the becoming a public charge in the future. such as costly long-term institutional general considerations are turned into a Imposing such a requirement would not care were unlikely to be reimbursed, complex, variable-factor test that always meaningfully contribute to DHS’s goal stated that there was no reason to think involves more than five factors, and that of ensuring self-sufficiency of those that very modest amounts of Medicaid it will massively increase the error rate foreign nationals in the United States. or SNAP benefits would not be for public charge decisions. The For these reasons, DHS will not include reimbursed if the public entity commenter indicated that the example reimbursement of the cost of public providing the benefits sought in Table 35 in the NPRM and rule benefits provided to an alien as part of reimbursement. This commenter noted specify quantitative weights to the the factors is an appropriate that the Government has the authority to factors. The commenter indicated that consideration. obtain reimbursement from a sponsor the factor labeled ‘‘not applicable’’ has under an affidavit of support. The a presumed weight of zero and is not O. Additional Factors To Consider commenter noted that the current included in the numerator or Comment: A commenter stated that SNAP, Medicaid, SSI, and TANF denominator of any quantitative or being a past recipient of public benefits programs permit reimbursement. This qualitative final ‘‘score’’ of the proposed should not be a heavily weighted commenter stated that lower thresholds test; and that ‘‘heavily weighted factors’’ negative factor and suggested that for public charge determinations have a much greater weight than all certain positive factors, or increase the likelihood of receiving other factors. The commenter further considerations, should offset negative reimbursements of benefits that would assumed that the agency intends each of factors such as being a caregiver for a push the amount of benefits received the applicable factors to have a weight U.S. citizen child, being an elderly below the public charge threshold as set equal to one, and heavily weighted person or an individual with by DHS. And finally, the commenter factors have a weight equal to two. The disabilities, having a child under the age requested that consideration of commenter concluded that that while of five, being recently pregnant, being reimbursement, and how it will be this would be the most straightforward someone who had a temporary health determined, as part of the regulatory reading of the factors and the tables condition which caused the individual action on public charge, should be done included in the NPRM, the commenter to be unable to work which has since with notice and comment because it is stated it is actually unclear what the improved, and those receiving such a major aspect of the rule. rule requires. Medicaid. Response: Although an adjustment of Response: DHS disagrees that the Response: Aside from the above- status applicant who is required to standard of identifying heavily weighted referenced clarification with respect to submit a sufficient affidavit of support factors limits an officer’s ability to caregivers, DHS will not add additional must submit Form I–864 with his or her consider the totality of the factors or considerations to the rule application, the sponsor’s obligations circumstances.739 The heavily weighted along the lines proposed by the with respect to the applicant do not factors provide guidance as to how to commenter. There is no evidence that become effective until the adjustment of weigh all the factors present in an these listed factors, such as being a status application is granted. Therefore, alien’s case. Each case has different caregiver for a U.S. citizen child, being at the time the applicant files an circumstances that will be reviewed in an elderly person or an individual with application for adjustment of status, the totality of the circumstances. DHS disabilities, having a child under the age there would not be anyone responsible believes that while the heavily weighted of five, or being a Medicaid recipient, is for reimbursing a public benefit-granting factors are more indicative of an alien’s indicative of self-sufficiency. Although agency. The reimbursement of public likelihood to become a public charge, caregivers may benefit the household by benefits may be more applicable in the these factors, under the totality of the eliminating the need for childcare or deportability context and out of scope of circumstances framework, are still eldercare expenses, each person must this rule. evaluated in conjunction with the other establish he or she is not likely to be a relevant positive and negative factors, public charge based on the totality of P. Heavily Weighted Factors General and accorded the weight they are due in the factors of an individual’s Comments an alien’s individual circumstances. circumstances. However, as noted Comment: A commenter opposed Further, one factor alone, even those above, USCIS, on an individual basis, proposed establishment of heavily that are heavily weighted, will not may take into consideration that a weighted positive and negative factors determine whether an alien is likely at person is a caregiver for others in the in a public charge inadmissibility any time to become a public charge. household as part of the Education and determination. The commenter The totality of the circumstances Skills factor or that a sponsor provides indicated the proposed system of approach is consistent with the sufficient support for the alien. When heavily weighted negative and positive statutory requirement that DHS consider considering whether the alien is likely factors effectively limits an adjudicator’s certain minimum factors, as well as a to become a public charge, DHS will ability to consider the totality of body of administrative case law that has consider the totality of the alien’s circumstances. Many commenters stated developed over the past 50 years, which circumstances. The alien is not that the proposed rule would yield generally directs the agency to precluded from advancing any argument inconsistent outcomes as there is no ‘‘consider all the factors bearing on the or providing evidence that would clear guidelines to what extent heavily alien’s ability or potential ability to be indicate that, in the totality of the weighted positive or negative factors self-supporting.’’ 740 Additionally, as circumstances, the alien is not likely to should inform a final decision. Another discussed in the NPRM, DHS has become a public charge. commenter stated that the proposed Comment: One commenter suggested weighting scheme unreasonably under- determined that certain factual that DHS should take reimbursement (or weighs the most important factors 739 See Inadmissibility on Public Charge Grounds, the possibility of reimbursement) of (ability to work in the future and having 83 FR 51114, 51178 (proposed Oct. 10, 2018). public benefits into account when potential family support) and 740 See Matter of Vindman 16 I&N Dec. 131, 132 determining whether an individual is overweighs several other marginal (Reg’l Comm’r 1977).

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circumstances would weigh heavily is neither a formulaic scheme nor will negative factor for lacking financial because DHS considered them to be it ignore important considerations in an means to pay for reasonably foreseeable particularly indicative of an alien being alien’s case, such as the alien’s ability medical costs would disproportionately more of less likely to become a public to work or the family support that she harm immigrants with disabilities, and charge.741 In the sections that follow, or he receives, or any other positive those living with chronic medical DHS addresses public comments contributions by the alien that conditions. Several commenters stated regarding specific heavily weighted demonstrate self-sufficiency. that this proposed factor would factors. DHS also disagrees that the heavily disproportionately affect survivors of Again, the inclusion of heavily weighted factors are not realistic given domestic and sexual abuse, and certain weighted factors does not change that the realities of the current job market in subpopulations of Asian Americans. the public charge inadmissibility the United States and that these factors Response: DHS understands that the determination is one that is made based are misaligned with efforts to grow the rule may result in more public charge on the totality of the alien’s individual U.S. economy. This rule is designed to inadmissibility findings, which may facts and circumstances. Therefore, DHS better ensure that those seeking to come have specific effects on certain groups. disagrees with the commenter’s to and remain in the United States For example, the rule will affect some assessment on the quantitative weight either temporarily or permanently are aliens who have low incomes; however, assessment of the factors. DHS does not self-sufficient, as directed by income is relevant to the alien’s assets, review the factors quantitatively, so Congress.744 However, DHS notes that resources, and financial status, which there is not a factor that has a weight as addressed elsewhere in this rule, this DHS is required to consider in equal to zero, one, or two. The use of rule does not aim to address the U.S. determining whether an alien is likely at the term ‘‘neutral’’ in the ‘‘Weight of economy or the U.S. job market. any time to become a public charge in Factor’’ column in Table 35 of the Comment: Several commenters stated the totality of the circumstances. NPRM refers to the fact that the factor that four in ten noncitizens who entered Similarly, DHS understands that the is not heavily weighted. The factors the United States without a green card rule will affect aliens who do not work, would still be positive or negative would have characteristics that would but employability has obvious relevance unless designated as heavily weighted be considered heavily weighted negative to whether a person is likely at any time factor. factors. Many commenters stated that to become a public charge. Again, an Comment: A commenter stated that the heavily weighted factors would officer evaluates all of the factors in the the heavily weighted negative factors disproportionately affect immigrant totality of the circumstances and an are highly correlated and ‘‘puts a thumb women; survivors of domestic and alien may have positive factors that on the scales’’ against low-income sexual abuse; immigrants with outweigh lack of past, current, or future immigrants. A couple of commenters disabilities; immigrants with HIV and employment. Finally, an alien’s recent stated that the heavily weighted factors other chronic health conditions; LGBTQ receipt of public benefits (or an alien’s ignore the positive contributions of immigrants; children and families; continuing enrollment in public benefits immigrants to society. A commenter seniors; multigenerational families; such as Medicaid) is also relevant to the stated that the heavily weighted factors racial and ethnic minorities; and AAPI alien’s assets, resources, and financial in the proposed rule are not realistic immigrants. For example, several status, which DHS is also required to given the realities of the current job commenters stated that the consider in determining whether an market in the United States. A employability factor would negatively alien is likely at any time to become a commenter stated that negatively and disproportionately impact survivors public charge. However, as noted weighted factors in the proposed rule, of sexual and domestic violence. A previously, this is one relevant factor in such as family size or being under the commenter stated that women are more the totality of the circumstances, and an age of 18, are misaligned with efforts to likely to be victims of harassment at alien could always show evidence of grow the U.S. economy. Another work, and are more likely to face disenrollment, or evidence that the alien commenter expressed concern that the negative consequences if they speak out. obtained private health insurance or negative weighted factors ignore the Another commenter stated that the other means of support to offset this positive impacts receiving public employability factor and receipt within heavily weighted negative factor. benefits have on future self-sufficiency. the previous 36 months of one or more As noted elsewhere in this rule, Response: As explained in the NPRM, public benefits above the threshold Congress has generally exempted certain the mere presence of any of the factual would unfairly affect individuals with vulnerable populations from the public circumstances listed in the rule would disabilities. Some commenters stated charge ground of inadmissibility, such not, alone, be outcome determinative. A that survivors of domestic and sexual as VAWA, T, and U applicants, and circumstance that the rule designates as abuse would be disproportionately DHS included these exemptions in the warranting heavy weight might be affected by heavily weighting recent regulatory text in this final rule. DHS, outweighed by countervailing evidence receipt of one or more public benefits. however, will not adjust the statutory in the totality of the circumstances.742 A commenter stated that the proposed Other evidence may also be probative of rule’s lookback period will negatively factors to otherwise accommodate an alien’s likelihood to become a public impact pregnant women as well as specific groups whom Congress has charge in the context of an alien’s women and families with children made subject to the public charge individual circumstances.743 Therefore, because they are eligible to receive ground of inadmissibility. the public charge inadmissibility benefits for a longer period of time. Q. Heavily Weighted Negative Factors determination, as proposed in the Another commenter stated that using NPRM and as set forth in this final rule, recent receipt of public benefits as a 1. Lack of Employability heavily weighted negative factor would Comment: One commenter supported 741 See Inadmissibility on Public Charge Grounds, have disastrous effects on those lack of employability as a heavily 83 FR 51114, 51198–206 (proposed Oct. 10, 2018). receiving Medicaid. Several commenters weighted negative factor, and stated that 742 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51198 (proposed Oct. 10, 2018). stated that the heavily weighted lack of employability should be the only 743 See Inadmissibility on Public Charge Grounds, disqualifying factor. Another 83 FR 51114, 51198 (proposed Oct. 10, 2018). 744 See 8 U.S.C. 1601. commenter stated that employment

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alone does not guarantee an immigrant’s employment. Because this factor society and the economy but believes economic self-sufficiency, because assesses whether an alien who has work that including public benefits as a much of the work done by immigrants authorization has worked or can heavily weighted negative factor is an is low-wage and does not fully cover the demonstrate the ability to work in the appropriate consideration in cost of living in the United States. future, it goes directly to whether the determining who is likely to become a Response: DHS agrees that alien is employable, which DHS public charge. employment alone does not guarantee believes is particularly indicative of Comment: One commenter stated that that a person will be self-sufficient. DHS whether an alien is more likely to the heavily weighted factors would disagrees, however, with the comment become a public charge. impair rather than advance the financial suggesting that the lack of employability With respect to the commenter’s stability of immigrants. A commenter should be disqualifying in the public objections regarding vagueness, DHS stated the negative factors in the rule charge inadmissibility determination. believes it is reasonable and consistent ignore the role public benefits and All the factors as listed in the statute with a totality of the circumstances family support play in advancing self- and this final rule, including the heavily approach to not limit the review of sufficiency. Another commenter stated weighted negative factors, are reviewed employability to specific time periods or that using receipt of one or more public in the totality of the circumstances. The specific types of employment. Form I– benefits as a heavily weighted factor fact that an alien is not a full-time 485 requests information on the last 5 would hurt the ability of public benefit- student and is authorized to work but years of employment. An applicant may granting agencies to combine multiple cannot demonstrate employment history be able to demonstrate prospects of benefits that work in concert to improve or a reasonable prospect of future future employment through their self-sufficiency of the recipients. employment will not be the sole factor employment history and education and Response: DHS agrees that public that would lead to a determination that skills. benefits can assist in advancing self- the applicant is inadmissible as likely at sufficiency but believes the rule is a 745 2. Current Receipt of One of More any time to become a public charge. proper interpretation of the Public Benefit Even where an alien has this heavily congressional mandate regarding the weighted negative factor, that factor, in Comment: A few commenters stated public charge provisions.747 Further, the and of itself, will not render an that considering current receipt of one rule does not prevent public benefit- applicant likely at any time to become or more public benefits is not in keeping granting agencies from working to a public charge in the totality of the with the totality of circumstances test. improve the self-sufficiency of circumstances analysis. In addition to this, one commenter recipients, although it does create DHS will not implement the stated that including receipt of one or consequences for an alien’s receipt of suggestion that the lack of employability more public benefits to the public certain public benefits. be the only disqualifying factor. As charge determination was a drastic Comment: One commenter said this noted above, none of the heavily change in the scope of the test. One factor was appropriately weighted but weighted negative factors is commenter stated that including public indicated that an alien’s reliance on a disqualifying and further, DHS has benefits as a heavily weighted negative foreign government assistance program determined that there are other factual factor ignores the contributions of low- should not be considered as a negative circumstances (e.g., income, assets, wage workers to society and the factor, as in many cases, the dependence resources at or above 250 percent) apart economy. A few commenters stated on such programs is customary, or the from employability that are also there was not sufficient evidence to program is designed to be one where the particularly indicative of an alien being state that receipt of one or more public immigrant would not have had to opt more of less likely to become a public benefits is indicative of someone into. charge and therefore, are heavily becoming a public charge. Other Response: DHS appreciates the weighted negative factors. commenters said that some people who comment and agrees that the factor is Comment: A commenter stated that are self-sufficient will access benefits, appropriately weighted. DHS did not the factor is misleadingly characterized and that this has been supported by propose and will not consider public in the preamble as a ‘‘Lack of congressional intent. benefits provided by foreign Employability.’’ The commenter Response: DHS disagrees that countries.748 Public benefits in foreign indicated that it is not clear how considering prior or current receipt of country have different standards and recently a person needs to have worked, public benefits is inconsistent with the objectives. For example, in some or how they would demonstrate the totality of the circumstances test. As countries, such as Canada, healthcare is prospect of future work, or even the discussed in the NPRM, DHS believes provided on a national basis and is not type of work that would avoid the that receipt of benefits is a key gauge to based on income eligibility and not application of this heavily weighted determining the likelihood of future use aligned to a need-based standard. In negative factor. Some commenters of public benefits and becoming a addition, the inadmissibility stated that the employability heavily public charge. All else being equal, a determination is whether a person is weighted negative factor was vague and person who is currently receiving public likely to become a public charge in the poorly defined. benefits is more likely to receive public United States. Response: DHS does not believe that benefits in the future than a person who the heading for this factor is misleading. is not currently receiving such benefits. 3. Receipt of Public Benefits Within 36 The factor relates to whether an alien The 1999 Interim Field Guidance Months Before Filing who is not a full-time student and is recognizes this by directing officers to Comment: Some commenters stated authorized to work, is able to consider current and past receipt of that a retrospective test is inconsistent demonstrate current employment, covered benefits.746 DHS appreciates with the prospective nature of the recent employment history, or a that low-wage workers contribute to reasonable prospect of future 747 See 8 U.S.C. 1601. 746 See Field Guidance on Deportability and 748 See 8 CFR 212.21(b). See Inadmissibility on 745 See Inadmissibility on Public Charge Grounds, Inadmissibility on Public Charge Grounds, 64 FR Public Charge Grounds, 83 FR 51114, 51158–74 83 FR 51114, 51178 (proposed Oct. 10, 2018). 28689, 28690 (May 26, 1999). (proposed Oct. 10, 2018).

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public charge inadmissibility of stable employment or income would certified to receive, or approval to determination. Other commenters be a consideration in the totality of the receive one or more public benefits, as asserted that weighing receipt of public circumstances. However, DHS believes, defined, for more than 12 months benefits within the previous 36 months as discussed in the NPRM, that past within any 36 month period, beginning is inconsistent with the totality of receipt of public benefits for more than from 36 months prior to the alien’s circumstances test, and represented a 12 months in the aggregate within 36 application for admission or adjustment significant and troubling departure from months is an indicator that an alien will of status, will be considered a heavily- current federal policy. A commenter continue to receive (or again receive) weighted negative factor in the totality commented that the ‘‘studies provide public benefits, and therefore is likely to of the circumstances assessment. zero evidence that previous receipt of become a public charge. The NPRM explains that the weight the newly added benefits is an indicator Comment: A commenter indicated given to public benefits will depend on of future use.’’ A few commenters that the 36-month standard is whether the alien received multiple commented that receipt of public unreasonable because the study benefits, how long ago the benefits were benefits is a clear benchmark that an conducted by HHS in 2001 is outdated received, and the amounts received.750 immigrant was deemed eligible for a and does not appear to provide a For example, the receipt of a public benefit by another Federal agency and it reasonable basis for the 36-month benefit five years ago may be a negative is therefore inappropriate to consider period that DHS has included in this factor; however, a public benefit previous receipt of public benefits. proposed rule. A couple of commenters received six months before the Several commenters stated that if the stated there was not adequate rationale adjustment of status application would specific circumstances that led to the to support negatively weighting receipt be considered a heavily weighted use of public benefits no longer apply, of public benefit within the prior 36 negative factor. DHS will consider the previous use of benefits is irrelevant. months. Another commenter stated that receipt of (or application or certification One commenter added to this and said it was unclear how prior benefit use for) public benefits after the effective that they opposed the proposed addition would be weighted. A couple of date of the rule. DHS will also consider of receipt of public benefits within last commenters stated that the 36-month those benefits that were previously 36 months of filing application as there rule is unfair because no one could have considered under the 1999 Interim Field are many cases where someone needs predicted this rule or can predict their Guidance including SSI, TANF, State help only temporarily. Another circumstances, and would cause great and local cash assistance programs that commenter stated that many individuals fear and confusion. provide benefits for income would just disenroll from benefits for 3 Response: As discussed in the NPRM, maintenance (often called ‘‘General years and re-enroll once they receive some studies suggest that although most Assistance’’ programs), and those people who leave welfare programs are adjustment of status, but in the benefits received (including Medicaid) working after they leave those programs, meantime could suffer. Many to support the alien’s people may come back to receive commenters stated that a lookback institutionalization for long-term care. additional public benefits.749 As period disregards the positive effects of The publication of the rule and effective explained in the NPRM, DHS would public benefits, including future self- date provides sufficient notice for view past receipt of public benefits sufficiency. Several commenters stated people to cancel current receipt of within 36 months as an indicator that an that the 36-month rule is retrospective public benefits. alien will continue to receive (or again and has no place in a rule that is meant Comment: One commenter requested receive) public benefits, and therefore is to be forward looking, and commented an explanation of the necessity of the likely to become a public charge. With that prior receipt of public benefits has 36-month lookback period as most respect to the statement that the study immigrants who would qualify for no bearing on whether an individual is outdated or insufficient, DHS notes will be dependent on the Government in public benefits are either exempt from that although there are limitations to the public charge determinations or have the future. A commenter indicated that data, this study was particularly of the past receipt of public benefits already adjusted status. interest in that it examined repeated Response: As explained previously, should receive no weight. One return to public benefit programs. commenter expressed concern that by the 36-month component of the public As explained elsewhere in this rule, charge threshold is an appropriate using a lookback period, even DHS has also clarified as part of the individuals who were able to increase timeframe to determine whether an definition of receipt of public benefits, alien is more likely than not to become their earnings to a point where that although an application or assistance is no longer needed will be a public charge at any time in the future. certification for public benefits is not That said, DHS will not make a public penalized. Adding to this, a commenter considered receipt, DHS believes that that the proposed lookback period will charge inadmissibility determination the application for, or being certified to with respect to aliens who are exempt disproportionately hurt those who are receive in the future to receive public gainfully employed and may therefore from public charge inadmissibility or benefits may suggest a likelihood of who have already adjusted status to that be eligible to access benefits for longer future receipt. Correspondingly, DHS than those who are not employed. of a lawful permanent resident, and also amended the heavily weighted would not otherwise be considered Response: DHS understands that a factor to state an alien’s receipt, being applicants for admission. Therefore, person may no longer need public DHS will not consider whether such benefits in the future if the 749 See Lashawn Richburg-Hayes & Stephen aliens have received public benefits. circumstances that led to the use of Freedman, A Profile of Families Cycling On and Off With respect to other aliens, as public benefits no longer apply, and Welfare 4 (Apr. 2004), available at https:// aspe.hhs.gov/system/files/pdf/73451/report.pdf discussed in this final rule, DHS has DHS would take that into consideration. (last visited July 26, 2019). See also U.S. Dep’t of added the consideration of credible and DHS would take into consideration that Health & Human Servs., Office of the Assistant probative evidence presented by the the public benefit was used temporarily Sec’y for Planning & Evaluation, Status Report on Research on the Outcomes of Welfare Reform app. and that the person may not be likely to B (Aug. 2001), available at https://aspe.hhs.gov/ 750 This proposed policy is generally consistent receive public benefits in the future. No report/status-report-research-outcomes-welfare- with longstanding policy affording less weight to longer receiving public benefits because reform-2001 (last visited July 26, 2019). benefits that were received longer ago in the past.

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alien from a Federal, state, or local disabilities from entering or remaining Form I–693 or DOS medical government agency that demonstrates in the United States. The commenter examination form, USCIS will be relying the alien is not eligible for one or more further stated that assigning the factor a on the diagnoses set forth by the civil public benefits. This information will be heavy weight would codify surgeon or designated panel physician taken into consideration in the totality discriminatory assumptions regarding on such forms submitted in support of of the circumstances. people with disabilities. The commenter the application for the diagnosis of any stated that disability should remain a medical conditions; USCIS will also rely 4. Financial Means To Pay for Medical factor to be measured on a case-by-case on evidence, as provided by the Costs basis free of an automatically assigned applicant, of a medical condition that is Comment: Some commenters stated heavy negative weight. likely to require extensive medical that many people do not have the ability Response: DHS will retain the heavily treatment or institutionalization after to afford their own healthcare due to weighted negative factor based on the arrival, or that will interfere with the low wages and the high cost of applicant’s lack of financial means to alien’s ability to care for himself or healthcare, making this factor unfair to pay for reasonably foreseeable medical herself, to attend school, or to work. low-wage workers and immigrants. costs if the alien does not have private DHS will not speculate as to the cost of Another commenter expanded on this health insurance. As established in the medical conditions or the ability of a and remarked that this factor will NPRM, certain chronic medical person to provide for himself or herself simply exclude individuals without conditions can be costly to treat and or go to school or work. substantial resources and who do not certain conditions may adversely affect Comment: Multiple commenters understand the complicated healthcare an applicant’s ability to obtain and stated that farmworkers often lack system in the United States. One retain gainful employment, or to health insurance, even if offered by their commenter expressed concern that the otherwise support himself or herself. employer, because they cannot afford it, rule asserts that a sign of self-sufficiency Evidence outlined in the NPRM also and stated this factor is unfair to these is having enough cash on-hand to deal indicated that individuals in poor to fair workers. with serious illness, asserting that most health are more likely to access public Response: For nonimmigrants’ Americans born in this country could benefits to treat their medical condition. admission, DHS will also consider the not pass this test. Another commenter DHS agrees with the commenter that proposed length of stay of the stated that it is impossible to predict an this factor may be applicable even if the nonimmigrant and the assets, resources individual’s future healthcare costs. applicant has not received any public and financial status of the applicant. Response: The basis for including benefits, but disagrees that this factor Some employers may provide for Medicaid in the rule is discussed earlier would keep most people with medical assistance for the duration of in this preamble. Even if the alien does disabilities from entering or remaining the alien’s stay. Whether a person has not have health insurance, he or she in the United States. Since the public the ability to pay for reasonably should have sufficient funds to provide charge inadmissibility determination is foreseeable medical costs is but one for any reasonably foreseeable medical made on a case-by-case basis and in the factor in the totality of the costs, which is only one consideration totality of the alien’s individual circumstances. As previously indicated in the totality of the circumstances. circumstances, an applicant could for extension of stay and change of Further, DHS will not consider overcome this heavily weighted status purposes, DHS removed the assistance for an ‘‘emergency medical negative factor through presentation of forward looking determination and will condition’’ as provided under section other evidence. only consider whether the 1903(v) of Title XIX of the Social Additionally, DHS notes that the fact nonimmigrant received public benefits Security Act, 42 U.S.C. 1396b(v), and in that an applicant has a disability does during the stay. implementing regulations at 42 CFR not mean that the applicant has this 5. Alien Previously Found Inadmissible 440.255(c) as part of the public charge heavily weighted negative factor, and or Deportable Based on Public Charge inadmissibility determination. Having disagrees that the rule codifies health insurance or being able to pay for discriminatory assumptions. As is the Comment: Some commenters asserted medical expenses is only one factor in case with any other applicant, that by using whether a person was the totality of the circumstances. This individuals with disability may previously found inadmissible or factor does not call for the alien to be establish their self-sufficiency deportable as a public charge as a able to pay for medical costs that are not notwithstanding their medical condition heavily weighted factor, DHS would be reasonably foreseeable. that is likely to require extensive ignoring the prospective nature of the Comment: Commenters suggested that medical treatment or institutionalization public charge assessment. One DHS eliminate the proposed heavily or that will interfere with the alien’s commenter stated that since the prior weighted negative factor for an alien ability to provide for himself or herself, finding of not being a public charge is who (1) has been diagnosed with a attend school, or work. Such applicants not accorded comparable weight in the medical condition that is likely to may do so by providing proof of income, proposed rule this factor would be require extensive medical treatment or employment, education and skills, arbitrary and unfair. The commenter institutionalization or that will interfere private health insurance, and private stated that in addition, because the only with the alien’s ability to provide for resources. heavily weighted positive factor that himself or herself, attend school, or Comment: One commenter expressed could counterbalance this one is income work, and who (2) is uninsured and has concern that this factor would allow or assets above 250 percent of the FPG, neither the prospect of obtaining private DHS personnel to overrule the opinions reliance on such a factor would health insurance, nor the financial of medical professionals in a move that arbitrarily impose a more difficult resources to pay for reasonably would invite ‘‘unbridled speculation evidentiary hurdle for immigrants below foreseeable medical costs related to a and discrimination.’’ that level than for immigrants above it medical condition. A commenter stated Response: DHS disagrees that this without rational justification, as well as that the factor is applicable even if the heavily weighted negative factor would disproportionately harm immigrants of applicant has not used public benefits permit DHS to overrule the opinions of color, who are less likely to earn above and would keep most people with medical professionals. In reviewing the that level, as described infra in our

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comments on the 250 percent criteria. improperly adjudicated. One generally. DHS chose to study Another commenter warned that this commenter stated the 250 percent noncitizens specifically despite the factor would be an arbitrary addition threshold does not go far enough to help inherent issues in making inferences and would serve no purpose other than qualified individuals overcome the from small sample sizes, since the to deter individuals from applying for public charge test. Other commenters population of noncitizens more closely adjustment of status out of fear it would stated that the proposed heavily corresponded to the individuals who ruin their future attempts to gain lawful weighted positive factor ignores the would be subject to the public charge permanent residence status. positive contributions of immigrants. rule than foreign-born generally, which Response: DHS disagrees that One commenter stated that using 250 includes naturalized citizens. In Table considering a prior inadmissibility percent as the sole positive factor 27 of the NPRM, DHS showed that there determination as a heavily weighted undermines and minimizes the value of is lower public benefit program negative factor would be arbitrary and other key economic and wealth building participation rates among those in unfair or that considering an alien’s milestones. Additionally, some higher income categories for the prior admissibility under the public commenters stated that the proposed population of citizens in the tables charge ground would merit comparable heavily weighted positive factors listed in the NPRM. Lower participation favorable treatment. A previous finding undervalue those who contribute to rates may also be shown in the overall of inadmissibility on public charge society in nonmonetary ways, such as population by averaging across both grounds would likely be documented. stay at home parents. Another citizens and noncitizens (i.e., Tables 27 By contrast, there would not necessarily commenter stated that the 250 percent and 28 of the NPRM). Table 28 of the be a statement of the Government’s threshold functions as a ‘‘wealth-test.’’ NPRM is not inconsistent with such a reasons for admitting the alien or Another commenter said that most relationship. The justification still holds approving his or her application for legally present noncitizens would not for using income as a percentage of FPG adjustment of status. meet the 250 percent FPG threshold. in the public charge determination, and DHS acknowledges that an alien’s Similarly, other commenters stated that persons with an income at a higher circumstances may have changed since much of the U.S. population would not percentage of the FPG are less likely the a previous application for admission or qualify to have a heavily weighted to receive public benefits than those at determination of inadmissibility or positive factor. Many commenters said a low percentage. Further, DHS deportability based on the public charge the threshold for a family of four is disagrees that the 250 percent threshold ground. DHS would take those new higher than the 2017 median household would discourage people from circumstances into account in the income for the United States ($63,000 supporting their families as 125 percent totality of the circumstances when vs. $61,372). One commenter stated that is the threshold for positive making a new public charge in some regions of the United States consideration in the totality the inadmissibility determination. There is those earning above 250 percent FPG circumstances and the 250 percent no requirement to specifically ‘‘balance would be among the wealthiest in their threshold a heavily weighted positive out’’ a heavily weighted negative factor communities. One commenter stated factor but not a requirement. DHS with a heavily weighted positive one. that the proposed 250 percent FPG acknowledges that the income threshold Rather adjudicators will consider the threshold would do little to improve the may be harder to meet if the alien has alien’s specific circumstances within systemic issues of income inequality in a larger household size, however, DHS the totality of the circumstances the United States. would also take into account any Response: DHS disagrees that the rule framework when assessing the alien’s income, assets, or resources the other provides a wealth test. The 250 percent likelihood of becoming a public charge, household members also provide. FPG standard is a heavily weighted and will afford specific facts the weight Nevertheless, family status is still a positive factor and not a requirement they are due in the context of this rule’s mandatory factor as established by that aliens need to meet in order to adjudicative framework. Congress.751 overcome a public charge R. Heavily Weighted Positive Factors inadmissibility finding. As previously Comment: One commenter stated that heavily weighing household income at 1. Proposed Standard stated, income is one factor in the totality of the circumstances, and any or above 250 percent FPG would Comment: Several commenters stated income above 125 percent of the FPG is confuse the threshold for the affidavit of that having the 250 percent threshold as a positive factor. support. the sole heavily weighted positive factor Comment: Several commenters cited Response: The affidavit of support is in the public charge test would research showing there was not a a different requirement and has a represent a fundamental change to statistically significant difference in specific form associated with it. The immigration policy and the immigrant receipt of benefits between immigrants affidavit of support threshold is 125 population. A commenter stated a above and below the 250 percent percent of the FPG of the sponsor’s bright-line positive or negative income threshold. Some commenters stated that income and that threshold is not being threshold subverts the totality of the 250 percent FPG threshold would changed with this rule. The income circumstances consideration. Some have a perverse effect of discouraging threshold for the alien’s household is commenters stated that the 250 percent people from supporting family members part of this rule’s totality of the threshold was another example of out of fear it would change their public circumstances public charge assessment double counting in public charge charge determination. is 250 percent of the FPG. Income at this inadmissibility determinations under Response: DHS acknowledges that level is considered a heavily weighted the proposed rule. Another commenter certain tests involving estimates of positive factor (as opposed to income at stated the 250 percent threshold was noncitizens yielded results in Table 28 the 125 percent of the FPG (100 percent there to prevent immigration through of the NPRM that were not statistically for member of the U.S. Armed forces in administrative means. Another significant, which in some cases was a active duty), which is a positive commenter stated that those falling consequence of small sample sizes due consideration). between 125 percent and 250 percent of to forming estimates on only the FPG would have their cases noncitizens instead of foreign-born more 751 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

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Comment: Another commenter stated a heavily weighted positive factor skilled employees such as post-doctoral there may not be enough time for because it is particularly indicative of research fellows may not make enough migrants under certain visa an alien being less likely to become a money to qualify for the heavily classifications to seek, obtain, and begin public charge. An applicant subject to weighted positive factor. Some a job with the income necessary to meet the public charge ground of commenters remarked that many skilled the 250 percent of FPG level. inadmissibility is not required to workers are compensated with stock Response: The burden is upon the demonstrate that he or she has income options as part of their regular income, alien to establish that he or she is at or above 250 percent of the FPG in and it is unclear if this will be eligible to be admitted into the United order to establish admissibility, and an considered under the heavily weighted States. Further, certain nonimmigrant alien’s failure to demonstrate such positive factor. One commenter and immigrant classifications require income does not receive ‘‘negative’’ expressed concern that the 250 percent the employment to be established before weight in the totality of the threshold does not take into account the nonimmigrant visa is issued. That circumstances unless that income is that many workers will increase their said, DHS notes that there is no below 125 percent of the FPG. The income the longer they work. A few requirement that an applicant subject to standard only serves to assist commenters stated that that the 250 the public charge ground of individuals in establishing self- percent threshold would pose a unique inadmissibility demonstrate that he or sufficiency. challenge for California, where it would she has income at or above 250 percent Comment: A commenter stated that make it more difficult to extend the of the FPG in order to gain admission or many couples seeking adjustment of status of H–1B visa holders and create adjustment of status. Rather, the fact status would be affected by the 250 a labor shortage for California’s that an applicant who has income at or percent threshold, as many of these agriculture industry, which heavily above 250 percent of the FPG will weigh visas prohibit immigrants from working. relies on the H–2A visa program. heavily in favor of finding the applicant The commenter stated that according to Response: DHS understands that not is admissible in the totality of the one analysis, about 31 percent of everyone is authorized to work or needs circumstances, but is not outcome foreign-born spouses were unemployed to work in order to be self-sufficient. As determinative. Therefore, an applicant when they applied for a marriage-based previously indicated the 250 percent of who has household income below 250 green card, as many were prohibited the FPG standard is not a requirement percent of the FPG will not, based on from working on their nonimmigrant to establish admissibility and is one that fact alone, be denied admission or visas, such as the F–1 or F–2 student consideration in the totality of the adjustment of status. visas, or B–2 visitor visas. For those circumstances. Further, when Comment: Several commenters stated who did work, about 22 percent of them adjudicating a nonimmigrant’s the proposed 250 percent heavily held jobs that would unlikely meet the application for extension of stay or weighted positive threshold would 250 percent income threshold, and even change of status, USCIS will review disproportionately affect members of if DHS were to allow both spouses to whether the alien has established that marginalized communities; hard- pool their income to meet the new he or she has not received, since working low- and middle-income threshold, 36 percent of couples could obtaining the nonimmigrant status he or families; immigrants of color; South still find themselves unable to qualify she is seeking to extend or change, any Asian immigrants; Latino immigrants; for a marriage green card. The public benefit as defined in 8 CFR Muslim immigrants; immigrants with commenter stated that it is basic 212.21(b), for more than 12 months, in disabilities; those with pre-existing common sense that a student who is the aggregate, within a 36 months health conditions; women and single prohibited from working would likely period. The heavily weighted factors do mothers; victims of domestic and sexual have some student loans, potentially not apply in that context. abuse; families with children who have credit card loans, and would not have 2. Additional Positive Heavily Weighted special healthcare needs; and the health significant savings, and that the rule Factors and well-being of children of immigrant would allow primarily the parents. independently wealthy to be eligible for Comment: One commenter said that A few commenters stated that the marriage-based adjustment of status. the 250 percent of the FPG standard proposed heavily weighted positive One commenter said the proposed should be downgraded from ‘‘highly factor would increase family separations heavily weighted positive factor creates positive’’ to just considered. Some and would have a negative impact on a ‘‘Catch-22’’ for nonimmigrants on commenters stated that earning 125 family-based immigration. Many student visas who are married to U.S. percent of the FPG should be a heavily commenters stated that the proposed citizens because they are not allowed to weighted positive factor. heavily weighted positive factor would work. Some commenters cited a study Response: DHS declines to adopt the effectively bar lower income that many H–1B visa holders make less commenter’s suggested changes in this immigrants; disregards the efforts and than the amount necessary to support a final rule. The rule already provides for contributions of low-wage workers; and family of five and qualify for the 125 percent of the FPG as a positive that the majority of legally present proposed income threshold of 250 factor in the totality of the noncitizens would fail to meet the 250 percent of FPG. Another commenter circumstances. Making 250 percent of percent FPG threshold. stated that the proposed rule would the FPG a general positive factor instead Response: DHS understands that the negatively impact skilled workers who of a heavily weighted positive factor rule may affect certain groups who may are supporting families and are making would further limit an alien’s ability to have low incomes; however, income is prevailing, middle-class wages. One establish admissibility. An alien would but one factor in the totality of the commenter mentioned that the vast not need to establish income at or above circumstances and will not serve as the majority of scientific researchers 250 percent of the FPG in other to be sole reason to find an alien inadmissible applying for permanent resident status admitted into the United States. Any based on public charge grounds. As based upon an approved EB–1A, EB–1B income between 125 percent and 250 previously indicated, if an applicant has or NIW petition do not meet this 250 percent of the FPG is still a positive household income at or above 250 percent income requirement. Another factor in the totality of the percent of the FPG it will be treated as commenter also stated that some highly circumstances. The 125 percent income

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threshold is based on the income b. Family Relationships obtained. People who spoke a language threshold set by Congress for sponsors Comment: Commenters suggested that other than English at home were less for a Form I–864, which is required for the rule add close family relationship to likely to be employed, and less likely to 752 most family-based AOS applications the U.S. citizen or lawful permanent find full-time work when employed. and some employment-based AOS resident, or having a relative in the The SIPP data provided in the NPRM applications. In order to maintain United Stated providing support, as a indicates that the rate of coverage of consistency with the income threshold heavily weighted positive factor because non-cash benefits among those who set forth in the Form I–864 context, DHS it is strongly associated with self- spoke English either well or very well believes that the 125 percent threshold sufficiency. The commenter notes that (about 15 to 20 percent) was significantly lower than the rate among is appropriate for use in the public immigrants overwhelmingly come to the those who either spoke English poorly charge rule and will not lower the United States to work and advance their or not at all (about 25 to 30 percent). threshold. Any household income own and their families’ financial Further, DHS understands that not all between 125 percent and 250 percent of prospects. The commenter cited their employment requires English the FPG is considered a positive factor own report that estimates that 2.25 proficiency. DHS believes that while it in the totality of the circumstances. million undocumented persons and is appropriate to consider English 212,000 nonimmigrants have a a. Affidavit of Support proficiency in the consideration of qualifying family relationship to a U.S. likelihood to become a public charge in Comment: A commenter stated that citizen or lawful permanent resident the proposed rule mandates denial for the future, it is inappropriate to include living in their household that makes English proficiency as a heavily anyone who cannot provide an affidavit them potentially eligible for an of support, yet the presence of one is not weighted positive factor in light of the immigrant visa or adjustment to lawful fact that many jobs do not require it. a heavily weighted positive factor under permanent resident status. The report the proposed rule. Several commenters further indicated that out of this d. Education stated the filing of a legally enforceable population, 982,000 live in families that Comment: One commenter suggested affidavit of support by a sponsor should earn at least 250 percent of the FPG. be a heavily weighted positive factor that a high school education or beyond Response: DHS will not add a close should be a heavily weighted factor. The and it should be sufficient to overcome family relationship to the U.S. citizen or any heavily weighted negative factors. commenter stated that the totality of the lawful permanent resident as a heavily circumstances test affords insufficient Response: DHS appreciates the weighted positive factor. There is weight to factors strongly associated comments but declines to establish the insufficient evidence that the fact that with self-sufficiency and requesting affidavit of support as a heavily an applicant’s household includes a additional heavily weighted positive weighted positive factor. The U.S. citizen or lawful permanent factors. submission of an affidavit of support resident is indicative of self-sufficiency, Response: The rule provides that DHS under section 213A of the Act, 8 U.S.C. or that having family members in the would consider whether the alien has a 1183a is a requirement for certain United States is in and of itself high school degree or higher education categories of immigrants. See section indicative of self-sufficiency. As with as positive factors. However, a person’s 212(a)(4)(C) and (D) of the Act, 8 U.S.C. every mandatory factor, an applicant’s education may or may not assist him or 1182(a)(4)(C) and (D). Not all aliens are family status will not serve as the sole her in becoming self-sufficient, required to submit the affidavit of basis of a finding of inadmissibility, as depending on other factors specific to support. According to section 212(a)(4) this factor must be considered in the the alien’s circumstances, such as the of the Act, 8 U.S.C. 1182 (a)(4), the lack totality of the circumstances. job market where the alien lives, of a sufficient affidavit of support, c. English Ability outstanding liabilities and support where required, renders an alien obligations, or other personal or family inadmissible on the public charge Comment: One commenter suggested circumstances. Therefore, DHS will not ground. Congress mandated the that the ability to speak English well or include education as a heavily weighted presence of an affidavit of support in very well should be a heavily weighted positive factor. certain cases as a separate requirement, positive factor. The commenter but did not establish submission of the indicated that the totality of the e. Private Health Insurance affidavit of support as a mandatory circumstances test affords insufficient Comment: One commenter suggested factor in all public charge weight to factors strongly associated that private health insurance coverage inadmissibility determinations. with self-sufficiency and requested should be considered as a heavily There is no indication that Congress additional heavily weighted positive weighted positive factor, as it is strongly believed that a sufficient affidavit of factors. The commenter’s study found associated with self-sufficiency. The support would warrant a finding that that 1.32 million of the 2.25 million that commenter explained that 1.1 million the alien is not likely becoming a public would be directly affected by the individuals have health insurance (out charge. Had Congress believed that to be proposed rule speak English well or of the 2.25 million that would be true, Congress would have specified very well. directly affected by this rule based on a such a provision in the statute. Instead, Response: DHS will consider whether study conducted by the commenter, a Congress listed the other factors as the the alien is proficient in English or non-profit think-tank and educational minimum mandatory factors in section proficient in other languages in addition institute focused on international 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), to English as part of the public charge migration) and argued that the rule’s which do not include the affidavit of inadmissibility determination. The totality of the circumstances test affords support. For these reasons, and ‘‘speaking English well or very well’’ consistent with congressional intent, language comes from the SIPP survey 752 See Jennifer Cheeseman Day and Hyon B. DHS will retain the affidavit of support analysis in which people assessed their Shin, U.S. Census Bureau, How Does Ability to own speaking abilities. As provided in Speak English Affect Earnings? 6 (2005), available as a factor considered in the totality of at https://www.census.gov/hhes/socdemo/language/ the circumstances, but will not make it the NPRM, the better the person spoke data/acs/PAA_2005_AbilityandEarnings.pdf (last a heavily weighted positive factor. English, the higher the income he or she visited July 26, 2019).

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insufficient weight to factors strongly believe it is appropriate to include a g. Receipt of Grants, Contracts, and associated with self-sufficiency. heavily weighted positive factor for this Licensures Response: DHS agrees that having type of health insurance, although this Comment: A commenter suggested private health insurance is a strong type of health insurance would that receipt of grants, contracts, and indicator of self-sufficiency. DHS generally be considered positively as licensures should be a heavily weighted analyzed the SIPP data and found that part of the consideration of the totality positive factor. The commenter stated individuals who have private health of the alien’s circumstances, such as that excluding grants, contracts, and insurance are significantly less likely to with respect to the alien’s ability to pay licensures from consideration was not be receiving one or more enumerated for reasonably foreseeable health care appropriate and that an individual’s public benefits in this rule than those costs. Private health insurance receipt of a grant, contract, or license is individuals who do not have private purchased through an ACA Marketplace likely demonstrative of their ability to health insurance. The rate of receipt of without such credits will count for public benefits among those covered by support themselves without recourse to purposes of this heavily weighted public benefits, as such receipt is private health insurance was 4 percent positive factor. for citizens and 6 percent for indicative of ongoing work, skills/ noncitizens, while the rate of receipt for f. Work History proficiencies, and qualifications recognized by the relevant government those not covered by private health Comment: One commenter stated that entity. The commenter further indicated insurance was 40 percent for citizens work history, without regard to wage that grants, contracts, and licensures and 30 percent for noncitizens. DHS has history, should be a heavily weighted may have a direct bearing on the future therefore revised the rule to include a positive factor. This commenter stated likelihood of an individual becoming a heavily weighted positive factor for an that the essence of a ‘‘public charge’’ is public charge and thus should be alien who has private health insurance, where an individual is not willing or subject to two provisos. First, the health recognized as a positive factor. able to work and the rule should not Response: DHS is not excluding insurance must be appropriate for the focus on workers that earn low wages. expected period of admission.753 grants, contracts, and licensures from This commenter explained that farm the public charge inadmissibility Second, the health insurance may not be workers toil in extremely difficult subsidized via premium tax credits determination. DHS agrees that grants, conditions, performing work few others contracts, and licensures are indicative (including advance premium tax are willing to do, and at a low credits) authorized under the ACA. of an alien’s likely self-sufficiency. As compensation rate that cannot possibly with other signs of likely self- Although individuals receiving such sustain a family, through no fault of benefits have significantly lower odds of sufficiency, these would be positive their own. Another commenter stated considerations in the totality of the concurrently receiving the public that entrepreneurship should be benefits designated in this rule, they circumstances. However, DHS does not considered a heavily weighted factor, as agree that these specifically should be receive government subsidies to fulfill a it is strongly associated with self- basic living need, and qualify on a included as heavily weighted positive sufficiency. factors. means-tested basis.754 DHS does not Response: The rule provides for employment history to be considered as h. Caregivers 753 See USCIS analysis of private health insurance a positive factor. However, every factor in Wave 1 of the 2014 Survey of Income and Comment: A commenter suggested Program Participation (SIPP). Private health must be considered in the totality of the that being a caregiver should be a insurance includes coverage through another circumstances. There might be instances heavily weighted positive factor. This person in the household and Medigap, and does not where a person has long-term commenter shared an anecdote include Medicaid, Medicare parts B or D, or employment, but is not able to be self- military- or government-provided insurance. regarding a single father petitioning on 754 USCIS was unable to identify a variable in the sufficient and must receive public behalf of his elderly mother so she SIPP data for private health insurance paid for benefits and conversely, there might be could enter the United States to provide using a premium tax credit. USCIS also analyzed instances that a person does not have care to his children while he worked the SIPP data on private health insurance and long-term employment and would receipt of public benefits, while controlling for full time and pointed out that some income levels. The data support the proposition otherwise be self-sufficient. DHS contributions may not be monetary or that having private health insurance, regardless of believes that income is a proper employment-based but will instead have income level, is a significant determinant of consideration in the totality of a ‘‘trickle down’’ effect that benefits whether the individual receives the designated circumstances and as a heavily public benefits. For example, 13.2 percent of others. individuals with private health insurance at an weighted positive factor since it is Response: DHS declines to adopt this income level between 125 percent and 250 percent indicative of self-sufficiency. DHS also recommendation. As previously of FPG receive the designated public benefits. By recognizes that different types of discussed, although caregivers may contrast, 54.8 percent of individuals without private employment may provide additional health insurance, at that same income level, receive provide assistance to the overall the designated public benefits. Similarly, 10.3 income, however, DHS does not believe household, the public charge percent of individuals with private health insurance it is appropriate to specify just one form inadmissibility determination is based at an income level between 250 percent and 400 of employment as a heavily weighted on the totality of the alien’s individual percent of FPG receive the designated public positive factor. Therefore, DHS will not benefits. By contrast, 47.5 percent of individuals circumstances and being a caregiver without private health insurance, at those same include entrepreneurship as a heavily does not establish self-sufficiency or income levels, receive the designated public weighted positive factor. strongly suggest that the person is not benefits. See USCIS analysis of private health likely to receive the designated public insurance and income level in Wave 1 of the 2014 levels decline as income rises (13.2 percent for benefits above the designated threshold. Survey of Income and Program Participation (SIPP). individuals with income levels between 125 In addition, the data also appear to show a percent and 250 percent of FPG; 10.3 percent for Although caregivers may benefit the relationship between income level and receipt of individuals with income levels between 250 household by eliminating the need for public benefits, within the population of percent and 400 percent of FPG; and 3.2 percent for childcare or eldercare expenses, DHS individuals who have private health insurance. For individuals with income levels above 400 percent does not believe that a person’s status as example, 15.3 percent of individuals with private of FPG). See USCIS analysis of private health health insurance below 125 percent of the FPG insurance and income level in Wave 1 of the 2014 a caregiver warrants a heavily weighted receive the designated public benefits. Receipt Survey of Income and Program Participation (SIPP). positive factor. DHS, as previously

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discussed, did include a provision S. Public Charge Bonds for Adjustment stated that the NPRM does not provide regarding caregivers within the of Status Applicants a clear standard defining who should qualify for a public charge bond and Education and Skills factor. 1. Standard that the proposed public charge bond i. Ability To Work in the Future Comment: Several commenters system is vulnerable to an abuse of supported the requirement that all new Comment: A commenter indicated discretion. A commenter suggested that immigrants post a bond when they DHS codify a criteria for exercising that the ability to work in the future apply for entry into the United States. discretion regarding whether or not to should be a heavily weighted positive A commenter requested that DHS allow offer the bond in this rule, noting that factor and stated that it, along with ‘‘any alien determined inadmissible’’ on there should be uniformity and having potential family support, had public charge grounds to apply for a predictability of enforcement on the part been one of the two heavily weighted public charge bond.755 One commenter of DHS, and that the manner in which factors for over a century under Federal stated that the public charge bond this discretion is utilized should be law. The commenter questioned why would be most useful in the category of clear and objective. One commenter work ability and having legally immigrants that have an income asked for the justification of warranting enforceable family support should be between 125 percent and 250 percent of a public charge bond in certain weighted less heavily than past receipt FPG. circumstances and asked that DHS of Medicaid or SNAP. The commenter Response: DHS appreciates these almost always allow for an individual to indicated that this kind of disparate comments regarding the applicability of post a bond. Another commenter treatment might be justifiable if the public charge bond. However, DHS requested that DHS clarify when a Congress had drafted the public charge will not require all aliens seeking public charge bond would be used and test in a way that explicitly directed the admission as immigrants to post a also provided recommendations, agency to give heavier weight to past public charge bond. Section 213 of the including that public charge bonds receipt of benefits than to future Act, 8 U.S.C. 1183, neither requires all should be available only if the applicant employability and family support, such aliens to post a public charge has obtained private medical insurance, which Congress did not. The commenter bond, nor authorizes DHS to require one and the applicant is part of an existing from every intending immigrant. provided a list of twenty occupations family unit whose only reason for Instead, consistent with its statutory that the commenter stated would have separation would be an adverse public authority, USCIS will offer the public the most job growth over the next charge inadmissibility determination. charge bond to certain applicants for decade. The commenter stated that in The commenter further stated that DHS adjustment of status, who are should only offer a public charge bond nine of the 20 occupations, a full-time inadmissible only due to the likelihood worker in a household of one who earns to applicants who can demonstrate of becoming a public charge and when hardship such as extreme hardship or the median salary for such occupation a favorable exercise of discretion is exceptional and extremely unusual would not meet the 250 percent of the warranted, based upon the totality of the hardship. FPG standard. The commenter also alien’s facts and circumstances. Response: DHS disagrees that the rule stated that in 14 of 20 occupations, a Comment: One commenter noted that is unclear in describing how DHS will full-time worker in a household of two the public charge bond process might exercise its discretion to offer a public who earns the median salary for such lead to pressure on DHS officials to charge bond. Public charge bonds will occupation would not meet the 250 make inadmissibility findings and offer be offered only in limited circumstances percent of the FPG standard. The public charge bonds. to those inadmissible aliens USCIS has commenter indicated that the agency Response: USCIS will not find an determined warrant a favorable exercise provides no reason or evidence for a applicant is likely at any time in the of discretion, in the totality of the standard that effectively classifies future to become a public charge for the alien’s facts and circumstances, and by millions of full-time, year-round sole purpose of collecting a public weighing all positive and negative workers in high-demand occupations as charge bond. Although Congress has factors available. As noted in the NPRM, public charges, or as not self-sufficient. created certain exceptions and waivers offering a public charge bond in the to inadmissibility, the determination Response: DHS disagrees that it is adjustment of status context, generally, that an alien is inadmissible is classifying millions of full-time, year- will only be warranted if an alien has no mandatory where the alien meets any of round workers in high-demand heavily weighted negative factors, such the grounds described in section 212 of as those that are particularly indicative occupations as public charges. Under the Act, 8 U.S.C. 1182. USCIS is the education and skills factor, DHS of the likelihood that an alien would required to find an alien inadmissible if become a public charge. However, and would consider whether the alien has the alien is likely to become a public as noted in the NPRM, the presence of adequate education and skills to either charge. As noted in the NPRM, a public heavily weighted negative factors will obtain or maintain employment charge bond in the adjustment of status not automatically preclude USCIS from sufficient to avoid becoming a public context would generally only be offered offering a public charge bond. Rather, as charge if authorized for employment. in limited circumstances in which the with any discretionary determination, The evidence DHS will consider alien has no heavily weighted negative USCIS could also find that the heavily includes the alien’s employment and factors and when offering the option of weighted negative factor(s) are income derived from such employment. a public charge bond to an alien is outweighed by certain positive factors As noted above, the fact that the alien warranted based upon the totality of the like those that benefit national security, does not qualify for a heavily weighted alien’s facts and circumstances. or would be justified for exceptional positive factor does not render the alien Comment: A number of commenters humanitarian reasons. likely to become a public charge. In fact, noted the standard DHS will use to DHS thanks the commenters for the many of the median wages identified by determine when to offer a public charge suggestion to codify a more the commenter would generally result bond. One commenter stated that the ‘‘predictable’’ criteria for determining in a positive consideration, because they public charge bond must be offered only whether to offer an alien an opportunity exceed 125 percent of the FPG. in rare cases. A few commenters further to post a public charge bond, but

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declines to do so. The criteria outlined that if an alien has one or more heavily discretion of USCIS; there is no right or in the rule balances the need for weighted negative factors, as defined in entitlement to a public charge bond. certainty and predictability with that for 8 CFR 212.22, present in his or her case, Generally, USCIS will not favorably flexibility USCIS adjudicators need to USCIS generally will not favorably exercise its discretion in situations account for a wide array of facts and exercise discretion to allow the alien to where the alien has one or more heavily circumstances. For similar reasons, DHS submit a public charge bond. USCIS weighted negative factors. In addition, also declines to limit its discretion to notes that a disability that affects an USCIS is formulating training and only permit submission of a public applicant’s ability to care for himself or policy guidance related to the exercise charge bond by aliens who have herself, to attend school, or to work is of this discretion to ensure that obtained and will maintain private not in itself a heavily weighted negative discretionary decisions on whether or health insurance, or to aliens who are factor, but rather, one factor USCIS will not to offer a public charge bond are fair members of an existing family unit consider in the totality of the and consistent. whose only reason for separation would circumstances. Accordingly, a disability Comment: A commenter asked that be an adverse public charge alone could not be the sole basis for a DHS eliminate public charge bonds. A inadmissibility determination. DHS determination that the alien is likely at few commenters stated that the NPRM believes that limited approach would any time in the future to become a bond section lacks justification for not account for the variety of factual public charge. changing current and longstanding scenarios USCIS may encounter. Similarly, an alien’s disability, alone, procedure. Furthermore, DHS believes that limiting will not serve as the sole basis for Response: DHS disagrees that the the opportunity to post a public charge USCIS deciding not to exercise its public charge bond should be bond to only a particular narrow range discretion to permit an alien to submit eliminated. The public charge bond of circumstances would unreasonably a public charge bond.757 In determining provision was established by Congress exclude from the possibility of a bond whether to offer the alien a public in the Immigration Act of 1952, in applicants who might otherwise merit a charge bond, USCIS will consider all of section 213 of the Act, 8 U.S.C. 1183,758 positive exercise of discretion.756 Given the positive and negative factors and, as discussed in the NPRM,759 has that a bond is offered to applicants as a applicable to the alien’s case. The existed without essential variation since matter of discretion on a case-by-case NPRM provides examples where a bond 1907.760 Public charge bonds allow an basis, USCIS reserves the right to may be offered, including instances alien who would otherwise be determine, based on the particular facts where allowing the alien to become a inadmissible because of the likelihood of the case, when the alien’s individual lawful permanent resident would offer of becoming a public charge to circumstances warrant a favorable benefits to national security, or would nonetheless be admitted to the United exercise of discretion. be justified for exceptional States. Since the changes to immigration USCIS also disagrees that it should humanitarian reasons. As provided in law implemented by IIRIRA, DHS has only offer public charge bonds to the NPRM, DHS believes that offering a lacked a formal mechanism for the applicants who have demonstrated public charge bond in the adjustment of issuance of public charge bonds.761 This hardship. As is the case with any status context will generally only be rule creates a formal public charge bond discretionary determination, USCIS may warranted in limited circumstances in procedure that conforms with both the consider any of a range of positive and which the alien has no heavily weighted statutory language and past practices. negative factors applicable to the alien’s negative factors, but the presence of any Comment: Other commenters case when determining whether the such factors will not automatically suggested that public charge bonds alien should be offered the option to preclude USCIS from offering the alien should be eliminated based on the post a public charge bond and be the opportunity to submit a public history of monetary bonds in the admitted to the United States on bond. charge bond. criminal pre-trial context, which have USCIS respectfully declines to limit its As this rule is implemented, USCIS been discredited as inefficient and consideration in this regard. will provide training and guidance in unfair. Comment: A commenter stated that the USCIS Policy Manual to all officers Response: DHS reiterates that public DHS should not offer a public charge in making these discretionary charge bonds are authorized under the bond to any applicant with a heavily determinations to allow an alien to Act,762 and the Act provides a weighted negative factor. Other submit a bond. mechanism whereby DHS can commenters were concerned that an Comment: A commenter asked for nonetheless admit aliens who are applicant with a heavily weighted clarification on ‘‘permitting an alien inadmissible only under section negative factor, such as use of Medicaid who is found inadmissible as a public 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). to pay for services associated with his charge but is otherwise admissible to DHS cannot ignore this authority and or her disability that are not covered by submit a public charge bond is within must consider whether to exercise its private medical insurance, will not be DHS’s discretion.’’ discretion on a case-by-case basis to considered for a public charge bond. Response: An alien who is found to be allow such aliens to submit a public One commenter added that individuals inadmissible only on the public charge charge bond. with one or more heavily weighted ground may be permitted to submit a DHS disagrees that a public charge factors will not have access to sufficient public charge bond. In other words, bond is directly comparable to a pre- resources to be able to submit a public under section 213 of the Act, 8 U.S.C. trial appearance bond. The Act states charge bond. Another commenter asked 1183, the alien cannot be inadmissible that the purpose of the public charge is if USCIS would provide guidance, such under any other ground but the public as via the USCIS Policy Manual, with charge ground in order for USCIS to 758 See INA of 1952, section 213, 66 Stat. 163, guidelines for officers to follow and that consider exercising its discretion to 188. permit the alien to submit a public 759 See Inadmissibility on Public Charge Grounds, will be available for public review. 83 FR 51114, 51134 (proposed Oct. 10, 2018). Response: DHS appreciates the charge bond. The decision whether to 760 See Act of February 20, 1907, ch. 1134, section comments and will retain the provision issue a public charge bond is at the sole 26, 34 Stat. 898, 907. 761 See Public Law 104–208 (Sept. 30, 1996). 756 See INA section 213, 8 U.S.C. 1183. 757 See INA section 213, 8 U.S.C. 1183. 762 See INA section 213, 8 U.S.C. 1183.

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to hold the United States, and all states, the mandatory factors for consideration DHS should not expand the use of territories, counties, towns and in a public charge determination at the bonds because studies have shown that municipalities and districts harmless same time it created the enforceable bonds have been proven to be highly against bonded aliens becoming public affidavit of support as a non-mandatory discriminatory and increase financial charges.763 USCIS will provide officers factor for consideration, while also instability. Many commenters provided with guidance and training to ensure retaining the public charge bond research on the effects of custodial that discretion is exercised in a fair, provision in section 213 of the Act, 8 bonds and stated that bonds cause long- efficient, and consistent manner. U.S.C. 1183, suggests that Congress did term hardship and increase the Comment: A commenter opposed the not believe the enforceable affidavit of likelihood of financial instability. Many implementation of a public charge bond support, on its own, sufficiently commenters said the use of public and stated that while DHS created a safeguarded against an alien becoming a charge bonds would place an impossible distinction between the affidavit of public charge after admission. burden on immigrant families, and there support and the public charge bond in Comment: A few commenters stated is no evidence that public charge bonds this rule, it did not provide support for that a public charge bond system is will prevent them from becoming the idea that the affidavit of support is ‘‘redundant and nonsensical,’’ stating dependent on government assistance in an insufficient safeguard. A commenter that the Government has not provided the future. Multiple commenters stated stated that affidavits of support already sufficient reasoning for adding the that families will face years of annual give the Government sufficient public charge bond system to the fees, non-refundable premiums and assurances that an individual will not immigration process while the affidavit liens on the homes and cars put up as become overly reliant on the social of support already exists and allows the collateral charged by for-profit surety safety net, without forcing immigrants Government to recoup the cost of public companies and their agents. A to freeze significant assets in benefits received by immigrants. commenter stated that the bond system Government-held bonds. Response: DHS disagrees with the would result in a loss of money and Response: DHS disagrees that the comments that the public charge bond adverse immigration consequences if affidavit of support sufficiently provisions are redundant and the immigrant suffers an unexpected safeguards against an alien becoming a nonsensical in light of the affidavit of issue and is forced to forfeit their bond. public charge after admission. Had support requirement. Although the Response: As indicated above, DHS Congress intended a sufficient affidavit public charge bond provision pre-dates does not believe that the rule itself of support to be the sole basis to the creation of the affidavit of support disproportionately negatively impacts safeguard against an alien becoming a requirements in IIRIRA, Congress certain groups, and does not believe the public charge after admission, Congress expressly amended the public charge public charge bond provisions would not have added the mandatory bond provision in IIRIRA by amending disproportionately impact particular factors in section 212(a)(4) of the Act, 8 section 213 of the Act, 8 U.S.C. 1183, to groups. Although commenters cited U.S.C. 1182(a)(4), to determine an reference the affidavit of support and studies on the effects of custodial bonds applicant’s likelihood of becoming a require it as a condition for admission on particular communities, DHS does public charge. Congress would have in some cases in addition to the posting not believe the public charge bond is simply required all applicants subject to of a public charge bond.765 This means directly comparable to custodial bonds, public charge inadmissibility to submit that Congress was aware at the time it and thus does not believe that such a sufficient affidavit of support without created the enforceable affidavit of studies are directly applicable. Rather, requiring an assessment of the support and amended the public charge public charge bonds offer an applicant’s age, health, family status, bond provision that a public charge opportunity for an alien who is assets, resources and financial status, bond could still be offered to certain inadmissible, based only upon the and education and skills. aliens at the agency’s discretion, in likelihood of becoming a public charge, Additionally, had Congress addition to the alien’s submission of a to be admitted to the United States. considered the affidavit of support alone sufficient affidavit of support. DHS’s Breach of a public charge bond may to be the best way to safeguard against inclusion of public charge bonds in this result in loss of money and adverse an alien becoming a public charge, rule is consistent with Congress’ intent immigration consequences. This is a Congress would have eliminated the in maintaining public charge bonds after result of the alien’s action, and the public charge bond provision altogether, IIRIRA created the enforceable affidavit longstanding statutory scheme. As noted and certainly would not have provided of support. above, USCIS will provide officers with in section 213 of the Act, 8 U.S.C. 1183, Comment: Commenters stated that the guidance and training to ensure that for DHS to exercise its discretion to offer bonds would have a disproportionately USCIS’ discretion to offer this a public charge bond to aliens who may negative impact on minorities, opportunity is exercised in a fair and also be subject to the affidavit of support communities of color, and their consistent manner. Comment: A commenter stated that requirement at section 213A of the Act, families, citing studies on custodial the public charge bond process would 8 U.S.C. 1183a.764 That Congress created bonds. Another commenter said that the changes to public charge bonds will not further complicate and increase inefficiency in the adjustment of status 763 See INA section 213, 8 U.S.C. 1183. While prevent individuals from bypassing new there is currently no statutory mechanism for DHS regulations and will affect average process. Specifically, the commenter to directly reimburse benefit-granting agencies, the immigrants by restricting access to said the creation of two new forms, and breached bond amounts will be deposited into an services. A few commenters stated that the accompanying processes and account designated by the U.S. Treasury for training, as well as the collection of any collecting breached immigration-related bond amounts. upon the giving of a suitable and proper bond or information therein, will be a waste of 764 INA section 213, 8 U.S.C. 1183 reads, in part: undertaking approved by the Attorney General, in Government and applicant resources ‘‘An alien inadmissible under paragraph (4) of such amount and containing such conditions as he given the existence and ongoing section 1182(a) of this title may, if otherwise may prescribe, to the United States (. . .). adjudication of Form I–864. The admissible, be admitted in the discretion of the [Emphasis added]. Attorney General (subject to the affidavit of support 765 See IIRIRA, Public Law 104–208, div. C, commenter further stated that the public requirement and attribution of sponsor’s income section 534(f), 110 Stat. 3009–546, 3009–684 (Sept. charge bond is unjust because it and resources under section 1183a of this title) 30, 1996). removes the intending immigrant as a

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party to the agreement, such that he or segment for commercial bond prompt payment of demands arising she neither has power to act against the companies, but imposes an unfunded from an administratively final obligor, nor has the ability to reply to mandate on state and local insurance determination that the bond has been the Government’s decisions. and financial services regulators. breached. DHS believes these safeguards Response: DHS disagrees that the Similarly, these commenters and others reduce the risk that aliens will be bond process would increase said many non-citizens may accept the exploited. DHS also notes that whether inefficiency or that the process and ‘‘exceptionally harsh’’ procedures and the availability of public charge bonds training would be a waste of penalties and ‘‘crippling surety bond imposes an unnecessary administrative Government and applicant resources. terms’’ to avoid family separation. The burden on USCIS is a question for DHS also disagrees that the existence of commenters stated that, in many cases, Congress, not DHS. the Form I–864 obviates the need for the non-citizen would have to pay the DHS also disagrees that it imposes an new forms to facilitate the public charge bond company up to 15 percent up- unfunded mandate on state and local bond process. The public charge bond is front, which could prove destabilizing insurance and financial services authorized by statute (separately from, for low and moderate-income families regulators through this rulemaking. As and in addition to, the affidavit of and stifle their ability to become self- part of the NPRM,769 DHS analyzed any support).766 USCIS may choose to sufficient. A commenter also stated that impact on State, local, and tribal exercise its discretion to allow an alien any new investment of USCIS resources governments in accordance with the to submit a bond in a particular case, to assess nonimmigrants on public Title II of the Unfunded Mandates allowing for aliens who are inadmissible charge would be an unnecessary Reform Act of 1995 (UMRA) 770 and to the United States based only upon the administrative burden. Another with E.O. 13132 (Federalism). The likelihood of becoming a public charge commenter stated that broad and vague obligation to regulate various aspects of to nonetheless be admitted to the United conditions governing breach of bonds the financial and securities markets States. DHS cannot decide to never heighten the risk of exploitation by for- within states is already a function of the exercise this public charge bond profit companies managing public Federal Government; DHS does not authority. USCIS will review its charge bonds. further impose any new unpaid resources and personnel to ensure that Response: DHS understands the mandate on State, local or tribal it will be able to efficiently carry out its concerns about exploitation concerning governments by implementing a public discretionary public charge bond public charge bond terms and charge bond procedure in accordance authority. DHS does not believe the conditions, and about the potential with section 213 of the Act, 8 U.S.C. public charge bond would be a waste of challenges that bond terms and 1183. It is up to financial institutions, Government resources or creates an conditions may pose to aliens with authorized to conduct business undue burden on aliens. DHS also limited resources. However, Congress according to the provisions disagrees that the public charge bond is has determined that the public charge implemented by states, to offer public unjust in that it removes the intending ground of inadmissibility is necessary. charge bond products. This rule does immigrant as a party to the agreement. DHS has congressional authority to not impose any new obligations on Although the commenter states that this consider whether to allow an alien, states. leaves the alien unable to defend inadmissible only on the public charge himself or herself against a breach of ground, to submit a public charge bond, 2. Bond Amount contract action, a breach of contract (including a surety bond), on a case-by Comment: One commenter said DHS action against the alien in the case of an case basis in the exercise of its should reduce the proposed bond alien with a surety bond could only be discretion. DHS has decided to exercise amount. Commenters stated that a asserted by the obligor, with whom the its authority in cases involving $10,000 bond was excessive and would alien would be in contractual privity. applicants for adjustment of status who create an opportunity for private bond With regard to appealing a USCIS are inadmissible only under section companies to exploit immigrant breach determination or a denial of a 212(a)(4), 8 U.S.C. 1182(a)(4). As families, the elderly, and minorities. request to cancel a surety bond, the provided in the NPRM, DHS will accept Similarly, a few commenters stated that process will be similar to the existing surety bonds only from sureties certified even the minimum amount may be process for seeking review of such by the Department of Treasury and beyond the means of most families. A determinations in the custodial listed in the Treasury Department couple of commenters stated that immigration bond context: i.e., the Circular 570.767 Department of increasing the minimum amount of the obligor may challenge the determination Treasury-certified sureties have agents bond by one thousand percent was before the Administrative Appeals throughout the United States from grossly unfair. Many commenters added Office (AAO) pursuant to 8 CFR part whom aliens could seek assistance in that the cost was prohibitive for 103, subpart A. Like the appeals process procuring an appropriate bond.768 The applicants who earn low incomes. Many in the long-established custodial bond Department of the Treasury certifies commenters stated that a family’s self- context, an alien with a surety bond companies only after having evaluated a sufficiency would be destabilized and lacks standing to seek review in public surety company’s qualifications to provided example scenarios where charge bond context and is not underwrite Federal bonds, including families would be required to pay up to ‘‘removed’’ from the process. In the case whether those sureties meet the 15 percent of $10,000. of an alien with a cash or cash specified corporate and financial A commenter stated that DHS equivalent bond, the alien would be the standards. Under 31 U.S.C. 9305(b)(3), a provided no guidance on how obligor and thus have standing to appeal surety (or the obligor) must be able to evaluation of public charge bond sizes a denial of a cancellation request or a carry out its contracts and must comply will be made. Another commenter asked breach determination. DHS disagrees with statutory requirements, including that the value of the public charge bond that this longstanding process is unjust. Comment: A few commenters stated 767 See 8 CFR 103.6(b); see also proposed 8 CFR 769 See Inadmissibility on Public Charge Grounds, that the NPRM creates a new market 103.6, as published in 83 FR 25951 (June 5, 2018). 83 FR 51114, 51276 (proposed Oct. 10, 2018). 768 See Dep’t of Treasury Circular 570, Listing of 770 See Pub. L. 104–4, 109 Stat. 48 (Mar. 22, 766 See INA section 213, 8 U.S.C. 1183. Approved Sureties (July 1, 2018). 1995).

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be based on the value provided for submit a public charge bond, and the DHS should allow use of Medicaid as an monetizable benefits under 8 CFR amount of any such bond. exception to the breach of the full bond. 212.21, which is 15 percent of the per- Response: DHS disagrees that the rule 3. Public Charge Bond Cancellation month Federal Poverty Guidelines for a prioritizes the revenue of bond single person. A few individual Comment: A commenter stated that companies over family unity. The commenters asked that the minimum the terms of cancellation of the public public charge bond allows aliens who public charge bond be set to specific charge bond are unreasonable. The are inadmissible to nonetheless seek amounts, such as $1,000 or $8,100. commenter stated that since DHS only admission to the United States upon In contrast, another commenter asked predicts less than three percent of posting of a public charge bond, which that DHS increase the minimum bond immigrants would be able to cancel facilitates family unity. Additionally, amount to $25,000 for the least educated their bond, surety companies would set the fees and collateral submitted to the or individuals with the most costly parameters and payment bond company are compensation for the dependents. Similarly, a commenter schedules. The commenter further risk a bond company takes in stated that the $10,000 bond does not stated that the process of cancelling the guaranteeing the alien’s conduct under cover the potential cost of supporting public charge bond is difficult because the bond. This rule is not aimed at individuals who need food, shelter, or an obligor must apply to have the bond enriching private bond companies, but medical treatment. cancelled, the application must be rather at ensuring that aliens subject to Response: DHS agrees with the approved by DHS, and bonds are not the public charge ground of automatically released after completion. commenter that for consistency with inadmissibility are self-sufficient and Response: DHS disagrees that the prior agency practice, a minimum bond are relying on their resources and those bond cancellation terms are amount of $8,100, adjusted annually for of their family, friends, and sponsors. unreasonable. Consistent with the As explained above, DHS will collect inflation, is appropriate, as this is equal statute, public charge bonds may be the full amount of the public charge to the prior bond minimum adjusted for cancelled where an alien is no longer bond, as liquidated damages, because inflation. The amount of the bond likely to become a public charge, either DHS considers it difficult, if not represents liquidated damages to because the alien naturalized, died, or impossible, to calculate the alien’s compensate the Government for all permanently departed the United States. public benefit receipt as well as the harms caused by a bonded individual Additionally, an alien may apply for government’s costs. DHS will not who violates the terms, not simply the cancellation of the bond if the alien exempt Medicaid from the benefits value of the benefits used. Furthermore, obtains a different immigration status listed that count towards the breach of some public benefits do not have an that is exempt from the public charge a public charge bond. A public charge easily quantifiable dollar value. inadmissibility provisions, or if the bond is issued on the condition that the Operational challenges make separate alien has reached his or her five-year alien does not become a public charge determinations for public benefits that anniversary since becoming a lawful by not using the public benefits, as are distributed in quantifiable and non- permanent resident. Cancellation is not defined in 8 CFR 212.21(b) for more quantifiable values unfeasible. Making automatic and does not limit the than 12 months in the aggregate within liquidated damages in an amount duration of the bond, which remains in any 36-month period (such that, for similar to historical precedent is a effect until canceled. instance, receipt of two benefits in one reasonable remedy. DHS also disagrees that the month counts as two months). As is Under this rule, public charge bonds cancellation process is unreasonable. generally the case for the benefits listed permit DHS to admit, in its discretion, An application for cancellation must be in 8 CFR 212.21(b), Medicaid is one of an adjustment of status applicant who is made so that DHS can verify that the the public benefits that constitute a inadmissible based only on the public alien or surety have met their burden of major expenditure for the United States charge ground. Should DHS not exercise demonstrating that one of the public and the use of it generally indicates to its public charge bond authority in a charge bond cancellation conditions has DHS that the person may not be self- particular case based on a review of the been met, including that the bond was sufficient. Correspondingly, a public individual facts and circumstances of not breached, before the public charge charge bond is issued under the that case, DHS will deny the adjustment bond can be cancelled and the funds condition that the alien does not use the of status application. DHS released. DHS carefully considered the benefits listed in 8 CFR 212.21(b), acknowledges that an individual offered suggestion that public charge bonds be including Medicaid, and DHS declines a bond has already been found likely to automatically released upon completion to exempt its use from being a breach become a public charge and that bond of the terms of the bond, but determined condition. expenses may further destabilize an that no viable mechanism would ensure Comment: A commenter presented applicant’s self-sufficiency. However, that the necessary conditions have been research and stated that monetary bonds the additional assurance provided by met in each case. would not be efficient or effective. Other the bond is necessary to overcome the commenters stated that the minimum finding of inadmissibility due to 4. Breach of Public Charge Bond bond amount bears no real relationship likelihood of becoming a public charge. Comment: A few commenters stated to the value of the public benefit that is Each applicant offered the opportunity that the NPRM prioritizes the revenue received. Several commenters stated to post a public charge bond will have streams of private bond companies over that breach of public charge bond would to evaluate whether accepting the family unity because in the event of a lead to economic destabilization for obligations of the public charge bond is breach of public charge bond, the families. the right decision given his or her principal would have to reimburse the Response: The face value of the public circumstances. bond company the full amount of the charge bond constitutes liquidated As part of the implementation of the breach penalty. Several commenters damages for a breach of the conditions public charge bond, USCIS will provide stated that DHS should not be entitled of that bond. As explained in the NPRM, training and guidance to all officers in to recoup the entire bond amount in the liquidated damages are an appropriate making these discretionary event of a breach by receipt of a public remedy in situations such as the public determinations to allow an alien to benefit. The commenter also stated that charge bond, where the total damages to

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the Government are difficult, if not public charge will not be considered as received rather than ‘‘arbitrary impossible to calculate.771 Additionally, part of the breach determination.772 As liquidated damages award.’’ these damages go beyond the simple detailed in 8 CFR 213.1(h)(3), DHS will A commenter indicated that the amount of the benefits received (which determine whether the conditions of the proposal to require forfeiture of the are not always calculable), but also the bond have been breached, and 8 CFR entire amount of the bond upon a overhead of the benefit agency in 213.1(h) provides that an showing that an alien has obtained any administering the benefit. DHS administratively final determination public benefit whatsoever is arbitrary, disagrees that monetary bonds are that a bond has been breached creates a capricious and, as the commenter stated ineffective. The purpose of a bond is to claim in favor of the United States. Such that DHS acknowledges, contrary to past provide some reimbursement for harms a breach determination is practice, under which only the amount incurred should the alien violate the administratively final when the time to of the benefit would be forfeited. The terms of the bond. As stated above, the file an appeal with the AAO pursuant to commenter also indicated that this $8,100 minimum amount of the public 8 CFR part 103, subpart A, has expired makes little sense particularly since charge bond is consistent with the or when the appeal is dismissed or historical public charge bond minimum, rejected. many immigrants may be unclear as to the precise conditions that would result that has been found reasonable and 773 As explained in the NPRM, under in forfeiture. The commenter stated that enforceable, adjusted for inflation. the breach of bond provisions at 8 CFR Comment: A commenter said the total forfeiture should be limited to the 103.6(e), an immigration bond is rare instances in which DHS can prove rule’s requirements around breach of the considered breached if there has been a public charge bond are unfair, put by a preponderance of the evidence that substantial violation of the stipulated immigrants in economic jeopardy, and the alien intentionally sought public condition. The term ‘‘substantial are a huge departure from previous benefits with the knowledge that such violation’’ is generally interpreted policy. The commenter also stated that benefits would result in bond forfeiture; according to contractual principles.774 the rule removes the phrase ‘‘substantial in other instances, the commenter However, in the NPRM, DHS proposed violation’’ from the conditions for suggested, forfeiture should be limited to incorporate the substantial violation breaching bond, meaning that any standard via incorporating principles to the amount of benefits received plus breach of the terms of the bond, which that govern the public charge and public a surcharge for the administrative costs are not fully outlined in the rule, would benefits definitions.775 As explained in of collection. render the obligor liable for the full Response: DHS disagrees. As amount of the bond. The commenter the statute, the public charge bond is explained in the NPRM, liquidated stated that this creates a punitive policy intended to hold the United States, and damages are an appropriate remedy in against intending immigrants instead of all states, territories, counties, towns situations such as the public charge fulfilling the purported purpose of and municipalities and districts harmless against aliens becoming a bond, where the total damages to the recouping losses from public benefits 776 use. The commenter also stated that this public charge. Whether the public Government are difficult, if not unnecessarily puts immigrants at great charge bond is unnecessary or punitive impossible to calculate and the amount 777 778 financial risk. is a question for Congress, not DHS. of the damages is reasonable. Response: DHS disagrees with these Comment: Some commenters stated Additionally, these damages go beyond comments. The conditions that that the Government receiving full bond the simple amount of the benefits constitute breach of a public charge payment in those circumstances when received, encompassing not only the bond are listed in 8 CFR 213.1(h)(1) and the public benefits paid out are less than monetary value of the benefits received (2), and state that a public charge bond the full amount of the bond is unfair, (which frequently are not calculable) is breached if the alien received public unjust, and unlawful. A commenter but also the overhead of the benefit benefits, as defined in 8 CFR 212.21(b), further stated that the proposed agency in administering the benefit. for more than 12 months in the regulations imposed an unlawful and As stated in the NPRM,779 the aggregate within any 36-month period strict standard for accidental, or minimum amount of the public charge (such that, for instance, receipt of two inadvertent violations of bond bond is consistent with historical public benefits in one month counts as two conditions. Another commenter said the charge bond amounts, adjusted for months) after the alien’s adjustment of NPRM does not offer a coherent inflation, that have been found status to that of a lawful permanent explanation for why recovery of the reasonable and enforceable. Historically, resident or if any other condition of the entire amount is appropriate, asserting public charge bonds have been forfeited public charge bond is violated, with that it makes little sense to forfeit the in their entirety upon breach.780 The limited exceptions. In particular, public entire bond since DHS itself asserts that conditions that constitute breach of a benefits that are exempt from being the purpose of the bond is to ‘‘recoup public charge bond are delineated fully considered, as outlined in 8 CFR [the] cost of public benefits received.’’ A in 8 CFR 213.1(h)(1) and (2), and any 212.21(b), including while present in a commenter stated that in the case of a alien offered a bond has ample status exempt from public charge, do breach of public charge bond, the opportunity to review the conditions not count towards the breach individual should only be responsible and terms before agreeing to these determination as explained in the for the specific amount of benefits terms. Additionally, as explained in the NPRM. To make the bond provisions 772 consistent with the amended public See 8 CFR 213.1(h)(4). 778 See Inadmissibility on Public Charge Grounds, benefits definition of 8 CFR 212.21(b), 773 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51226 (proposed Oct. 10, 2018). DHS has also amended the regulatory 83 FR 51114, 51125 (proposed Oct. 10, 2018). 779 See Inadmissibility on Public Charge Grounds, bond provision to clarify that public 774 See, e.g., Aguilar v. United States, 124 Fed. CL 83 FR 51114, 51221 (proposed Oct. 10, 2018). 9, 16 (2015) (discussing substantial violation under benefits received after having been 780 See, for example, United States v. Goldberg, 8 CFR 103.6(a) in relation to a delivery immigration 40 F.2d 406 (2d Cir. 1930); see Matta v. Tillinghast, granted a waiver of inadmissibility from bond.) 33 F.2d 64 (1st Cir. 1929); Ill. Surety Co. v United 775 See 8 CFR 212.21(a) and (b). States, 229 F. 527 (2d Cir. 1916); United States v. 771 See Inadmissibility on Public Charge Grounds, 776 See INA section 213, 8 U.S.C. 1183. Rubin, 227 F. 938 (E.D. Pa 1915); Matter of B-, 1 83 FR 51114, 51226 (proposed Oct. 10, 2018). 777 See INA section 213, 8 U.S.C. 1183. I&N Dec. 121 (BIA 1941).

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NPRM,781 under the current breach of limited to surety bonds but should unlawful. The amount is based on a bond provisions of 8 CFR 103.6(e), an instead allow for cash, cashier’s check, review of the amount originally immigration bond is considered or money order. Another commenter provided by 8 CFR 213.1 in 1964,783 breached if there has been a substantial stated that USCIS should accept only adjusted for inflation, to represent violation of the stipulated condition. surety bonds, not cash or equivalents, present dollar values.784 Further, the The term ‘‘substantial violation’’ is until the effectiveness of the bonding face value of the bond constitutes generally interpreted according to process can be assessed in practice. This liquidated damages for a breach of the contractual principles. commenter recommended that only conditions of that bond. As explained in Comment: A commenter stated that limited-duration bonds be accepted, at the NPRM,785 liquidated damages are an the NPRM’s proposals for the appeal of least initially. The commenter indicated appropriate remedy in situations such public charge bond decisions are unfair that a periodic bond renewal process as the public charge bond, where the because the obligor must pay a $675 fee would provide valuable private sector total damages to the government are to have the same officer who issued the monitoring of the alien’s compliance, difficult, if not impossible to calculate. initial denial review that decision, and especially where the time period Additionally, these damages go beyond because throughout the process, the between bond acceptance and eligibility the simple amount of the benefits alien must rely on the obligor to for cancellation extends over multiple received, encompassing not only the complete the steps, as the alien is not a years. monetary value of the benefits received party to the bond contract. A commenter Response: DHS agrees that bonds but also the overhead of the benefit further stated that the proposed rule should not be limited to surety, and agency in administering the benefit. would hinder the ability of noncitizens plans to accept cash equivalents once The public charge bond is offered to to meaningfully challenge harsh or the proper accounts and procedures can allow aliens who are otherwise arbitrary breach determinations. be established. DHS disagrees that it is inadmissible due to a likelihood of Response: DHS disagrees. The public necessary to wait until the effectiveness becoming a public charge an charge bond appeal process as described can be established before accepting cash opportunity to overcome that finding of in the NPRM is a long established and bonds. The nature of cash bonds makes inadmissibility. The conditions that accepted method of disputing initial it unlikely that any situation would constitute breach of a bond are USCIS determinations. It is possible for arise where DHS would have more delineated fully in 8 CFR 213.1(h)(1) obligors to appeal errors in either law or difficulty collecting for a breached cash and (2), and any alien offered a bond fact through well-established bond than for a breached surety bond. has ample opportunity to review them administrative remedies via the AAO DHS also disagrees that only limited before agreeing to these terms. without having to resort to bringing suit duration bonds be accepted initially. As Additionally, as explained in the in a Federal court. Although the alien is a commenter has noted, public charge NPRM,786 under the current breach of not a party to the surety bond contract bonds of limited duration place an bond provisions of 8 CFR 103.6 an with DHS, the rule does not impair his additional burden in both time and immigration bond is considered or her ability to pursue or defend money on both the bonded alien and breached if there has been a substantial against traditional contract actions with DHS, as they must be periodically violation of the stipulated condition. regard to the obligor, with whom he or renewed and these renewals must be The term ‘‘substantial violation’’ is she is in contractual privity. Similarly, reviewed by DHS. For this reason, DHS generally interpreted according to if the alien is the obligor in that the will only accept public charge bonds of contractual principles.787 However, in alien submits a cash equivalent bond, unlimited duration. the NPRM, DHS proposed to incorporate the alien would be able to defend Comment: One commenter stated that the substantial violation standard via against a breach determination. if immigrants can afford to pay the high incorporating principles that govern the Requiring USCIS to set up a separate cost of a guide to cross the border public charge and public charge benefits and distinct review process for bond illegally, they can probably afford a definitions.788 Whether the public appeals would be unnecessarily bond to guarantee their stay in the charge bond is punitive is a matter for burdensome and redundant. United States. Congress; however, per the Act, the Comment: An individual commenter Response: DHS appreciates concerns public charge bond’s purpose is to hold said the NPRM would add further fees raised about illegal entry but stresses the United States, and all states, and expenses to an already costly that the public charge inadmissibility territories, counties, towns and process. Some commenters provided a rule assesses an applicant’s likelihood municipalities and districts harmless discussion of the costs associated with of becoming a public charge at any time filing a public charge bond application in the future. Whether an alien paid a 783 Miscellaneous Amendments to Chapter, 29 FR and filing an appeal. The commenters guide to enter the United States without 10579 (July 30, 1964). 784 said immigrants would be inflicted with permission, in and of itself, is not DHS uses the semi-annual average for the first relevant to the public charge half of 2018 and the annual average from 1964 from expensive fees and fines. the historical CPI–U for U.S. City Average, All Response: USCIS is primarily funded inadmissibility determination, or to Items. See https://www.bls.gov/cpi/tables/ by fees. Congress mandated that DHS whether DHS should exercise its supplemental-files/historical-cpi-u-201806.pdf (last may set IEFA fees in a manner discretion and allow an alien visited July 26, 2019). inadmissible only on the public charge Calculation: Annual average for 1st half of 2018 commensurate with the expense of (250.089)/annual average for 1964 (31) = 8.1; CPI– 782 ground to submit a public charge bond. adjudicating the benefits in question. U adjusted present dollar amount = $1,000 * 8.1 = The cost of filing a public charge bond Comment: A commenter stated that $8,100. may be assessed in the USCIS fee rule, the government receiving full bond 785 See Inadmissibility on Public Charge Grounds, as are other USCIS fees. payment in those circumstances when 83 FR 51114, 51226 (proposed Oct. 10, 2018). Comment: A commenter stated that the public benefits paid out are less than 786 See Inadmissibility on Public Charge Grounds, the full amount of the bond is unfair, 83 FR 51114, 51125 (proposed Oct. 10, 2018). the bond requirement should not be 787 unjust, and unlawful. See, e.g., Aguilar v. United States, 124 Fed. CL 9, 16 (2015) (discussing substantial violation under 781 See Inadmissibility on Public Charge Grounds, Response: DHS disagrees that 8 CFR 103.6(a) in relation to a delivery immigration 83 FR 51114, 51125 (proposed Oct. 10, 2018). forfeiture of the full bond amount in the bond.) 782 See INA section 286(m), 8 U.S.C. 1356(m). event of breach is unfair, unjust, or 788 See 8 CFR 212.21(a) and (b).

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against bonded aliens becoming public but also because of the impact on the Applications and petitions pending charges.789 legal services community and ethnic with USCIS on the effective date of the Comment: A commenter indicated community-based organizations who rule, i.e. were postmarked before the that sponsors of religious workers may would bear the brunt of dealing with effective date of the rule and were not possess the financial ability of immigrants fearful about how the new accepted by USCIS pursuant to 8 CFR typical U.S. employers, and may not be requirements will affect them and their 103.2(a)(1) and (a)(2)) will not be subject able to afford a bond. families. Another commenter said DHS to the rule. For the purposes of Response: DHS acknowledges that should time the publication of the final determining whether a case was special immigrant religious workers, rule so that the effective date falls postmarked before the effective date of and immigrants who perform religious within an ACA marketplace open the rule, DHS will consider the work generally, provide valuable enrollment period, so that those who are postmark date for the application or contributions to the United States and currently using Medicaid or CHIP and petition currently before USCIS, not the are in a special position, as who may be affected by this rule, may postmark date for any previously-filed acknowledged by Congress in the discontinue that benefit and switch to application or petition that USCIS special immigrant religious worker an ACA marketplace plan without an rejected pursuant to 8 CFR classification.790 Congress, however, did interruption in health insurance 103.2(a)(7)(ii). not exempt these workers from the coverage. A couple of commenters In addition, DHS will not consider the public charge ground of inadmissibility stated that the 60-day effective date may receipt of public benefits excluded and therefore, DHS will not exempt be insufficient and reasoned that DHS under the 1999 Interim Field Guidance them in this rule. The public charge should delay the effective date of any unless such benefits are received on or bond provides a way for individuals final regulation until at least January 1, after the effective date of the final rule. who would otherwise be inadmissible 2020, or one year after the publication As DHS stated elsewhere in this rule, due to likelihood of becoming a public of the final rule, which would minimize DHS is not imposing any requirements charge to overcome that finding. While disruption to the markets, decrease on benefit-granting agencies through DHS will take into account the totality consumer confusion of mid-year this final rule or a requirement that of the circumstances regarding all changes, and allow affected entities to these agencies specifically verify the applicants, and will adjudicate the adjust their outreach, messaging, and information provided on the Form I– applications of religious workers in light technology to accommodate the 944. While the Form I–944 includes a of the unique conditions under which changes. A commenter asked that the Federal Agency Disclosure and many of them live and work, in those proposed rule be delayed a minimum of Authorization, that part of the form will instances where a bond is offered it is three years to allow states to implement only become relevant after DHS enters into information sharing agreements already an extraordinary exercise of a comprehensive education program. discretion to allow the alien to adjust with specific agencies to obtain Another commenter stated that if any status in the United States even when verification of the information supplied changes are implemented public found inadmissible as likely to become by applicants. DHS expects that this agencies will need far longer than 60 a public charge. It is up to the applicant process will take time and will likely be days to prepare, noting that contracts to determine whether it is in his or her in effect at some point in the future after will need to be obtained with vendors best interests to accept the offered the final rule becomes effective. In in order to reprogram computer systems, opportunity to post a public charge addition, any such information sharing all materials pertaining to immigrant bond, and this rule does not require that will depend on the ability of the eligibility will need to be reviewed, the sponsor post the bond, rather this relevant agencies to share such workers will need to be trained, and obligation is on the alien and the bond information with DHS. Because this maybe posted by any entity or funding will need to be appropriated in aspect of the rule’s implementation will individual that can serve as an obligor order to do these things through a state’s necessarily involve inter-agency under section 8 CFR 103.6 and 213.1. budget cycle. The commenter cited to collaboration, DHS does not believe that DHS declines to further modify this the Medicaid expansion which, though delaying the effective date of the final exercise of discretion based upon either passed in 2010, was not set to be rule beyond 60 days will be necessary the nature of the applicant’s implemented until January 2014; to address the agencies’ concerns related employment or the immigration computer systems and other processes to the verification of information on classification in which the alien seeks to were not ready nearly 4 years later, Form I–944. adjust status. causing adverse impacts on DHS is also not altering an alien’s Californians. Another commenter eligibility for public benefits, and T. Effective Date(s) detailed other impacts or administrative therefore does not believe that agencies Comment: Many commenters asked burdens the rule would place on would have to change their guidance in that the proposed rule be delayed as benefit-granting agencies. These impacts that regard. The rule specifies what long as possible. One commenter noted include needing to provide aliens with public benefits will be considered in the that the verification requirements documentation regarding benefit public charge inadmissibility related to the Form I–944 would create receipt, responding to inquiries from the determination. DHS encourages new challenges and impose great public, updating communication agencies to update their web pages and burdens on State and local agencies. materials, and increased caseload. guidance to direct recipients of public Another commenter requested that the Response: DHS is retaining the 60-day benefits to DHS guidance related to this rule be delayed as long as possible not effective date. Relatedly, DHS is also final rule rather than repeat or explain only because of the impact on agencies clarifying that DHS will apply the what receipt of public benefits may public charge final rule only to make a person a public charge. While 789 See INA section 213, 8 U.S.C. 1183. applications and petitions (in the aliens may choose to disenroll from 790 For example, special immigrant religious context of extensions of stay or changes benefits to ensure the public benefit workers under section 101(a)(27)(C), 8 U.S.C. 1101(a)(27)(C) qualify for adjustment of status of status) postmarked (or if applicable, threshold is not triggered, DHS is under INA section 245(a), notwithstanding certain electronically submitted) on or after the moving to a duration-only threshold, bars under INA section 245(c). effective date of the final rule. aliens will have more time to adjust

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their conduct in response to this rule. ‘‘primarily dependent’’ standard for and are pending on the effective date of Therefore any potential increase in TANF, SSI, and general assistance the final rule, but only to applications agencies’ caseloads will likely be spread benefits received prior to the effective or petitions postmarked (or if over a longer period of time which date of the rule. applicable, electronically submitted) on would eliminate the need to further Response: DHS disagrees that it has or after the effective date of the final extend the effective date of the final given recipients of public benefits rule. rule. inadequate time to make decisions Comment: A commenter stated that Finally, DHS is also not requiring that about receiving public benefits before the proposed rule should be applied to benefit-granting agencies develop new the effective date of this rule. Through applications filed on or after the documentation of benefits provided, but the NPRM, DHS provided advance effective date. Pending applications will accept documentation already notice to the public that DHS was would be affected by the new rule and provided in the normal course of benefit changing which public benefits would would place a strain on DHS to re- administration. Such documentation be considered in public charge interview and re-adjudicate applications should be adequate given that DHS is inadmissibility determinations. The that are already pending. In contrast, simplifying the threshold standard to NPRM’s provisions, coupled with the one commenter stated the rule, if focus exclusively on the duration of 60-day effective date of the final rule, implemented, needs to apply receipt and not the amount. DHS notes provided adequate notice to the retroactively at some point in order to that examples of implementation of the regulated public with respect to the remove green cards from individuals Medicaid expansion program are not apt possible consequences associated with who may have already received them for comparison to the implementation of the receipt of public benefits.792 and who could be deemed public this rule for the reasons explained DHS notes that in this final rule, DHS charges under the proposed rule. above, namely, that this rule imposes no will not consider public benefits listed Response: DHS agrees that the rule direct obligations on benefit-granting/ in 8 CFR 212.21(b) that were previously will not be applied to applications administering agencies, and it does not excluded under the 1999 Interim Field pending on the effective date of the rule, modify eligibility criteria for the Guidance if received before the effective i.e. were postmarked (or if applicable, benefits covered by this rule. date of this final rule. DHS will electronically submitted) and were With respect to comments requesting continue to consider benefits listed in 8 accepted by USCIS pursuant to 8 CFR time so aliens can move from Medicaid CFR 212.21(b) that were previously 103.2(a)(1) and (a)(2) the effective date to obtaining private health insurance considered under the 1999 Interim Field of the rule and were accepted by USCIS through the ACA marketplaces, DHS Guidance if received before the effective pursuant to 8 CFR 103.2(a)(1) and (a)(2). notes that it believes aliens will have date of the final rule.793 The receipt of As discussed above, DHS will continue sufficient time to obtain private health such benefits would not be considered to review such cases under the 1999 insurance through the ACA as a heavily weighted negative factor. In Interim Field Guidance. For the marketplaces. Additionally, Medicaid addition, DHS is clarifying that this purposes of determining whether a case benefits included in the definition of final rule will not apply to any was postmarked before the effective date public benefit will only be a heavily applications or petitions postmarked of the rule, DHS will consider the weighted negative factor in the totality before the effective date and accepted by postmark date for the application or of the circumstances if the alien receives USCIS pursuant to 8 CFR 103.2(a)(7)(ii), petition currently before USCIS, not the Medicaid for more than 12 months in postmark date for any previously-filed the aggregate, beginning 36 months 792 See, e.g., Alcaraz v. Block, 746 F.2d 593, 611 application or petition that USCIS before the alien filed for adjustment of (9th Cir. 1984) (‘‘In addition to the pre- rejected pursuant to 8 CFR promulgation procedures, 5 U.S.C. 553(d) provides status. The open enrollment period for for a 30-day lag time between the rule’s publication 103.2(a)(7)(ii). 2020 will run from November 1, 2019 to and its effective date. This post-adoption delay in DHS will only apply this final rule to December 15, 2019.791 Because USCIS effectiveness affords parties affected by the applications for admission or will only consider benefits covered regulations reasonable time in which to adjust their applications or petitions for conduct or take other measures.’’) (citations under this final rule if received on or omitted). immigration benefits postmarked (or if after the effective date of the final rule, 793 Under the 1999 Interim Field Guidance, DHS applicable, electronically submitted) on and given that this rule published on would consider the current receipt of cash benefits or after the effective date of the rule. August 14, 2019, aliens will have for income maintenance or long-term DHS does not anticipate a strain on institutionalization at government expense in the USCIS resources due to the effective sufficient time to disenroll from totality of the circumstances. See Field Guidance on Medicaid and enroll in private health Deportability and Inadmissibility on Public Charge date of this final rule. By applying the insurance through the ACA Grounds, 64 FR 28689, 28690 (May 26, 1999) (‘‘If public charge rule to applications marketplaces without incurring a at the time of application for admission or postmarked on or after the effective adjustment an alien is receiving a cash public heavily weighted negative factor for assistance for income maintenance or is date, DHS ensures a smooth purposes of the public charge institutionalized for long-term care (as discussed in implementation and ample notice to inadmissibility determination. section 6, below), that benefit should be taken into applicants and petitioners. Therefore, DHS will implement the rule account under the totality of the circumstances test, along with the other statutory factors under section Benefits Received Before Effective Date within 60 days from the date of 212(a)(4)(B)(i) and any [adjustment of status].’’). and Previously Excluded Benefits publication. DHS would also consider past receipt of cash Comment: A commenter stated that benefits for income maintenance or long-term Comment: Several commenters DHS does not provide sufficient notice institutionalization at government expense in the generally opposed the consideration of totality of the circumstances. See Field Guidance on benefits received before the effective to noncitizen benefit recipients of Deportability and Inadmissibility on Public Charge TANF, SSI, or general assistance about Grounds, 64 FR 28689, 28690 (May 26, 1999) date of the rule, and that the 1999 the impact of benefits received prior to (‘‘[P]ast receipt of cash income-maintenance Interim Field Guidance should be the effective date of the rule. The benefits does not automatically make an alien applied to any receipt of benefits prior inadmissible as likely to become a public charge, to the effective date of the final rule. commenter requested that DHS use the nor does past institutionalization for long-term care at government expense. Rather this history would Some commenters disagreed with this 791 https://www.healthcare.gov/quick-guide/ be one of many factors to be considered in applying portion of the rule, stating it runs dates-and-deadlines/ (last visited May 1, 2019). the totality of the circumstances test.’’). counter to the original purpose of the

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public charge test and the 1999 Interim adjustment of status applications filed currently excluded from the public Field Guidance standard by which on or after the effective date of the rule, charge determination, or for not being individuals are becoming a public an applicant’s receipt of any of the able to obtain a termination letter charge. A commenter expressed benefits listed in the 1999 Interim Field quickly enough. disapproval of this section of the rule Guidance prior to the effective date of Response: DHS appreciates the because it would impact family the rule will be treated as a negative suggestion but declines to incorporate a members who rely on cash benefits. factor in the totality of the 3-year grace period for previously Another commenter stated that the circumstances, as they were in the 1999 received benefits. As previously proposed rule could be retroactively Interim Field Guidance. Public benefits indicated, the rule will only consider all applied so that immigrants’ receipt of that were not considered in the 1999 benefits as listed in 8 CFR 212.21(b) if benefits prior to the effective date of the Interim Guidance, such as SNAP, would the application was filed on or after the rule would be considered in a public not be considered at all in the public effective date. For benefits received charge determination. The commenter charge inadmissibility determination; before the effective date and were also provided readings of the proposed they would only be considered if considered under the 1999 Interim Field regulatory text against the 1999 Interim received on or after the effective date of Guidance, USCIS will only consider the Field Guidance, arguing that SNAP, the rule. However, regardless of the benefits as they would have been specifically, could ‘‘fall through the length of time such benefits were considered under the 1999 Interim Field cracks.’’ Other commenters stated that received before the effective date of this Guidance. The rule will become this part of the rule lacked clear rule, or the monetary amount of such effective within 60 days, which DHS guidance and proved difficult to benefits, DHS will not treat the receipt believes is sufficient time for aliens to implement, providing examples and of these benefits as a heavily weighted terminate any currently received public saying this section will be unfair and negative factor, as set forth in 8 CFR benefits that may be reviewed in the unworkable. A commenter requested 212.22(d). public charge inadmissibility that DHS use the ‘‘primarily dependent’’ DHS believes that it has minimized determination. standard for TANF, SSI, and general any adverse effects on applicants as a Comment: Commenters stated that assistance benefits received prior to the result of having received benefits that such a rule should not be applied to effective date of the rule. A commenter were listed in the 1999 Interim Field immigrants already in the United States said this portion of the rule is in Guidance before the effective date of who are on a pathway to ‘‘legalization’’ contrast with what many social workers this rule. DHS believes that recipients of (who are ‘‘in line’’). have advised their clients on in the past. public benefits listed in the 1999 Response: DHS disagrees with the Response: DHS acknowledges that the Interim Field Guidance are being given comment that the rule will be applied public charge inadmissibility standard adequate time to make decisions about to applicants with applications pending in this final rule is a departure from the receiving public benefits on or after the on the day the rule goes into effect. This 1999 Interim Field Guidance. However, effective date of this rule. The NPRM’s rule only applies to applications for this final rule as it pertains to public discussion of how DHS would treat past admission or adjustment of status charge inadmissibility will only apply receipt of benefits listed in the 1999 postmarked (or if applicable, to applications for admission or Interim Field Guidance, this rule’s electronically submitted) on or after the adjustment of status postmarked (or if explanation of how such benefits will be effective date of the rule. Individuals applicable, electronically submitted) on treated, and the proposed 60-day who have applications pending with or after the effective date of the rule. For effective date of the final rule, provide DHS on the effective date of the rule any application for admission or aliens an opportunity to discontinue the will not be subject to this rule; USCIS adjustment of status postmarked (or if receipt of any public benefits before will adjudicate such applications under applicable, electronically submitted) filing an application for admission or the terms of the 1999 Interim Field and pending before the effective date of adjustment of status and provides an Guidance. the rule, USCIS will apply the 1999 opportunity for public benefit-granting Comment: A commenter argued that Interim Field Guidance. For the agencies to communicate the past acceptance of legally-obtained purposes of determining whether a case consequences of receiving public Federal assistance programs or public was postmarked before the effective date benefits, to the extent such agencies benefits should not count against of the rule, DHS will consider the deem appropriate. immigrants already in the country, as it postmark date for the application or With respect to the public benefit is often U.S. born children who have petition currently before USCIS, not the condition for extension of stay and qualified for and are receiving postmark date for any previously-filed change of status, DHS will not consider assistance because their immigrant application or petition that USCIS any receipt of public benefits that parents are struggling. Neither the rejected pursuant to 8 CFR occurred before the effective date of this parents nor the children should be 103.2(a)(7)(ii). final rule. penalized for accepting public benefits Additionally, for any application for Comment: A commenter proposed that were legally available for admission or adjustment of status that a 3-year grace period be applied for assistance. postmarked (or if applicable, the consideration of previously Response: As noted elsewhere in this electronically submitted) on or after the excluded benefits. The commenter preamble, benefits received by or on effective date of the rule, if the alien indicated that, in some cases, the receipt behalf of a U.S. citizen child are not received any included public benefit of benefits for up to 3 years prior to the considered in the public charge listed in the 1999 Interim Field proposed rule’s enactment could count inadmissibility determination. Guidance (cash assistance for income against immigrants, and that such an Comment: A commenter requested maintenance, including SSI, TANF, and outcome would be absurd in light of the that DHS use the ‘‘primarily dependent’’ general assistance) before the effective standard 3-year cycle process for standard for TANF, SSI, and general date of the rule, DHS will consider those benefits. The commenter indicated that assistance benefits received prior to the benefits as they would have been people should not be punished for effective date of the rule. considered under the 1999 Interim Field following the standard 3-year cycle Response: As noted, under this rule, Guidance. In other words, for process for receiving benefits which are USCIS will continue to apply the

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criteria set forth in the 1999 Interim government to meet their needs. DHS to Iraqi translators in the search for Field Guidance to applications also intends that this rule provide a asylum. postmarked (or if applicable, clear regulatory framework for assessing Response: DHS appreciates the electronically submitted) before, and the factors Congress established as comments. However, these comments pending on, the effective date of this mandatory considerations with respect are outside of the scope of DHS’s rule, and therefore, the receipt of to the public charge ground of rulemaking. Through this rulemaking, previously-included benefits in those inadmissibility. DHS is exercising its authority to applications will be considered Comment: An individual commenter regulations implementing the public pursuant to the ‘‘primary dependence’’ proposed creating a ‘‘self-sufficiency charge ground of inadmissibility and the standard. However, for applications program’’ in place of the proposed rule. public charge bond framework. DHS is postmarked (or if applicable, The commenter suggested the program also setting a public benefit condition electronically submitted) on or after the be modeled after the ORR’s Voluntary related to extension of stay and change effective date of this rule in which the Agencies Matching Grant Program that of status. applicant received previously-included provides intensive case management, Comment: Some commenters stated benefits before the effective date of the English language and vocational that all individuals should be treated rule, DHS will consider the receipt of training, and a variety employment with dignity, compassion, and kindness. those benefits as a negative factor in the services. A commenter suggested Response: DHS believes that this rule totality of the circumstances, but such creating classes or having resources implements the public charge ground of receipt will not be considered a heavily available to aliens to help them inadmissibility consistent with those weighted negative factor. understand the importance of self- values, as well as other values sufficiency and methods to obtain that prioritized by Congress. U. Other Comments ideal goal. The commenter indicated Comment: One commenter suggested Comment: A commenter indicated that those kinds of programs would that DHS should issue work that DHS did not affirmatively address provide more incentive to the aliens to authorization cards to all aliens subject whether it consulted with Federal avoid public assistance than revoking or to the public charge ground of benefit-granting agencies such as HHS, denying their citizenship status just inadmissibility and that USCIS should USDA, and HUD in developing its because they needed some help or might amend the rule to include a work proposed definition of ‘‘public charge’’ need it in the future. authorization category for all pending as ‘‘an alien who receives one or more Response: DHS appreciates the applications. Another commenter public benefit[s]’’ and abandoning the suggestion. However, this rule suggested that USCIS amend the rule to current ‘‘primarily reliant’’ standard. establishes guidelines for the include a work authorization category Although the commenter acknowledged inadmissibility of aliens based on the for all pending applications. that the NPRM indicated that DHS public charge ground of inadmissibility Response: These comments are consulted these benefit-granting as established by Congress. The rule outside of the scope of DHS’s agencies on other, tangential issues such provides for the initial determination of rulemaking. DHS will not offer as methodologies for considering and admissibility; other immigration related employment authorization to all aliens quantifying an immigrant’s receipt of benefits or activities fall beyond the subject to the public charge ground of non-cash, non-monetizable benefits, the scope of the rule. The programs offered admissibility. DHS notes that aliens commenter was requesting that DHS to refugees are designated to assist with pending adjustment of status address, in the next public action, people who are not subject to the public application may apply for employment whether or not it formally consulted charge inadmissibility ground. Further, authorization under 8 CFR Federal benefit-granting agencies such neither the statute nor this final rule 274a.12(c)(9). as HHS, USDA, and HUD in developing permit revocation or denial of Comment: One commenter requested its proposed definition of ‘‘public citizenship status based on that DHS affirmatively review and charge,’’ and if so, that DHS publicly inadmissibility on public charge incorporate into the administrative disclose copies of any written feedback grounds. record for this rulemaking the it received from these agencies. Comment: A commenter asked that a supporting evidence and authority cited Response: Interagency discussions are public information campaign be in the approximately 300 footnotes a part of the internal deliberative implemented that is targeted towards contained in the commenter’s process associated with the rulemaking. the general public to explain the rule submission. The commenter also Comment: Another commenter changes. submitted to the docket 22 additional indicated that the rule would arbitrarily Response: DHS will provide documents, which included some but prevent immigrants from obtaining or additional information and not all of the commenter’s supporting maintaining lawful immigration status, communication materials on the rule evidence and authority. which data shows improves immigrants’ and its provisions as part of the Response: DHS has fulfilled its hourly wages. implementation of the final rule. obligation to meaningfully consider and Response: DHS disagrees that the rule Comment: Some commenters respond to the public comments. With will impermissibly prevent immigrants provided general comments and respect to the commenter’s additional from obtaining or maintaining lawful recommendations on and other aspects request regarding the administrative immigration status. This rule only of the immigration system. Multiple record, the APA does not require DHS addresses one ground of inadmissibility commenters opposed the separation of to conduct the exercise requested by the and does not otherwise affect eligibility families at the southwest border. Several commenter, and DHS respectfully for public benefits. As discussed commenters stated that asylum seekers declines to do so. elsewhere in this rule, DHS’s objective and refugees are unfairly treated. Comment: A commenter in promulgating this rule is to better Several commenters stated their support recommended that the proposed rule ensure that aliens seeking admission, for suspension of all immigration via include the ‘‘protective effect of secure adjustment of status, extension of stay, section 212(f) of the Act, 8 U.S.C. immigration status against abuse and and change of status, rely on their own 1182(f). Commenters expressed concern exploitation, as well as the bolstering resources and capabilities and the not regarding the lack of support provided effects on family stability.’’ The

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commenter indicated that as recognized Comment: Some commenters sufficient for purpose of the alien’s under VAWA, admission to the United provided general comments and status. States or adjustment of status can help recommendations on public benefits With this rulemaking, DHS prevent victims access employment and increase and the welfare system in the United individuals from receiving public their ability to escape the violence or States. For example, multiple benefits for which they are eligible. DHS overcome the trauma they’ve suffered. commenters stated that immigrants are understands that individuals may be The commenter further stated that a putting a burden on public services and hesitant to apply for or receive public stable immigration status helps U.S. taxpayers. One commenter benefits in light of this rulemaking. individuals obtain secure better paying summarized potential methods for DHS, however, is implementing the jobs, reducing the stress associated with saving money within the public welfare congressional mandate provided in exploitative working conditions, leading system in the United States, as an section 212(a)(4) of the Act, 8 U.S.C. to better short-term and long-term alternative to changing how the 1182(a)(4) to assess, as part of an alien’s outcomes for their families. The Government implements the public application for admission or adjustment commenter provided information on charge ground of inadmissibility. An of status, whether the alien is likely at research conducted among immigrant individual commenter in support of the any time to become a public charge. victims across the United States that rule provided information and views Comment: Commenters referenced indicated 65 percent of immigrant regarding fraud and abuse in the U.S. DOS’s January 2018, changes to public victims reported that their violent public welfare system, along with brief charge in the FAM. One commenter partner had used some form of a threat recommendations on how to address stated that if DOS adopted a standard of deportation after arrival in the United such issues. similar to the proposed rule, it would States as a form of abuse. The Response: DHS appreciates these result in significant increases of visa commenter suggested that DHS should comments. However, DHS’s public denials. Response: This rule only pertains to consider the supportive and protective charge inadmissibility rule is not aliens who seek admission into the effects of stable immigration status to intended to address public benefit fraud United States as a nonimmigrant, or as victims. The commenter indicated that and abuse specifically. Rather, this rule an immigrant, or seek an adjustment of such a consideration would support the is intended to align the self-sufficiency status or a change of status or extension purpose and guidance of the important goals set forth by Congress with the of stay. Although the standards set forth protections that Congress has afforded public charge ground of inadmissibility. in the rule pertain to DHS’s for victims in various Federal laws, even Comment: One commenter requested determinations as a whole, the rule’s if they are not seeking admission under that USCIS ensure employers are paying cost analysis focuses on the impact to an exempt victim-specific category. living wages to immigrants. The USCIS adjudications, as the rule most Response: DHS understands the commenter stated that SNAP directly impacts USCIS adjudication of concerns and emphasizes that VAWA, T participants are either employed or applications for adjustment of status, as and U applicant categories are generally seeking jobs, or are children or elderly. well as applications for extension of not subject to the public charge Similarly, another commenter asserted stay and change of status. DHS did not inadmissibility determinations. Further that, unless DHS is willing to compel include an analysis of the costs and DHS has provided that if a person employers in agriculture and in other benefits associated with public charge receives a public benefit during a status industries to provide a living wage and inadmissibility determinations made by exempt from public charge health benefits, it is cruel and unjust to the DOS in the immigrant and inadmissibility, and later applies for an punish hard-working immigrants who nonimmigrant visa context. DHS defers immigration benefit under a different rely on public benefits but who also to DOS on any information related to status where admissibility is required, benefit the United States. the application of the public charge such public benefit receipt would not be Response: The vast majority of inadmissibility determination as part of considered in the public charge workers who enter the United States on the immigrant and nonimmigrant visa inadmissibility determination. employment-based nonimmigrant and process. Comment: A commenter expressed immigrant visas, including temporary Comment: A commenter urged DHS to concern about restricting the possibility agricultural workers, enter based on the defer to the DOS’s public charge of filing Request for Fee Waiver (Form terms and the conditions that have been determination. Another commenter I–912), stating that many applicants certified by DOL.794 For a temporary stated that DOS could further modify its have an income below the Federal Tax agricultural worker (H–2A own public charge guidance in response Filling Requirement Threshold, do not nonimmigrant),795 the employer must to the proposed rule from DHS. The file tax returns, and will lack the offer the appropriate wage rate 796 and commenters stated that this would evidence to submit this request. The comply with other requirements as set cause more than one million individuals commenter went on to say that forcing by law and regulations.797 As such, DOL that seek visas from DOS annually to be applicants to submit evidence through deemed the financial aspect and subjected to arbitrary standards and IRS tax filing will increase the amount conditions of the employment itself potentially shut out of the country. of tax return moneys that low-income Response: DHS is collaborating with tax payers are eligible to obtain, thus 794 See 20 CFR parts 655 and 656. other departments and agencies with canceling out any additional income 795 See INA section 101(a)(15)(H)(ii)(a), 218, 8 regard to the regulatory changes received by DHS if these applicants are U.S.C. 1101(a)(15)(H)(ii)(a), 1188. promulgated by this final rules. DHS is unable to qualify for the fee waiver. 796 See 20 CFR 655.120(l). Employers must pay working, and will continue to work, H–2A workers and workers in corresponding Response: This rule not change the employment, unless otherwise excepted by the with DOS to ensure consistent eligibility or evidentiary requirements of regulations, at least the highest of the Adverse application of the public charge ground Form I–912. This comment seems Effect Wage Rate (AEWR), the prevailing hourly of inadmissibility. As noted in the misdirected as it appears to relate to a wage rate, the prevailing piece rate, the agreed-upon NPRM, DHS expects that DOS will make collective bargaining wage (if applicable), or the routine revision of Form I–912 and not Federal or State minimum wage in effect at the time any necessary amendments to the FAM this rule. Therefore, this comment is out the work is performed. in order to harmonize its approach to of scope of this rule. 797 See 20 CFR 655.100–185. public charge inadmissibility

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determinations with the approach taken determination absent in the rely on the proposed rule as a guide, in this final rule.798 inadmissibility ground. Specifically, the while other immigration judges will not. Comment: A commenter discussed public charge ground of deportability The commenter stated that this will the rule’s impact on consular applies to an alien who (1) within five create inconsistencies in adjudication, processing. A commenter stated that years after the date of entry, has become and increase administrative DOS is likely to adopt public charge a public charge (2) from causes not inefficiencies through additional rules consistent with DHS’s rules, thus affirmatively shown to have arisen since appeals and motions; will take exasperating and extending costs to entry.800 Whereas, the public ground significantly more court time for those applicants to many types of visa charge of inadmissibility is prospective cases already in front of the judge due programs. Multiple commenters stated and requires an analysis to determine to the heightened evidentiary the rule would result in increased whether there is a likelihood that an requirements; and need additional and administrative burdens to other alien will become a public charge at any more detailed testimony. These organizations such as DOS, as the time in the future. In the event there are heightened evidentiary requirements proposed rule would require every any regulatory changes to the will also impact ICE attorneys, who will adjudicator to be trained to apply the interpretation of the public charge be required to review that evidence and proposed rule, which is already deportability ground, such changes will prepare a response, as well as the subjective and unclear. necessarily comply with the APA and respondent and his or her counsel, if Response: This rule provides a other statutory and regulatory represented. With an immigration court standard for determining whether an requirements. backlog that is already above 750,000 alien who seeks admission into the Comment: A commenter discussed cases, the public charge rule would United States as a nonimmigrant or as the rule’s impact on immigration courts. further exacerbate an already record an immigrant, or seeks adjustment of The commenter indicated that although high case volume. Additionally, status, is likely at any time in the future immigration judges are not bound by increased evidentiary requirements, to become a public charge under section DHS rules, DOJ is in the process of heightened scrutiny, and uncertainty as 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). creating a public charge rule that is to what standard to apply will delay DHS defers to DOS as to the procedure likely to parallel the DHS proposed rule. adjudications, add to the backlog, and and timing for adopting changes However, until a DOJ rule is finalized, result in inconsistent court consistent with the policy articulated in the DHS proposed rule is likely to be adjudications. this final rule, as well as on the impact used as persuasive authority by Response: Comments regarding the of any changes to visa processing times immigration judges tasked with making manner in which EOIR will assess and costs incurred as a result of any public charge assessments. The public charge inadmissibility are such changes. commenter pointed out that this will beyond the scope of DHS’s rule. DHS’s Comment: A commenter stated that occur in at least three scenarios: (1) rule pertains to DHS’s public charge DHS should consider the implications Individuals without lawful status inadmissibility determinations for of defining the inadmissibility ground at seeking to adjust status in removal applicants seeking admission to the section 212(a)(4) of the Act, 8 U.S.C. proceedings; (2) returning lawful United States and for applicants seeking 1182(a)(4), on the public charge permanent residents who are treated as adjustment of status. If DHS denies an deportability ground at section 237(a)(5) applicants for admission under section adjustment of status application and of the Act, 8 U.S.C. 1227(a)(5). The 101(a)(13)(C) of the Act, 8 U.S.C. places the applicant into removal commenter stated that DHS should 1101(a)(13)(C); and (3) lawful proceedings, the alien may renew the consider the impact and reasonableness permanent residents placed in removal adjustment of status application before of the proposed NPRM definition in the proceedings who are seeking to re-adjust an immigration judge unless the deportability context and how the status with a waiver under section immigration judge does not have definition ‘‘might further heighten fear 212(h) of the Act, 8 U.S.C. 1182(h). jurisdiction over the adjustment 801 and anxiety related to deportation Additionally, the commenter stated that application. DHS has no authority among lawful permanent residents and the adjudication of adjustment of status over EOIR’s inadmissibility others.’’ The commenter that the applications in immigration courts will determinations. Administration ‘‘will likely act quickly likely increase due to a 2018 policy DHS notes that all inadmissibility to adopt it for deportation purposes.’’ change at USCIS, under which NTAs are determinations are made on a case-by- Response: DHS does not believe it is issued in any case in which USCIS case basis and depend on the facts and essential to consider the impact on the issues a denial, leaving the applicant circumstances, as well as the available public charge deportability ground. The with no legal status upon denial of the evidence, in each case. As such, it is rule is limited to the ground of adjustment application. This, according impossible to anticipate the arguments inadmissibility. Additionally, as to the commenter, will result in an that might be made or the evidence that explained in the NPRM, standards increase of adjustment of status might be submitted in support of a applicable to DOJ continue to govern the applications in front of an immigration charge of inadmissibility. However, as standard regarding the public charge judge, increasing the frequency of cases noted above, under section 291 of the Act, 8 U.S.C. 1361, the burden of proof deportability ground.799 While the requiring a public charge adjudication. is on an applicant for admission to forward-looking inadmissibility ground Until a DOJ rule is promulgated, ICE establish that he or she is not and the past-looking deportability trial attorneys, who are bound by DHS inadmissible to the United States under grounds both use the phrase ‘‘become a regulations, will likely argue that any provision of the Act. Similarly, public charge,’’ the two provisions are immigration judges should apply the under section 240(c)(2)(A) of the Act, 8 significantly different. Most notably, the proposed rule’s heightened standards. U.S.C. 1229a(c)(2)(A), an applicant for deportability ground requires a two-step Lacking any binding precedent on the interpretation of section 212(a)(4) of the admission in removal proceedings has Act, 8 U.S.C. 1182(a)(4), some the burden of establishing that he or she 798 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51135 (proposed Oct. 10, 2018). immigration judges will agree and will is clearly and beyond doubt entitled to 799 See Inadmissibility on Public Charge Grounds, 83 FR 51114, 51134 (proposed Oct. 10, 2018). 800 See INA section 237(a)(5), 8 U.S.C. 1227(a)(5). 801 8 CFR 245.2(a)(5)(ii) and 8 CFR 1245.2(a)(1).

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be admitted and is not inadmissible demonstrate that they have not received, confusion among aliens, who therefore under section 212 of the Act, 8 U.S.C. since obtaining the nonimmigrant status voluntarily disenroll from or forgo 1182. As noted above, DHS believes that they are seeking to extend or change, enrollment in public benefits.803 concerns about DOJ’s adjudication of any public benefit, as defined in 8 CFR However, the study notes that most of cases pending before immigration 212.21(b), for more than 12 months, in the individuals who may experience a courts, including immigration court the aggregate, within a 36-month period. chilling effect are those who will not be backlogs, are more appropriately Although this rule may impact aliens subject to a public charge addressed by DOJ in the context of their from South Asian countries to a larger inadmissibility determination. DHS public charge rulemaking. extent solely because they account for a acknowledges that some individuals larger percentage of foreign nationals may disenroll or forego enrollment in V. Public Comments and Responses to who may apply for an extension of stay public benefits programs even though the NPRM’s Statutory and Regulatory or change of status, DHS did not add the they are not directly regulated by this Requirements Section public benefits condition to extension of rule. DHS has provided an estimate of 1. Comments on Costs and Benefits stay and change of status applications in the number of individuals that may a. Population Seeking Extension of Stay order to specifically target aliens from choose to disenroll or forego enrollment or Change of Status South Asian countries or for any other due to the final rule, but it is unclear discriminatory purpose. Instead, in how long such individuals would Comment: Commenters stated the rule including the public benefits condition, remain disenrolled or forego enrollment. will have a disproportionate impact on DHS is seeking to ensure that aliens As shown in the economic analysis of South Asian immigrants seeking an present in the United States do not this rule, DHS estimates that the total extension of stay or change of status, depend on public benefits to meet their population seeking to adjust status that stating that more than 550,000 from needs. will be subject to a public charge review South Asian countries lawfully reside in for inadmissibility is about 382,264 the United States. Particularly, a b. Other Comments on Affected annually. Further, DHS estimates that commenter states that the rule will have Population about 324,438 individuals who are a detrimental impact because it requires Comment: Multiple commenters members of households with foreign- applicants for an extension or a change stated that if the rule is finalized it born non-citizens and about 9,632 of status completing the Form I–129 or could negatively impact between 24 and households with at least one foreign- Form I–539 to complete an additional 26 million immigrants and their family born non-citizen will choose to Form I–944. members. Commenters stated that this disenroll from or forego enrollment in a Response: DHS appreciates the estimate was based on a study that public benefits program, based on a 2.5 commenters’ concerns regarding the determined the number of aliens and percent rate of disenrollment or impact this rule will have specifically their family members with incomes foregone enrollment. on South Asian immigrants. DHS does below 250 percent of FPG. Another Moreover, DHS notes that this rule not believe that the rule would impact commenter stated that between 22.2 and does not force individuals who are all of the 550,000 aliens from South 41.1 million noncitizens and their eligible for public benefits to disenroll Asian countries that the commenter family members could be impacted by or forego enrollment in such benefits references, as it is unclear that all aliens the rule, and that out of this population, programs and acknowledges that those from these countries would apply for an an estimated 4.9 million legal who choose to disenroll may need to extension of stay or change of status. In immigrants would lose healthcare rely on other means of support within addition, after reviewing the comments, coverage. Other commenters estimated their family or community. Nonetheless, DHS removed the requirement that that nearly 40 percent of individuals through this rule, DHS seeks to better individuals must establish that they are who sought adjustment of status last ensure that applicants for admission to not likely to receive public benefits by year (380,000 of 1.1 million, according the United States and applicants for submitting Form I–944. Under the to the commenters) would be subject to adjustment of status who are subject to revised standard, aliens seeking to a public charge determination. the public charge ground of change or extend their nonimmigrant A few commenters stated that the rule inadmissibility are self-sufficient, i.e., status will have to demonstrate that they could increase the number of do not depend on public resources to have not received any public benefit immigrants that would be considered a meet their needs, but rely on their own since obtaining the nonimmigrant status public charge from the current three capabilities and the resources of their the alien is seeking to extend or change, percent to 47 percent. Other family, sponsor, and private as defined in 8 CFR 212.21, for more commenters argued the rule could organizations. than 12 months, in the aggregate, within reduce naturalization overall because Comment: Numerous commenters a 36-month period. immigrants would be deterred from focused on the rule’s impact on However, to the extent that South adjusting status. Another commenter children, with some providing estimates Asians may seek extension of stay or stated that DHS has not indicated an of the number of impacted children. change of status in large numbers given estimate of the number of noncitizens These include estimates that one in four their percentage of total foreign that will be denied admissibility under children have at least one foreign-born nationals present in the United States, the rule. parent, between nine and 10 million the public benefit condition does not Response: DHS appreciates the children who are U.S. citizens born of have a disparate impact that is comments regarding the potential immigrant parents would be impacted ‘‘unexplainable on grounds other than’’ negative effects of the rule and the by the rule, and that approximately 18.4 national origin.802 Rather, under this number of individuals who may be million children live in immigrant rule, all applicants for extension of stay affected. The study the commenters families and approximately 16 million and change of status, regardless of cited estimated that 24 million to 26 803 national origin, will be required to million aliens and their family members See Fiscal Policy Institute, ‘‘How a Trump would be affected by the rule’s potential Rule’s Chilling Effect Will Harm the U.S.’’ Oct. 10, 2018. Available at http://fiscalpolicy.org/wp- 802 Vill. of Arlington Heights v. Metro. Hous. Dev. chilling effect, i.e., a circumstance content/uploads/2018/10/US-Impact-of-Public- Corp., 429 U.S. 252, 266 (1977). under which the rule results in fear and Charge.pdf, (last visited May 21, 2019).

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of those children were born in the Status,’’ rather than using internal data applicants in asylum, refugee, and other United States. Other commenters noted or data from approvals. classifications that are exempt from a estimates that approximately 90 percent Response: DHS does not have public charge review. After removing of the children of foreign-born parents historical data to serve as a basis of how the categories that are exempt from the in the United States are citizens of the many applicants currently are subject to data the commenter cited, there were United States. Many commenters a negative public charge determination approximately 417,390 applications for estimated that 45 percent of children or how many are ultimately denied adjustment of status annually and about who recently became permanent admission due to negative factors. 388,724 approvals annually. residents of the United States could Additionally, DHS notes that we use By contrast, the total population in have multiple negative factors that data from internal and external sources the dataset DHS uses in its economic could prevent adjustment of status. as appropriate, and ensures that all data analysis (including those who are Some commenters noted that are current, valid, reliable, and accurate. exempt from public charge) is about approximately 14 million children For this economic analysis, DHS used 544,246 lawful permanent resident enrolled in CHIP live in a household publicly available data in various years approvals annually. After removing the with at least one immigrant parent. of DHS statistical reports, ‘‘Yearbook of classifications that are exempt from a Many commenters noted the support Immigration Statistics,’’ which are public charge review of inadmissibility, that public benefits programs, including thoroughly vetted through the DHS estimates approximately 382,264 Medicaid and other health services as agency.804 DHS used these data not only law approvals annually. Thus, the well as nutrition assistance, provide for because of their quality, but because difference between the data cited by the individuals and families, often pointing they provide the detailed classifications commenter that uses receipts with to the support these programs provide to of those adjusting status to determine general categories of applicants that are children. Some commenters stated the those who are exempt from exempt from a public charge review of rule would have negative consequences inadmissibility based on the public inadmissibility and the approvals data on families and ‘‘grand families,’’ charge ground and those who are not. DHS used in its analysis is including family separation. Additionally, the USCIS data that the approximately 35,126 applicants Response: DHS refers the reader to commenter cites does not provide annually. DHS’s response regarding Potential enough detail to show the visa Comment: A commenter indicated Disenrollment Impacts in section III.D.5 classifications of applicants for that the NPRM fails to provide data of this preamble. With respect to admission and adjustment of status. The regarding the specific impact it might comments that specifically referenced information is necessary for DHS to have on the individual, beyond the DHS’s initial regulatory impact analysis, tailor the analysis to those who are opportunity cost of time taken to DHS notes that in consideration of the subject to the inadmissibility based on familiarize oneself with the changes in comments, it has revised the analysis for the public charge ground. The data cited policies and the time taken to accurately this final rule to include a range of only provide aggregate receipt totals fill out new forms. potential disenrollment impacts. whereby it is not possible to remove Response: DHS provides the direct Comment: Many commenters stated individuals from the population count costs of this rule for individuals, which the rule would have a negative effect on who are exempt from a public charge include the familiarization costs of the low-wage workers with some stating it review of inadmissibility. As the data rule and the costs associated with filling would reduce economic mobility and used for the analysis considers all out forms as well as any new or adjusted reduce the ability to support families. applicants who obtained lawful form fees. The commenter did not Commenters noted workers in specific permanent resident status, the estimated provide DHS with any specific data or industries, such as healthcare, number of individuals who disenroll or additional costs for consideration. construction, hospitality, agriculture, forego enrollment due to the rule is Additionally, the economic analysis of and recreation, would be negatively likely overestimated. this final rule discusses several indirect affected by the rule, as would those who DHS notes that in the data cited by impacts that are likely to occur because benefit from these industries. the commenter, there were of the final regulatory changes in order Response: DHS reiterates that the goal approximately 567,640 applications for to provide a more thorough overview of of this regulation is to ensure that aliens adjustment of status annually and about the costs of this rule. However, indirect who are admitted to the United States, 532,887 approvals annually, based on costs are less certain and more variable, adjust status, or obtain extension of stay the 5-year average number of therefore making it more difficult to or change of status, are self-sufficient application received during the period reliably estimate what those costs may and do not depend on public benefits. fiscal year 2012 to 2016.805 The data the be. The long term impacts are not This rule does not aim to reduce commenter cites only presents data in known at this time. economic mobility or the ability to the broad categories of adjustments, support families, but rather aims to do c. Determination of Inadmissibility including family-based, employment- the opposite, by ensuring that those Based on Public Charge Grounds based, asylum, and refugee, among families who enter or remain in the Comment: A commenter noted that others. In general, applicants in family- United States are self-sufficient. the cost estimates of filing Form I–485, based and employment-based Comment: A commenter states the Form I–693, and Form I–912 should not classifications will be subject to a public projected annual average of adjustment be considered as new and additional charge review of inadmissibility, while applicants subject to public charge costs. review is underestimated. The Response: DHS presents these forms 804 See Dept. of Homeland Security. Yearbook of commenter suggested using the publicly Immigration Statistics. Available at: https:// and costs to establish the baseline for available USCIS datasets titled ‘‘Data www.dhs.gov/immigration-statistics/yearbook (last this analysis. The Office of Management Set: All USCIS Application and Petition visited July 26, 2019). and Budget (OMB) Circular A–4 directs Form Types,’’ ‘‘All USCIS Application 805 DHS notes that using the 5-year average over agencies to include differences from the the period fiscal year 2012 to 2016 is consistent and Petition Form Types,’’ and with the economic analysis that accompanies this baseline as costs, benefits, or transfers in ‘‘Number of Service-wide Forms by rule, which can be found in the rule docket at the analysis of the rule. DHS also Fiscal Year To-Date, Quarter, and Form www.regulations.gov. provides estimates of the additional

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costs associated with the rule’s changes consider the estimated opportunity cost this rule at this time. The Form I–944 is to some of these forms. of time for filling out the Form I–944 to meant for the alien to provide be a ‘‘benefit’’ of the rule. DHS information about the factors, which an d. Other Comments on Baseline estimated the costs of this rule on those Estimates immigration officer would then review seeking to adjust status, or pursuing to determine whether the alien is likely Comment: A commenter stated that extension of stay or change of status. to become a public charge at any time the rule incorrectly implies there is DHS also notes that costs and/or in the future. The form has been rampant abuse of public benefits by benefits of a rule are generally estimated updated for clarity. immigrants. The commenter cites the from the perspective of what the societal Comment: Several commenters noted PRWORA and a Cato Institute working costs and/or benefits of the rule will be. that applicants may incur additional paper to note which immigrants have We have reviewed the data provided by costs as a result of having to pay for a access to Federal public benefit commenters and where possible credit report, an appraisal for a home, programs, those who are not eligible for quantified the indirect impacts of the and retaining an attorney or accredited these programs, and who is likely to use rule. Where quantification was not representative, and that applicants will certain public benefit programs possible, the economic analysis need to expend time and effort to gather compared to native born or naturalized provides a qualitative discussion of citizens. indirect impacts that might result due to all documentation and estimate debts Response: DHS did not intentionally this rule. To be clear, aliens who are and assets from a variety of sources. use language that would imply abuse of already lawful permanent residents of Response: DHS notes that applicants public benefits. DHS acknowledges the the United States are not applying for may incur additional costs associated provisions in PRWORA that limit public adjustment of status, extension of stay, with fulfilling the requirements of assistance to eligible classes of aliens or change of status, and therefore completing Form I–944 such as and confirms that this regulation is generally, will not be directly affected obtaining a credit report or appraisal for consistent with PRWORA. The Cato by the rule. Elsewhere in this preamble, a home and includes theses costs in the Institute working paper, which is based DHS addresses the suggestion that DHS economic analysis, where possible. The on Census data (and the Medical apply the rule differently to those who economic analysis that accompanies Expenditure Panel Survey), concludes are already in the United States, as this rule can be found in the rule docket that low-income non-citizen immigrants compared to those who seek admission at www.regulations.gov. Completion of are less likely to receive public benefits from abroad. The Form I–944 is Form I–944, which includes gathering than low-income native-born citizens intended to apply to all aliens who are all necessary evidence, does entail time and that the value of benefits received subject to the public charge ground of and cost burdens. DHS reported per recipient is less for immigrant inadmissibility and who apply for estimated time and cost burdens in the groups.806 These findings are not adjustment of status before USCIS. NPRM and in this final rule in inconsistent with this final rule. Comment: One commenter stated that compliance with the PRA. e. Costs to Applicants To Adjust Status the rule changes are intended to prevent Comment: A commenter stated that legal immigrants from applying to adjust employers will likely not be able to Comment: Many commenters status to lawful permanent resident as prepare Form I–944 on their employees’ remarked the impact the rule would the fee increases are enormous and the behalf like more general immigration have on applicants who may apply to bureaucratic hurdles outrageous. adjust status. One individual Response: DHS disagrees the rule is forms due to sensitive financial data commenter stated that, given the overall intended to prevent eligible individuals requested. objectives of this rule, the estimated from adjusting status to that of a lawful Response: DHS has revised the public increased cost to immigrants seeking to permanent resident. Rather, the rule is benefit condition for extension of stay adjust their status and economic loss intended to better ensure that and change of status, such that officer which might represent a significant individuals seeking admission or will not issue an RFE for the Form I–944 barrier to filing the application. The adjustment of status are able to in that context. No employers will be commenter stated that such a barrier demonstrate that they are self-sufficient. required to complete the Form I–944. might in fact suit the agency’s goals and DHS believes that the benefits to this Comment: One commenter stated the therefore represent a benefit. The rule justify the new costs it will impose. rule may discourage nonimmigrants commenter stated that greater concern Where possible, DHS quantified the cost from coming to or remaining in the are the costs borne by existing resident of completing the new forms. United States, regardless of their aliens, with some existing status, who f. Lack of Clarity financial status, and that the rule will are not the target of the rule and yet reinforce the view that the United States stand to be affected by it significantly. Comment: Multiple commenters has become an undesirable destination, The commenter suggested a careful noted costs related to a lack of clarity damaging the nation’s status as a review should be conducted to ensure and certainty around strongly positive welcoming country, and could deprive that this impact on a non-target group of and negative factors. One commenter the U.S. economy of a substantial people is warranted, or weigh whether noted this lack of clarity would make amount of tourism. this group should be forced to file all or estimating compliance costs difficult. some of the new forms. Another commenter wrote that the form Response: The commenter did not Response: DHS agrees that there are is highly confusing, because it conflates provide evidence or sources to support benefits to this rule that justify the new negative consideration of non-monetary the claim that the rule will discourage costs it will impose. DHS does not benefits if received for more than two nonimmigrants from visiting, studying, months in the aggregate within a 36- or working in the United States. As 806 The Use of Public Assistance Benefits by month period, and lacks questions stated above, this rule is intended to Citizens and Non-Citizen Immigrants in the United seeking to elicit factors that would better ensure that aliens inside the States, Cato Institute Working Paper; Leighton Ku provide a basis for a positive finding. United States ‘‘do not depend on public and Brian Bruen, February 19, 2013. https:// resources to meet their needs, but rather object.cato.org/sites/cato.org/files/pubs/pdf/ Response: DHS agrees that it is unable workingpaper-13l1.pdf (last visited July 26, 2019). to quantify the full compliance costs of rely on their own capabilities and the

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resources of their families, their opportunity cost of time on the mean hour to estimate the opportunity cost of sponsors, and private organizations.’’ 807 average for all occupations ($24.35 per time for individuals who cannot, or Comment: A commenter stated that an hour) instead of the mean national choose not to, participate in the labor immigration service provider would minimum wage ($10.66 per hour) market as these individuals incur need to develop expertise in all public suggests ‘‘a desire to minimize the opportunity costs and/or assign benefit programs applicants may have negative impact of the proposed rule by valuation in deciding how to allocate used in any state where the applicant offsetting the negative impact with what their time. Moreover, this analysis uses resided, that it will be virtually appears to be a net positive, despite the the Federal minimum wage rate since impossible for people to obtain proof analyzed wage applying to only a small approximately 80 percent of the total that they did not trigger a negative factor segment of the population that this number of individuals who obtained for public charge test, and that their proposed rule seeks to reach.’’ Another lawful permanent resident status were group will likely invest $500,000 to $1 commenter stated that USCIS should in a class of admission under family- million in trainings to assist the legal consider using a more varied rate for sponsored preferences and other non- and service provider sector to calculated opportunity costs. The employment-based classifications such understand this change, although the commenter further stated that the RIA as diversity, refugees and asylees, and commenter stated that it still would not uses $10.66 an hour, but many parolees.811 Moreover, approximately be able to advise with any certainty. individuals affected by the rule may 70 percent of the total number of Response: The commenter did not have a higher hourly rate. individuals who obtained lawful explain how it developed the estimated Response: DHS does not understand permanent resident status were in a training costs of $500,000 to $1 million. the commenter’s arguments regarding class of admission that were also subject As discussed above, DHS will train and minimizing the negative impact of the to the public charge inadmissibility provide internal guidance to USCIS proposed rule. Where appropriate and determination. Therefore, DHS assumes officials processing these forms so they based on the population of focus, DHS many of these applicants hold positions can accurately adjudicate cases. DHS uses various wage rates to estimate in occupations that are likely to pay also notes that it considered the costs opportunity costs of time. DHS uses the around the Federal minimum wage. presented by commenters and provided average hourly wage for all occupations Comment: There were a number of estimates for additional indirect costs ($24.34 per hour plus benefits) to other general comments on costs and that might result from this rule in the estimate the opportunity cost of time for potential burdens to applicants: RIA. some, not all, populations in the • One commenter stated that the costs Comment: One commenter indicated economic analysis. Populations for and fees imposed on applicants could there was no justification for imposing which this hourly wage is applicable burden non-citizens and require them to compliance costs on every alien seeking include those submitting an affidavit of turn to public assistance programs as a to adjust status, or on substantial support for an immigrant seeking to result. numbers of nonimmigrants seeking adjust status and those requesting • Another commenter stated that routine extensions of status, even where extension of stay or change of status. For USCIS did not consider ‘‘departure nothing in that person’s background or these populations, DHS assumes that costs’’ such as plane tickets or broken circumstances suggests the prospect that individuals are dispersed throughout leases/contracts for individuals that will the public charge ground of the various occupational groups and need to leave the country due to the inadmissibility might be an issue. industry sectors of the U.S. economy. NPRM’s provisions. • Response: DHS believes that the Therefore, DHS calculates the average A commenter stated that the NPRM questions posed in the I–944 are total rate of compensation as $35.78 per places a significant burden on relevant and necessary for the public hour, where the mean hourly wage is community organizations, requiring charge inadmissibility determination $24.34 per hour worked and average them to become experts on requirements and allows the alien an opportunity to benefits are $11.46 per hour.808 809 to explain them to the community. As • provide all information regarding the noted in the economic analysis of the Another commenter stated that factors as discussed in the rule. DHS rule, DHS generally uses $10.66 per NPRM would lead to a substantial reiterates that the public charge hour ($7.25 Federal minimum wage increase in general legal costs related to inadmissibility ground does not apply base plus $3.41 weighted average applications citing a figure of $40 to those seeking a change of status or benefits) as a reasonable proxy of time million for every 100,000 adjustments of extension of stay. Additionally, DHS has valuation to estimate the opportunity status or immigrant visa applications. decided against asking nonimmigrants costs of time for individuals who are Response: DHS appreciates comments seeking to extend or change such status applying for adjustment of status and regarding costs to applicants and the to submit Form I–944. DHS notes that must be reviewed for determination of potential burdens that this rule may those categories of aliens exempt from inadmissibility based on public charge impose on those seeking immigration the public charge inadmissibility grounds.810 DHS also uses $10.66 per benefits. DHS notes that the purpose of ground by statute face no additional this rule is to better ensure that aliens compliance costs as a result of this rule. 808 The national mean hourly wage across all subject to the public charge inadmissibility ground are self- g. Other Comments on Costs to occupations is reported to be $24.34. See Occupational Employment and Wage Estimates sufficient, i.e., do not depend on public Applicants United States. May 2017. Department of Labor, BLS, resources to meet their needs, and rely Comment: One commenter stated that Occupational Employment Statistics program; available at https://www.bls.gov/oes/2017/may/oes_ on their own capabilities, as well as the the agency acknowledges that most nat.htm (last visited July 26, 2019). resources of family members, sponsors, individuals this rule applies to would 809 The calculation of the weighted mean hourly be making close to the Federal wage for applicants: $24.34 per hour * 1.47 = 811 See United States Department of Homeland minimum wage of $7.25 an hour. The $35.779 = $35.78 (rounded) per hour. Security. Yearbook of Immigration Statistics: 2016, commenter stated that the agency’s 810 See 29 U.S.C. 206. See also U.S. Department Table 7. Washington, DC, U.S. Department of of Labor, Wage and Hour Division. The minimum Homeland Security, Office of Immigration decision to base its estimates of wage in effect as of May 24, 2018. Available at Statistics, 2017. Available at https://www.dhs.gov/ https://www.dol.gov/general/topic/wages/ immigration-statistics/yearbook/2016 (last visited 807 8 U.S.C. 1601(2)(A). minimumwage (last visited July 26, 2019). July 26, 2019).

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and private organizations.812 Moreover, have enough information on the number administration’s objective of ensuring DHS sets the fees associated with of immigrants who would incur immigrants remain self-sufficient. requesting immigration benefits as departure costs nor the amount that The commenter indicated that USCIS necessary to recover the full operating each immigrant would incur. has failed to adequately document and costs associated with administering the DHS appreciates comments asserting justify the costs related to how many nation’s lawful immigration system, that the rule would lead to a substantial people will secure public charge bonds; safeguarding its integrity, and efficiently increase in general legal costs related to costs of bond for those using them to and fairly adjudicating immigration applications of around $40 million per overcome the public charge definition; benefit requests. 100,000 adjustment of status or costs imposed on families; cost imposed DHS appreciates receiving comments immigrant visa applications. DHS notes on families that fall on hard times with regarding the additional burden this that the estimated costs of this rule are a public charge bond; upfront and rule imposes on community based on the estimated populations for ongoing fees, bond cancellation fees, organizations, requiring them to become relevant forms and the requirements for and fees related to ending a bond; experts on the requirements in the rule filing those forms, including any benefits to bond surety companies; and to explain them to the community. DHS applicable filing fees, opportunity costs costs to state and localities related to acknowledges that the final rule will of time, travel costs for fulfilling a filing bonds. add new direct and indirect impacts on requirement such as submitting A commenter wrote that the bond- various entities and individuals biometrics information, among other related fees will never compensate for associated with regulatory requirements. DHS has updated the the additional administrative costs familiarization with the provisions of economic analysis to account for incurred by operation of the program, the rule. Familiarization costs involve additional legal costs as some applicants and these fees themselves will make the the time spent reading the details of a may retain a lawyer for help in filling program cost prohibitive for many rule to understand its changes. To the out and filing the forms. applicants and their families. Similarly, extent that an individual or entity With respect to the comment that this a commenter wrote that USCIS directly regulated by the rule incurs rule will also impact legal costs anticipates that the $25 filing fee for familiarization costs, those associated with filing applications for Forms I–945 and I–356 would cover the familiarization costs are a direct cost of immigrant visas, as noted above, DHS necessary administrative costs, but then the rule. In addition to those individuals has estimated the costs for the later in the analysis suggests the fee or entities the rule directly regulates, a populations that are directly regulated would not fully recover intake costs. wide variety of other entities would by this rule—applicants for adjustment Another commenter wrote that the likely choose to read and understand of status, and those seeking change of public bond cost should be subtracted the rule and, therefore, would incur status or extension of stay. DHS is from gross costs of the rule as it does not familiarization costs. For example, unable to estimate costs and benefits qualify as a marginal benefit. immigration lawyers, immigration associated with applicants for Response: Although DHS agrees that advocacy groups, health care providers immigrant visas filed with DOS. there may be a cost associated a bond of all types, non-profit organizations, an alien choose to submit (if eligible), as non-governmental organizations, and Comment: An individual commenter wrote that if USCIS took on credit score described in the economic analysis, religious organizations, among others, DHS disagrees that the amount of the may need or want to become familiar reporting costs from the beginning of the process it would lower the cost burden bond was not properly justified. DHS with the provisions of this final rule. had generally based the amount on the DHS believes such non-profit for applicants. Response: It appears that this original regulatory amount adjusted for organizations and other advocacy inflation. However, in order to more groups might choose to read the rule in commenter misunderstands the credit report and score requirement in this rule precisely match the effect of prior order to provide information to those regulations, DHS has decided to have foreign-born non-citizens that might be and believes that DHS will reimburse the cost of obtaining a credit score and/ the minimum amount of the bond to be affected by a reduction in Federal and the exact amount as adjusted for state transfer payments. Familiarization or report associated with the public charge inadmissibility determination. inflation. The current 8 CFR 213.1 refers costs incurred by those not directly to a bond amount of at least $1,000. 8 regulated are indirect costs such as However, under this rule, DHS will not reimburse applicants for costs incurred CFR 213.1 was promulgated in July of those listed. DHS estimates the time that 1964. This provision has not been would be necessary to read this final as a result of obtaining a credit score and/or report to individuals. Aliens updated and inflation has never been rule would be approximately 16 to 20 accounted to represent present dollar hours per person, resulting in seeking immigration benefits who are values. Simply adjusting the amount for opportunity costs of time. Additionally, subject to public charge inadmissibility inflation using CPI–U would bring the an entity, such as a non-profit or will bear the cost of obtaining a credit bond floor in June 2018 to about advocacy group, may have more than score and/or report solely, as described $8,100.813 one person that reads the rule. in the final rule and economic analysis. With regard to USCIS’ consideration DHS notes that an applicant may obtain Once the alien has been determined to of ‘‘departure costs’’ for individuals who a credit report for free, but in its likely to become a public charge, and must leave the United States as a estimates DHS assumed that applicants provided the opportunity to submit a consequence of a public charge would pay for the report. bond, the bond acts a deterrent and inadmissibility determination, DHS penalty if the bond is breach. Whether h. Costs Related to Public Charge Bond agrees that some people may be required the public charge bonds will achieve the to depart the United States due to the Comment: One commenter noted that administration’s objective of ensuring requirements of this rule. However, DHS the public charge bond provision in the immigrants remain self-sufficient is not is unable to quantify the departure costs NPRM would increase the overall costs 813 Calculation: Annual average for 1st half of listed by the commenter as we do not for applicants, and that USCIS has not 2018 (250.089)/annual average for 1964 (31) = 8.1; provided sufficient evidence that public CPI–U adjusted present dollar amount = $1,000 * 812 See 8 U.S.C. 1601(1), (2)(A). charge bonds will achieve the 8.1 = $8,100.

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a necessary consideration as DHS would provided that USCIS may set fees for qualify as a marginal benefit, DHS notes have already determine that the alien is providing adjudication and that the public charge bond process is likely to become a public charge and naturalization services at a level that being newly established and, therefore, would be giving the alien the will ensure recovery of the full costs of any costs associated with the bond opportunity to be admitted with the providing all such services, including process are considered to be new costs condition that he or she not receive the costs of similar services provided to the public. Additionally, should DHS public benefits. Further, the bond without charge to asylum applicants or determine that the fees set for the provides was establish by Congress and other immigrants.817 Moreover, USCIS relevant forms related to the public therefore a requirement for DHS to conducts biennial reviews of the fee charge review process, including those consider affording the alien an amounts charged for each immigration for the bond process, are not sufficient opportunity to provide a bond even and naturalization benefit request. Fees to cover the full cost of the associated though he or she may be likely to are collected from individuals and services adjudicating immigration become a public charge.814 entities filing immigration benefit benefit requests, the agency will When posting a surety bond, an requests and are deposited into IEFA. propose to adjust these form fees in a individual generally would pay between Those funds then are used to cost of subsequent fee rule. DHS sets the fees 1 to 15 percent of the bond amount for adjudicating immigration benefit associated with requesting immigration a surety company to post a bond.815 The requests, including those provided benefits as necessary to recover the full percentage that an individual must pay without charge to refugee, asylum, and operating costs associated with may be dependent on the individual’s certain other applicants. The primary administering the nation’s lawful credit score where those with higher objective of the fee review is to immigration system, safeguarding its credit scores would be required to pay determine whether current immigration integrity, and efficiently and fairly a lower percentage of the bond to be and naturalization benefit fees will adjudicating immigration benefit posted. DHS notes that an individual generate sufficient revenue to fund the requests. DHS also notes that the new may be allowed to submit cash or cash anticipated operating costs associated costs estimated for the public charge equivalent, such as a cashier’s check or with administering the nation’s legal bond process are considered costs, not money order as another possible option immigration system. Therefore, if the benefits. As shown in the economic for securing a public charge bond. results of this review indicate that analysis, which can be found in the DHS will charge a filing fee of $25.00 current fee levels are insufficient to Public Charge final rule docket at to submit a public charge bond using recover the full cost of operations, DHS www.regulations.gov, DHS estimates the Form I–945 and $25.00 to request may propose to adjust USCIS fees. For baseline cost of the rule and then cancellation of a public charge bond fee the forms used in the newly established estimates the costs and benefits of the using Form I–356, which would cover public charge bond process, should DHS policy changes that the final rule will the estimated administrative costs of determine that the fees set for these implement. The difference between the processing these forms. Where possible, forms are not sufficient to cover the full estimated current baseline costs and DHS sets fees at levels sufficient to cost of the associated services benefits and the estimated costs and cover the full cost of the corresponding adjudicating these immigration benefit benefits of the policy changes are services associated with fairly and requests, the agency will propose to considered to be, and presented as, the efficiently adjudicating immigration adjust these form fees. new costs and benefits of the final rule. benefit requests.816 Congress has A legal requirement to provide a j. Costs to U.S. Employers monetized total cost estimate for this Comment: Many commenters stated 814 See INA section 213, 8 U.S.C. 1183. rule does not exist. The public charge 815 See also Surety Bond Authority, Frequently bond process is newly established and, that the rule would impose significant Asked Questions about Surety Bonds, https:// therefore, historical data is not compliance costs and administrative suretybondauthority.com/frequently-asked- burdens on employers that would questions/ (last visited May 8, 2019) and Surety available. DHS explained in the NPRM the many factors that were not within interfere with hiring and staff retention. Bond Authority, Learn More, https:// Commenters also stated that search suretybondauthority.com/learn-more/ (last visited the control of DHS that would influence costs would increase for employers by May 8, 2019). DHS notes that the company cited is total costs. To the extent possible DHS for informational purposes only. reducing the supply of low-wage quantified the costs of the bond 816 See INA section 286(m), 8 U.S.C. 1356(m), workers and skilled workers. The provision, for example DHS estimates provides broader fee-setting authority and is an commenter indicated that the supply of exception from the stricter costs-for-services- that approximately 960 aliens will be skilled workers could be reduced as rendered requirements of the Independent Offices eligible to file for a public charge bond non-citizen residents reduce Appropriations Act, 1952, 31 U.S.C. 9701(c) annually using Form I–945 and (IOAA). See Seafarers Int’l Union of N. Am. v. U.S. investments in human capital and approximately 25 aliens will request to Coast Guard, 81 F.3d 179 (DC Cir. 1996) (IOAA skilled non-citizens are denied entry or provides that expenses incurred by agency to serve cancel a public charge bond annually some independent public interest cannot be discouraged from seeking entry into the using Form I–356. DHS does not have United States. A commenter stated that included in cost basis for a user fee, although enough information to estimate the costs agency is not prohibited from charging applicant the analysis does not include the effect full cost of services rendered to applicant which imposed on families that fall on hard on legal immigration to the United also results in some incidental public benefits). times with a public charge bond, Congress initially enacted immigration fee authority States, including how many applicants upfront and ongoing fees, benefits to would be issued RFEs or estimating a under the IOAA. See Ayuda, Inc. v. Attorney bond surety companies, and costs to General, 848 F.2d 1297 (DC Cir. 1988). Congress potential denial rate. Several thereafter amended the relevant provision of law to state and localities related to bonds. commenters stated that the RFE require deposit of the receipts into the separate With regard to the comment that the provision could cause potential delays Immigration Examinations Fee Account of the public bond cost should be subtracted and backlogs causing increased costs to Treasury as offsetting receipts to fund operations, from gross costs of the rule as it does not and broadened the fee-setting authority. employers. Many commenters stated Departments of Commerce, Justice, and State, the that the rule change would make it Judiciary, and Related Agencies Appropriations Fee Account fees that would not be considered in Act, 1991, Public Law 101–515, section 210(d), 104 setting fees under the IOAA. See 72 FR at 29866– harder for employers to extend H–1B Stat. 2101, 2111 (Nov. 5, 1990). Additional values 7. visas or change students from F–1 to H– are considered in setting Immigration Examinations 817 See INA section 286(m), 8 U.S.C. 1356(m). 1B visas. A commenter stated the rule

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could lead employers to make their own certification process, and worsened benefits to provide the required public charge determinations. Multiple healthcare outcomes. documents and information. Beyond the commenters wrote that a broad list of Response: DHS appreciates receiving indirect costs and other economic industries would experience a reduction comments regarding administrative effects described in the economic in immigrant labor force or face changes that will be needed in response analysis of this rule, it is unclear the challenges meeting their labor demand to the rule regarding, for example, effect that this rule will have on the as a result of the rule. reprogramming computer software and entities mentioned by the commenters. Response: DHS disagrees with these redesigning application forms and commenters concerning the impact on processing. DHS agrees that some j. Costs Related to States and Local the supply of labor to employers. This entities may incur costs related to the Governments, and Public Benefit- rule is not intended to change the changes commenters identified and Granting Agencies composition of the labor market. describes these costs in the economic Comment: A commenter stated that Employers will still be permitted to seek analysis based on the data provided by most states have already established extensions of stay and change of status commenters. However, DHS is unable to their budgets based on expected for eligible nonimmigrants. determine the entities that will choose enrollment in programs such as SNAP Additionally, this rule is not intended to to make administrative changes to their and Medicaid. Another commenter discourage nonimmigrants from seeking business processes. wrote that resources for programs such to extend their nonimmigrant stays or Comment: Many organizations said as the USDA Community Eligibility changing to another nonimmigrant that states, localities, and healthcare Provision program are allocated based status. Employers will still be permitted providers will incur increased costs in on direct certification data, which is to file immigrant visa petitions for many unprecedented ways, including based on SNAP enrollment, and that potential alien employees, who would handling general inquiries related to the non-citizens in the program who still be able to file for adjustment of rule, creating public awareness disenroll based on public charge status. Instead, this rule as it pertains to campaigns, providing notice to current provisions will cause additional extension of stay and change of status participants, retraining and educating administrative work for the localities to sets additional conditions, which are staff, hiring additional response staff, adjust and compensate. Another intended to better ensure that aliens and providing aid to partner programs. commenter stated that local present in the United States continue to Other commenters said that states, governments have already adjusted and remain self-sufficient for the duration of localities, healthcare providers, and planned services based on the location their nonimmigrant stay. DHS notes that housing providers will be bombarded and living situations of immigrant aliens seeking extension of stay and with requests from current and former communities that this rule could greatly change of status are not subject to the program participants for official affect. A commenter wrote that their public charge ground of inadmissibility. documentation verifying that they have state’s housing investments could be Instead they are subject only to the not received public benefits during a destabilized by the rule. condition that the applicant has not specific time frame, requiring significant Response: DHS appreciates the received public benefits since obtaining resources in gathering this historical comments regarding the effects of the the nonimmigrant status from which he data and responding to these requests rule on State and local budgets. As or she seeks to change, as described in while also obeying privacy restrictions discussed above, DHS agrees that some 8 CFR 212.21(b) for more than 12 and other technical constraints. entities, such as State and local months, in the aggregate, within a 36- According to a commenter, many governments or other businesses and month period. agencies will not have older organizations, would incur costs related documentation available in their to the changes commenters identified. i. Costs Related to Program Changes and records, or records will be incomplete or DHS considers these costs qualitatively Public Inquiries inaccessible. According to a commenter, in the final rule since it is unclear how Comment: Several commenters noted state and local officials will likely see a many entities will choose to make that states, localities, universities, and significant volume of communication administrative changes to their business healthcare providers will face the related to questions about eligibility for processes and what the cost of making enormous task of reprogramming certain programs and the impact on such changes will be. DHS notes that, in computer software, redesigning immigration status. the economic analysis accompanying application forms and processes, and Response: DHS acknowledges that the this rule, which can be found in the rule other aspects pertaining to benefit final rule will add new direct and docket at www.regulations.gov, we programs processes. As an example, a indirect impacts on various entities and estimate the reduction in transfer commenter stated that online individuals associated with the payments from federal and state application portals for public benefits provisions of the rule. However, in governments to certain individuals who often highlight disclaimers that response to the commenters’ concerns receive public benefits and discusses applying for assistance will not affect about the availability of older certain indirect impacts that are likely immigration status. One commenter documentation related to receipt of to occur because of the final regulatory stated that in some states like public benefits, DHS does not agree that changes. These indirect impacts are Pennsylvania, individuals can submit the new requirements associated with borne by entities that are not an application for healthcare coverage public charge inadmissibility specifically regulated by this final rule, and simultaneously be eligible for determinations would pose an but may incur costs due to changes in Medicaid, CHIP, or SNAP; however the unnecessary administrative burden, as behavior caused by this final rule. The rule will require local authorities to DHS has determined that it is necessary primary sources of the reduction in provide new systems to shield to establish a public charge transfer payments from the federal applicants from public charge risk. In inadmissibility rule. While age and government are the disenrollment or addition, multiple commenters stated availability of record of public benefits foregone enrollment of individuals in that ‘‘churn’’ is associated with higher receipts may vary among Federal and public benefits programs. The primary administrative costs, increased clinic State agencies, it is the responsibility of sources of the consequences and time spent on paperwork and the individual seeking immigration indirect impacts of the final rule are

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costs to various entities that the final specifically mentioned were issues l. Costs to the Federal Government rule does not directly regulate, such as related to education and employment. A Comment: Several commenters hospital systems, state agencies, and commenter stated that state and local discussed the costs of the rule to the other organizations that provide public officials will incur costs related to not Federal Government. Many commenters assistance to aliens and their just familiarizing officials with the rule, said the rule will add new adjudication households. Indirect costs associated but also in understanding costs to the Government while with this rule include familiarization recommendations, policies, and increasing the already overstretched and with the rule for those entities that are procedures with the general public. delayed processing and regulatory not directly regulated but still want to Some commenters said the rule would burden. Many commenters stated that understand the final rule. discourage workforce professionals, the rule would impose an immense The commenter’s statement that the such as healthcare professionals and administrative burden on USCIS and rule could destabilize the state’s social workers, from providing advice to require USCIS to conduct housing investments is unclear. This clients because of the risk of increased individualized public charge rule does not directly regulate the liability caused by providing advice determinations and adjudications of availability of Federal housing benefits beyond these workforce professionals’ Form I–944 for hundreds of thousands and how states choose to allocate those expertise. Some commenters wrote that of applicants with increased evidentiary funds. Rather, the rule directly regulates USCIS would incur familiarization costs requirements, heightened scrutiny, and only aliens who, at the time of associated with the rule as well as application for admission or adjustment uncertainty as to what standards will understanding State laws and apply. Multiple commenters highlighted of status, are subject to the public charge procedures associated with programs inadmissibility ground, as well as aliens the increased administrative burdens to such as Medicaid eligibility. Research seeking extension of stay or change of USCIS and other organizations such as organizations suggested that the status who are subject to the public DOS, as the rule will require every familiarization costs of eight to 10 hours benefits condition on eligibility. DHS is adjudicator to be trained to apply rules is an underestimate and should be prescribing how it will determine which are already subjective and whether an alien is inadmissible increased because of time spent on unclear. because he or she is likely at any time translation, public outreach, training, According to a commenter, the in the future to become a public charge research, legal consultation, fielding increased complexity of applying the and identifying the types of public questions, and dealing with the public charge definition would lead to benefits that will be considered in the ‘‘chilling effect.’’ increased work for USCIS related to public charge determinations. An alien Response: DHS increased the adjudicating appeals. An individual applying for admission or adjustment of expected familiarization burden to range commenter suggested USCIS would face status generally must establish that he between 16 to 20 hours after reviewing additional costs related to removal or she is not likely at any time in the the time estimates in response to proceedings as a result of the rule by future to become a public charge. comments we received. DHS does not requiring it to issue more NTAs. A couple of commenters said public k. Regulatory Familiarization Costs quantify the potential population that may incur familiarization costs charge assessments of individuals Comment: Many commenters associated with the rule due to the making requests to extend or change expressed concerns that NPRM was very uncertainty surrounding the estimated nonimmigrant status creates additional complex and therefore would cause number of people that will familiarize and unnecessary administrative burden confusion, stress, and fear among those themselves with this rule. The net effect on USCIS. Response: DHS believes that the directly and indirectly affected by it, this rule will have on the population burdens associated with improved including the immigrant community, seeking an adjustment of status in terms administration of the public charge lawyers, government agencies, of additional assistance sought is not ground of inadmissibility, including the educational and social service known. However, to the extent possible providers, and community and expanded information collection, are DHS has incorporated the costs justified. Adjudicators will be charitable organizations. Other provided by commenters into the commenters noted that familiarization appropriately trained on Form I–944 economic analysis. costs would be particularly burdensome and will make their determinations in as for applicants with multiple jobs or As discussed above, USCIS has a timely a manner as possible. In limited English proficiency, small and robust stakeholder communication and addition, DHS does not agree that the medium sized businesses, as well as engagement program that covers all new requirements associated with large complex healthcare providers, aspects of the agency’s operations. This public charge inadmissibility groups assisting applicants including program will engage stakeholders when determinations would waste resources advocacy groups and state and local this rule becomes final to help ensure and be an unnecessary administrative agencies. Some commenters argue that that applicants for immigration benefits burden, as DHS has determined that it the complexity of the rule would result and their representatives fully is necessary to establish a public charge in almost all applicants needing legal understand the new rule. With respect inadmissibility rule. Should DHS assistance. Other commenters noted that to comments about healthcare determine that the fees set for the the complexity of the rule, and the professionals and social workers being relevant forms related to the public resulting confusion, could lead concerned about liability and not charge review process are not sufficient immigrants to face discrimination, providing advice, DHS notes that these to cover the full cost of the associated receive incorrect legal advice, or forego professionals can provide information services adjudicating immigration public benefits even if they are not and disseminate that guidance that benefit requests, the agency will affected by this rule. Many commenters USCIS will issue to assist individuals propose to adjust these form fees in a believe substantial training and understand and comply with this rule, subsequent fee rule. DHS sets the fees administrative work would be needed in but should not be providing legal advice associated with requesting immigration order to provide accurate guidance to without being licensed to practice law benefits as necessary to recover the full immigrant applicants and their families, in the state. operating costs associated with

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administering the nation’s lawful potential ‘‘chilling effect,’’ as well as the housing to those with serious mental immigration system, safeguarding its eligibility of affected aliens for the illness would reduce healthcare costs by integrity, and efficiently and fairly designated benefits, elsewhere in the 24 percent, arguing that housing is adjudicating immigration benefit preamble. pivotal to healthcare. Low-income requests. DHS does not believe the costs DHS appreciates concerns expressed households with children that pay more of additional NTAs will be significant. about increasing healthcare costs, worse than half of their monthly income on As discussed above, while the rule may health outcomes, increased use of rent spend considerably less on other increase USCIS processing times, such emergency rooms, and the economic basic necessities—they spend $200 less is the burden of robust enforcement of health of hospitals. As explained in per month on food, nearly $100 less on the law. greater detail elsewhere in this rule, transportation, and about $80 less on DHS has made a number of changes in healthcare. An individual commenter m. Costs to Non-Citizens and Their the final rule itself. DHS has excluded stated that a homeless person on the Communities the Medicare Part D LIS, receipt of street may cost more to public service Comment: A number of commenters public benefits by children eligible for providers and healthcare facilities, such highlighted the impact the proposed acquisition of citizenship, and Medicaid as ambulances, city street clean-up, law rule would have on non-citizens and receipt by aliens under the age of 18 enforcement, etc., than the annual cost their communities. Commenters stated from the definition of public benefit in of providing them housing. The that the rule holds non-citizen workers the public charge determination. In commenter stated that housing is a basic responsible for the low wages offered by addition, DHS is not including CHIP in need that provides stability for all things employers utilizing visa programs, the public benefit definition. DHS also needed to be contributing members of when instead the costs of the public adopted a simplified, uniform duration society and that without quality charge determination should be placed standard for public charge affordable housing, families are forced on employers. determinations for assessing the use of to pay for unsafe and unsanitary living Response: DHS appreciates the public benefits. conditions, which results in negative comments concerning the impact on Finally, DHS does not agree that consequences for society. noncitizens and their communities. USCIS will ‘‘seize’’ health records of A commenter cited studies where DHS does not agree that this rule holds patients. Most adjustment of status more students may experience noncitizen workers responsible for low applicants are already required to homelessness under this rule. wages offered by employers using visa undergo an immigration medical Commenters stated there is an programs. DHS also does not agree that examination and submit Form I–693 affordable housing and homelessness employers should incur the costs of the with their adjustment application. As crisis across the country that would be public charge determination. As the noted previously, DHS will rely on the exacerbated by this rule, including alien has the burden of proof of medical information provided by civil overcrowding, long wait lists and establishing admissibility into the surgeons on the Form I–693, or report of inundated housing authorities, and United States, the cost burden is a panel physician, to assess whether the make public housing more necessary for appropriately on the individual seeking alien has been diagnosed with a medical immigrants and citizens. A commenter the immigration benefit in the United condition that is likely to require stated that the Government failed to States. extensive medical treatment or consider a potential increased cost of institutionalization, or that will interfere homelessness to local governments and n. Healthcare-Related Costs with the alien’s ability to provide and cited a cost benefit analysis. Comment: A commenter wrote that care for himself or herself, to attend Commenters stated that they use HCV as the rule would increase costs related to school, or to work upon admission or additional funding to cover costs and general administrative burdens having adjustment of status. The data collected support permanent public housing, to manage disenrollment, reenrollment, on Form I–693 is collected and kept in arguing that this rule would add to their and inquiries related to the rule. A an alien’s administrative record overall costs. Another commenter stated commenter stated that Medicaid consistent with the Privacy Act and that even with access to food assistance, coverage is heavily linked to the SORN. DHS must comply with the 57 percent of households that face food- economic health of hospitals and, as a Privacy Act in safeguarding information insecurity are forced to choose between result, hospitals could realize significant in the applicable systems of records. As buying enough food and paying for costs due to the rule. Similarly, a noted on the instructions to Form I–693, housing. The commenter further stated commenter wrote that the rule could see consistent with the Privacy Act, DHS that due in large part to California’s administrative costs and may share the information an alien and booming economy, there is a significant uncompensated care significantly the civil surgeon provide on Form I–693 need for affordable housing in the state. increase. Finally, another commenter with Federal, State, local, and foreign Renters struggle to find affordable wrote about concerns regarding costs government agencies, and authorized housing, particularly in California cities, related to the privacy of patient data and organizations for law enforcement where the cost of living is higher than security as the rule may require USCIS purposes, or in the interest of national the national average (nearly one-third of to seize health records. security. The civil surgeon may share renter households in California spend at Response: As discussed elsewhere, the results of the immigration medical least half of their income on rent). The this rule furthers the Government’s examination with public health commenter stated that of the interest, as set forth in PRWORA, to authorities. approximately 491,000 low-income minimize the incentive of aliens to households in California that use attempt to immigrate to the United o. Housing and Homelessness-Related Federal housing rental assistance, 90 States due to the availability of public Costs percent include children, the elderly, or benefits, as well as promote the self- Comment: Some commenters cited the disabled who would be sufficiency of aliens within the United various studies regarding the costs of disproportionately impacted by the rule. States.818 DHS addresses the rule’s housing, homelessness, and healthcare. Response: DHS appreciates the Another commenter referenced research comments regarding the potential effects 818 See 8 U.S.C. 1601. showing that providing access to public and costs the rule may have regarding

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housing, homelessness, and healthcare assertion of federal savings in housing commenter stated that the rule would and the citation to various studies that programs, because HUD rental reduce immigration and hurt the address and estimate these issues. assistance programs are discretionary country’s economic future given the However, in most cases, the studies that programs, not entitlements, and are need for immigrant workers to replenish commenters reference are not the focus provided with a fixed amount of an increasingly aging population. of the NPRM and its economic analysis, funding that falls very far below what is Similarly, a commenter stated that but instead look at different populations needed to serve all eligible households. demographic shifts mean that immigrant of interest (e.g., specific metropolitan The commenter stated that therefore, net communities represented the future of areas or very low-income individuals/ transfer payments for housing assistance their state, and the rule would households), and/or are not would remain roughly the same as a significantly harm those communities. generalizable. For example, the result of the proposed rule and would A commenter wrote that approximately commenter who referenced research yield no net savings for the Federal 20 percent of their local businesses are showing that providing access to public Government. run by foreign-born individuals and, housing to those with serious mental Response: DHS appreciates the therefore, the rule would hurt not just illness would reduce healthcare costs by comment regarding the effect the rule non-citizen families, but also local 24 percent cited a case study that may have on PHAs. The commenter communities. examines the Mercy Maricopa mischaracterizes ‘‘cost savings’’ in their Response: DHS appreciates the Integrated Care contract for the Phoenix, comment to DHS. As DHS shows in the comments regarding the potential effect Arizona area, which is highly localized economic analysis of the rule, the effect of the rule on the economy, innovation, and not generalizable to the wider U.S. of disenrollment or foregone enrollment and growth. Beyond the indirect costs population. by individuals in public benefits and other economic effects described in Regarding the effect of this rule on programs are likely to result in a the economic analysis of this rule, DHS homelessness, this rule does not directly reduction in transfer payments from is unable to determine the effect this regulate eligibility for Federal housing Federal and State governments to rule will have on every economic entity benefits or other public benefits that certain individuals who receive public mentioned or all aspects of future individuals who are homeless, or at risk benefits, not a cost savings. Transfer economic growth. DHS agrees that there of being homeless, may rely upon. payments are monetary payments from may be effects on the U.S. economy and Rather, the rule directly regulates only one group to another that do not affect on individuals seeking immigration aliens who, at the time of application for total resources available to society. The benefits. DHS describes the potential admission or adjustment of status, are reduction in transfer payments are economic effects in the economic subject to the public charge quantified in the transfer payments analysis of this rule, which can be found inadmissibility ground, as well as aliens section of the economic analysis of this in the rule docket at seeking extension of stay or change of rule in accordance with OMB’s Circular www.regulations.gov. status who are subject to the public A–4. However, DHS notes that there is However, this rule does not directly benefits condition on eligibility.819 great uncertainty regarding the effects regulate businesses, nonprofits, or Moreover, this rule does not eliminate that changes in transfer payments will educational organizations. DHS notes funding for public benefits programs. As have on the broader economy and that this rule directly regulates only a result, DHS only estimated the estimating those effects are beyond the aliens who, at the time of application for potential effect on individuals who scope of this rule. admission, or adjustment of status, are choose to disenroll or forego enrollment Additionally, with regard to deemed likely at any time in the future in a public benefits program. DHS administrative costs that PHAs may to become a public charge or who are provides estimates of the amount of the incur due to the rule, DHS agrees that seeking extension of stay or change of reduction in transfer payments from the some entities may incur costs, but these status.820 DHS is prescribing how it will Federal and State governments to costs are considered to be indirect costs determine whether an alien is certain individuals who receive public of the rule since this rule does not inadmissible because he or she is likely benefits in the RIA, which can be found directly regulate these entities and does at any time to become a public charge in the public docket of this final rule. not require them to make changes to and identify the types of public benefits Comment: A commenter stated that their business processes. DHS considers that will be considered in the public any disenrollment or return of housing these indirect costs as qualitative, charge determination or the public assistance will not result in any cost unquantified effects of the final rule benefit condition. savings to public housing authorities since it is unclear how many entities Comment: Commenters stated that the (PHA) or federal programs because the will choose to make administrative number of noncitizens who will be demand for such assistance far outstrips changes to their business processes and forced to avoid benefits will have a the available assistance. The commenter the cost of making such changes. significant impact on the U.S. economy. stated that PHAs will be faced with Commenters quoted cost estimates p. Economic Costs increased administrative costs given the associated with the rule, including some anticipated disenrollment/new Comment: A number of commenters estimates as high as $164.4 billion. enrollment turnover. As a result, PHAs had broad concerns about costs the rule Several commenters quoted an will have to proceed with processing the would have on the economy as well as economic impact of $33.8 billion and a next individual on the waiting list, as innovation and growth. Commenters loss of 230,000 jobs. Similarly, one well as closing out the family that is wrote that the rule is essentially an commenter stated that the annual exiting the program. unfunded mandate to businesses, income of workers potentially impacted Another commenter stated that the nonprofits, and educational by the rule is $96 billion, and losing DHS estimates of reduce housing organizations with substantial these workers would have a $68 billion assistance payments by $71 million per compliance costs. A commenter wrote impact on the economy with $168 year is highly problematic. That that the rule would stifle economic risk billion in damages total. A commenter commenter takes issue with the taking and the entrepreneurial spirit in wrote that the rule would have national immigrants, thus costing the American 819 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). economy over the long term. One 820 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

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effects across a number of sectors and rule.822 In addition, the analysis and possibly provide materials on industries in the economy. A estimates that there would be about $68 request. commenter wrote that effects of the rule billion in indirect economic effects as Response: DHS does not intend the could total between $453 million and part of the estimated $164.4 billion total rule to disproportionately affect poor $1.3 billion due to various effects of cost. However, the validity and communities. As described elsewhere, increased poverty, reduced reliability of the analysis cited by the the purpose of the rule is to ensure the productivity, etc. Another commenter commenter is unclear as the self-sufficiency of aliens who are subject wrote that the rule would result in an calculations of the analysis are not to the public charge ground of increase in healthcare costs for their city presented, which makes it difficult to inadmissibility. As described in the of at least $45 million annually. assess comparability with DHS’s economic analysis accompanying this Response: DHS appreciates the economic analysis. rule, which can be found in the rule comments regarding the impact of the The final rule, under section 3(f)(1) of docket at www.regulations.gov, some rule on the U.S. economy. DHS does not E.O. 12866, is designated a ‘‘significant may incur indirect costs of the rule. agree that noncitizens will be forced to regulatory action’’ that is economically Additionally, the final rule does not avoid benefits. Although individuals significant since it is estimated that the force individuals who are eligible for may choose to disenroll from or forego final rule would have an annual effect public benefits to disenroll or forego enrollment in public benefits programs on the economy of $100 million or more enrolling in public benefits programs for which they are eligible, this rule (annualized costs are estimated to range and acknowledges that those who does not, and cannot, require from about $89.8 million to $144.4 choose to disenroll may need to rely on individuals to do so and does not million). In addition, DHS estimates other means of support within their change the eligibility requirements for approximately $2.47 billion for a family or community. Individuals may public benefits. Under the rule, DHS reduction in transfer payments from the choose to disenroll from or forego will conduct a public charge Federal Government and State enrollment in public benefits programs inadmissibility determination when an governments to public benefits for which they are eligible, but this rule alien seeks an adjustment of status, by recipients who are members of does not, and cannot, require evaluating an alien’s particular households that include foreign-born individuals to do so and does not circumstances, including an alien’s age; non-citizens, which includes the change the eligibility requirements for health; family status; assets, resources, estimated federal- and state-level shares public benefits. As such, the Federal and financial status; education and of transfer payments to foreign-born Government is not intentionally skills; required affidavit of support; and non-citizens. While the commenters reducing transfer payments for public any other factor or circumstance that mentioned above provided estimates of benefits programs through this rule, but may warrant consideration in the public the costs of the rule, DHS will maintain DHS estimates there is likely to be a charge inadmissibility determination.821 the cost and transfer payments estimates reduction in transfer payments from In addition, DHS will only consider the we presented in the economic analysis individuals to federal and state applicant’s own receipt of public of the rule, which can be found in the governments because a number of benefits. rule docket at www.regulations.gov. DHS also appreciates the comments individuals may choose to disenroll Where possible, DHS discusses the costs from or forego enrollment in public that included cost estimates and the presented by commenters and provides potential effects of the rule on the U.S. benefits program for which they are a range of additional costs that states, eligible. economy. DHS agrees that there may be cities, businesses and people could Comment: A number of commenters some effects on the U.S. economy and incur because of this rule. However, provided input on the cost analysis of on individuals seeking immigration DHS was unable to determine the the rule provided by USCIS. A benefits from the United States. In the number of entities and people that commenter wrote that the rule does not economic analysis of this rule, which would be affected. attempt to engage with strategies for can be found in the rule docket at Comment: Some commenters noted avoiding the costs imposed by the rule’s www.regulations.gov, DHS estimates the the economic costs the rule would changes to the public charge direct and indirect costs according to impose on aliens who have low income. inadmissibility determination. A the methodology presented using the One commenter stated that the most commenter wrote that USCIS did not best available data; DHS also estimates significant costs of the rule will be accurately estimate of the number of the amount of the reduction in transfer concentrated on the poorest people who will disenroll from or forego payments from the Federal Government communities in cities with large enrollment in public benefits programs to individuals who may choose to numbers of immigrants. A commenter as a result of the rule. The commenter disenroll from or forego enrollment in a wrote that if the Federal Government also noted that DHS did not did not public benefits program. reduces transfer payments, the costs monetize the costs of this disenrollment In response to the commenter stating will be passed onto other entities such and foregone enrollment; did not that the rule will cost as much as $164.4 as food banks, pantries, religious account for the costs to the U.S. billion dollars, DHS notes that this organizations, etc. According to another economy of deeming a greater number estimate is not comparable to the commenter, the rule will incur costs to of foreign-born noncitizens inadmissible estimates DHS presents in the economic housing providers who will need to be to the country; did not account for the analysis that accompanies this rule, prepared to answer inquiries from non-financial costs of adverse public which can be found in the rule docket tenants and others related to the rule, at www.regulations.gov. The $164.4 charge determinations for affected foreign-born noncitizens; and did not billion estimated cost of the rule the 822 See New American Economy Research Fund, commenter cites comes from an analysis ‘‘How Proposed Rule Change Could Impact provide any evidence for its low from New American Economy and is Immigrants and U.S. Economy.’’ Oct. 31, 2018. estimate of the rule’s familiarization comprised of the total annual income of Available at: https:// costs. One commenter wrote that the research.newamericaneconomy.org/report/ rule acknowledges effects of changes on workers who could be affected by this economic-impact-of-proposed-rule-change- inadmissibility-on-public-charge-grounds/ (last communities that could be harmful, but 821 See 8 CFR 212.22. visited July 26, 2019). it fails to quantify this effect.

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Response: DHS appreciates receiving from public benefit programs, such as a negative effect on U.S. comments regarding aspects of the cost- Medicaid and SNAP. Several competitiveness or economic growth. benefit analysis of this rule. The commenters stated that this rule would Rather, through this final rule DHS purpose of the economic analysis is not pose substantial costs to New York City, seeks to better ensure that applicants for to provide suggestions for avoiding costs which is home to a large number of admission to the United States and that regulated entities may impose. immigrants and children with foreign- applicants for adjustment of status who Instead, the purpose of the economic born parents. Other commenters are subject to the public charge ground analysis is to estimate the costs and provided data detailing the rule’s of inadmissibility, as well as applicants benefits of policy changes the agency is economic impact to Los Angeles for extension of stay and change of implementing through a regulation County, CA; Austin, TX; Minneapolis, status, are self-sufficient, i.e., do not compared to current practices. MN; San Jose, CA; Philadelphia, PA; St. depend on public resources to meet Elsewhere in this preamble, DHS Paul, MN; Boston, MA; and Dallas, TX. their needs, but rely on their own addresses specific alternatives and cost- One commenter stated that the rule capabilities and the resources of their saving recommendations submitted by will undermine our nation’s global family, sponsor, and private commenters. competitiveness because a highly- organizations.823 The final rule will affect individuals educated workforce spurs economic Comment: Several commenters stated who are present in the United States growth and strengthens state and local that DHS’s assessment of the and are seeking an adjustment of status economies. Similarly, a commenter downstream economic impacts of the to that of a lawful permanent resident noted that the rule will undermine our rule is insufficient. A commenter said and who are not expressly exempted, competitive advantage and allow other DHS provides no basis for its assertion and individuals seeking extension of countries permitting natural that the state share of the total transfer stay or change of status. DHS estimated immigration flows to take the United impact of the rule would be 50 percent the effect of the rule on foreign-born States’ place on the global economic of the federal share, concluding that non-citizens as accurately as possible stage. The same commenter continued evaluation of the rule’s impact on states given the requirements that are being by writing that innovation carried out should be part of any sound justification implemented for aliens to submit to a by immigrants has the potential to for the rule. A commenter similarly review for a public charge increase the productivity of native-born referenced DHS’s statement that half of determination. However, due to serious Americans, likely raising economic the savings will be from lower transfers data limitations, DHS is not able to growth per capita. This commenter also from State and local governments and estimate the effect of being deemed cited a report finding that immigration stated that, should DHS accept the inadmissible as a public charge. has positive effects, with little to no commenter’s recommendations to end Comment: Commenters wrote that the negative effects, on wages and various additional exemptions from the inability to submit forms related to the employment for native-born Americans. list of public charge-related benefits, Additionally, at the state level, several rule electronically increases costs. these transfer payment savings would Response: DHS does not agree that not commenters noted that in California (the increase significantly. This commenter having the option to submit forms 5th largest economy in the world if it also stated that the cost-benefit ratio as related to the rule electronically were a country), studies project a $718 proposed would thus be very favorable, increases costs. Submitting forms via million to $1.67 billion reduction in between $14 to $37 in taxpayer saving mail to USCIS is current practice, which public benefits would lead to 7,600 to for every dollar expended by the agency is not changing with this final rule, and 17,700 lost jobs, $1.2 to 2.8 billion in and the applicant to prepare and review therefore estimated costs are expected to lost economic output, and $65 to $151 documentation for a public charge remain the same. However, USCIS is million in lost State and local tax determination. taking steps towards implementing a revenue. Several commenters cited a Response: DHS appreciates the system for electronic filing of all study concluding that reduced comments regarding downstream immigration forms in the future, participation in California’s Medicaid economic effects of the rule as well as including the forms affected by this program, Medi-Cal, and California’s DHS’s estimate for the amount of rule, which is expected to reduce costs SNAP program, CalFresh, could result transfer payments at the state-level. DHS to the agency and ultimately those who in tens of thousands of jobs lost in notes there is not a legal requirement to file forms with USCIS to request California, as well as billions of dollars provide a monetized total cost estimate immigration benefits. in lost federal funding and more than Comment: One commenter stated that $150 million in lost tax revenue in for this rule. DHS explained in the DHS has disregarded the costs California. Some commenters provided proposed rule the many factors that associated with the proposed age data relating to the rule’s economic were not within the control of DHS that standard. impact on specific states, such as would influence total costs. As Response: DHS is unable to estimate Michigan, Oregon, New York, previously explained, DHS described the specific cost to individuals, society, Washington, Pennsylvania, Rhode and monetized, where possible, the or the Government, that a single factor Island, Colorado, Florida, Ohio, types of costs that would result from considered as part of public charge Kentucky, Massachusetts, Illinois, this rule and has added many additional reviews for inadmissibility may have Pennsylvania, Wisconsin, Maine, costs that were provided by the because the public charge Georgia, Maryland, and North Carolina. commenters. For those costs and inadmissibility determination will be Response: DHS appreciates the benefits that DHS was not able to conducted based on an individual’s comments concerning immigration and quantify and monetize to calculate a ‘‘totality of the circumstances.’’ U.S. economic competitiveness. The total cost, the economic analysis final rule does not limit the number of includes a description of those costs and r. Economic Impact and Job Loss individuals who may seek immigration benefits and a reasoned discussion Comment: Commenters cited studies benefits or restrict the existing about why they could not be quantified pointing to the substantial impact on categories of immigrants and or monetized. local economies and healthcare systems nonimmigrants. Additionally, DHS does due to a significant drop in enrollment not agree that this final rule will have 823 See 8 U.S.C. 1601(2).

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DHS addressed its assumption that lawful permanent resident status who are immigrants, many of whom are paid the state-level share of transfer are subject to the public charge ground low wages and rely on public assistance payments is 59 percent of the estimated of inadmissibility, as well as aliens who would either leave the profession amount of Federal transfer payments. seeking extension of stay or change of or forego health coverage and put their Because state participation in these status, are self-sufficient, i.e., do not health at risk. Some commenters programs may vary depending on the depend on public resources to meet emphasized that this obstacle to type of benefit provided, DHS is only their needs, but rely on their own expanding the workforce would be able to estimate the impact of state capabilities and the resources of their particularly impactful at a time when transfers. For example, the Federal family, sponsor, and private the need for home care workers is Government funds all SNAP food organizations.826 growing rapidly due to an aging U.S. population. Commenters state that an expenses, but only 59 percent of s. Economic Impact on Healthcare exacerbated direct care workforce allowable administrative costs for System regular operating expenses.824 Similarly, shortage would particularly impact Federal Medical Assistance Percentages Comment: Some commenters stated people with disabilities since many (FMAP) in some HHS programs, like that the rule will result in decreased tax direct care workers are immigrants who Medicaid, can vary from between 50 revenue and lower productivity for often rely on publicly-funded programs percent to an enhanced rate of 100 individuals who delay primary care. due to low wages. Some commenters percent in some cases.825 However, Response: DHS appreciates the stated that if home health care workers upon consideration of the commenter’s comment regarding decreased tax are unable to continue working, point and further review of the revenue and lower productivity for vulnerable populations may be forced to published FMAPs for each state and individuals who delay primary care. leave their homes and receive more territory of the United States, DHS has DHS agrees that working age individuals expensive care in nursing homes. who fall ill would have lower revised its estimates of the state share of Commenters stated that this would not productivity at their jobs and possibly transfer payments from 50 percent to 59 only put these vulnerable populations at cause decreased tax revenue if such percent, which is the national average risk, but also would destroy decades of individuals are forced to take unpaid FMAP. federal and state efforts, including sick leave or must quit working Comment: Commenters said the millions of federal dollars spent, to altogether. However, DHS does not strength of America’s economic future is reduce the number of individuals agree that this rule would be the cause dependent on the well-being and residing in nursing homes. Some of such unfortunate events. DHS success of children, who are our future commenters said the costs to hospitals reiterates that the main purpose of the workforce and tax base, and the rule and the public health system would rule is to provide guidance on the could jeopardize our country’s amount to more than any cost-savings public charge inadmissibility ground from lower enrollment in public economic future by causing tax-paying statutory provision for those seeking individuals who are legally eligible for programs. admission or adjusting status in Response: DHS agrees that some support to forego it. establishing that the person is not likely Response: DHS appreciates the entities such as hospitals would incur at any time in the future to become a costs related to the rule such as rule comments regarding children and the public charge. economic future of the United States. familiarization costs and various Comment: Multiple commenters administrative costs. DHS considers DHS agrees that children are part of stated that the rule would cause these costs as qualitative, unquantified what will continue to make the U.S. reductions in reimbursement, patient effects of the final rule since it is economy strong into the future. use, and collectability, which would unclear how many entities will choose However, DHS does not agree that this have substantial negative financial to make administrative changes to their rule will jeopardize the economic future impacts on hospitals and health centers, business processes and the cost of of the United States. While DHS with many citing supporting data on making such changes. acknowledges the potential potentially lost revenue. Some Additionally, in response to disenrollment (or foregone enrollment) commenters pointed to a study showing commenters’ concern that this rule will from public benefits by aliens based on that enrollees affected by the rule cause a direct care worker shortage, the final rule, the final rule does not account for $68 billion in Medicaid and DHS is unable to quantify or confirm force individuals who are legally CHIP healthcare services. One these effects because DHS does not eligible for public benefits to disenroll commenter calculated the amount of know how aliens will change their or forego enrolling in such benefits hospital Medicaid payments at risk for behavior in response to this rule. DHS programs. Instead, through this final 13 million beneficiaries who are likely reiterates that the intent of this rule is rule DHS seeks to better ensure that to experience a chilling effect from this not to prevent individuals such as these applicants for admission to the United rule, finding that hospitals could lose from working, but to provide guidance States and applicants for adjustment to up to $17 billion annually in payments on determining whether an alien from these programs. seeking admission or adjustment of 824 Per section 16(a) of the Food and Nutrition Act Many commenters stated that the rule status is likely at any time in the future of 2008. See also USDA, FNS Handbook 901, p. 41 available at: https://fns-prod.azureedge.net/sites/ would negatively impact the healthcare to become a public charge. default/files/apd/FNS_HB901_v2.2_internet_ workforce, particularly direct care Comment: One commenter stated that, Ready_Format.pdf (last visited July 26, 2019). workers. Commenters cited data without the contributions made by 825 See Dept. of Health and Human Services, indicating that the rule will impact immigrants to the healthcare system, ‘‘Federal Financial Participation in State Assistance Expenditures; Federal Matching Shares for health and long-term care agencies’ health insurance premiums could be Medicaid, the Children’s Health Insurance Program, ability to hire and retain their health expected to rise for Americans who rely and Aid to Needy Aged, Blind, or Disabled Persons care workers, as approximately 25 on that coverage, concluding that the for October 1, 2016 through September 30, 2017.’’ percent of healthcare support workers, rule neither mentions nor considers ASPE FMAP 2017 Report. Dec. 29, 2015. Available at https://aspe.hhs.gov/basic-report/fy2017-federal- such as nursing and home health aides, these costs to U.S. citizens in its medical-assistance-percentages (last visited July 26, economic analysis. This commenter also 2019). 826 See 8 U.S.C. 1601(2). said DHS should take into account that

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the rule would actually increase Federal could occur because of follow-on effects After asserting that the rule will cause Medicaid expenditures for HHS. The of the reduction in transfer payments job losses and economic decline, a commenters points to three factors that identified in the final rule. DHS is commenter said restricting the number were included in the proposed rule, or provides a list of the primary non- of immigrants to the United States could could be included in the final rule, that monetized potential consequences of leave the nation at a vulnerable position would exacerbate their concern. The the final rule where disenrollment or given the current national employment commenters recommended not foregoing enrollment in public benefits boom. including them as part of the final rule. programs by aliens who are otherwise Response: DHS appreciates the The concerns were: (1) Including eligible could lead to issues such as comments regarding the impact on the Medicaid or Medicare Part D LIS as increases in uncompensated care in U.S. workforce, particularly the effect negative factors in public charge which a treatment or service is not paid that the rule will have on specific determinations; (2) including the for by an insurer or patient. However, industries. DHS does not anticipate that Children’s Health Insurance Program DHS notes that it is not able to estimate this rule will have a strong or extensive (CHIP) in public charge determinations; such costs at this time. effect on the U.S. workforce overall or and (3) considering premium tax credits across specific industries as discussed t. Impact on U.S. Workforce for purchasing individual market in the economic analysis that coverage in a public charge Comment: Some commenters pointed accompanies this rule, which can be determination. to a study indicating that over 91 found in the rule docket at Response: The commenter states that percent of all adults active in the labor www.regulations.gov, and the Final health insurance premiums could rise force who would be affected by the Regulatory Flexibility Analysis. DHS and Federal Medicaid expenditures will public charge rule are employed in estimates the potential impacts to increase as an effect of the rule. DHS critical industries, such as farming, businesses, states and small entities notes that the Public Charge final rule construction, mining, hospitality, using the data provided by commenters. no longer includes Medicare Part D LIS manufacturing, and professional and Small entities that could be impacted by as a public benefits program considered business services. A commenter this final rule are those who file Form in public charge determinations, nor provided data indicating the rule’s I–129 or Form I–129CW as petitioners does it include CHIP or Medicaid for destabilizing impact on multiple sectors on behalf of beneficiaries requesting an aliens under the age of 21 or pregnant of the California workforce that are extension of stay or change of status as women. In addition, the final rule does comprised of a large number of low- well as obligors that would request a not consider premium tax credits in wage immigrants, including agriculture, cancellation of a public charge bond. public charge determinations. construction, child care and early u. Economic Impacts Related to Therefore, these changes to the final education, and students. Some Nutrition Programs rule is responsive to a number of the commenters provided data regarding the commenters’ concerns. rule’s impact on the workforce in Comment: Some commenters said a Comment: Several commenters stated Massachusetts, particularly in the significant drop in use of food stamps that, in the long-run, some of the construction field. A commenter wrote and other food programs will negatively uncompensated care incurred by about the rule’s potential impact on the affect farmers, local growers, and hospitals will be reimbursed by the immigrants in the construction industry grocery sales at retailers and farmers Federal Government in the form of who have been helping to rebuild markets. A commenter said reduced Medicare and Medicaid Houston after Hurricane Harvey and enrollment in SNAP will shift the disproportionate share hospital who contribute billions each year in burden to local communities and food payments, which is another instance of state and local taxes. The commenter banks that are already stretched to meet unaccounted for cost shifting that the notes that this rule would prevent demand. A commenter stated that in rule will cause. One commenter immigrants from partaking in benefits 2017 more than $22.4 million in SNAP requested that USCIS systematically that their tax dollars help support and benefits were spent at farmers markets. research the increased costs that this will cause confusion in the immigrant The commenter also asserted that many rule will cost our healthcare system. An community for using benefits that lead small farmers, farm workers, and their individual commenter cited DHS’s to a better life. Another commenter families are beneficiaries of SNAP, reference to the decrease in particular stated that Maine faces extraordinary which the commenter concluded meant healthcare providers’ revenues, but demands to replace an aging and that they would be hit doubly hard by asserted that there is no reference to retiring workforce. the proposed rule. Similarly, an findings showing either an increased or Two commenters described the rule’s academic commenter stated that a decreased percentage of impact on the workforce in areas such limiting the ability of immigrants to use uncompensated care. To determine if as agriculture, ranching, hotels, and SNAP would hurt the American farming including both non-monetary and restaurants. Two other individual community and destabilize the monetary public benefits is a positive, commenters provided input on the American food system, reasoning that the commenter said there must be some rule’s impact on the horse industry, the revenues of farmers would be information on the amount of stating that putting immigrants in reduced and some farmworkers would uncompensated care that healthcare situations where they are working in lose access to SNAP benefits. providers provide to non-citizen aliens. physically demanding jobs with no A commenter said the rule would Response: DHS acknowledges in the access to healthcare could be withdraw nearly $200 million in economic analysis accompanying this ‘‘disastrous’’ for all involved. Another Federal SNAP funding, amounting to rule that various entities may incur individual commenter stated that, approximately $358 million in lost indirect costs associated with the rule. because the disenrollment and foregone economic activity when taking the Additionally, in the economic analysis enrollment figures are unclear or economic multiplier into account. A that accompanies this rule, which can uncalculated, it is impossible to know couple of commenters stated that SNAP be found in the rule docket at what the immediate economic impact is an economic driver in local www.regulations.gov, DHS notes there will be in agriculture, healthcare, retail, economies, especially rural are a number of consequences that and rental markets. communities. Commenters stated that

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lower participation in SNAP means less federal nutrition funding to support is not likely at any time in the future to federal funding to support local healthy meals for children, the local become a public charge. economies and lower worker retail and agriculture food economy, As explained in the preamble of the productivity. Other commenters and revenue for child care businesses. rule,830 DHS believes that the provided estimates for the amount of Response: DHS appreciates the government interest in ensuring the self- economic activity that would be lost in comment regarding the effect of the final sufficiency and non-reliance on public certain states as a result of immigrants rule on enrollment in reduced and free benefits of aliens, including foregoing critical nutritional benefits. school lunches. DHS does not believe nonimmigrants, as articulated by Response: DHS appreciates the the rule will reduce school Congress in PRWORA,831 applies to all comments regarding the economic reimbursement for reduced and free aliens within the United States, effects of disenrollment or foregone school lunches beyond the effect of including to those whose stays are enrollment in the SNAP benefits individuals who may choose to temporary. Moreover, although the program. As noted in the NPRM, DHS disenroll from or forego enrollment in a extension of stay or change of status recognizes that reductions in federal public benefits program. Again, the final provisions in the INA and the and state transfers under Federal benefit rule only regulates applicants for regulations do not specifically reference programs may have downstream admission to the United States and an alien’s self-sufficiency, consideration impacts on state and local economies, applicants for adjustment of status to of an alien’s self-sufficiency in these large and small businesses, and lawful permanent resident who are applications is consistent with the individuals. However, DHS is generally subject to the public charge ground of principles of PRWORA and aligns not able to quantify these impacts due inadmissibility, as well as aliens seeking DHS’s administration of the INA to 832 to uncertainty and availability of data. change of status or extension of stay.828 those principles. DHS estimated these impacts or w. DHS Estimates of Discounted Direct discussed them qualitatively to the v. Other Economic Impacts Costs and Reduced Transfer Payments extent possible in the economic analysis Comment: A commenter stated the for this final rule. For example, the rule Comment: A commenter stated that rule will adversely impact colleges and USCIS characterization of reduced might result in reduced revenues for universities, as even a slight decrease in grocery retailers participating in SNAP, transfer payments as the primary benefit international student enrollment has of the rule ignores long-standing agricultural producers who grow foods drastic impacts on higher education that are eligible for purchase using principles of regulatory cost-benefit institutions because international SNAP benefits, or landlords analysis distinguishing between benefits students often receive little or no participating in federally funded and transfers. This commenter suggests financial aid and pay higher out-of-state housing programs. DHS notes that the that the cost-benefit analysis should tuition at public universities. Similarly, economic impact will result in a estimate the net effect that the reduced a school said colleges across the country reduction in transfer payments from the transfer payments would have on the could see significant decrease in Federal Government and State larger economy. A commenter stated the enrollment and increased burden on governments to individuals who may exactness of the values used in our student health centers. choose to disenroll from or forego range of estimates leave little room for enrollment in a public benefits program. Response: DHS appreciates the error as well as suggesting a more However, the same amount of funding comments regarding the effect of the enhanced analysis given the broadness for public benefits programs, such as rule on colleges and universities, of the estimated range. SNAP, will be available for qualified including student health centers, as it Another commenter questioned individuals. This final rule does not relates to international student USCIS’ approach in estimating costs and appropriate or disappropriate funding enrollment. However, this rule does not benefits of the rule stating that the for public benefits programs, but regulate international student reduction in transfer payments to non- ensures that applicants for admission to enrollment in colleges and universities citizens is itself a cost to those the United States and applicants for nor the amount of financial aid awards individuals per the guidelines of OMB adjustment of status to lawful or the rate of tuition that colleges and Circular A–4 and should be defined as permanent resident who are subject to universities charge. The final rule also such in the regulatory impact analysis the public charge ground of does not regulate student health centers (RIA). A commenter also stated that cost inadmissibility, as well as aliens seeking located at colleges and universities. savings of $2.27 billion will not be extension of stay or change of status, are Rather, the rule directly regulates aliens realized due to the effect on temporary self-sufficient, i.e., do not depend on who, at the time of application for visa applications and the potential that public resources to meet their needs, but admission or adjustment of status, are DOS starts applying public charge rely on their own capabilities and the deemed likely at any time in the future standards to applicants abroad. Another resources of their family, sponsor, and to become a public charge, as well as commenter said that the cost benefit private organizations.827 aliens seeking extension of stay or analysis did not have sufficient Comment: A commenter stated that a change of status.829 DHS is prescribing documentation, and the rule’s cost reduction in SNAP enrollment could how it will determine whether an alien savings of $2.2 billion was chosen for its also reduce school reimbursement for is inadmissible because he or she is ‘‘wow’’ factor. free and reduced lunches in states that likely at any time in the future to Finally, a commenter stated that have extended SNAP benefits above 130 become a public charge and identify the USCIS highlights $23 billion in savings percent of FPL. A commenter indicated types of public benefits that will be related to Medicaid, but fails to account an expectation to see a decline in considered in the public charge for the beneficial impacts of the program families willing to complete the forms determinations. An alien applying for in the Child and Adult Care Food admission or adjustment of status 830 See Inadmissibility on Public Charge Grounds, Program center-based child care generally must establish that he or she 83 FR 51114, 51135–36 (proposed Oct. 10, 2018). 831 See 8 U.S.C. 1601. programs, which would result in less 832 See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, 828 See id. 47 (1942) (requiring ‘‘careful accommodation of one 827 See id. 829 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). statutory scheme to another. . . .’’).

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and the effects of losing Medicaid regarding the effects that changes in that they are aware of the requirements coverage. transfer payments will have on the of this rule and to prevent any Response: DHS appreciates the broader economy and DHS is unable to administrative inconsistency. In comments regarding transfer payments. estimate those effects. addition, DHS did not include an DHS notes that the $2.27 billion in cost analysis of costs and benefits associated x. Benefits of Proposed Regulatory savings that a commenter refers to are with public charge inadmissibility Changes actually the estimated transfer payments determinations made by CBP in the of the rule as shown in the economic Comment: A few commenters admission context. This rule would analysis, which can be found in the rule provided input on the benefits of the potentially limit entries into the United docket at www.regulations.gov. The rule. A benefit noted by commenters is States in that CBP officers would deny method and calculation of the estimated that the rule enforces the requirement admission to aliens at the ports of entry transfer payments is shown as clearly as that immigrants should be self- on public charge grounds, but CBP is possible in the economic analysis of the sufficient. One commenter provided already responsible for administering rule. As previously discussed, DHS scenarios and personal experiences as the public charge ground of estimates the reduction in transfer examples of fraudulent claims and inadmissibility and we do not anticipate payments from the Federal and State behavior of immigrants. An educational a meaningful change in the amount of governments to certain individuals who institution said the rule ensures time the determination would take. receive public benefits and discusses participation of immigrant families in Comment: A commenter remarked on certain indirect impacts that are likely federal or state-funded public benefit USCIS’ approach to estimating costs and to occur because of the final regulatory programs are monitored and limited. benefits of the rule noting that USCIS changes. The primary sources of the Two individual commenters provided states the rule will have no effect on reduction in transfer payments from the comments, data, or studies relating to wages or growth, but this is unlikely Federal and State governments of this immigrants’ dependence on public given the rule will cause a fundamental final rule are the disenrollment or assistance programs causing continued change in future working populations. foregone enrollment of individuals in decay on American culture. One The commenter cited research with data public benefits programs. DHS notes commenter stated that the rule would and suggested using it as a model for there is not a legal requirement to save American taxpayers money. this rule’s economic analysis.834 provide a monetized total cost estimate Another commenter noted the rule is Response: DHS does not expect this for this rule. As previously explained, non-discriminatory by creating a rule to have a direct effect on wages or DHS described and monetized where uniform process, and that the additional economic growth as this rule does not possible the types of costs that would forms will allow better collection of regulate hiring practices of employers in result from this rule and has added information. the United States. This final rule many additional costs provided by the Response: DHS appreciates these requires an individual seeking commenters. For those costs and comments. DHS’s public charge admission or adjusting status to benefits that DHS was not able to inadmissibility rule is neither intended establish that he or she is not likely at quantify and monetize to calculate a to address public benefit fraud and any time in the future to become a total cost, the economic analysis abuse nor ensure that alien access to public charge, and that aliens seeking includes a description of those costs and public benefit programs is monitored change of status or extension of stay benefits and a reasoned discussion and limited. As stated throughout this meet the public benefits condition. about why they could not be quantified preamble, this rule is intended to align Moreover, DHS notes that the research or monetized. DHS does not agree that the self-sufficiency goals set forth in the the commenter cites is not relevant to a it is not adhering to long-standing PRWORA with the public charge ground discussion of wages or economic growth principles of regulatory cost-benefit of inadmissibility. that may result from this rule.835 The analysis. The economic analysis for this y. Cost Benefit Analysis Issues research cited primarily discusses the effects on applicants when they are final rule was conducted based on the Comment: Some commenters stated guidelines set forth in OMB’s Circular reviewed for public charge based on the that DOS’s January changes to public factors that will be considered in the A–4, which provides guidance to charge has led to improper denials, and agencies for conducting cost-benefit ‘‘totality of the circumstances.’’ that the rule may exacerbate that Comment: Several commenters analyses and, in this case, a discussion problem and lead to administrative on the distinction between cost and/or provided suggestions on how the 833 inconsistency. Another commenter analysis could have been done benefits and transfer payments. As argued that DHS failed to adequately noted in OMB Circular A–4 (p. 38), differently overall. One commenter said consider the costs of the rule on CBP that USCIS should consider a general ‘‘[b]enefit and cost estimates should application of the rule, citing studies. reflect real resource use. Transfer equilibrium analysis to better analyze Response: Although the standards set the holistic impacts of the rule payments are monetary payments from forth in the rule pertain both to whether one group to another that do not affect throughout the entire economy. Another an alien who seeks admission as a commenter said in order to develop an total resources available to society.’’ The nonimmigrant or immigrant or seeks reduction in transfer payments are adjustment of status is inadmissible, the 834 quantified in the transfer payments See MPI, Gauging the Impact of DHS’ rule’s economic analysis, which can be Proposed Public-Charge Rule on U.S. Immigration section of the economic analysis of this found in the rule docket at (Nov. 2019), available at https:// rule, in accordance with OMB’s Circular www.regulations.gov, focuses on the www.migrationpolicy.org/sites/default/files/ publications/MPI-PublicChargeImmigrationImpact_ A–4. A reduction in transfer payments impact to USCIS adjudications, as the is not quantified in the benefits section FinalWeb.pdf (last visited April, 18, 2019). rule primarily impacts USCIS’ 835 See Capps, et al. (2018). Gauging the Impact of this rule. There is great uncertainty adjudication of applications for of DHS’ Proposed Public-Charge Rule on U.S. adjustment of status, as well as Immigration. Washington, DC: Migration Policy 833 OMB Circular A–4 is available at https:// Institute, available at https:// www.whitehouse.gov/sites/whitehouse.gov/files/ applications for extension of stay and www.migrationpolicy.org/sites/default/files/ omb/circulars/A4/a-4.pdf (last accessed July 26, change of status. DHS is working closely publications/MPI-PublicChargeImmigrationImpact_ 2019). with the Department of State to ensure FinalWeb.pdf (last visited April, 18, 2019).

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accurate portrayal of the rule’s cost and litigation that accurately capture the that the rule requires additional benefits, USCIS must use actual benefit pain and suffering these individuals sensitivity analysis. receipt information to determine the would undergo. Comment: A commenter stated that affected population rather than DHS Response: DHS conducted its USCIS significantly overestimated the summary statistics. economic analysis to the best of its average cost of housing assistance per Response: DHS appreciates the ability given the complexity of the person in calculating costs and benefits. commenters’ suggestions. DHS did not analysis and the availability of data. Response: DHS used the publicly consider a general equilibrium analysis DHS does not agree that the economic available HUD Federal Rental to be appropriate here. We do not have analysis should employ ‘‘actuarial Assistance and HUD HCV programs enough data to build a general models or models used in personal report data on the household level in equilibrium model that would be able to injury litigation’’ to estimate the order to estimate the number of estimate the impact of this rule. In economic effects of this rule. Actuarial households that may be receiving addition, due to the complexity of models assess risk and probabilities housing benefits. The average annual potential benefits, issues of utilizing a given set of parameters. benefit of $8,121.16 is the estimate DHS confidentiality, and data limitations, it Unfortunately, DHS does not have calculated per household. DHS was not possible to use actual benefit enough data on the usage of various recognizes that actual average annual receipt information for the analysis. subsidies nor the rate of disenrollment benefits may be less due to the size and Comment: A commenter stated that needed to create an accurate model. location of a particular household. USCIS has not made any attempt to More specifically, in the case of Comment: A commenter stated that detail costs related to processing delays actuarial models used in personal injury USCIS failed to estimate the number of and noted that public charge litigation, each person’s situation is applicants who will be deemed determinations will inevitably slow unique and DHS would need to know inadmissible, and the associated effects. down federal agency processing times, the specific impacts for each person in Response: DHS is unable to estimate for which DHS did not estimate the order to utilize that type of model. DHS the number of applicants who will be opportunity cost of such delays. reiterates that the main purpose of the deemed inadmissible due to this rule. Response: DHS appreciates the rule is to provide guidance on the The review for public charge comment. DHS was unable to quantify public charge inadmissibility ground inadmissibility will be based on the such costs at this time. DHS notes that statutory provision for those seeking totality of the circumstances that delays in processing various forms may admission or adjusting status in considers many positive and negative occur, but that every effort is taken to establishing that the person is not likely factors that are specific to each avoid such delays whenever possible. at any time in the future to become a applicant. Therefore, DHS is unable to DHS does not agree that the new public charge. estimate the number of individuals who requirements associated with public Comment: A commenter stated that may be deemed inadmissible based on charge inadmissibility determinations the cost benefit analysis fails to consider public charge. However, DHS estimated would waste resources and be an the upward mobility of immigrant the annual population that will be unnecessary administrative burden, as communities, the impact of lower levels subject to a public charge review for DHS has determined that it is necessary of immigration on the economy, and inadmissibility in the economic analysis to establish a public charge other costs such as separation of for this rule, which can be found in the inadmissibility rule. Should DHS families, businesses losing workers, and rule docket at www.regulations.gov. determine that the fees set for the families going without needed Comment: A commenter stated that relevant forms related to the public assistance. USCIS should monetize the costs of charge review process are not sufficient Response: Where possible, DHS has reduced participation in public benefits to cover the full cost of the associated tried to quantify the indirect impacts of programs. services adjudicating immigration this rule, but DHS is unable to fully Response: DHS appreciates the benefit requests, the agency will quantify the impact of lower comment regarding monetizing the costs propose to adjust these form fees in a immigration on the economy and other of reduced participation in public subsequent fee rule. DHS sets the fees costs that could indirectly result from benefits programs. DHS monetized the associated with requesting immigration this rule. effect of disenrollment in public benefits as necessary to recover the full Comment: A commenter stated that benefits programs to the extent possible operating costs associated with the cost benefit analysis details an based on the best available data. While administering the nation’s lawful increase in the number of denials for DHS provides estimates of the direct immigration system, safeguarding its adjustment of status applications, but it costs of the final rule in the economic integrity, and efficiently and fairly does not provide a monetization of these analysis, we also provide estimates and adjudicating immigration benefit impacts. A commenter stated that the detailed methodology of the reduction requests. As discussed above, while the proposed rule requires additional in transfer payments from the Federal rule may increase USCIS processing sensitivity analysis. Another commenter and State governments to certain times, such is the burden of robust stated that USCIS fails to consider key individuals who receive public benefits enforcement of the law. impacts centered around increased such as those individuals who choose to Comment: A commenter stated that denials for admission, change of status, disenroll or forego future enrollment in USCIS fails to properly estimate the or re-entry, and USCIS should complete public benefits programs due to fear or impact of effects such as immigrants a further literature review around these confusion. As noted in OMB Circular foregoing noncash benefits and other issues. A–4 (p. 38), ‘‘[b]enefit and cost reductions in transfer payments. Response: DHS was able to detail an estimates should reflect real resource Another commenter stated that the increase in the number of denials for use. Transfer payments are monetary impact that a loss of public benefits adjustment of status applications, but payments from one group to another would have on immigrant communities did not have enough detailed that do not affect total resources should be calculated in a more robust information on specific aliens to available to society.’’ The reduction in way by using actuarial models or monetize the impacts such denials may transfer payments are quantified in the models used in personal injury have on the economy. DHS disagrees transfer section of the economic analysis

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of this rule, in accordance with OMB’s benefits that DHS was not able to wage multiplier raised the Federal Circular A–4. However, a reduction in quantify and monetize to calculate a minimum wage to $10.59, which could transfer payments are not quantified in total cost, the economic analysis account for wages above $7.25 that do the benefits section of this rule. DHS includes a description of those costs and not receive non-wage benefits.838 The notes that there is great uncertainty benefits and a reasoned discussion cost savings presented in the analysis regarding the effects changes in transfer about why they could not be quantified were based on the provisions of the payments will have on the broader or monetized. proposed rule and have been updated in economy, and estimating those effects Comment: One commenter submitted the final rule. Administrative costs were are beyond the scope of this rule. a detailed comment on the cost-benefit not calculated. Comment: A commenter stated that analysis accompanying the proposed The analysis does not quantify USCIS includes the removal of Form I– rule stating that over half of foreign-born potential effects on admissibility, as 864W as a benefit, but does not present spouses eligible for green cards would opposed to adjustment of status. a primary, minimum, or maximum be impacted by USCIS’ rule.836 The Instead, the purpose of the rule is to estimate of the benefits. commenter also stated that USCIS has determine whether an alien is Response: As noted in the economic not provided sufficient analysis to inadmissible to the United States under analysis, which can be found in the rule determine how many temporary visitors section 212(a)(4) of the Act, 8 U.S.C. docket at www.regulations.gov, DHS is to the United States would be impacted, 1182(a)(4), because an alien is likely at eliminating Form I–864W and instead that the number of individuals likely to any time in the future to become a individuals will be required to provide be impacted by the proposed rule’s public charge. Aliens who seek the information previously requested on Form I–944 requirement on an annual adjustment of status or a visa, or who the Form I–864W using Form I–485. basis is 436,029 as opposed to 382,264, are applicants for admission, must Based on the information provided in and that the opportunity costs model establish that they are not likely at any the Form I–485, an adjudication officer used by USCIS is flawed largely due to time to become a public charge, unless can verify whether an immigrant is the use of a weighted minimum wage Congress has expressly exempted them statutorily required to file an affidavit of rather than the average prevailing wage. from this ground of inadmissibility or support. DHS estimated the cost per The commenter stated that the number has otherwise permitted them to seek a petitioner for filing Form I–864W, but of individuals impacted by the proposed waiver of inadmissibility. Moreover, was unable to determine the number rule who receive minimum wage is DHS will require all aliens seeking an filings of Form I–864W and was unable likely significantly lower than 28.5%, extension of stay or change of status to to estimate the total annual cost savings and the minimum wage is often higher demonstrate that they have not, since of eliminating this form. in a number of states than the national obtaining the nonimmigrant status they Comment: A commenter stated that average. The commenter stated that the wish to extend or change, received the lack of a sufficient economic model cost of attorney fees to applicants will public benefits, as defined in this rule, showing the potential impact this could be significantly higher than DHS for more than 12 months in the have on families and the economy should be grounds to reject the recognizes. When correcting for these aggregate within any 36-month period proposed rule. effects, the proposed rule would incur unless the nonimmigrant classification Response: DHS does not agree that total costs of $2,260,448,302, or about that they seek to extend, or to which DHS did not conduct a sufficient 17 times greater than USCIS’ estimate. A they seek to change, is exempt from the economic analysis for this final rule. commenter stated that the cost savings public charge ground of inadmissibility. E.O. 12866 directs agencies subordinate related to healthcare provisions were In addition, DHS acknowledges the to the President to assess costs and unworkable given the disjointed nature commenter’s estimate of the population benefits of available regulatory of exempting some health services such that would be affected by this rule’s alternatives and, when regulation is as immunizations but punishing use of requirement to submit the new Form I– necessary, to select regulatory Medicaid and CHIP. A commenter 944. However, DHS notes that we use approaches that maximize net benefits stated that the proposed rule would lead data from internal and external sources (including potential economic, to significant increase in administrative as appropriate, and ensures that all data environmental, public health and safety, costs to deal with public charge are current, valid, reliable, and accurate. and other advantages, distributive provisions. DHS declines use the commenter’s impacts, and equity). In implementing Response: DHS appreciates these population estimate in favor of the E.O. 12866, OMB has provided further comments. The analysis used the estimates we present in the economic internal guidance to agencies through Federal minimum wage rate since analysis that accompanies this rule, OMB Circular A–4 (Sept. 17, 2003), approximately 80 percent of the total which can be found in the rule docket found at https://www.whitehouse.gov/ number of individuals who obtained at www.regulations.gov. The data DHS sites/whitehouse.gov/files/omb/ lawful permanent resident status were used for its estimates were necessary circulars/A4/a-4.pdf. OMB Circular A–4 in a class of admission under family- since it provides detailed information states that it ‘‘is designed to assist sponsored preferences and other non- showing the classes of applicants for analysts in the regulatory agencies by employment-based classifications such admission, adjustment of status, or defining good regulatory analysis . . . as diversity, refugees and asylees, and registry according to statute or and standardizing the way benefits and parolees.837 Further, the benefits-to- regulation that are exempt from costs of Federal regulatory actions are 836 measured and reported.’’ OMB Circular See Looming Immigration Directive Could Statistics, 2017. Available at https://www.dhs.gov/ Separate Nearly 200,000 Married Couples Each immigration-statistics/yearbook/2016. (last visited A–4, at 3. Year, Boundless Immigration Inc. (Sept. 24, July 26, 2019). As previously explained, DHS 2018),https://www.boundless.com/blog/looming- 838 Note that the benefits-to-wage multiplier of described and monetized where immigration-directive-separate-nearly-200000- 1.47 used in the proposed rule has been updated possible the types of costs that would married-couples. (last visited July 26, 2019). to 1.46 for the final rule based on an annual data 837 See United States Department of Homeland update released by the Bureau of Labor Statistics. result from this rule and has added Security. Yearbook of Immigration Statistics: 2016, Therefore, DHS updated its wage estimate using the many additional costs provided by the Table 7. Washington, DC, U.S. Department of Federal minimum wage plus benefits from $10.66 commenters. For those costs and Homeland Security, Office of Immigration per hour to $10.59 per hour.

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inadmissibility based on the public analysis of the NPRM’s federalism policy, USCIS must consult with States charge ground. Other data that are implications. The commenter further and localities about the impact of the available are informative, but only stated that because of the serious impact public charge rule on state and local provide aggregate receipt totals whereby the NPRM will have on the States, it is choice and policy. The need for this it is not possible to remove individuals improper for DHS to forego the consultation was apparent because the from the population count who are federalism summary impact statement. formulation of the guidance document exempt from a public charge review of The commenter also stated that E.O. this regulation proposes to replace inadmissibility. 13132 requires DHS to produce a considered state and local public health Finally, based on comments received, federalism summary impact statement. concerns. DHS amended its economic analysis, One commenter stated that DHS did not Response: DHS has considered the where possible, to account for engage in adequate consultation with relevant public comments and engaged individuals who choose to hire an governors pursuant to E.O. 13132, and in many meetings with state and local attorney for legal representation on their requested that DHS engage in a entities as part of the E.O. 12866 behalf. meaningful and formal way before process. Aliens entitled to public Comment: A commenter noted that taking further action on the public benefits under State or local law may though the rule impacts only a small charge rule. The commenter noted that elect to receive such benefits and this number of immigrants, its chilling effect the rule would likely impose significant rule does not, and cannot, change that impacts will outweigh its intentional financial and administrative burdens on fact. However, DHS believes that the impacts. This, the commenter and states, including costly and labor- consideration of an alien’s receipt of others commenters asserted, is an intensive changes in how states designated public benefits is consistent abdication of DHS’s APA duties to implement their shared eligibility with congressional intent, as set forth in consider costs and benefits. Further, a systems among human services and PRWORA, that the receipt of public commenter stated that DHS failed to health programs. benefits should not be an incentive to satisfactorily justify the prospective Response: This final rule does not come to the United States, and aligns harm of the chilling effect of this rule. have federalism implications because it DHS’s administration of the INA to Another commenter stated that DHS’s does not have substantial direct effects those principles.840 cost analysis is arbitrary, stating that its on the States, on the relationship Comment: Some commenters stated estimates appear in some cases to reflect between the Federal Government and that the rule violates state’s rights to a range based on simply moving the States, or on the distribution of provide benefits to children and decimal places rather than evidence. power and responsibilities among the immigrants experiencing short-term Elsewhere, the commenters say various levels of government. Although crises. Some commenters said this rule estimates are inconsistent, such as the this rule defines public benefit to impinges on a state’s right to provide Form I–944 cost estimates in the PRA include certain cash and non-cash healthcare services and increases federal analysis versus elsewhere in the benefits, some of which may be fully or intrusion into local issues. Commenters proposed rule. A few commenters noted partially administered by states or local stated that some state statutes and that the public charge definition is not governments, DHS is not purporting to constitutions, as well as DHS’s own supported by or tied to any benefit to regulate which aliens may receive such 1999 Interim Field Guidance, make it a ‘‘health, well-being, businesses, benefits or how states and local state interest to provide certain benefits economies, or communities.’’ One governments administer such programs. to non-citizens. commenter stated that the rule ‘‘does DHS does not expect that this final rule Several commenters stated that the not point to any expected benefits for will impose substantial direct proposed rule impermissibly overrides individual or public health, for national, compliance costs on State and local state authority. Others stated that the state or local economies, for businesses, governments, or preempt State law. proposed rule would bar their states’ for healthcare systems, or for our Accordingly, in accordance with section from providing state-funded aid to their communities.’’ 6 of E.O. 13132, this rule requires no own residents, regardless of Response: DHS disagrees with these further agency action or analysis. immigration status. A commenter stated comments. E.O. 13563 directs agencies Comment: A commenter stated that that the proposed rule violates the 10th to propose or adopt a regulation only this rule impinges on a state’s right to Amendment of the U.S. Constitution upon a reasoned determination that its provide healthcare services and because it commandeers state resources benefits justify its costs; the regulation increases federal intrusion into local by compelling agencies to implement is tailored to impose the least burden on issues. the rule, especially in providing notice society, consistent with achieving the Response: DHS disagrees that this rule and information to applicants. Another regulatory objectives; and in choosing impinges on state’s rights to provide commenter stated that the rule violates among alternative regulatory healthcare services and increases federal a federalism principle by imposing an approaches, the agency has selected intrusion into local issues. This rule unfunded mandate. One commenter those approaches that maximize net enforces a law that has been in place, in stated that the proposed rule will benefits. E.O. 13563 recognizes that one form or another, since the late 19th impose substantial costs on State and some benefits are difficult to quantify century. The review of public charge local governments such that federalism and provides that, where appropriate inadmissibility, which is an concerns are implicated. Other immigration matter, is a matter of and permitted by law, agencies may commenters stated that the proposed Federal jurisdiction alone, as indicated consider and discuss qualitatively rule would harm their states. A by the Supreme Court.839 values that are difficult or impossible to commenter stated that the proposed rule quantify, including equity, human Comment: A commenter indicated that as a matter of law and effective would undermine a state statute that dignity, fairness, and distributive was passed with bipartisan support in impacts. 839 See, e.g., Hines v. Davidowitz, 312 U.S. 52 order to extend CHIP. 2. Federalism Comments (1941); see also Arizona v. United States, 567 U.S. 387, 394 (2012) (‘‘The Government of the United 840 See Southern S.S. Co. v. N.L.R.B., 316 U.S. 31, Comment: A commenter stated that States has broad, undoubted power over the subject 47 (1942) (requiring ‘‘careful accommodation of one DHS did not conduct an adequate of immigration and the status of aliens.’’). statutory scheme to another.’’).

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Another commenter asserted that, Another commenter stated that this As discussed in the NPRM,842 DHS even if the proposed rule were passed rule could result in the separation of at has determined that the rule may in the form of a statute, it would violate least 200,000 married couples annually. decrease disposable income and Article I of the Spending Clause for Another commenter provided data on increase the poverty of certain families coercively restricting state use of the impact of the study on marriage- and children, including U.S. citizen Federal grant money. based permanent residency children. And as discussed previously, Response: DHS did not propose in the applications, saying the proposed rule DHS has modified some provisions in NPRM to, in any way, regulate or would undermine family unity and ways that will mitigate the impact on circumscribe the ability of states to offer stability. A commenter stated that the families, such as by exempting receipt public benefits to children and proposed rule would chill access to of Medicaid by aliens under 21 and immigrants, or to require states to their state’s Department of Children and pregnant women. Ultimately, however, implement the DHS rule. Similarly, this Families and Juvenile Court, leading to DHS continues to believe that the financial impact on the family is final rule neither prohibits states from children remaining dependent on state justified. providing benefits to children and child welfare programs. immigrants nor prohibits any category Additionally, because the final rule of immigrants from receiving any state Many commenters said this rule considers receipt of public benefits that or local benefits for which they are would dramatically hurt and jeopardize were not considered under the 1999 eligible. Furthermore, the rule’s families, as well as place undue burden Interim Field Guidance, DHS definition of public benefit does not on all family members. A commenter determined that the aliens found include emergency aid, emergency stated that the proposed rule fails to inadmissible under section 212(a)(4) of medical assistance, or disaster relief. analyze the rule’s effect on the well- the Act, 8 U.S.C. 1182(a)(4), will likely Likewise, the rule does not impact the being of families, especially its impact increase. However, given the compelling Spending Clause since it does not to family stability, and on the legal and policy reasons associated with restrict a state’s ability to use Federal disposable income of families and this rulemaking, including but not funds. children. Some commenters provided limited to, better ensuring self- studies showing how children could be sufficiency, DHS determined that this 3. Family Assessment Comments severely and irreversibly harmed, rulemaking’s impact is justified and no Comment: One commenter said that including children’s health, by further actions are required. DHS also the rule violated Section 654 of the separation as part of a strategy to determined that this final rule will not Treasury General Appropriations Act, prevent immigrants from legalizing their have any impact on the autonomy or 1999, Public Law 105–277, which status. integrity of the family as an institution. Furthermore, with this rulemaking, requires agencies to assess their A commenter stated that the rule DHS does not intend to separate policies’ impact on family stability, contravenes international and domestic families. DHS’s intent is to implement families’ ability to function, and other policies that support children’s best Congress’ mandate to assess whether an indicators of family well-being. Another interests, citing the U.N. Convention on alien has met his or her burden to commenter stated that DHS’s Family the Rights of the Child. demonstrate that he or she is not likely Policymaking Assessment failed to fully at any time to become a public charge and meaningfully evaluate the Response: Section 654 of the Treasury under section 212(a)(4)(A) of the Act, 8 rulemaking’s effects on family well- and General Government 841 U.S.C. 1182(a)(4), given the being under section 654(c)(1) and did Appropriations Act, 1999 requires congressional policy to ensure that not address 654(c)(2)–(7) at all. Other Federal agencies to issue a Family those coming to the United States commenters generally agreed that the Policymaking Assessment for any rule should be self-sufficient and not rely on family assessment in the proposed rule that may affect family well-being. the government for assistance to meet is insufficient. Agencies must assess whether: (1) The their needs.843 Several commenters stated this rule action strengthens or erodes the stability or safety of the family and, particularly, DHS agrees that family unity is a will unnecessarily harm family unity, significant tenet of the family-based such as by making it difficult for some the marital commitment; (2) the action strengthens or erodes the authority and immigration system. As indicated spouses of U.S. citizens to enter the above, the rule does not alter eligibility United States or adjust status. A rights of parents in the education, nurture, and supervision of their criteria for a family-based immigrant commenter generally stated that the petition, although it could have some children; (3) the action helps the family proposed rule’s definition of impact on the ultimate outcome of such perform its functions, or substitutes ‘‘household,’’ along with the asset and petitions. DHS has taken certain steps governmental activity for the function; income standards, would pressure that mitigate the potential effects of this (4) the action increases or decreases families to separate. The commenter rule on families. For instance, DHS will disposable income or poverty of families also stated that the proposal to subject not attribute U.S. citizen children’s residents to public charge and children; (5) the proposed benefits receipt of public benefits to their determinations upon reentering the of the action justify the financial impact parents who are subject to the public United States would discourage on the family; (6) the action may be charge inadmissibility ground. Like all immigrants from preserving contact carried out by State or local government other applicants for admission or with family outside of the United States. or by the family; and whether (7) the adjustment of status who are subject to A commenter added that it would make action establishes an implicit or explicit the public charge or any other ground of it especially difficult for immigrants to policy concerning the relationship inadmissibility, aliens are not let their parents join them in the United between the behavior and personal guaranteed admission or adjustment of States. Another commenter cited an responsibility of youth, and the norms status merely by virtue of their article noting that there are 9,000,000 of society. mixed status families in the United 842 See Inadmissibility on Public Charge Grounds, States, and many would be faced with 841 Public Law 105–277, 112 Stat. 2681 (Oct. 21, 83 FR 51114, 51277 (proposed Oct. 10, 2018). the threat of coerced separation. 1998). 843 See 8 U.S.C. 1601(1) and (2).

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relationship to a U.S. citizen or lawful and that DHS has failed to justify to an employment-based nonimmigrant permanent resident.844 requiring it. category, must provide certain Response: DHS disagrees that the biographical information to employers 4. Paperwork Reduction Act Comments Form I–944 needs to be simplified and as part of the application process. Form Comment: A commenter stated that more carefully targeted or is overly I–129 and Form I–539/Form I–539A the newly proposed Form I–944 is burdensome. Form I–944 requests already provide for some information duplicative and unnecessary in light of information about all the relevant from both employers and employees the Form I–864. Another commenter factors as established by section when the benefit is related to stated that DHS has not shown that 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), employment-based immigration. As there are not less burdensome ways of and the rule to determine whether the noted on the instructions for USCIS gaining the information from I–944 than alien is inadmissible based on public forms, the failure to provide requested the form requires. charge ground. information, or any other requested Response: DHS disagrees that the The Form I–944 instructions state that evidence, may delay adjudication or Form I–944 duplicates information only applicants filing Form I–485 who result in a denial of the benefit collected on Form I–864 and is therefore are subject to the public charge ground requested. duplicative. However, DHS has updated of inadmissibility must file Form I–944. Comment: A commenter stated that the forms to remove the questions about The Form I–944 instructions also DHS appears to be acting on the basis employment that are also on the I–485. explain that an alien who is exempt of either conflicting information or no In addition, DHS added language to the from the public charge ground of information at all. For example, in the forms, indicating to the applicant that if inadmissibility does not need to file context of its PRA analysis, DHS tax forms were submitted as part of Form I–944, and subsequently lists all estimates that 382,264 individuals will Form I–485, Form I–864 or Form I–944, categories of aliens that are exempt from be required to fill out Form I–944, that the same tax returns do not need to be the public charge ground of the hour burden per response will be 4 submitted with the I–864. Any inadmissibility. Therefore, DHS believes hours, and that the monetary burden is document that is submitted as part of the declaration of self-sufficiency is $59,931,350. Those figures seem to another form related to the immigrant appropriately targeted to the aliens that directly conflict with DHS’s earlier benefit does not need to be submitted might trigger public charge concerns. estimates that Form I–944 would take multiple times. Form I–864 is an Comment: A commenter noted that 4.5 hours to fill out and that the annual affidavit of support submitted by an there was no way to specify the receipt cost would be $25,963,371.845 The intending immigrant’s sponsor, as of public benefits was for an emergency commenter notes that the number of required for certain categories of aliens on the Form I–944, nor did the form applicants is similarly in conflict. DHS subject to the affidavit of support indicate that such services were also appears to assume that only requirements under section 213A of the excluded. applicants for adjustment will fill out Act, 8 U.S.C. 1183a. Form I–864 is a Response: DHS appreciates the Form I–944.846 DHS overtly states, contract between the sponsor and the comment and has updated the form to however, that at least some U.S. Government in which the sponsor include questions regarding the nonimmigrant visa applicants would agrees to use his or her income, assets, exemptions and updated the description have to fill out that form as well, and and resources to support the intending of the designated public benefits to it provides statistics showing annual immigrants named in Form I–864, if it clarify the information being sought. Comment: A commenter opposed averages of those applicants over becomes necessary. The sponsor 847 completing and signing Form I–864 requiring that employees provide 200,000. The commenter concludes must show that he or she has enough employers with certain information, from this information that DHS does not income and/or assets to maintain the whether through Form I–129, Form I– know how many people will have to fill intending immigrants listed on the 539, or Form I–944. The commenter out the form, how long it will take them, affidavit and the rest of the sponsor’s stated that requiring a nonimmigrant to or how much it will cost on an household at 125 percent of the FPG. provide such personal information to annualized basis. Response: DHS has corrected an error The sponsor, therefore, is largely his or her employer or prospective submitting information regarding his or employer to overcome the presumption in the estimated time burden for Form her financial situation. that he or she is or could become a I–944 from 4 hours to 4.5 hours. DHS However, Form I–944 is completed by public charge, such as medical uses historical data to estimate the the intending immigrant, i.e., applicant payments, tax return transcripts, W–2s, populations and burdens reported. In for adjustment of status, and requests or documents for temporary housing some instances, DHS does not have information on the relevant factors as needs, is an unfair and unreasonable historical data on a population and may established by section 212(a)(4) of the imposition on any employee. The need to derive these populations using Act, 8 U.S.C. 1182(a)(4), and the final commenter stated the employer should statistical methods. For example, the 5- rule, which are distinct from the not know such personal information, year average of those filing Form I–485 requirements of the affidavit of support. and that the requirement could who are not exempt from the public Comment: A commenter suggested a potentially expose an employer to charge inadmissibility determination is simplification of the declaration of self- liability. The commenter stated further estimated at 382,264. DHS used this sufficiency that targets aliens that might that it is unclear who would be population for the Form I–944 estimate. trigger public charge concerns, rather responsible to pay for the Form I–944, Additionally, as part of the calculation than, for example, all aliens who seek to especially in the context of H–1B-based of the 5-year average estimated adjust status. Another commenter stated change or extension of status petitions, population, DHS used the FY 2016 that Form I–944 imposes undue burdens where the employer is generally population of those who are not exempt

required to pay the fees associated with 845 844 See Agyeman v. INS, 296 F.3d 871, 879 (9th the filing. 83 FR 51284–85, at 51254. Cir. 2002) (‘‘[A]pproval of the I–130 petition does 846 83 FR 51284–85, at 51240 (calculating that not automatically entitle the alien to adjustment of Response: Employees seeking 382,769 adjustment applicants would be subject to status as an immediate relative of a United States employment-based nonimmigrant visas public charge review). citizen.’’). and those seeking to extend of change 847 83 FR 51284–85, at 51243–44.

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from public charge review (382,769 stated that the Form I–944 would would likely result in hiring and filers), which is very close to the 5-year require the alien to list the name of specially training additional personnel. average estimate. In sum, the economic every household member, amount of The commenter further indicated that analysis used the 5-year average of those current assets and resources, recent counties will need to work with their filing Form I–485 of 382,264 and the FY Federal tax return history for the respective states to develop 2016 population of those not exempt applicant and household members, standardized processes for receiving from public charge review, to estimate credit score, proof of debts and requests and providing information the population that will be subject to liabilities, complete list of all public across the state that safeguards personal public charge inadmissibility benefits applied for or received, and data. The commenter stated that this is determination and, therefore, will have education and employment history), not only a significant workload but also to submit Form I–944. and that accurately completing the form would include potentially major Finally, DHS is required to estimate and providing all required information automation costs, given the level of cost burden in multiple ways: (1) The with documentation would be a detail required. PRA requires estimating cost burden significant effort for non-citizens and Response: The purpose of Form I–944 based on the average hourly wage of the their families. is to demonstrate that an adjustment of respondent; (2) the PRA also requires Response: DHS acknowledges that the status applicant subject to the public estimating the annual cost burden based time that it would take each individual charge ground of inadmissibility is not on expenses incurred to complete the to complete Form I–944 could be more likely at any time in the future to information collection including but not or less time than the reported estimated become a public charge, as required by limited to attorney’s fees, shipping and average time burden, depending on the Congress in section 212(a)(4) of the Act, handling, etc., and (3) E.O. 12866 applicant’s individual facts and 8 U.S.C. 1182(a)(4). Form I–944 collects requires estimating the benefits and circumstances. For example, some information relevant to the mandatory costs of the regulation, including the applicants would be children who do factors, such as age, family status, opportunity cost of time, among other not have extensive education, assets, assets, resources, financial status, costs. and liabilities to report on the Form I– education, and skills. DHS is required to Comment: A commenter stated that 944. In contrast, an older applicant assess an applicant’s assets and the proposed rule would also impose could have extensive education, assets, resources as part of the public charge unreasonable burdens and financial and liabilities to report on the Form I– inadmissibility determination, which costs on immigration benefit applicants 944. Moreover, in estimating the time entails a review of the alien’s income. and petitioners, specifically mentioning burden, DHS does not include the time These factors are mandated by Congress Form I–944. The comment indicated burden already accounted for by other in section 212(a)(4) of the Act, and DHS that though DHS projects an average information collections subject to the does not have the authority to disregard Form I–944 preparation time of 4 hours PRA nor inactive time to obtain the these factors. Additionally, the and 30 minutes, the evidentiary necessary evidence required. DHS also estimated burden on any alien requirements associated with the form notes that an alien does not always have submitting Form I–944 was provided in and the public charge assessment to provide information about the net the NPRM. overall suggest that DHS has seriously value of a home and the related DHS acknowledges in the economic underestimated the time commitment. evidence. In general, the alien would analysis accompanying this rule that For example, using a method of need to provide information regarding various government agencies may incur assessing ‘‘household size’’ that differs the home and its net value if aliens indirect costs associated with the rule significantly from the long-accepted using the home as evidence of his or her such as, for example, the potential need definition used to evaluate Form I–864, assets or resources. DHS will maintain to update administrative processes and the proposed rule and Form I–944 the estimated time burden at 4.5 hours. provide additional training. However, instructions require individuals to Comment: One commenter detailed Form I–944 imposes no requirements on submit extensive supporting several issues with Form I–944 and its Federal, State, or local government documentation of the financial status of requirements, saying that it will agencies. Instead, applicants required to the applicant’s household, including all disproportionately harm low-income submit Form I–944 must submit certain sources of household income and all applicants and their families, place an evidence from Federal, State, and local cash and non-cash assets that can be unreasonable burden on families government agencies such as Federal converted into cash within 12 months. especially those who apply with their income tax returns and documentation For every such asset, an applicant must minor children, impose costly of receipt of public benefits. DHS has provide a description of the asset, along administrative burdens on Federal, reviewed the data provided by with the value, basis of the claim for the State, and local government agencies, commenters and updated the cost value, and proof of ownership. The net generate a huge workload for social estimates to account for the indirect value of a home may be included as an services agencies, and undermine effects of this rule, where possible. asset, but only if accompanied by privacy rights of applicants. The documentation of ownership, evidence commenter also noted that the rule will IV. Statutory and Regulatory of all secured loans or liens, and a likely make it more difficult for low- Requirements recent appraisal completed by a income and vulnerable immigrants to licensed appraiser (estimated to cost an remain on the path to U.S. citizenship, A. Executive Order 12866 (Regulatory average of $300 to $400 for a single will dissuade many potential applicants Planning and Review), Executive Order family home). The commenter indicated from pursuing adjustment due to the 13563 (Improving Regulation and that these requirements alone could costs of the application process, create Regulatory Review), and Executive consume significant amounts of time financial hardship for people, and result Order 13771 (Reducing Regulation and beyond the DHS estimate. In addition, in processing delays and lengthy wait Controlling Regulatory Costs) multiple commenters stated that the times. One commenter said that the Executive Orders 12866 and 13563 documentation and information Form I–944 requirement would require direct agencies to assess the costs and applicants would be required to collect states and counties to develop new work benefits of available regulatory and present is extensive (the commenter processes, require system updates, and alternatives and, if regulation is

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necessary, to select regulatory This final rule will impose new costs cost to file Form I–356 would be approaches that maximize net benefits on the population applying to adjust approximately $824 annually.850 (including potential economic, status using Form I–485 that are subject The final rule will also result in a environmental, public health and safety to the public charge ground of reduction in transfer payments from the effects, distributive impacts, and inadmissibility who will now be Federal Government to individuals who equity). Executive Order 13563 required to file the new Form I–944 as may choose to disenroll from or forego emphasizes the importance of part of the public charge inadmissibility enrollment in a public benefits program. quantifying both costs and benefits, determination. DHS will require any Individuals who might choose to reducing costs, harmonizing rules, and adjustment applicants subject to the disenroll from or forego future promoting flexibility. Executive Order public charge inadmissibility ground to enrollment in a public benefits program 13771 directs agencies to reduce submit Form I–944 with their Form I– include foreign-born non-citizens as regulation and control regulatory costs. 485 to demonstrate they are not likely well as U.S. citizens who are members The Office of Information and at any time in the future to become a of mixed-status households,851 who Regulatory Affairs has designated this public charge. The final rule will also otherwise may be eligible for the public final rule as a ‘‘significant regulatory impose additional costs for completing benefits. DHS estimates that the total action’’ that is economically significant Forms I–485, I–129, I–129CW, and I– reduction in transfer payments from the since it is estimated that the final rule 539 as the associated time burden Federal and State governments will be would have an annual effect on the estimate for completing each of these approximately $2.47 billion annually economy of $100 million or more, under forms will increase. Moreover, the final due to disenrollment or foregone section 3(f)(1) of E.O. 12866. rule will impose new costs associated enrollment in public benefits programs Accordingly, OMB has reviewed this with the new public charge bond by foreign-born non-citizens who may final regulation. process, including new costs for be receiving public benefits. DHS This rule is a regulatory action under completing and filing Forms I–945 and estimates that the 10-year discounted E.O. 13771. I–356. DHS estimates that the additional federal and state transfer payments 1. Summary total cost of the final rule will be reduction of this final rule will be approximately $35,202,698 annually to approximately $21.0 billion at a 3 As discussed above, DHS is modifying the population applying to adjust status percent discount rate and about $17.3 its regulations to add new regulatory who is also required to file Form I–944, billion at a 7 percent discount rate. provisions for inadmissibility for the opportunity cost of time However, DHS notes there may be determinations based on the public associated with the increased time additional reductions in transfer charge ground under the INA. DHS is burden estimates for Forms I–485, I– payments, or categories of transfers such prescribing how it will determine 129, I–129CW, and I–539, and for as increases in uncompensated health whether an alien is inadmissible requesting or cancelling a public charge care or greater reliance on food banks or because he or she is likely at any time bond using Form I–945 and Form I–356, other charities, that we are unable to in the future to become a public charge respectively. quantify. and is identifying the types of public Over the first 10 years of There also may be additional benefits that will be considered in the implementation, DHS estimates the total public charge determinations. An alien reductions in transfer payments from quantified new direct costs of the final states to individuals who may choose to applying for admission at the port of rule will be about $352,026,980 entry, or adjustment of status generally disenroll from or forego enrollment in a (undiscounted). In addition, DHS public benefits program. For example, must establish that he or she is not estimates that the 10-year discounted likely at any time in the future to the Federal Government funds all SNAP total direct costs of this final rule will food expenses, but only 50 percent of become a public charge. DHS will weigh be about $300,286,154 at a 3 percent certain factors positively or negatively, allowable administrative costs for discount rate and about $247,249,020 at regular operating expenses.852 Similarly, depending on how the factor impacts a 7 percent discount rate. the immigrant’s likelihood to become a FMAP in some HHS programs, like The final rule will also potentially Medicaid, can vary from between 50 public charge. DHS is also revising impose new costs on obligors existing regulations to require all aliens percent to an enhanced rate of 100 (individuals or companies) if an alien percent in some cases.853 Since the state seeking an extension of stay or change has been determined to be likely at any of status to demonstrate that they have time in the future to become a public 850 not received public benefits, as defined Calculation: $33.00 (cost per obligor to file charge and will be permitted to submit Form I–356) * 25 (estimated annual population who in this rule unless the nonimmigrant a public charge bond, for which USCIS would file Form I–356) = $825.00 annual total cost classification that they seek to extend or will use the new Form I–945. DHS to file Form I–356. 851 DHS uses the term ‘‘foreign-born non-citizen’’ to which they seek to change is exempt estimates the total cost to file Form I– from the public charge ground of since it is the term the U.S. Census Bureau uses. 945 will be, at minimum, about $34,166 DHS generally interprets this term to mean alien in inadmissibility. Finally, DHS is revising annually.849 this analysis. In addition, DHS notes that the its regulations governing the Secretary’s Moreover, the final rule will Census Bureau publishes much of the data used in discretion to accept a public charge this analysis. potentially impose new costs on aliens 852 bond or similar undertaking under Per section 16(a) of the Food and Nutrition Act or obligors who submit Form I–356 as section 213 of the Act, 8 U.S.C. 1183. of 2008, Pub. L. 110–234, tit. IV, 122 Stat. 923, 1092 part of a request to cancel the public (May 22, 2008) (codified as amended at 7 U.S.C. Similar to a waiver, a public charge charge bond. DHS estimates the total 2025). See also USDA, FNS Handbook 901, at p. 41 bond permits an alien deemed (2017). Available at: https://fns-prod.azureedge.net/ inadmissible on the public charge sites/default/files/apd/FNS_HB901_v2.2_Internet_ _ ground to obtain adjustment of status, if waiver of the public charge ground of Ready Format.pdf, (last visited May 7, 2019). inadmissibility. See Matter of Ulloa, 22 I&N Dec. 853 848 See Dept. of Health and Human Servs. Notice, otherwise admissible. 725, 726 (BIA 1999). Federal Financial Participation in State Assistance 849 Calculation: $35.59 (cost per obligor to file Expenditures; Federal Matching Shares for 848 There is no mention of ‘‘waiver’’ or ‘‘waive’’ Form I–945) * 960 (estimated annual population Medicaid, the Children’s Health Insurance Program, in INA section 213, 8 U.S.C. 1183. However, the who would file Form I–945) = $34,166.40 = $34,166 and Aid to Needy Aged, Blind, or Disabled Persons BIA has viewed that provision as functioning as a (rounded) annual total cost to file Form I–945. Continued

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share of FFP varies from state to state, familiarization costs. To the extent that will produce some benefits for T DHS uses the average FMAP across all an individual or entity directly nonimmigrants applying for adjustment states and U.S. territories of 59 percent regulated by the rule incurs of status based on their T nonimmigrant to estimate the amount of state transfer familiarization costs, those status, as this population will no longer payments. Therefore, the estimated 10- familiarization costs are a direct cost of need to submit Form I–601 seeking a year undiscounted amount of state the rule. In addition to those individuals waiver on the public charge ground of transfer payments that could occur as a or entities the rule directly regulates, a inadmissibility. DHS estimates the total result of the provisions of this final rule wide variety of other entities would benefits for this population is $15,176 is about $1.01 billion annually. The likely choose to read and understand annually.854 estimated 10-year discounted amount of the rule and, therefore, would incur The primary benefit of the final rule state transfer payments of the provisions familiarization costs. For example, would be to better ensure that aliens of this final rule would be immigration lawyers, immigration who are admitted to the United States, approximately $8.63 billion at a 3 advocacy groups, health care providers seek extension of stay or change of percent discount rate and about $7.12 of all types, non-profit organizations, status, or apply for adjustment of status billion at a 7 percent discount rate. non-governmental organizations, and are not likely to receive public benefits Finally, DHS recognizes that reductions religious organizations, among others, and will be self-sufficient, i.e., in federal and state transfers under may need or want to become familiar individuals will rely on their own Federal benefit programs may have with the provisions of this final rule. financial resources, as well as the downstream impacts on state and local DHS believes such non-profit financial resources of the family, economies, large and small businesses, organizations and other advocacy sponsors, and private organizations.855 and individuals. For example, the rule groups might choose to read the rule in DHS also anticipates that the final rule might result in reduced revenues for order to provide information to those will produce some benefits from the healthcare providers participating in foreign-born non-citizens that might be elimination of Form I–864W. The Medicaid, companies that manufacture affected by a reduction in federal and elimination of this form will potentially medical supplies or pharmaceuticals, state transfer payments. Familiarization reduce the number of forms USCIS grocery retailers participating in SNAP, costs incurred by those not directly would have to process. DHS estimates agricultural producers who grow foods regulated are indirect costs. that are eligible for purchase using DHS estimates the time that would be the amount of cost savings that will accrue from eliminating Form I–864W SNAP benefits, or landlords necessary to read this final rule would 856 participating in federally funded be approximately 16 to 20 hours per will be about $36.47 per petitioner. housing programs. person depending on an individual’s However, DHS is unable to determine Additionally, the final rule will have average reading speed and level of the annual number of filings of Form I– new direct and indirect impacts on review, resulting in opportunity costs of 864W and, therefore, currently is unable various entities and individuals time. An entity, such as a non-profit or to estimate the total annual cost savings associated with regulatory advocacy group, may have more than of this change. Additionally, a public familiarization with the provisions of one person that reads the rule. Using the charge bond process will also provide the rule. Familiarization costs involve average total rate of compensation as benefits to applicants as they potentially the time spent reading the details of a $36.47 per hour for all occupations, will be given the opportunity for rule to understand its changes. A DHS estimates that the opportunity cost adjustment if otherwise admissible, at foreign-born non-citizen (such as those of time will range from about $583.52 to the discretion of DHS, after a contemplating disenrollment or $729.40 per individual who must read determination that he or she is likely to foregoing enrollment in a public and review the final rule. become a public charge. benefits program) might review the rule The final rule will produce some Table 2 provides a more detailed to determine whether she or he is quantified benefits due to the regulatory summary of the final provisions and subject to its provisions and may incur changes DHS is making. The final rule their impacts.

TABLE 2—SUMMARY OF MAJOR PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE

Provision Purpose Expected impact of final rule

Revising 8 CFR 212.18. Application for To clarify that T nonimmigrants seeking Quantitative: Waivers of Inadmissibility in connection adjustment of status are not subject Benefits: with an application for adjustment of to public charge ground of inadmis- • Benefits of $15,176 annually to T nonimmigrants apply- status by T nonimmigrant status hold- sibility. ing for adjustment of status who will no longer need to ers. submit Form I–601 seeking a waiver on public charge Revising 8 CFR 245.23. Adjustment of grounds of inadmissibility. aliens in T nonimmigrant classification. Costs: • None.

for October 1, 2016 through September 30, 2017, 80 nonimmigrants filing Form I–601 seeking a waiver 855 8 U.S.C. 1601(2). FR 73779 (Nov. 25, 2015). of grounds of inadmissibility. Therefore, the 856 Calculation of savings from opportunity cost 854 Calculation: $14,880 (Filing fees for Form I– estimated total benefits of the final rule for T of time for no longer having to complete and submit nonimmigrants applying for adjustment of status 601) + $296.48 (Opportunity cost of time for Form Form I–864W: ($36.47 per hour * 1.0 hours) = using Form I–601 seeking a waiver on grounds of I–601) = $15,176.48 = $15,176 (rounded) total inadmissibility will equal the current cost to file $36.47. current estimated annual cost for filing T Form I–601 for this population.

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TABLE 2—SUMMARY OF MAJOR PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE—Continued

Provision Purpose Expected impact of final rule

Adding 8 CFR 212.20. Purpose and ap- To define the categories of aliens that Quantitative: plicability of public charge inadmis- are subject to the public charge de- Benefits: sibility. termination. • Benefits of $36.47 per applicant from no longer having to Adding 8 CFR 212.21. Definitions ...... To establish key definitions, including complete and file Form I–864W. Adding 8 CFR 212.22. Public charge de- ‘‘public charge,’’ ‘‘public benefit,’’ Costs: termination. ‘‘likely to become a public charge,’’ • DHS anticipates a likely increase in the number of deni- ‘‘household,’’ and ‘‘receipt of public als for adjustment of status applicants based on public benefits.’’ charge inadmissibility determinations due to formalizing Clarifies that evaluating public charge and standardizing the criteria and process for inadmis- is a prospective determination based sibility determinations. on the totality of the circumstances. Quantitative: Outlines minimum and additional fac- Benefits: tors considered when evaluating • Better ensure that aliens who are seeking admission to whether an alien immigrant is inad- the United States or apply for adjustment of status are missible based on the public charge self-sufficient through an improved review process of the ground. Positive and negative factors mandatory statutory factors. are weighed to determine an individ- ual’s likelihood of becoming a public charge at any time in the future. Adding 8 CFR 212.23. Exemptions and Outlines exemptions and waivers for in- waivers for public charge ground of in- admissibility based on the public admissibility. charge ground.

Adding 8 CFR 214.1(a)(3)(iv) and To provide, with limited exceptions, that Quantitative: amending 8 CFR 214.1(c)(4)(iv). Non- an application for extension of stay Costs: immigrant general requirements. or change of nonimmigrant status will • $6.1 million annually for an increased time burden for Amending 8 CFR 248.1(a) and adding 8 be denied unless the applicant dem- completing and filing Form I–129; CFR 248.1(c)(4). Change of non- onstrates that he or she has not re- • $0.12 million annually for an increased time burden for immigrant classification eligibility. ceived public benefits since obtaining completing and filing Form I–129CW; the nonimmigrant status that he or • $2.4 million annually for an increased time burden for she is seeking to extend or change, completing and filing Form I–539. as defined in final 8 CFR 212.21(b), Quantitative: for 12 months, in the aggregate, Benefits: within a 36 month period. • Better ensures that aliens who are seeking to extend or change to a status that is not exempt from the section 212(a)(4) inadmissibility ground who apply for extension of stay or change of status continue to be self-sufficient during the duration of their nonimmigrant stay.

Amending 8 CFR 245. Adjustment of sta- To outline requirements that aliens Quantitative: tus to that of person admitted for lawful submit a declaration of self-suffi- Direct Costs: permanent residence. ciency on the form designated by • Total annual direct costs of the final rule will range from DHS and any other evidence re- about $45.5 to $131.2 million, including: quested by DHS in the public charge • $25.8 million to applicants who must file Form I– inadmissibility determination. 944; • $0.69 million to applicants applying to adjust status using Form I–485 with an increased time burden; • $0.34 million to public charge bond obligors for filing Form I–945; and • $823.50 to filers for filing Form I–356. • Total costs over a 10-year period will range from: • $352.0 million for undiscounted costs; • $300.1 million at a 3 percent discount rate; and • $247.2 million at a 7 percent discount rate. Transfer Payments • Total annual transfer payments of the final rule would be about $2.47 billion from foreign-born non-citizens and their households who disenroll from or forego enrollment in public benefits programs. The federal-level share of annual transfer payments will be about $1.46 billion and the state-level share of annual transfer payments will be about $1.01 billion. • Total transfer payments over a 10-year period, including the combined federal- and state-level shares, will be: • $24.7 billion for undiscounted costs; • $21.0 billion at a 3 percent discount rate; and • $17.3 billion at a 7 percent discount rate. Quantitative: Benefits: • Potential to make USCIS’ in the review of public charge inadmissibility more effective. Costs:

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TABLE 2—SUMMARY OF MAJOR PROVISIONS AND ECONOMIC IMPACTS OF THE FINAL RULE—Continued

Provision Purpose Expected impact of final rule

• DHS anticipates a likely increase in the number of deni- als for adjustment of status applicants based on public charge inadmissibility determinations due to formalizing and standardizing the criteria and process for public charge determination. • Costs to various entities and individuals associated with regulatory familiarization with the provisions of the final rule. Costs will include the opportunity cost of time to read the final rule and subsequently determine applica- bility of the final rule’s provisions. DHS estimates that the time to read this final rule in its entirety would be 16 to 20 hours per individual. DHS estimates that the oppor- tunity cost of time will range from about $583.52 to $729.40 per individual who must read and review the final rule. However, DHS cannot determine the number of individuals who will read the final rule.

Public Charge Bond Provisions

Amending 8 CFR 103.6. Public charge To set forth the Secretary’s discretion Quantitative: bonds. to approve bonds, cancellation, bond Costs: schedules, and breach of bond, and • $34,166 annually to obligors for submitting Public to move principles governing public Charge Bond (Form I–945); and charge bonds to final 8 CFR 213.1. • $823.50 annually to filers for submitting Request for Cancellation of Public Charge Bond (Form I–356). Amending 8 CFR 103.7. Fees ...... To add fees for new Form I–945, Pub- • Fees paid to bond companies to secure public charge lic Charge Bond, and Form I–356, bonds. Fees could range from 1–15 percent of the public Request for Cancellation of Public charge bond amount based on an individual’s credit Charge Bond. score. Amending 8 CFR 213.1. Admission or In 8 CFR 213.1, to add specifics to the Quantitative: adjustment of status of aliens on giving public charge bond provision for Benefits: of a public charge bond. aliens who are seeking adjustment of • Potentially enable an alien who was found inadmissible status, including the discretionary only on the public charge ground to adjust his or her sta- availability and the minimum amount tus by posting a public charge bond with DHS. required for a public charge bond. Source: USCIS analysis.

DHS has prepared a full analysis 1615–AA22 on www.regulations.gov. In accounting statement showing the costs according to E.O.s 12866 and 13563, addition to the impacts summarized associated with this final regulation.857 and can be found in the docket for this above and as required by OMB Circular rulemaking or by searching for RIN A–4, Table 8 presents the prepared

TABLE 8—OMB A–4 ACCOUNTING STATEMENT [$, 2018]

Category Primary estimate Minimum estimate Maximum estimate Source citation

BENEFITS:

Monetized Benefits ...... The final rule will produce some benefits for T nonimmigrants applying for adjustment of status RIA. based on their T nonimmigrant status, as this population will no longer need to submit Form I– 601 seeking a waiver on grounds of inadmissibility. DHS estimates the total benefits for this pop- ulation is $15,176 annually. Form I–485 applicants will no longer have to file Form I–864W. Benefits to applicants will be ap- proximately $36.47 per petition based on the opportunity cost of time.

Annualized quantified, but ...... RIA. un-monetized, benefits.

Unquantified Benefits ...... The primary benefit of the final rule is to ensure that aliens who are admitted to the United RIA. States or apply for adjustment of status will not use or receive one or more public benefits for which they are entitled to receive, and instead, will rely on their financial resources, and those of family members, sponsors, and private organizations.

857 OMB Circular A–4 is available at https:// www.whitehouse.gov/sites/whitehouse.gov/files/ omb/circulars/A4/a-4.pdf.

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TABLE 8—OMB A–4 ACCOUNTING STATEMENT—Continued [$, 2018]

Category Primary estimate Minimum estimate Maximum estimate Source citation

Potential to improve the efficiency for USCIS in the review process for public charge inadmis- sibility.

COSTS:

Annualized monetized costs (3%) $35,202,698 N/A N/A RIA. (discount rate in paren- (7%) $35,202,698 N/A N/A thesis).

Annualized quantified, but N/A. un-monetized, costs. Qualitative (unquantified) DHS anticipates a likely increase in the number of denials for adjustment of status applicants RIA. costs. based on public charge inadmissibility determinations due to formalizing and standardizing the criteria and process for public charge determination. Costs to various entities and individuals associated with regulatory familiarization with the provi- sions of the rule. Costs will include the opportunity cost of time to read the final rule and subse- quently determine applicability of the final rule’s provisions. DHS estimates that the time to read this final rule in its entirety would be 16 to 20 hours per individual. DHS estimates that the oppor- tunity cost of time will range from about $583.52 to $729.40 per individual who must read and re- view the final rule. However, DHS cannot determine the number of individuals who will read the final rule. Fees paid by aliens to obligors to secure public charge bond. Other qualitative, unquantified effects of the final rule could include: • Potential lost productivity, • Adverse health effects, • Additional medical expenses due to delayed health care treatment, and • Increased disability insurance claims • Administrative changes to business processes such as reprogramming computer software and redesigning application forms and processing.

TRANSFERS:

Annualized monetized trans- ($1,455,724,086) N/A N/A RIA. fers: ‘‘on budget’’.

From whom to whom? ...... Reduction in transfer payments from the federal government to public benefits recipients who are RIA. members of households that include foreign-born non-citizens. This amount includes the esti- mated federal-level shares of transfer payments to members of households that include for- eign-born non-citizens.

Annualized monetized trans- ($1,011,604,874) N/A N/A fers: ‘‘off-budget’’.

From whom to whom? Reduction in transfer payments from state governments to public benefits recipients who are members of households that include foreign-born non-citizens. This amount includes the esti- mated state-level shares of transfer payments to members of households that include foreign- born non-citizens. DHS estimates that the state-level share of transfer payments is 59 percent of the estimated amount of federal transfer payments. DHS estimates the annual federal-level share would be about $1.46 billion and the annual state-level share of transfer payments would be about $1.01 billion. Miscellaneous analyses/category Effects Source citation

Effects on state, local, and/ DHS believes that the rule may have indirect effects on state, local, and/or tribal government, but RIA. or tribal governments. DHS does not know the full extent of the effect on state, local, and/or tribal governments. There may be costs to various entities associated with familiarization of and compliance with the provisions of the rule, including salaries and opportunity costs of time to monitor and un- derstand regulation requirements, disseminate information, and develop or modify information technology (IT) systems as needed. It may be necessary for many government agencies to update guidance documents, forms, and webpages. It may be necessary to prepare training materials and retrain staff at each level of government, which will require additional staff time and will generate associated costs. Effects on small businesses DHS believes there may be some impacts to those small entities that file Form I–129 or Form I– RIA. 129CW for beneficiaries that extend stay or change status. These petitioners will have an in- crease in time burden for completing and filing Form I–129 or Form I–129CW and possibly have labor turnover costs if the Form I–129 or Form I–129CW EOS/COS request is denied and the beneficiary has to leave the United States or the Commonwealth of the Northern Mar- iana Islands (CNMI), respectively. DHS also believes that some surety companies that are small entities may be impacted by filing Form I–356. DHS estimates the total annual cost to file Form I–356 will be about $823.50.

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Miscellaneous analyses/category Effects Source citation

Effects on wages ...... None ...... None. Effects on growth ...... None ...... None.

B. Regulatory Flexibility Act 129CW beneficiary, for whom a Form I– obtaining the nonimmigrant status that The Regulatory Flexibility Act of 1980 129 or Form I–129CW petitioner (i.e., they wish to extend or change. This (RFA), 5 U.S.C. 601–612, as amended by the employer) sought either an ‘‘public benefit condition’’ serves the the Small Business Regulatory extension of stay or a change of status, same policy goals as the rule generally. Enforcement Fairness Act of 1996, may have to leave the United States if b. A statement of the significant issues Public Law 104–121 (March 29, 1996), the employer’s request was denied. In raised by the public comments in imposes certain requirements on these cases, the petitioner may lose the response to the initial regulatory Federal agency rules that are subject to beneficiary as an employee and may flexibility analysis, a statement of the the notice and comment requirements of incur labor turnover costs. DHS presents assessment of the agency of such the APA, 5 U.S.C. 553(b), and are likely this Final Regulatory Flexibility issues, and a statement of any changes to have a significant economic impact Analysis (FRFA) to examine these made in the proposed rule as a result on a substantial number of small impacts. of such comments. entities. The RFA requires Federal 1. Final Regulatory Flexibility Analysis Comment: Some commenters stated agencies to consider the potential that the rule will negatively impact The small entities that could be impact of regulations on small small businesses. An individual impacted by this final rule are those businesses, small governmental commenter stated that the rule would who file Form I–129 or Form I–129CW jurisdictions, and small organizations undercut small and mid-sized as petitioners on behalf of beneficiaries during the development of their rules. businesses’ ability to manage their talent requesting an extension of stay or The term ‘‘small entities’’ comprises pipelines. The commenter stated that change of status as well as obligors that small businesses, not-for-profit nearly 48 percent of private-sector would request a cancellation of a public organizations that are independently workers in the United States are charge bond. owned and operated and are not employed in these small and mid-sized dominant in their fields, or a. A Statement of the Need for, and businesses, and that small businesses governmental jurisdictions with Objectives of, the Rule rely on strategic partnerships and populations of less than 50,000.858 This related tools to ensure a strong talent DHS seeks to better ensure that pipeline of workers who are equipped final rule requires an individual seeking applicants for admission to the United admission at the port of entry or with the skills they need. The States and applicants for adjustment of commenter stated that the rule would adjusting status to establish that he or status to lawful permanent resident who she is not likely at any time in the future penalize individuals who often draw are subject to the public charge ground upon public benefits to support to become a public charge. Most of this of inadmissibility are self-sufficient, i.e., rule’s regulatory changes do not fall themselves or their families during their they will rely on their own financial training period or even when they first under the RFA because they directly resources as well as the financial regulate individuals who are not, for begin work. The commenter stated that resources of their family, sponsors, and in view of currently low unemployment, purposes of the RFA, within the private organizations as necessary.859 definition of small entities established employers need access to labor that is Under section 212(a)(4) of the Act, 8 able to attend training while still relying by 5 U.S.C. 601(6). However, DHS U.S.C. 1182(a)(4), an alien is recognizes that there may be some on public benefits programs to provide inadmissible if, at the time of an for their families’ basic needs. provisions of this final rule that would application for admission or adjustment directly regulate small entities, and, A commenter stated that the RFA of status, he or she is likely at any time mandates that DHS consider more therefore, DHS has examined the impact to become a public charge. The statute impacts than it has such as labor of this final rule on small entities. requires DHS to consider the following This final rule would increase the turnover costs, or reduced productivity minimum factors that reflect the time burden by an additional 30 and educational attainment. likelihood that an alien will become a Response: DHS appreciates the minutes for petitioners who file Form I– public charge: The alien’s age; health; comments regarding the effect of the 129 or Form I–129CW on behalf of a family status; assets, resources, and rule on small entities, including small beneficiary requesting an extension of financial status; and education and business, and DHS’s RFA analysis. The stay or change of status, which would skills. In addition, DHS may consider RFA analysis discusses and estimates impose direct costs on these petitioners. any affidavit of support submitted by the potential direct costs that small Additionally, the provisions to establish the alien’s sponsor and any other factors businesses could incur and explains the a public charge bond process included relevant to the likelihood of the alien limitations for providing a more in this final rule would allow for either becoming a public charge. thorough quantification of the potential an alien or an obligor (individual or an Separate from these requirements, as costs to small businesses. Additionally, entity) to request a cancellation of a a condition for permitting extension of the economic analysis that accompanies public bond. As a result, this final rule stay or change of status for certain this rule, which can be found in the rule could have direct impacts on small nonimmigrant aliens, this rule requires docket at www.regulations.gov, entities that are obligors. DHS also such aliens (or their petitioning discusses the direct and indirect effects recognizes that a Form I–129 or Form I– employer) to establish that they have of the rule, including on small not received certain public benefits businesses. Most of this rule’s regulatory 858 A small business is defined as any independently owned and operated business not above a particular threshold since effects, such as the effects described in dominant in its field that qualifies as a small the comment summary above, do not business per the Small Business Act, 15 U.S.C. 632. 859 See 8 U.S.C. 1601(2). fall under the RFA because they directly

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regulate individuals who are not, for I–129CW on behalf of a beneficiary companies post public charge bonds purposes of the RFA, within the requesting an extension of stay or with USCIS, we can assume that four definition of small entities established change of status, which would impose surety companies may be considered as by 5 U.S.C. 601(6). However, DHS direct costs on these petitioners and small entities. However, USCIS cannot recognizes that there may be some entities.861 As previously discussed in predict the exact impact to these small provisions of this final rule that would the E.O. 12866 section of this final rule, entities at this time. We expect that directly regulate small entities, and, DHS estimates an annual population of obligors would be able to pass along the therefore, DHS has examined the impact 336,335 beneficiaries seeking extension costs of this rulemaking to the aliens. of this final rule on small entities. of stay or change of status through a e. A description of the projected The primary effect on small entities is petitioning employer using Form I–129. reporting, recordkeeping, and other that this rule will increase the time In addition, DHS estimates an annual compliance requirements of the rule, burden for petitioners who file Form I– population of 6,307 beneficiaries including an estimate of the classes of 129 or Form I–129CW on behalf of a seeking extension of stay or change of small entities that will be subject to beneficiary requesting an extension of status through a petitioning employer the requirement and the type of stay or change of status, which would using Form I–129CW. DHS estimates professional skills necessary for impose direct costs on these petitioners that the 30-minute increase in the preparation of the report or record. via opportunity costs of time. DHS also estimated time burden for these In addition to time burden costs recognizes that a Form I–129 or Form I– populations would increase the discussed in Section 4 of this FRFA, 129CW beneficiary, for whom a Form I– opportunity cost of time for completing DHS recognizes that a Form I–129 or 129 or Form I–129CW petitioner (i.e., and filing Form I–129 and Form I– Form I–129CW beneficiary, for whom a the employer) sought either an 129CW and would result in about $6.1 Form I–129 or Form I–129CW petitioner extension of stay or a change of status, million and about $115,040 million in (i.e., the employer) sought either an may have to leave the United States if costs, respectively. extension of stay or a change of status, the employer’s request was denied. In The provisions regarding the bond may have to leave the United States if these cases, the petitioner may lose the process included in this final rule will the employer’s request is denied. In beneficiary as an employee and may allow a surety company to become an these cases, the petitioner may lose the incur labor turnover costs. Additionally, obligor on a public charge bond (Form beneficiary as an employee and may this rule could have direct impacts on I–945) and, later, to request a incur labor turnover costs. A 2012 small entities as the provisions establish cancellation of such a bond (Form I– report published by the Center for a public charge bond process included 356). Therefore, this final rule could American Progress surveyed several in this final rule would allow for either have some impacts to surety companies, dozen studies that considered both an alien or an obligor (individual or an some of which are small entities. A direct and indirect costs and determined entity) to request a cancellation of a request for cancellation of a public bond that turnover costs per employee ranged public bond. using Form I–356 includes a time from 10 to 30 percent of the salary for burden of 15 minutes per request and a DHS believes it has considered all most salaried workers.864 An employer fee to DHS of $25.00. The number of impacts that the RFA requires. The paid an average of about 20 percent of surety bond companies that might courts have held that the RFA requires the worker’s salary in total labor complete and file Forms I–945 and I– an agency to perform a regulatory turnover costs. Specifically, for workers 356 is not known due to a lack of flexibility analysis of small entity earning $50,000 or less, and for workers historical data and uncertainty in the impacts only when a rule directly earning $75,000 or less, the average number individuals that may be granted regulates them.860 However, DHS notes turnover cost was about 20 percent for the opportunity to post a public charge that we have also considered other, both earning levels. According to the bond. However, DHS estimates that the indirect impacts in the economic study, these earning levels filing volume for Form I–945 might be analysis that accompanies this rule. corresponded to the 75th and 90th c. The response of the agency to any about 960 and the filing volume for Form I–356 might be approximately 25. percentiles of typical earnings, comments filed by the Chief Counsel respectively. Assuming Form I–129 and for Advocacy of the Small Business While DHS cannot predict the exact number of surety companies that might Form I–129CW beneficiaries are Administration in response to the employed, DHS believes it is reasonable proposed rule, and a detailed be impacted by this final rule, nine out of 273 Treasury-certified surety to assume an annual mean wage of statement of any change made to the 865 companies in fiscal year 2015 posted $50,620 across all occupations. proposed rule in the final rule as a 862 Assuming an average labor turnover cost result of the comments. new immigration bonds with ICE. DHS found that of the nine surety of 20 percent of $50,620, on average, an No comments were filed by the Chief companies, four entities were employer could incur costs of Counsel for Advocacy of the Small considered ‘‘small’’ based on the approximately $10,124 per beneficiary Business Administration (SBA). number of employees or revenue being d. A description of and an estimate of less than their respective SBA size American Industry Classification System (NAICS) Codes, October 1, 2017. https://www.sba.gov/sites/ the number of small entities to which 863 standard. Assuming these nine surety default/files/files/Size_Standards_Table_2017.pdf the rule will apply or an explanation (Last visited July 26, 2019). of why no such estimate is available. 861 In the context of Form I–129, a petitioner is 864 See ‘‘There Are Significant Business Costs to This final rule will increase the time typically an employer or the representative of an Replacing Employees,’’ by Heather Boushey and burden by an additional 30 minutes for employer who files on behalf of a nonimmigrant Sarah Jane Glynn (2012), Center for American worker (or beneficiary) to come to the United States Progress, available: https:// petitioners who file Form I–129 or Form temporarily to perform services or labor, or to www.americanprogress.org/issues/economy/ receive training. See https://www.uscis.gov/i-129. reports/2012/11/16/44464/there-are-significant- 860 See U.S. Small Business Administration, 862 See DHS, Procedures and Standards for business-costs-to-replacing-employees/ (last visited Office of Advocacy. The RFA in a Nutshell: A Declining Surety Immigration Bonds and July 26, 2019). Condensed Guide to the Regulatory Flexibility Act. Administrative Appeal Requirement for Breaches 865 Bureau of Labor Statistics, May 2017 National Oct. 2010. Available at: https://www.sba.gov/ NPRM, 83 FR 25951, 25962–25965 (June 5, 2018). Occupational Employment and Wage Estimates, All advocacy/rfa-nutshell-condensed-guide-regulatory- 863 U.S. Small Business Administration, Table of Occupations https://www.bls.gov/oes/2017/may/ flexibility-act (Last visited July 25, 2019). Small Business Size Standards Matched to North oes_nat.htm (last visited July 26, 2019).

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that would be separated from benefits for income maintenance and significantly or uniquely affect small employment as a result of a denied high-expenditure non-cash benefits. governments. Accordingly, the UMRA request for an extension of stay or DHS expects that, as compared to the requires no further agency action or change of status. However, DHS does broader alternative, the approach DHS analysis. not know the number of small entities decided to pursue may reduce the E. Executive Order 13132 (Federalism) within this population of petitioners overall effect of the rule on transfers, but that might incur labor turnover costs. enhance its administrability and This final rule does not have Additionally, DHS also recognizes predictability. Employers filing Forms federalism implications because it does that a Form I–129 or Form I–129CW I–129 and I–129CW, and surety not have substantial direct effects on the beneficiary, for whom a Form I–129 or companies will have a better States, on the relationship between the Form I–129CW petitioner (i.e., the understanding of the types of non-cash national government and the States, or employer) sought either an extension of benefits that may be covered under this on the distribution of power and stay or a change of status and the final rule than they would under the responsibilities among the various request was denied, may still be able to broader alternative, and may realize cost levels of government. Accordingly, E.O. get a visa and return to the U.S., savings as a result. In addition, certain 13132, Federalism, requires no further including pursuant to other means. indirect effects of the rule may be agency action or analysis. DHS does not believe it would be different as a result of the decision to F. Executive Order 12988 (Civil Justice reject this alternative. necessary for Form I–129 or Form I– Reform) 129CW petitioners, or for surety bond DHS has revised the final rule to companies (obligors) to acquire eliminate the future-looking aspect of This final rule was drafted and additional types of professional skills as the public benefit condition, which will reviewed in accordance with E.O. a result of this final rule. These reduce burden on small entities. 12988, Civil Justice Reform. This final rule was written to provide a clear legal petitioners and obligors should already C. Congressional Review Act possess the expertise to fill out the standard for affected conduct and was associated forms for this final rule. DHS has sent this final rule to the carefully reviewed to eliminate drafting Additionally, these petitioners and Congress and to the Comptroller General errors and ambiguities, so as to obligors would be familiar with the final under the Congressional Review Act, 5 minimize litigation and undue burden rule and such familiarization costs are U.S.C. 801 et seq. The Administrator of on the Federal court system. DHS has accounted for the in the E.O. 12866 the Office of Information and Regulatory determined that this final rule meets the sections. Affairs has determined that this rule is applicable standards provided in a ‘‘major rule’’ within the meaning of section 3 of E.O. 12988. f. Description of the steps the agency the Congressional Review Act. The rule has taken to minimize the significant therefore requires at least a 60-day G. Executive Order 13175 Consultation economic impact on small entities delayed effective date. and Coordination With Indian Tribal consistent with the stated objectives Governments of applicable statutes, including a D. Unfunded Mandates Reform Act This final rule does not have ‘‘tribal statement of factual, policy, and legal The Unfunded Mandates Reform Act implications’’ because it does not have reasons for selecting the alternative of 1995 (UMRA) is intended, among substantial direct effects on one or more adopted in the final rule and why other things, to curb the practice of Indian tribes, on the relationship each one of the other significant imposing unfunded Federal mandates between the Federal Government and alternatives to the rule considered by on State, local, and tribal governments. Indian tribes, or on the distribution of the agency which affect the impact on Title II of UMRA requires each Federal power and responsibilities between the small entities was rejected. agency to prepare a written statement Federal Government and Indian tribes. DHS considered a range of potential assessing the effects of any Federal Accordingly, E.O. 13175, Consultation alternatives to the final rule. First, under mandate in a proposed or final agency and Coordination with Indian Tribal a ‘‘no action’’ alternative, DHS would rule that may directly result in a $100 Governments, requires no further continue administering the public million or more expenditure (adjusted agency action or analysis. charge ground of inadmissibility under annually for inflation) in any one year the 1999 Interim Field Guidance, and by State, local, and tribal governments, H. Family Assessment would not impose a public benefit in the aggregate, or by the private sector. Section 654 of the Treasury and condition for extension of stay and The inflation-adjusted value of $100 General Government Appropriations change of status. For reasons explained million in 1995 is approximately $165 Act, 1999 (Pub. L. 105–277) requires more fully elsewhere in the preamble to million in 2018 based on the Consumer Federal agencies to issue a Family the final rule, DHS determined that this Price Index for All Urban Consumers Policymaking Assessment for any rule alternative would not adequately ensure (CPI–U).866 that may affect family well-being. the self-sufficiency of aliens subject to This final rule does not contain such Agencies must assess whether the the public charge ground of a mandate as it does not include any regulatory action: (1) Impacts the inadmissibility. Second, DHS Federal mandate that may result in stability or safety of the family, considered including a more expansive increased expenditures by State, local, particularly in terms of marital definition of ‘‘public benefit,’’ or tribal governments; nor does it commitment; (2) impacts the authority potentially to include a range of non- increase private sector expenditures by of parents in the education, nurture, and cash benefit programs falling in specific more than $165 million annually supervision of their children; (3) helps categories (such as other programs that (inflation adjusted); nor does it the family perform its functions; (4) provide assistance for basic food and affects disposable income or poverty of nutrition, housing, and healthcare). For 866 U.S. Bureau of Labor Statistics, Historical families and children; (5) if the reasons explained more fully elsewhere Consumer Price Index for All Urban Consumers regulatory action financially impacts (CPI–U): U.S. City Average, All Items, available at in the preamble to the final rule, DHS https://www.bls.gov/cpi/tables/supplemental-files/ families, are justified; (6) may be carried chose the approach contained in this historical-cpi-u-201902.pdf (last visited April 25, out by State or local government or by final rule—a more limited list of cash 2019). the family; and (7) establishes a policy

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concerning the relationship between the significant effect on the human extend or change, public benefits for a behavior and personal responsibility of environment and, therefore, do not duration of more than 12 months in the youth and the norms of society. If the require an Environmental Assessment aggregate within a 36-month period. As determination is affirmative, then the (EA) or Environmental Impact discussed in detail above, this final rule Agency must prepare an impact Statement (EIS). 40 CFR establishes a definition of public charge assessment to address criteria specified 1507.3(b)(1)(iii), 1508.4. DHS and expands the types of public benefits in the law. As discussed in the Instruction 023–01–001 Rev. 01 that DHS would consider as part of its NPRM,867 DHS has determined that the establishes such Categorical Exclusions public charge inadmissibility rule may decrease disposable income that DHS has found to have no such determinations. The final rule also and increase the poverty of certain effect. Inst. 023–01–001 Rev. 01 proposes to establish a regulatory families and children, including U.S. Appendix A Table 1. For an action to be framework based on the statutory factors citizen children. DHS continues to be of categorically excluded, DHS Inst. 023– that must be considered in public the opinion that the benefits of the 01–001 Rev. 01 requires the action to charge determinations, including action justify the financial impact on the satisfy each of the following three enhanced evidentiary requirements for family. Additionally, because the final conditions: public charge inadmissibility rule considers public benefits for (1) The entire action clearly fits determinations by USCIS. Finally, the purposes of the inadmissibility within one or more of the Categorical final rule revises the public charge bond determination that were not considered Exclusions; process. Overall, the final rule requires under the 1999 Interim Field Guidance, (2) the action is not a piece of a larger an in-depth adjudication that may result DHS determined that the aliens found action; and in additional findings of inadmissibility, inadmissible under section 212(a)(4) of (3) no extraordinary circumstances ineligibility for adjustment of status on the Act, 8 U.S.C. 1182(a)(4), will likely exist that create the potential for a public charge grounds, or denials of increase. However, given the compelling significant environmental effect. requests for extension of stay or change need for this rulemaking, including but Inst. 023–01–001 Rev. 01 section of status based on the public benefit not limited to ensuring self-sufficiency V.B(1)–(3). condition. and minimizing the incentive to DHS cannot estimate with any degree immigrate based on the U.S. social DHS has analyzed this action and has concluded that NEPA does not apply of certainty the extent to which any safety net, DHS determined that this potentially increased findings of rulemaking’s impact is justified and no due to the excessively speculative nature of any effort to conduct an inadmissibility on public charge further actions are required. DHS also grounds would result in fewer determined that this final rule will not impact analysis. This final rule fits within the Categorical Exclusion found individuals being admitted to the have any impact on the autonomy or United States. DHS is similarly unable integrity of the family as an institution. in DHS Inst. 023–01–001 Rev. 01, Appendix A, Table 1, number A3(d): to estimate the extent to which there I. National Environmental Policy Act ‘‘Promulgation of rules . . . that would be an increased denial of (NEPA) interpret or amend an existing applications for extension of stay or change of status. Even if DHS could DHS analyzes actions to determine regulation without changing its estimate any of these numerical effects, whether NEPA applies to them and if so environmental effect.’’ This final rule is any assessment of derivative what degree of analysis is required. DHS not part of a larger action. This final rule environmental effect at the national Directive (Dir) 023–01 Rev. 01 and presents no extraordinary circumstances level would be unduly speculative. This Instruction Manual (Inst.) 023–01–001 creating the potential for significant final rule is not part of a larger action. Rev. 01 establish the procedures that environmental effects. Therefore, this This final rule presents no extraordinary DHS and its components use to comply final rule is categorically excluded from circumstances creating the potential for with NEPA and the Council on further NEPA review. significant environmental effects. Environmental Quality (CEQ) This final rule applies to applicants Therefore, this final rule is categorically regulations for implementing NEPA, 40 for admission or adjustment of status, as excluded from further NEPA review. CFR parts 1500 through 1508. The CEQ long as the individual is applying for an regulations allow Federal agencies to immigration status that is subject to the J. Paperwork Reduction Act establish, with CEQ review and public charge ground of inadmissibility. Under the PRA, all Departments are concurrence, categories of actions In addition, this final rule would required to submit to OMB, for review (‘‘categorical exclusions’’) which potentially affect individuals applying and approval, any reporting experience has shown do not for an extension of stay or change of requirements inherent in a rule. See individually or cumulatively have a status because these individuals would have to demonstrate that they have not Public Law 104–13, 109 Stat. 163 (May 22, 1995). Table 9 below is a listing of 867 See Inadmissibility on Public Charge Grounds, received, since obtaining the 83 FR 51114, 51277 (proposed Oct. 10, 2018). nonimmigrant status they are seeking to all forms impacted by this rule.

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TABLE 9—SUMMARY OF FORMS

New or updated General purpose of Applicability to Form Form name forms form General categories filing public charge rule

I–944 ...... Declaration of Self- New ...... This form is used to Anyone who is subject to a public This form is the pri- Sufficiency. demonstrate that charge inadmissibility determination. mary basis for de- an alien is not See Tables 2–7 for a full list. termining whether likely to become a an applicant is in- public charge. admissible on public charge grounds, as it asks questions about the factors considered. I–356 ...... Request for Can- Update—Previously This form is used to An obligor who posted Form I–945 on This form is used to cellation of a Pub- discontinued. request cancella- the alien’s behalf or an alien who seek cancellation lic Charge Bond. tion of the bond posted Form I–945 posted on his or of the Form I–945 that was sub- her own behalf, and who seeks to the criteria as mitted on Form I– cancel Form I–945 because the alien provided in the 945, Public has permanently departed the United rule. Charge Bond, on States, naturalized, or died; the obli- behalf of an alien. gor or the alien seeks cancellation of the bond following the alien’s fifth an- niversary of admission to the United States as a lawful permanent resident; or the alien, following the initial grant of lawful permanent resident status, obtains an immigration status that is exempt from the public charge ground of inadmissibility. I–945 ...... Public Charge Bond New ...... This form is the For aliens inadmissible only based on If an alien seeking bond contract be- public charge and who are permitted adjustment of sta- tween USCIS and to post bond. The form is completed tus has been the obligor. by the obligor, who posts the bond on found inadmis- the alien’s behalf. sible he or she may be admitted to the United States upon the posting of a suit- able and proper a bond at the dis- cretion of DHS. I–485 ...... Application to Reg- Update—adds This form is used by For aliens applying for adjustment of Adjustment of status ister Permanent questions and in- aliens present in status including: Immediate relatives applicants gen- Residence or Ad- structions to clar- the United States (spouses, children, and parents of erally must be ad- just Status. ify what cat- to obtain lawful U.S. citizens) Family-based immi- missible, including egories need to permanent resi- grants (principal beneficiaries and with regard to the file Form I–944 dent status.. their dependents) Employment-based public charge in- and Form I–864. immigrants (principal beneficiaries and admissibility their dependents) Those who entered ground. as Ks (Fiance(e)s or certain spouses of U.S. citizens, and their children) who are seeking lawful permanent resident status based on the primary beneficiary’s marriage to the U.S. cit- izen petitioner. I–864 ...... Affidavit of Support Update—reference Statement/contract Most family-based immigrants and some The affidavit of sup- Under Section to Form I–864W, provided by a employment-based immigrants must port, when re- 213A of the INA. which is being sponsor to show have a sponsor submit this form. See quired, is part of discontinued. that the sponsor additional Tables 2–7 for a full list. the public charge has adequate fi- inadmissibility de- nancial resources termination. to support the alien.

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TABLE 9—SUMMARY OF FORMS—Continued

New or updated General purpose of Applicability to Form Form name forms form General categories filing public charge rule

I–864EZ ... Affidavit of Support Update—reference Statement/contract The sponsor is the person who filed or The affidavit of sup- Under Section to Form I–864W, provided by spon- is filing Form I–130, Petition for Alien port, when re- 213A of the Act. which is being sor to show that Relative, for a relative being spon- quired, is part of discontinued. the sponsor has sored; the relative the sponsor is the public charge adequate financial sponsoring is the only person listed inadmissibility de- resources to sup- on Form I–130; and the income the termination. port the alien. sponsor is using to qualify is based This is a simpler entirely on the sponsor’s salary or version of Form pension and is shown on one or more I–864. Internal Revenue Service (IRS) Form W–2s provided by the sponsor’s em- ployers or former employers. I–864W .... Request for Exemp- Discontinued—infor- Certain classes of Aliens who have earned 40 quarters of Although some peo- tion for Intending mation incor- immigrants are SSA coverage. Children who will be- ple may be ex- Immigrant’s Affi- porated into Form exempt from the come U.S. citizens upon entry or ad- empt from the af- davit of Support. I–485. affidavit of sup- justment into the United States under fidavit of support port, Form I–864, INA 320. Self-Petitioning Widow(er) requirement, the requirement and Form I–360, Petition for Amerasian, person may still therefore must file Widow(er) or Special Immigrant; Self- be subject to pub- Form I–864W in- Petitioning bettered spouse or child. lic charge. stead. I–129 ...... Petition for Non- Update—adds This form issued by • E–2 CNMI—treaty investor exclusively As a condition of immigrant Worker. questions and in- an employer to in the Commonwealth of the Northern granting exten- structions about petition USCIS for Mariana Islands (CNMI). sion of stay and receipt of public an alien bene- • H–1B—specialty occupation worker; change of status, benefits. ficiary to come an alien coming to perform services of the applicant temporarily to the an exceptional nature that relate to a must show that United States as U.S. Department of Defense-adminis- he or she has not a nonimmigrant to tered project; or a fashion model of received, since perform services distinguished merit and ability. obtaining the non- or labor, or to re- • H–2A—temporary agricultural worker immigrant status ceive training. • H–2B—temporary nonagricultural he or she is seek- This form is also worker. ing to extend or used by certain • H–3—trainee change public nonimmigrants to • L–1—intracompany transferee benefits, as de- apply for EOS or • O–1—alien of extraordinary ability in fined in 8 CFR COS. arts, science, education, business, or 212.21(b), for athletics. more than 12 • O–2—accompanying alien who is months in the ag- coming to the United States to assist gregate, within a in the artistic or athletic performance 36-month period. of an O–1 artist or athlete. • P–1—major league sports • P–1—internationally recognized ath- lete/entertainment group. • P–1S—essential support personnel for a P–1. • P–2—artist/entertainer in reciprocal exchange program. • P–2S—essential support personnel for a P–2. • P–3—artist/entertainer coming to the United States to perform, teach, or coach under a program that is cul- turally unique. • P–3S—essential support personnel for a P–3. • Q–1—alien coming temporarily to par- ticipate in an international cultural ex- change program. Extension of Status. • E–1—treaty trader • E–2—treaty investor (not including E– 2 CNMI treaty investors). • E–3—Free Trade Agreement profes- sionals from Australia. Free Trade Nonimmigrants—H–1B1 specialty oc- cupation workers from Chile or Singa- pore and TN professionals from Can- ada or Mexico. • R–1—religious worker

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TABLE 9—SUMMARY OF FORMS—Continued

New or updated General purpose of Applicability to Form Form name forms form General categories filing public charge rule

I–129CW Petition for a CNMI- Update—adds ...... This form is used by an employer to re- As a condition of Only Non- questions and in- quest an extension of stay or change granting exten- immigrant Transi- structions about of status for a Commonwealth of the sion of stay and tional Worker. receipt of public Northern Mariana Islands (CNMI) tem- change of status, benefits. porarily to perform services or labor the applicant as a CW–1, CNMI-Only Transitional must show that Worker. he or she has not received, since obtaining the non- immigrant status he or she is seek- ing to extend or change public benefits, as de- fined in 8 CFR 212.21(b), for more than 12 months in the ag- gregate within a 36-month period. I–539 ...... Application to Ex- Update—adds This form is used by CNMI residents applying for an initial As a condition of tend/Change questions and in- certain non- grant of status; Student (F) and voca- granting exten- Nonimmigrant structions about immigrants (prin- tional students (M) applying for rein- sion of stay and Status. receipt of public cipal filers) to statement; and Persons seeking V change of status, benefits for prin- apply for an ex- nonimmigrant status or an extension the applicant cipal aliens. tension of stay or of stay as a V nonimmigrant (spouse must show that change of status. or child of a lawful permanent resident he or she has not In certain cir- who filed a petition on or before De- received since cumstances, this cember 21, 2000). obtaining the non- form may be used immigrant status as an initial non- he or she is seek- immigrant status, ing to extend or or reinstatement from which he or of F–1 or M–1 she is seeking to status (students). change public benefits, as de- fined in 8 CFR 212.21(b), for more than 12 months in the ag- gregate within a 36-month period. I–539A ...... Update—adds This form is used by Co-Applicants of I–539 principal filers .... As a condition of questions and in- certain non- granting exten- structions about immigrants (co- sion of stay and receipt of public applicants of the change of status, benefits by co-ap- primary I–539 ap- the co-applicant plicants of I–539 plicants) to apply must show that applicants. for an extension he or she has not of stay or change received, since of status. obtaining the non- immigrant status he or she is seek- ing to extend or from which he or she is seeking to change, public benefits, as de- fined in 8 CFR 212.21(b), for more than 12 months in the ag- gregate within a 36-month period.

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TABLE 9—SUMMARY OF FORMS—Continued

New or updated General purpose of Applicability to Form Form name forms form General categories filing public charge rule

I–912 ...... Request for Fee Update—provides a This form may be Certain Form I–485 applicants, generally A request of a fee Waiver. notice that a re- filed with certain those who are not subject to the pub- waiver is a factor quest for a fee USCIS applica- lic charge ground of inadmissibility in the determina- waiver may be a tions, petitions, and those applying under certain hu- tion of Public factor in the pub- and requests in manitarian programs, may request a Charge. lic charge deter- order to request a fee waiver on Form I–912. Applicants mination. fee waiver. for E–2 CNMI investor nonimmigrant status under 8 CFR 214.2(e)(23) filing Form I–129 or Form I–539 may re- quest a fee waiver.. I–407 ...... Record of Abandon- No changes ...... This form is used to An alien who wants to record the vol- If a public charge ment of Lawful record an alien’s untary abandonment of his or her law- bond has been Permanent Resi- abandonment of ful permanent resident status. posted on the dent Status. status as a lawful alien’s behalf, the permanent resi- obligor or the dent in the United alien may request States. that the bond be cancelled be- cause the alien permanently de- parted the United States. The alien shows that he or she voluntarily abandoned his or her status by sub- mitting proof that he or she exe- cuted Form I–407 and that he or she physically de- parted the United States. I–693 ...... Report of Medical No changes ...... This form is used to Generally, adjustment of status appli- Form I–693 is used Examination and report results of cants are required to submit Form I– as part of the Vaccination an immigration 693. Nonimmigrants seeking a change health factor to Record. medical examina- or extension of status are generally identify medical tion performed by not required to submit Form I–693, conditions that a civil surgeon to except for nonimmigrants seeking a will affect an ap- USCIS.. change of status to spouse of legal plicant’s ability to permanent resident (V) status. See provide and care table in https://www.uscis.gov/policy for himself or her- manual/HTML/PolicyManual-Volume8- self, to attend PartB-Chapter3.html. school or to work.

To conform with the requirements set abstract: Primary: Individuals or charge, the declarant may need to forth by the PRA, on October 10, 2018, households. USCIS will require an provide additional evidence to at 83 FR 51114, USCIS requested individual applying to adjust status to overcome this determination. comments on the following information lawful permanent residence (Form I– (5) An estimate of the total number of collection. USCIS did receive comments 485) and who is subject to the public respondents and the amount of time on some of these information collections charge ground of inadmissibility to file estimated for an average respondent to after publishing that notice. USCIS Form I–944. The data collected on these respond: The estimated total number of responded to these comments above in forms will be used by USCIS to respondents for the information collection I–944 is 382,264 and the Section III. At this time, the following determine the likelihood of a declarant estimated hour burden per response is forms are not open for comment. becoming a public charge based on the 4.5 hours. USCIS Form I–944 factors regarding age; health; family (6) An estimate of the total public (1) Type of Information Collection status; assets, resources, and financial burden (in hours) associated with the Request: New Collection. status; and education and skills. The collection: The total estimated annual (2) Title of the Form/Collection: information collection serves the hour burden associated with this Declaration of Self-Sufficiency. purpose of standardizing public charge collection is 1,720,188 hours. (3) Agency form number, if any, and evaluation metrics and ensures that (7) An estimate of the total public the applicable component of the DHS declarants provide all essential burden (in cost) associated with the sponsoring the collection: Form I–944; information required for USCIS to assess collection: The estimated total annual USCIS. self-sufficiency and adjudicate the cost burden associated with this (4) Affected public who will be asked declaration. If USCIS determines that a collection of information is or required to respond, as well as a brief declarant is likely to become a public $177,943,892.

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USCIS Form I–356 adjustment of status to that of a lawful (6) An estimate of the total public (1) Type of Information Collection permanent resident. An acceptable burden (in hours) associated with the Request: New Collection. surety is generally any company listed collection: The total estimated annual (2) Title of the Form/Collection: on the Department of the Treasury’s hour burden associated with this Request for Cancellation of Public Listing of Approved Sureties collection is 2,885,243 hours. (7) An estimate of the total public Charge Bond. (Department Circular 570) in effect on burden (in cost) associated with the (3) Agency form number, if any, and the date the bond is requested or an collection: The estimated total annual the applicable component of the DHS individual or an entity that deposits cost burden associated with this sponsoring the collection: Form I–356; cash or a cash equivalent, such as a cashier’s check or money order for the collection of information is USCIS. $131,116,552. (4) Affected public who will be asked full value of the bond. or required to respond, as well as a brief (5) An estimate of the total number of USCIS Forms I–864; I–864A; I–864EZ abstract: Primary: Individuals or respondents and the amount of time estimated for an average respondent to (1) Type of Information Collection household, business or other for profits. Request: Revision of a Currently The alien (on whose behalf a public respond: The estimated total number of respondents for the information Approved Collection. charge bond has been posted) or the (2) Title of the Form/Collection: collection I–945 is 960 and the obligor (surety) (who is the obligor who Affidavit of Support Under Section estimated hour burden per response is posted a bond on the alien’s behalf). The 213A of the INA; Contract Between one hour. form is used to request cancellation of Sponsor and Household Member; the public charge bond because of the (6) An estimate of the total public Affidavit of Support under Section 213 alien’s naturalization, permanent burden (in hours) associated with the of the Act. departure, or death. The form is also collection: The total estimated annual (3) Agency form number, if any, and used by the alien or the obligor to hour burden associated with this the applicable component of the DHS request cancellation of the public charge collection is 960 hours. sponsoring the collection: Form I–864; bond upon the fifth anniversary of the (7) An estimate of the total public Form I–864A; and Form I–864EZ; alien’s admission to the United States as burden (in cost) associated with the USCIS. a lawful permanent resident. collection: The estimated total annual (4) Affected public who will be asked (5) An estimate of the total number of cost burden associated with this or required to respond, as well as a brief respondents and the amount of time collection of information is $0. abstract: Primary: Individuals or estimated for an average respondent to USCIS Form I–485 households. Form I–864: USCIS uses the respond: The estimated total number of data collected on Form I–864 to respondents for the information (1) Type of Information Collection determine whether the sponsor has the collection I–356 is 25 and the estimated Request: Revision of a Currently ability to support the sponsored alien hour burden per response is 0.75 hour. Approved Collection. under section 213A of the INA. This (6) An estimate of the total public (2) Title of the Form/Collection: form standardizes evaluation of a burden (in hours) associated with the Application to Register Permanent sponsor’s ability to support the collection: The total estimated annual Residence or Adjust Status. sponsored alien and ensures that basic hour burden associated with this (3) Agency form number, if any, and information required to assess eligibility collection is 19 hours. the applicable component of the DHS is provided by petitioners. The (7) An estimate of the total public sponsoring the collection: Form I–485; information collection required on Form burden (in cost) associated with the Supplement A; and Supplement J; I–864A is necessary for public benefit collection: The estimated total annual USCIS. agencies to enforce the affidavit of cost burden associated with this (4) Affected public who will be asked support in the event the sponsor used collection of information is $6,250. or required to respond, as well as a brief income of his or her household abstract: Primary: Individuals or members to reach the required income USCIS Form I–945 households. The information collected level and the public benefit agencies are (1) Type of Information Collection is used to determine eligibility to adjust requesting reimbursement from the Request: New Collection. status under section 245 of the INA. sponsor. Form I–864A: Form I–864A is (2) Title of the Form/Collection: (5) An estimate of the total number of a contract between the sponsor and the Public Charge Bond. respondents and the amount of time sponsor’s household members. It is only (3) Agency form number, if any, and estimated for an average respondent to required if the sponsor used income of the applicable component of the DHS respond: The estimated total number of his or her household members to reach sponsoring the collection: Form I–945; respondents for the information the required 125 percent of the FPG. USCIS. collection I–485 is 382,264 and the The contract holds these household (4) Affected public who will be asked estimated hour burden per response is members jointly and severally liable for or required to respond, as well as a brief 6.42 hours. The estimated total number the support of the sponsored immigrant. abstract: Primary: Individuals or of respondents for the information The information collection required on households, business or other for profit. collection Supplement A is 36,000 and Form I–864A is necessary for public In certain instances, a surety bond, or the estimated hour burden per response benefit agencies to enforce the affidavit cash or any cash equivalent and contract is 1.25 hours. The estimated total of support in the event the sponsor used to secure the bond, can be posted on number of respondents for the income of his or her household behalf of the alien to guarantee a set of information collection Supplement J is members to reach the required income conditions set by the Government 28,309 and the estimated hour burden level and the public benefit agencies are concerning an alien, i.e., that the alien per response is one hour. The estimated requesting reimbursement from the will not become a public charge as total number of respondents for the sponsor. Form I–864EZ: USCIS uses defined in 8 CFR 212.21 because he or information collection of Biometrics is Form I– 864EZ in exactly the same way she will not receive public benefits, as 305,811 and the estimated hour burden as Form I–864; however, USCIS collects defined in the rule, after the alien’s per response is 1.17 hours. less information from the sponsors as

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less information is needed from those (5) An estimate of the total number of sponsoring the collection: Form I– who qualify in order to make an respondents and the amount of time 129CW; USCIS. adjudication. estimated for an average respondent to (4) Affected public who will be asked (5) An estimate of the total number of respond: The estimated total number of or required to respond, as well as a brief respondents and the amount of time respondents for the information abstract: Primary: Business or other for estimated for an average respondent to collection I–129 is 552,000 and the profit. USCIS uses the data collected on respond: The estimated total number of estimated hour burden per response is this form to determine eligibility for the respondents for the information 2.84 hours. The estimated total number requested immigration benefits. An collection I–864 is 453,345 and the of respondents for the information employer uses this form to petition estimated hour burden per response is collection I–129, E–1/E–2 Classification USCIS for an alien to temporarily enter 6 hours. The estimated total number of Supplement is 4,760 and the estimated as a nonimmigrant into the CNMI to respondents for the information hour burden per response is 0.67 hours. perform services or labor as a CNMI- collection I–864A is 215,800 and the The estimated total number of Only Transitional Worker (CW–1). An estimated hour burden per response is respondents for the information employer also uses this form to request 1.75 hours. The estimated total number collection I–129, Trade Agreement an extension of stay or change of status of respondents for the information Supplement is 3,057 and the estimated on behalf of the alien worker. The form collection I–864EZ is 100,000 and the hour burden per response is 0.67 hours. serves the purpose of standardizing estimated hour burden per response is The estimated total number of requests for these benefits, and ensuring 2.5 hours. respondents for the information that the basic information required to (6) An estimate of the total public collection I–129, H Classification determine eligibility, is provided by the burden (in hours) associated with the Supplement is 255,872 and the petitioners. USCIS collects biometrics collection: The total estimated annual estimated hour burden per response is from aliens present in the CNMI at the hour burden associated with this two hours. The estimated total number time of requesting initial grant of CW– collection is 3,347,720 hours. of respondents for the information 1 status. The information is used to (7) An estimate of the total public collection I–129, H–1B and H–1B1 Data verify the alien’s identity, background burden (in cost) associated with the Collection and Filing Fee Exemption information and ultimately adjudicate collection: The estimated total annual Supplement is 243,965 and the their request for CW–1 status. cost burden associated with this estimated hour burden per response is (5) An estimate of the total number of collection of information is one hour. The estimated total number of respondents and the amount of time $135,569,525. respondents for the information estimated for an average respondent to USCIS Form I–129 collection I–129, L Classification respond: The estimated total number of Supplement is 37,831 and the estimated respondents for the information (1) Type of Information Collection hour burden per response is 1.34 hours. collection I–129CW is 3,749 and the Request: Revision of a Currently The estimated total number of estimated hour burden per response is Approved Collection. respondents for the information 3.5 hours. (2) Title of the Form/Collection: collection I–129, O and P Classifications (6) An estimate of the total public Petition for Nonimmigrant Worker. Supplement is 22,710 and the estimated burden (in hours) associated with the (3) Agency form number, if any, and hour burden per response is one hour. collection: The total estimated annual the applicable component of the DHS The estimated total number of hour burden associated with this sponsoring the collection: Form I–129; respondents for the information collection is 13,122 hours. USCIS. collection I–129, Q–1 Classification (7) An estimate of the total public (4) Affected public who will be asked Supplement is 155 and the estimated burden (in cost) associated with the or required to respond, as well as a brief hour burden per response is 0.34 hours. collection: The estimated total annual abstract: Primary: Business or other for- The estimated total number of cost burden associated with this profit. USCIS uses the data collected on respondents for the information collection of information is $459,253. this form to determine eligibility for the collection I–129, R–1 Classification is requested nonimmigrant petition and/or USCIS Form I–539 and Form I–539A 6,635 and the estimated hour burden requests to extend or change per response is 2.34 hours. (1) Type of Information Collection nonimmigrant status. An employer (or (6) An estimate of the total public Request: Revision of a Currently agent, where applicable) uses this form burden (in hours) associated with the Approved Collection. to petition USCIS for an alien to collection: The total estimated annual (2) Title of the Form/Collection: temporarily enter as a nonimmigrant. hour burden associated with this Application to Extend/Change An employer (or agent, where collection is 2,417,609 hours. Nonimmigrant Status. applicable) also uses this form to (7) An estimate of the total public (3) Agency form number, if any, and request an extension of stay or change burden (in cost) associated with the the applicable component of the DHS of status on behalf of the alien worker. collection: The estimated total annual sponsoring the collection: Form I–539; The form serves the purpose of cost burden associated with this USCIS. standardizing requests for collection of information is (4) Affected public who will be asked nonimmigrant workers, and ensuring $132,368,220. or required to respond, as well as a brief that basic information required for abstract: Primary: Individuals or assessing eligibility is provided by the USCIS Form I–129CW households. This form will be used for petitioner while requesting that (1) Type of Information Collection nonimmigrants to apply for an beneficiaries be classified under certain Request: Revision of a Currently extension of stay, for a change to nonimmigrant employment categories. It Approved Collection. another nonimmigrant classification, or also assists USCIS in compiling (2) Title of the Form/Collection: for obtaining V nonimmigrant information required by Congress Petition for a CNMI-Only Nonimmigrant classification. annually to assess effectiveness and Transitional Worker. (5) An estimate of the total number of utilization of certain nonimmigrant (3) Agency form number, if any, and respondents and the amount of time classifications. the applicable component of the DHS estimated for an average respondent to

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respond: The estimated total number of the form or instructions and does not bonds posted in immigration cases must respondents for the information impact the number of respondents, time be executed on the forms designated by collection Form I–539 paper filers is or cost burden. This form is currently DHS, a copy of which, and any rider 174,289 and the estimated hour burden approved by OMB under the PRA. The attached thereto, must be furnished to per response is two hours. The OMB control number for this the obligor. DHS is authorized to estimated total number of respondents information collection is 1615–0033. approve a bond, a formal agreement for for the information collection Form I– the extension of liability of surety, a V. List of Subjects and Regulatory 539 e-filers is 74,696 and the estimated request for delivery of collateral security Amendments hour burden per response is 1.08 hours. to a duly appointed and undischarged The estimated total number of List of Subjects administrator or executor of the estate of respondents for the information a deceased depositor, and a power of 8 CFR Part 103 collection I–539A is 54,375 and the attorney executed on the form estimated hour burden per response is Administrative practice and designated by DHS, if any. All other 0.5 hour. The estimated total number of procedure, Authority delegations matters relating to bonds, including a respondents for the information (Government agencies), Freedom of power of attorney not executed on the collection of Biometrics is 248,985 and information, Immigration, Privacy, form designated by DHS and a request the estimated hour burden per response Reporting and recordkeeping for delivery of collateral security to is 1.17 hours. requirements, Surety bonds. other than the depositor or his or her (6) An estimate of the total public 8 CFR Part 212 approved attorney in fact, will be burden (in hours) associated with the forwarded to the appropriate office for collection: The total estimated annual Administrative practice and approval. hour burden associated with this procedure, Aliens, Immigration, (2) Bond riders—(i) General. A bond collection is 747,974 hours. Passports and visas, Reporting and rider must be prepared on the form(s) (7) An estimate of the total public recordkeeping requirements. designated by DHS, and attached to the burden (in cost) associated with the 8 CFR Part 213 bond. If a condition to be included in collection: The estimated total annual a bond is not on the original bond, a Immigration, Surety bonds. cost burden associated with this rider containing the condition must be collection of information is $56,121,219. 8 CFR Part 214 executed. USCIS Form I–912 Administrative practice and * * * * * Under the PRA DHS is required to procedure, Aliens, Cultural exchange (c) * * * (1) Public charge bonds. Special rules submit to OMB, for review and programs, Employment, Foreign for the cancellation of public charge approval, covered reporting officials, Health professions, Reporting bonds are described in 8 CFR 213.1. requirements inherent in a rule. This and recordkeeping requirements, rule will require non-substantive edits Students. * * * * * (d) * * * to USCIS Form I–912, Request for Fee 8 CFR Part 245 Waiver. These edits make clear to those (3) Public charge bonds. The who request fee waivers that an Aliens, Immigration, Reporting and threshold bond amount for public approved fee waiver can negatively recordkeeping requirements. charge bonds is set forth in 8 CFR 213.1. impact eligibility for an immigration 8 CFR Part 248 (e) Breach of bond. Breach of public benefit that is subject to the public charge bonds is governed by 8 CFR Aliens, Reporting and recordkeeping 213.1. For other immigration bonds, a charge inadmissibility determination. requirements. Accordingly, USCIS has submitted a bond is breached when there has been PRA Change Worksheet, Form OMB 83– Accordingly, DHS amends chapter I of a substantial violation of the stipulated C, and amended information collection title 8 of the Code of Federal conditions. A final determination that a instrument to OMB for review and Regulations as follows: bond has been breached creates a claim approval in accordance with the PRA. in favor of the United States which may PART 103—IMMIGRATION BENEFITS; not be released by the officer. DHS will USCIS Form I–407 BIOMETRIC REQUIREMENTS; determine whether a bond has been AVAILABILITY OF RECORDS Under the PRA, DHS is required to breached. If DHS determines that a bond submit to OMB, for review and ■ 1. The authority citation for part 103 has been breached, it will notify the approval, covered reporting continues to read as follows: obligor of the decision, the reasons requirements inherent in a rule. This therefor, and inform the obligor of the rule requires the use of USCIS Form I– Authority: 5 U.S.C. 301, 552, 552a; 8 right to appeal the decision in U.S.C. 1101, 1103, 1304, 1356, 1365b; 31 407 but does not require any changes to accordance with the provisions of this U.S.C. 9701; Public Law 107–296, 116 Stat. part. the form or instructions and does not 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR impact the number of respondents, time 14874, 15557, 3 CFR, 1982 Comp., p.166; 8 ■ 3. Section 103.7 is amended by adding or cost burden. This form is currently CFR part 2; Pub. L. 112–54. paragraphs (b)(1)(i)(LLL) and (MMM) to approved by OMB under the PRA. The ■ 2. Section 103.6 is amended by: read as follows: OMB control number for this a. Revising paragraphs (a)(1), (a)(2)(i), § 103.7 Fees. information collection is 1615–0130. and (c)(1); ■ * * * * * USCIS Form I–693 b. Adding paragraph (d)(3); and ■ c. Revising paragraph (e) The (b) * * * Under the PRA, DHS is required to revisions and additions read as follows: (1) * * * submit to OMB, for review and (i) * * * approval, covered reporting § 103.6 Surety bonds. (LLL) Public Charge Bond, Form I– requirements inherent in a rule. This (a) * * * 945. $25. rule requires the use of USCIS Form I– (1) Extension agreements; consent of (MMM) Request for Cancellation of 693 but does not require any changes to surety; collateral security. All surety Public Charge Bond, Form I–356. $25.

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PART 212—DOCUMENTARY (a) Public Charge. Public charge (i) Enlisted in the U.S. Armed Forces REQUIREMENTS: NONIMMIGRANTS; means an alien who receives one or under the authority of 10 U.S.C. WAIVERS; ADMISSION OF CERTAIN more public benefits, as defined in 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or INADMISSIBLE ALIENS; PAROLE paragraph (b) of this section, for more (ii) Serving in active duty or in the than 12 months in the aggregate within Ready Reserve component of the U.S. ■ 4. The authority citation for part 212 any 36-month period (such that, for Armed Forces, or continues to read as follows: instance, receipt of two benefits in one (iii) Is the spouse or child, as defined Authority: 6 U.S.C. 111, 202(4) and 271; month counts as two months). in section 101(b) of the Act, of an alien 8 U.S.C. 1101 and note, 1102, 1103, 1182 and (b) Public benefit. Public benefit described in paragraphs (b)(7)(i) or (ii) note, 1184, 1185 note (section 7209 of Pub. means: of this section. L. 108–458), 1187, 1223, 1225, 1226, 1227, (1) Any Federal, State, local, or tribal (8) In a subsequent adjudication for a 1255, 1359; 8 CFR part 2. cash assistance for income maintenance benefit for which the public charge ■ 5. Amend § 212.18 by revising (other than tax credits), including: ground of inadmissibility applies, paragraph (b)(2) and (3) to read as (i) Supplemental Security Income public benefits, as defined in this follows: (SSI), 42 U.S.C. 1381 et seq.; section, do not include any public (ii) Temporary Assistance for Needy benefits received by an alien during § 212.18 Application for Waivers of Families (TANF), 42 U.S.C. 601 et seq.; periods in which the alien was present inadmissibility in connection with an or in the United States in an immigration application for adjustment of status by T category that is exempt from the public nonimmigrant status holders (iii) Federal, State or local cash benefit programs for income charge ground of inadmissibility, as set * * * * * forth in 8 CFR 212.23(a), or for which (b) * * * maintenance (often called ‘‘General Assistance’’ in the State context, but the alien received a waiver of public (2) If an applicant is inadmissible charge inadmissibility, as set forth in 8 under section 212(a)(1) of the Act, which also exist under other names); and CFR 212.23(b). USCIS may waive such inadmissibility (9) Public benefits, as defined in this if it determines that granting a waiver is (2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to section, do not include any public in the national interest. benefits that were or will be received (3) If any other applicable provision of 2036c; (3) Section 8 Housing Assistance by— section 212(a) renders the applicant (i) Children of U.S. citizens whose under the Housing Choice Voucher inadmissible, USCIS may grant a waiver lawful admission for permanent Program, as administered by HUD under of inadmissibility if the activities residence and subsequent residence in 42 U.S.C. 1437f; rendering the alien inadmissible were the legal and physical custody of their (4) Section 8 Project-Based Rental caused by or were incident to the U.S. citizen parent will result Assistance (including Moderate victimization and USCIS determines automatically in the child’s acquisition Rehabilitation) under Section 8 of the that it is in the national interest to waive of citizenship, upon meeting the U.S. Housing Act of 1937 (42 U.S.C. the applicable ground or grounds of eligibility criteria of section 320(a)–(b) 1437f); and inadmissibility. of the Act, in accordance with 8 CFR (5) Medicaid under 42 U.S.C. 1396 et ■ 6. Add §§ 212.20 through 212.23 to part 320; or read as follows: seq., except for: (ii) Children of U.S. citizens whose Sec. (i) Benefits received for an emergency lawful admission for permanent * * * * * medical condition as described in 42 residence will result automatically in 212.20 Applicability of public charge U.S.C. 1396b(v)(2)–(3), 42 CFR the child’s acquisition of citizenship inadmissibility. 440.255(c); upon finalization of adoption (if the 212.21 Definitions. (ii) Services or benefits funded by child satisfies the requirements 212.22 Public charge inadmissibility Medicaid but provided under the applicable to adopted children under determination. Individuals with Disabilities Education INA 101(b)(1)), in the United States by 212.23 Exemptions and waivers for public Act (IDEA) 20 U.S.C. 1400 et seq.; charge ground of inadmissibility. the U.S. citizen parent(s), upon meeting (iii) School-based services or benefits the eligibility criteria of section 320(a)– § 212.20 Applicability of public charge provided to individuals who are at or (b) of the Act, in accordance with 8 CFR inadmissibility. below the oldest age eligible for part 320; or 8 CFR 212.20 through 212.23 address secondary education as determined (iii) Children of U.S. citizens who are the public charge ground of under State or local law; entering the United States for the inadmissibility under section 212(a)(4) (iv) Benefits received by an alien purpose of attending an interview under of the Act. Unless the alien requesting under 21 years of age, or a woman section 322 of the Act in accordance the immigration benefit or classification during pregnancy (and during the 60- with 8 CFR part 322. has been exempted from section day period beginning on the last day of (c) Likely at any time to become a 212(a)(4) of the Act as listed in 8 CFR the pregnancy). public charge. Likely at any time to 212.23(a), the provisions of §§ 212.20 (6) Public Housing under section 9 of become a public charge means more through 212.23 of this part apply to an the U.S. Housing Act of 1937. likely than not at any time in the future applicant for admission or adjustment of (7) Public benefits, as defined in to become a public charge, as defined in status to lawful permanent resident, if paragraphs (b)(1) through (b)(6) of this 212.21(a), based on the totality of the the application is postmarked (or, if section, do not include any public alien’s circumstances. applicable, submitted electronically) on benefits received by an alien who at the (d) Alien’s household. For purposes of or after October 15, 2019. time of receipt of the public benefit, or public charge inadmissibility at the time of filing or adjudication of determinations under section 212(a)(4) § 212.21 Definitions. the application for admission or of the Act: For the purposes of 8 CFR 212.20 adjustment of status, or application or (1) If the alien is 21 years of age or through 212.23, the following request for extension of stay or change older, or under the age of 21 and definitions apply: of status is— married, the alien’s household includes:

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(i) The alien; least 50 percent of the other children’s consideration of the alien’s age; health; (ii) The alien’s spouse, if physically financial support, as evidenced by a family status; education and skills; and residing with the alien; child support order or agreement, a assets, resources, and financial status, as (iii) The alien’s children, as defined in custody order or agreement, or any other follows: 101(b)(1) of the Act, physically residing order or agreement specifying the (1) The alien’s age—(i) Standard. with the alien; amount of financial support to be When considering an alien’s age, DHS (iv) The alien’s other children, as provided by the parents or legal will consider whether the alien’s age defined in section 101(b)(1) of the Act, guardians; and makes the alien more likely than not to not physically residing with the alien (vii) Any other individual(s) to whom become a public charge at any time in for whom the alien provides or is the alien’s parents or legal guardians the future, such as by impacting the required to provide at least 50 percent provide, or are required to provide at alien’s ability to work, including of the children’s financial support, as least 50 percent of such individual’s whether the alien is between the age of evidenced by a child support order or financial support or who is listed as a 18 and the minimum ‘‘early retirement agreement a custody order or agreement, dependent on the parent’s or legal age’’ for Social Security set forth in 42 or any other order or agreement guardian’s federal income tax return. U.S.C. 416(l)(2). specifying the amount of financial (e) Receipt of public benefits. Receipt (ii) [Reserved] support to be provided by the alien; of public benefits occurs when a public (2) The alien’s health—(i) Standard. (v) Any other individuals (including a benefit-granting agency provides a DHS will consider whether the alien’s spouse not physically residing with the public benefit, as defined in paragraph health makes the alien more likely than alien) to whom the alien provides, or is (b) of this section, to an alien as a not to become a public charge at any required to provide, at least 50 percent beneficiary, whether in the form of cash, time in the future, including whether of the individual’s financial support or voucher, services, or insurance the alien has been diagnosed with a who are listed as dependents on the coverage. Applying for a public benefit medical condition that is likely to alien’s federal income tax return; and does not constitute receipt of public require extensive medical treatment or (vi) Any individual who provides to benefits although it may suggest a institutionalization or that will interfere the alien at least 50 percent of the likelihood of future receipt. Certification with the alien’s ability to provide and alien’s financial support, or who lists for future receipt of a public benefit care for himself or herself, to attend the alien as a dependent on his or her does not constitute receipt of public school, or to work upon admission or federal income tax return. benefits, although it may suggest a adjustment of status. (2) If the alien is a child as defined in likelihood of future receipt. An alien’s (ii) Evidence. USCIS’ consideration section 101(b)(1) of the Act, the alien’s receipt of, application for, or includes but is not limited to the household includes the following certification for public benefits solely on following: individuals: behalf of another individual does not (i) The alien; (A) A report of an immigration constitute receipt of, application for, or medical examination performed by a (ii) The alien’s children as defined in certification for such alien. section 101(b)(1) of the Act physically civil surgeon or panel physician where (f) Primary caregiver means an alien such examination is required (to which residing with the alien; who is 18 years of age or older and has (iii) The alien’s other children as USCIS will generally defer absent significant responsibility for actively evidence that such report is defined in section 101(b)(1) of the Act caring for and managing the well-being not physically residing with the alien incomplete); or of a child or an elderly, ill, or disabled (B) Evidence of a medical condition for whom the alien provides or is person in the alien’s household. required to provide at least 50 percent that is likely to require extensive of the children’s financial support, as § 212.22 Public charge inadmissibility medical treatment or institutionalization evidenced by a child support order or determination. or that will interfere with the alien’s agreement, a custody order or This section relates to the public ability to provide and care for himself agreement, or any other order or charge ground of inadmissibility under or herself, to attend school, or to work agreement specifying the amount of section 212(a)(4) of the Act. upon admission or adjustment of status. financial support to be provided by the (a) Prospective determination based (3) The alien’s family status—(i) alien; on the totality of circumstances. The Standard. When considering an alien’s (iv) The alien’s parents, legal determination of an alien’s likelihood of family status, DHS will consider the guardians, or any other individual becoming a public charge at any time in alien’s household size, as defined in 8 providing or required to provide at least the future must be based on the totality CFR 212.21(d), and whether the alien’s 50 percent of the alien’s financial of the alien’s circumstances by weighing household size makes the alien more support to the alien as evidenced by a all factors that are relevant to whether likely than not to become a public child support order or agreement, a the alien is more likely than not at any charge at any time in the future. custody order or agreement, or any other time in the future to receive one or more (ii) [Reserved] order or agreement specifying the public benefits, as defined in 8 CFR (4) The alien’s assets, resources, and amount of financial support to be 212.21(b), for more than 12 months in financial status—(i) Standard. When provided to the alien; the aggregate within any 36-month considering an alien’s assets, resources, (v) The parents’ or legal guardians’ period. Except as necessary to fully and financial status, DHS will consider other children as defined in section evaluate evidence provided in whether such assets, resources, and 101(b)(1) of the Act physically residing paragraph (b)(4)(ii)(E)(3) of this section, financial status excluding any income with the alien; DHS will not specifically assess whether from illegal activities or sources (e.g., (vi) The alien’s parents’ or legal an alien qualifies or would qualify for proceeds from illegal gambling or drug guardians’ other children as defined in any public benefit, as defined in 8 CFR sales, and income from public benefits section 101(b)(1) of the Act, not 212.21(b). listed in 8 CFR 212.21(b)), make the physically residing with the alien for (b) Minimum factors to consider. A alien more likely than not to become a whom the parent or legal guardian public charge inadmissibility public charge at any time in the future, provides or is required to provide at determination must at least entail including whether:

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(A) The alien’s household’s annual for himself or herself, to attend school, defined in 212.21(b), that the alien has gross income is at least 125 percent of or to work; specifically identified as showing that the most recent Federal Poverty (D) The alien has any financial the alien does not qualify or would not Guideline (100 percent for an alien on liabilities; and whether qualify for such public benefit by virtue active duty, other than training, in the (E) The alien has applied for, been of, for instance, the alien’s annual gross U.S. Armed Forces) based on the alien’s certified to receive, or received public household income or prospective household size as defined by section benefits, as defined in 8 CFR 212.21(b), immigration status or length of stay; 212.21(d); on or after October 15, 2019. (F) Whether the alien has applied for (B) If the alien’s household’s annual (ii) Evidence. USCIS’ consideration or has received a USCIS fee waiver for gross income is less than 125 percent of includes, but is not limited to the an immigration benefit request on or the most recent Federal Poverty following: after October 15, 2019, unless the fee Guideline (100 percent for an alien on (A) The alien’s annual gross waiver was applied for or granted as active duty, other than training, in the household income including, but not part of an application for which a public U.S. Armed Forces), the alien may limited to: charge inadmissibility determination submit evidence of ownership of (1) For each member of the household under section 212(a)(4) of the Act was significant assets. For purposes of this whose income will be considered, the not required. paragraph, an alien may establish most recent tax-year transcript from the (G) The alien’s credit history and ownership of significant assets, such as U.S. Internal Revenue Service (IRS) of credit score in the United States, and savings accounts, stocks, bonds, such household member’s IRS Form other evidence of the alien’s liabilities certificates of deposit, real estate or 1040, U.S. Individual Income Tax not reflected in the credit history and other assets, in which the combined Return; or credit score (e.g., any mortgages, car cash value of all the assets (the total (2) If the evidence in paragraph loans, unpaid child or spousal support, value of the assets less any offsetting (b)(4)(ii)(A)(1) of this section is unpaid taxes, and credit card debt); and liabilities) exceeds: unavailable for a household member, (H) Whether the alien has sufficient (1) If the intending immigrant is the other credible and probative evidence of household assets and resources spouse or child of a United States such household member’s income, (including, for instance, health citizen (and the child has reached his or including an explanation of why such insurance not designated as a public her 18th birthday), three times the transcript is not available, such as if the benefit under 8 CFR 212.21(b)) to pay difference between the alien’s household member is not subject to for reasonably foreseeable medical costs, household income and 125 percent of taxation in the United States. such as costs related to a medical the FPG (100 percent for those on active (B) Any additional income from condition that is likely to require duty, other than training, in the U.S. individuals not included in the alien’s extensive medical treatment or Armed Forces) for the alien’s household household provided to the alien’s institutionalization or that will interfere size; household on a continuing monthly or with the alien’s ability to provide care (2) If the intending immigrant is an yearly basis for the most recent calendar for himself or herself, to attend school, orphan who will be adopted in the year and on which the alien relies or or to work; United States after the alien orphan will rely to meet the standard at 8 CFR (5) The alien’s education and skills. acquires permanent residence (or in 212.22(b)(4)(i); (i) Standard. When considering an whose case the parents will need to seek (C) The household’s cash assets and alien’s education and skills, DHS will a formal recognition of a foreign resources. Evidence of such cash assets consider whether the alien has adequate adoption under the law of the State of and resources may include checking education and skills to either obtain or the intending immigrant’s proposed and savings account statements covering maintain lawful employment with an residence because at least one of the 12 months prior to filing the income sufficient to avoid being more parents did not see the child before or application; likely than not to become a public during the adoption), and who will, as (D) The household’s non-cash assets charge. a result of the adoption or formal and resources, that can be converted (ii) Evidence. USCIS’ consideration recognition of the foreign adoption, into cash within 12 months, such as net includes but is not limited to the acquire citizenship under section 320 of cash value of real estate holdings minus following: (A) The alien’s history of the Act, the difference between the the sum of all loans secured by a employment, excluding employment alien’s household income and 125 mortgage, trust deed, or other lien on involving illegal activities, e.g., illegal percent of the FPG (100 percent for the home; annuities; securities; gambling or drug sales. The alien must those on active duty, other than retirement and educational accounts; provide the following: training, in the U.S. Armed Forces) for and any other assets that can easily be (1) The last 3 years of the alien’s tax the alien’s household size; or converted into cash; transcripts from the U.S. Internal (3) In all other cases, five times the (E) Evidence that the alien has: Revenue Service (IRS) of the alien’s IRS difference between the alien’s (1) Applied for or received any public Form 1040, U.S. Individual Income Tax household income and 125 percent of benefit, as defined in 8 CFR 212.21(b), Return; or the FPG (100 percent for those on active on or after October 15, 2019 or (2) If the evidence in paragraph duty, other than training, in the U.S. disenrolled or requested to be (b)(5)(ii)(A)(1) of this section is Armed Forces) for the alien’s household disenrolled from such benefit(s); or unavailable, other credible and size. (2) Been certified or approved to probative evidence of the alien’s history (C) The alien has sufficient household receive any public benefit, as defined in of employment for the last 3 years, assets and resources to cover any 8 CFR 212.21(b), on or after October 15, including an explanation of why such reasonably foreseeable medical costs, 2019 or withdrew his or her application transcripts are not available, such as if including as related to a medical or disenrolled or requested to be to the alien is not subject to taxation in the condition that is likely to require disenrolled from such benefit(s); United States; extensive medical treatment or (3) Submitted evidence from a (B) Whether the alien has a high institutionalization or that will interfere Federal, State, local, or tribal agency school diploma (or its equivalent) or has with the alien’s ability to provide care administering a public benefit, as a higher education degree;

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(C) Whether the alien has any (c) Heavily weighted factors. The this paragraph (c)(2)(iii), private health occupational skills, certifications, or factors below will weigh heavily in a insurance must be appropriate for the licenses; and public charge inadmissibility expected period of admission, and does (D) Whether the alien is proficient in determination. The mere presence of not include health insurance for which English or proficient in other languages any one heavily weighted factor does the alien receives subsidies in the form in addition to English. not, alone, make the alien more or less of premium tax credits under the Patient (E) Whether the alien is a primary likely than not to become a public Protection and Affordable Care Act, as caregiver as defined in 8 CFR 212.21(f), charge. amended. such that the alien lacks an employment (1) Heavily weighted negative factors. (d) Treatment of benefits received history, is not currently employed, or is The following factors will weigh heavily before October 15, 2019. For purposes of not employed full time. Only one alien in favor of a finding that an alien is this regulation, DHS will consider, as a within a household can be considered a likely at any time in the future to negative factor, but not as a heavily primary caregiver of the same become a public charge: weighted negative factor as described in individual within the household. (i) The alien is not a full-time student paragraph (c)(1) of this section, any USCIS’ consideration with respect this and is authorized to work, but is unable amount of cash assistance for income paragraph includes but is not limited to to demonstrate current employment, maintenance, including Supplemental evidence that an individual the alien is recent employment history, or a Security Income (SSI), Temporary caring for resides in the alien’s reasonable prospect of future Assistance for Needy Families (TANF), household, evidence of the individual’s employment; State and local cash assistance programs age, and evidence of the individual’s (ii) The alien has received or has been that provide benefits for income medical condition, including disability, certified or approved to receive one or maintenance (often called ‘‘General if any. more public benefits, as defined in Assistance’’ programs), and programs (6) The alien’s prospective § 212.21(b), for more than 12 months in (including Medicaid) supporting aliens immigration status and expected period the aggregate within any 36-month who are institutionalized for long-term of admission. period, beginning no earlier than 36 care, received, or certified for receipt, (i) Standard. DHS will consider the months prior to the alien’s application before October 15, 2019, as provided immigration status that the alien seeks for admission or adjustment of status on under the 1999 Interim Field Guidance, and the expected period of admission as or after October 15, 2019; also known as the 1999 Field Guidance it relates to the alien’s ability to (iii)(A) The alien has been diagnosed on Deportability and Inadmissibility on financially support for himself or herself with a medical condition that is likely Public Charge Grounds. DHS will not during the duration of the alien’s stay, to require extensive medical treatment consider as a negative factor any other including: or institutionalization or that will public benefits received, or certified for (A) Whether the alien is applying for interfere with the alien’s ability to receipt, before October 15, 2019. provide for himself or herself, attend adjustment of status or admission in a § 212.23 Exemptions and waivers for nonimmigrant or immigrant school, or work; and (B) The alien is uninsured and has public charge ground of inadmissibility. classification; and neither the prospect of obtaining private (a) Exemptions. The public charge (B) If the alien is seeking admission as health insurance, nor the financial ground of inadmissibility under section a nonimmigrant, the nonimmigrant resources to pay for reasonably 212(a)(4) of the Act does not apply, classification and the anticipated period foreseeable medical costs related to such based on statutory or regulatory of temporary stay. medical condition; or authority, to the following categories of (ii) [Reserved] (iv) The alien was previously found aliens: (7) An affidavit of support under inadmissible or deportable on public (1) Refugees at the time of admission section 213A of the Act, when required charge grounds by an Immigration Judge under section 207 of the Act and at the under section 212(a)(4) of the Act, that or the Board of Immigration Appeals. time of adjustment of status to lawful meets the requirements of section 213A (2) Heavily weighted positive factors. permanent resident under section 209 of of the Act and 8 CFR 213a—(i) The following factors will weigh heavily the Act; Standard. If the alien is required under in favor of a finding that an alien is not (2) Asylees at the time of grant under sections 212(a)(4)(C) or (D) to submit an likely to become a public charge: section 208 of the Act and at the time affidavit of support under section 213A (i) The alien’s household has income, of adjustment of status to lawful of the Act and 8 CFR part 213a, and assets, or resources, and support permanent resident under section 209 of submits such a sufficient affidavit of (excluding any income from illegal the Act; support, DHS will consider the activities, e.g., proceeds from illegal (3) Amerasian immigrants at the time likelihood that the sponsor would gambling or drug sales, and any income of application for admission as actually provide the statutorily-required from public benefits as defined in described in sections 584 of the Foreign amount of financial support to the alien, § 212.21(b)) of at least 250 percent of the Operations, Export Financing, and and any other related considerations. Federal Poverty Guidelines for the Related Programs Appropriations Act of (A) Evidence. USCIS consideration alien’s household size; 1988, Public Law 100–202, 101 Stat. includes but is not limited to the (ii) The alien is authorized to work 1329–183, section 101(e) (Dec. 22, following: and is currently employed in a legal 1987), as amended, 8 U.S.C. 1101 note; (1) The sponsor’s annual income, industry with an annual income, (4) Afghan and Iraqi Interpreter, or assets, and resources; excluding any income from illegal Afghan or Iraqi national employed by or (2) The sponsor’s relationship to the activities such as proceeds from illegal on behalf of the U.S. Government as applicant, including but not limited to gambling or drug sales, of at least 250 described in section 1059(a)(2) of the whether the sponsor lives with the percent of the Federal Poverty National Defense Authorization Act for alien; and Guidelines for the alien’s household Fiscal Year 2006 Public Law 109–163 (3) Whether the sponsor has size; or (Jan. 6, 2006), as amended, and section submitted an affidavit of support with (iii) The alien has private health 602(b) of the Afghan Allies Protection respect to other individuals. insurance, except that for purposes of Act of 2009, Public Law 111–8, title VI

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(Mar. 11, 2009), as amended, 8 U.S.C. accordance with section 102 of the Act (24) Texas Band of Kickapoo Indians 1101 note, and section 1244(g) of the and 22 CFR 41.21(d); of the Kickapoo Tribe of Oklahoma, National Defense Authorization Act for (16) A nonimmigrant classifiable as Public Law 97–429 (Jan. 8, 1983); Fiscal Year 2008, as amended Public NATO–1, NATO–2, NATO–3, NATO–4 (25) Nationals of Vietnam, Cambodia, Law 110–181 (Jan. 28, 2008); (NATO representatives), and NATO–6 and Laos applying for adjustment of (5) Cuban and Haitian entrants in accordance with 22 CFR 41.21(d); status under section 586 of Public Law applying for adjustment of status under (17) An applicant for nonimmigrant 106–429 under 8 CFR 245.21; section 202 of the Immigration Reform status under section 101(a)(15)(T) of the (26) Polish and Hungarian Parolees and Control Act of 1986 (IRCA), Public Act, in accordance with 8 CFR who were paroled into the United States Law 99–603, 100 Stat. 3359 (Nov. 6, 212.16(b); from November 1, 1989 to December 31, 1986), as amended, 8 U.S.C. 1255a note; (18) Except as provided in section 1991 under section 646(b) of the IIRIRA, (6) Aliens applying for adjustment of 212.23(b), an individual who is seeking Public Law 104–208, Div. C, Title VI, status under the Cuban Adjustment Act, an immigration benefit for which Subtitle D (Sept. 30, 1996), 8 U.S.C. Public Law 89–732 (Nov. 2, 1966), as admissibility is required, including but 1255 note; and amended, 8 U.S.C. 1255 note; not limited to adjustment of status (27) Any other categories of aliens (7) Nicaraguans and other Central under section 245(a) of the Act and exempt under any other law from the Americans applying for adjustment of section 245(l) of the Act and who: public charge ground of inadmissibility status under sections 202(a) and section provisions under section 212(a)(4) of the 203 of the Nicaraguan Adjustment and (i) Has a pending application that sets forth a prima facie case for eligibility for Act. Central American Relief Act (NACARA), (b) Limited Exemption. Aliens Public Law 105–100, 111 Stat. 2193 nonimmigrant status under section 101(a)(15)(T) of the Act, or described in §§ 212.23(a)(18) through (Nov. 19, 1997), as amended, 8 U.S.C. (21) must submit an affidavit of support (ii) Has been granted nonimmigrant 1255 note; as described in section 213A of the Act status under section 101(a)(15)(T) of the (8) Haitians applying for adjustment if they are applying for adjustment of Act, provided that the individual is in of status under section 902 of the status based on an employment-based valid T nonimmigrant status at the time Haitian Refugee Immigration Fairness petition that requires such an affidavit the benefit request is properly filed with Act of 1998, Public Law 105–277, 112 of support as described in section USCIS and at the time the benefit Stat. 2681 (Oct. 21, 1998), as amended, 212(a)(4)(D) of the Act. request is adjudicated; 8 U.S.C. 1255 note; (c) Waivers. A waiver for the public (9) Lautenberg parolees as described (19) Except as provided in § 212.23(b), charge ground of inadmissibility may be in section 599E of the Foreign (i) A petitioner for nonimmigrant authorized based on statutory or Operations, Export Financing, and status under section 101(a)(15)(U) of the regulatory authority, for the following Related Programs Appropriations Act of Act, in accordance with section categories of aliens: 1990, Public Law 101–167, 103 Stat. 212(a)(4)(E)(ii) of the Act; or (1) Applicants for admission as 1195, title V (Nov. 21, 1989), as (ii) An individual who is granted nonimmigrants under 101(a)(15)(S) of amended, 8 U.S.C. 1255 note; nonimmigrant status under section the Act; (10) Special immigrant juveniles as 101(a)(15)(U) of the Act in accordance (2) Nonimmigrants admitted under described in section 245(h) of the Act; with section 212(a)(4)(E)(ii) of the Act, section 101(a)(15)(S) of the Act applying (11) Aliens who entered the United who is seeking an immigration benefit States prior to January 1, 1972, and who for adjustment of status under section for which admissibility is required, 245(j) of the Act (witnesses or meet the other conditions for being including, but not limited to, granted lawful permanent residence informants); and adjustment of status under section (3) Any other waiver of the public under section 249 of the Act and 8 CFR 245(a) of the Act, provided that the part 249 (Registry); charge ground of inadmissibility that is individual is in valid U nonimmigrant authorized by law or regulation. (12) Aliens applying for or re- status at the time the benefit request is registering for Temporary Protected properly filed with USCIS and at the PART 213—PUBLIC CHARGE BONDS Status as described in section 244 of the time the benefit request is adjudicated. Act in accordance with section (20) Except as provided in section ■ 7. The authority citation for part 213 244(c)(2)(A)(ii) of the Act and 8 CFR 212.23(b), any alien who is a VAWA is revised to read as follows: 244.3(a); (13) A nonimmigrant described in self-petitioner under section Authority: 8 U.S.C. 1103; 1183; 8 CFR part section 101(a)(15)(A)(i) and (A)(ii) of the 212(a)(4)(E)(i) of the Act; 2. Act (Ambassador, Public Minister, (21) Except as provided in section ■ 8. Revise the part heading to read as Career Diplomat or Consular Officer, or 212.23(b), a qualified alien described in set forth above. section 431(c) of the Personal Immediate Family or Other Foreign ■ 9. Revise § 213.1 to read as follows: Government Official or Employee, or Responsibility and Work Opportunity Immediate Family), in accordance with Reconciliation Act of 1996, 8 U.S.C. § 213.1 Adjustment of status of aliens on section 102 of the Act and 22 CFR 1641(c), under section 212(a)(4)(E)(iii) of submission of a public charge bond. 41.21(d); the Act; (a) Inadmissible aliens. In accordance (14) A nonimmigrant classifiable as (22) Applicants adjusting status who with section 213 of the Act, after an C–2 (alien in transit to U.N. qualify for a benefit under section 1703 alien seeking adjustment of status has Headquarters) or C–3 (foreign of the National Defense Authorization been found inadmissible as likely at any government official), 22 CFR 41.21(d); Act, Public Law 108–136, 117 Stat. 1392 time in the future to become a public (15) A nonimmigrant described in (Nov. 24, 2003), 8 U.S.C. 1151 note charge under section 212(a)(4) of the section 101(a)(15)(G)(i), (G)(ii), (G)(iii), (posthumous benefits to surviving Act, DHS may allow the alien to submit and (G)(iv), of the Act (Principal spouses, children, and parents); a public charge bond, if the alien is Resident Representative of Recognized (23) American Indians born in Canada otherwise admissible, in accordance Foreign Government to International determined to fall under section 289 of with the requirements of 8 CFR 103.6 Organization, and related categories), in the Act; and this section. The public charge

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bond must meet the conditions set forth submitted to DHS in accordance with permanent resident status associated in 8 CFR 103.6 and this section. the instructions of the form designated with the public charge bond. (b) Discretion. The decision to allow by DHS for this purpose, with the fee (2) Permanent Departure Defined. For an alien inadmissible under section prescribed in 8 CFR 103.7(b), and any purposes of this section, permanent 212(a)(4) of the Act to submit a public procedures contained in the DHS departure means that the alien lost or charge bond is in DHS’s discretion. If an notification to the alien. DHS will abandoned his or her lawful permanent alien has one or more heavily weighted specify the bond amount and any other resident status, whether by operation of negative factors as defined in 8 CFR conditions, as appropriate for the alien law or voluntarily, and physically 212.22 in his or her case, DHS generally and the immigration benefit being departed the United States. An alien is will not favorably exercise discretion to sought. USCIS will notify the alien and only deemed to have voluntarily lost allow submission of a public charge the alien’s representative, if any, that lawful permanent resident status when bond. the bond has been accepted, and will the alien has submitted a record of (c) Public Charge Bonds. (1) Types. provide a copy to the alien and the abandonment of lawful permanent DHS may require an alien to submit a alien’s representative, if any, of any resident status, on the form prescribed surety bond, as listed in 8 CFR 103.6, or communication between the obligor and by DHS, from outside the United States, cash or any cash equivalents specified the U.S. government. An obligor must and in accordance with the form’s by DHS. DHS will notify the alien of the notify DHS within 30 days of any instructions. type of bond that may be submitted. All change in the obligor’s or the alien’s (3) Cancellation Request. A request to surety, cash, or cash equivalent bonds physical and mailing address. cancel a public charge bond must be must be executed on a form designated (f) Substitution. (1) Substitution made by submitting a form designated by DHS and in accordance with form Process. Either the obligor of the bond by DHS, in accordance with that form’s instructions. When a surety bond is previously submitted to DHS or a new instructions and the fee prescribed in 8 accepted, the bond must comply with obligor may submit a substitute bond on CFR 103.7(b). If a request for requirements applicable to surety bonds the alien’s behalf. The substitute bond cancellation of a public charge bond is in 8 CFR 103.6 and this section. If cash must specify an effective date. The not filed, the bond shall remain in effect or a cash equivalent, is being provided substitute bond must meet all of the until the form is filed, reviewed, and a to secure a bond, DHS must issue a requirements applicable to the initial decision is rendered. DHS may in its receipt on a form designated by DHS. bond as required by this section and 8 discretion cancel a public charge bond (2) Amount. Any public charge bond if it determines that an alien otherwise CFR 103.6, and if the obligor is different must be in an amount decided by DHS, meets the eligibility requirements of from the original obligor, the new not less than $8,100, annually adjusted paragraphs (g)(1) of this section. obligor must assume all liabilities of the for inflation based on the Consumer (4) Adjudication and Burden of Proof. Price Index for All Urban Consumers initial obligor. The substitute bond must The alien and the obligor have the (CPI–U), and rounded up to the nearest also cover any breach of the bond burden to establish, by a preponderance dollar. The bond amount decided by conditions which occurred before DHS of the evidence, that one of the DHS may not be appealed by the alien accepted the substitute bond, in the conditions for cancellation of the public or the bond obligor. event DHS did not learn of the breach charge bond listed in paragraph (g)(1) of (d) Conditions of the bond. A public until after DHS accepted the substitute this section has been met. If DHS charge bond must remain in effect until bond. determines that the information USCIS grants a request to cancel the (2) Acceptance. Upon submission of included in the cancellation request is bond in accordance with paragraph (g) the substitute bond, DHS will review insufficient to determine whether of this section, whereby the alien the substitute bond for sufficiency as set cancellation is appropriate, DHS may naturalizes or otherwise obtains U.S. forth in this section. If the substitute request additional information as citizenship, permanently departs the bond is sufficient DHS will cancel the outlined in 8 CFR 103.2(b)(8). DHS must United States, dies, the alien has bond previously submitted to DHS, and cancel a public charge bond if DHS reached his or her 5-year anniversary replace it with the substitute bond. If determines that the conditions of the since becoming a lawful permanent the substitute bond is insufficient, DHS bond have been met, and that the bond resident, or the alien changes will notify the obligor of the substitute was not breached, in accordance with immigration status to one not subject to bond to correct the deficiency within paragraph (h) of this section. For public charge ground of inadmissibility. the timeframe specified in the notice. If cancellations under paragraph (g)(1)(iv) An alien on whose behalf a public the deficiency is not corrected within of this section, the alien or the obligor charge bond has been submitted may the timeframe specified, the previously must establish that the public charge not receive any public benefits, as submitted bond will remain in effect. bond has not been breached during the defined in 8 CFR 212.21(b), for more (g) Cancellation of the Public Charge 5-year period preceding the alien’s fifth than 12 months in the aggregate within Bond. (1) An alien or obligor may anniversary of becoming a lawful any 364month period (such that, for request that DHS cancel a public charge permanent resident. instance, receipt of two benefits in one bond if the alien: (5) Decision. DHS will notify the month counts as two months, after the (i) Naturalized or otherwise obtained obligor, the alien, and the alien’s alien’s adjustment of status to that of a United States citizenship; representative, if any, of its decision lawful permanent resident, until the (ii) Permanently departed the United regarding the request to cancel the bond is cancelled in accordance with States; public charge bond. When the public paragraph (g) of this section. An alien (iii) Died; charge bond is cancelled, the obligor is must also comply with any other (iv) Reached his or her 5-year released from liability. If the public conditions imposed as part of the bond. anniversary since becoming a lawful charge bond has been secured by a cash (e) Submission. A public charge bond permanent resident; or deposit or a cash equivalent, DHS will may be submitted on the alien’s behalf (v) Obtained a different immigration refund the cash deposit and any interest only after DHS notifies the alien and the status not subject to public charge earned to the obligor consistent with 8 alien’s representative, if any, that a bond inadmissibility, as listed in 8 CFR U.S.C. 1363 and 8 CFR 293.1. If DHS may be submitted. The bond must be 212.23, following the grant of lawful denies the request to cancel the bond,

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DHS will notify the obligor and the determines that it has insufficient ■ b. Removing the term, ‘‘and’’ in alien, and the alien’s representative, if information from the alien or the paragraph (c)(4)(iii); any, of the reasons why, and of the right obligor, it may request additional The additions read as follows: of the obligor to appeal in accordance information as outlined in 8 CFR part with the requirements of 8 CFR part 103 before making a breach § 214.1 Requirements for admission, extension, and maintenance of status. 103, subpart A. An obligor may file a determination. If DHS intends to declare motion pursuant to 8 CFR 103.5 after an a bond breached based on information (a) * * * unfavorable decision on appeal. that is not otherwise protected from (3) * * * (h) Breach. (1) Breach and Claim in disclosure to the obligor, DHS will (iv) Except where the nonimmigrant Favor of the United States. An disclose such information to the obligor classification for which the alien seeks administratively final determination to the extent permitted by law, and to extend is exempt from section that a bond has been breached creates a provide the obligor with an opportunity 212(a)(4) of the Act or that section has claim in favor of the United States. Such to respond and submit rebuttal been waived, as a condition for approval claim may not be released or discharged evidence, including specifying a of extension of status, the alien must by an immigration officer. A breach deadline for a response. DHS will send demonstrate that he or she has not determination is administratively final a copy of this notification to the alien received since obtaining the when the time to file an appeal with the and the alien’s representative, if any. nonimmigrant status he or she seeks to Administrative Appeals Office (AAO) After the obligor’s response, or after the extend one or more public benefits as pursuant to 8 CFR part 103, subpart A, specified deadline has passed, DHS will defined in 8 CFR 212.21(b), for more has expired or when the appeal is make a breach determination. than 12 months in the aggregate within dismissed or rejected. (4) Decision. DHS will notify the any 36-month period (such that, for (2) Breach of Bond Conditions. (i) The obligor and the alien, and the alien’s instance, receipt of two benefits in one conditions of the bond are breached if representative, if any, of the breach month counts as two months). For the the alien has received public benefits, as determination. If DHS determines that a purposes of this determination, DHS defined in 8 CFR 212.21(b), for more bond has been breached, DHS will will only consider public benefits than 12 months in the aggregate within inform the obligor of the right to appeal received on or after October 15, 2019 for any 36-month period (such that, for in accordance with the requirements of petitions or applications postmarked instance, receipt of two benefits in one 8 CFR part 103, subpart A. With respect (or, if applicable, submitted month counts as two months), after the to a breach determination for a surety electronically) on or after that date. alien’s adjustment of status to that of a bond, the alien or the alien’s * * * * * lawful permanent resident and before representative, if any, may not appeal the bond is cancelled under paragraph the breach determination or file a PART 245—ADJUSTMENT OF STATUS (g) of this section. DHS will not consider motion. TO THAT OF A PERSON ADMITTED any public benefits, as defined in 8 CFR (5) Demand for Payment. Demands for FOR PERMANENT RESIDENCE 212.21(b), received by the alien during amounts due under the terms of the ■ 12. The authority citation for part 245 periods while an alien was present in bond will be sent to the obligor and any the United States in a category that is continues to read as follows: agent/co-obligor after a declaration of exempt from the public charge ground breach becomes administratively final. Authority: 8 U.S.C. 1101, 1103, 1182, 1255; of inadmissibility or for which the alien (6) Amount of Bond Breach and Effect Pub. L. 105–100, section 202, 111 Stat. 2160, received a waiver of public charge 2193; Pub. L. 105–277, section 902, 112 Stat. on Bond. The bond must be considered inadmissibility, as set forth in 8 CFR 2681; Pub. L. 110–229, tit. VII, 122 Stat. 754; breached in the full amount of the bond. 212.21(b) and 8 CFR 212.23, and public 8 CFR part 2. (i) Exhaustion of administrative benefits received after the alien obtained ■ remedies. Unless an administrative 13. Amend § 245.4 by redesignating U.S. citizenship, when determining appeal is precluded by regulation, a the undesignated text as paragraph (a) whether the conditions of the bond have party has not exhausted the and adding paragraph (b) to read as been breached. DHS will not consider administrative remedies available with follows: any public benefits, as defined in 8 CFR respect to a public charge bond under 212.21 (b)(1) through (b)(3), received by § 245.4 Documentary requirements. this section until the party has obtained an alien who, at the time of receipt * * * * * a final decision in an administrative filing, adjudication or bond breach or (b) For purposes of public charge appeal under 8 CFR part 103, subpart A. cancellation determination, is enlisted determinations under section 212(a)(4) (ii) [Reserved] in the U.S. Armed Forces under the of the Act and 8 CFR 212.22, an alien authority of 10 U.S.C. 504(b)(1)(B) or 10 PART 214—NONIMMIGRANT CLASSES who is seeking adjustment of status U.S.C. 504(b)(2), serving in active duty under this part must submit a or in the Ready Reserve component of ■ 10. The authority citation for part 214 declaration of self-sufficiency on a form the U.S. Armed Forces, or if received by continues to read as follows: designated by DHS, in accordance with such an individual’s spouse or child as form instructions. Authority: 6 U.S.C. 202, 236; 8 U.S.C. defined in section 101(b) of the Act; or 1101, 1102, 1103, 1182, 1184, 1186a, 1187, ■ 14. In § 245.23, revise paragraph (c)(3) (ii) The conditions of the bond 1221, 1281, 1282, 1301–1305 and 1372; sec. to read as follows: otherwise imposed by DHS as part of 643, Pub. L. 104–208, 110 Stat. 3009–708; the public charge bond are breached. Public Law 106–386, 114 Stat. 1477–1480; § 245.23 Adjustment of aliens in T (3) Adjudication. DHS will determine section 141 of the Compacts of Free nonimmigrant classification. whether the conditions of the bond have Association with the Federated States of * * * * * been breached. If DHS determines that Micronesia and the Republic of the Marshall (c) * * * it has insufficient information from the Islands, and with the Government of Palau, (3) The alien is inadmissible under benefit-granting agency to determine 48 U.S.C. 1901 note, and 1931 note, any applicable provisions of section whether a breach occurred, DHS may respectively; 48 U.S.C. 1806; 8 CFR part 2. 212(a) of the Act and has not obtained request additional information from the ■ 11. Section 214.1 is amended by: a waiver of inadmissibility in benefit-granting agency. If DHS ■ a. Adding paragraph (a)(3)(iv), accordance with 8 CFR 212.18 or

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214.11(j). Where the alien establishes § 248.1 Eligibility. the procedures set forth in 8 CFR that the victimization was a central (a) General. Except for those classes 214.15(f) and 214.14, respectively. reason for the applicant’s unlawful enumerated in § 248.2 of this part, any (b) Decision in change of status presence in the United States, section alien lawfully admitted to the United proceedings. Where an applicant or 212(a)(9)(B)(iii) of the Act is not States as a nonimmigrant, including an petitioner demonstrates eligibility for a applicable, and the applicant need not alien who acquired such status in requested change of status, it may be obtain a waiver of that ground of accordance with section 247 of the Act granted at the discretion of DHS. There inadmissibility. The alien, however, who is continuing to maintain his or her is no appeal from the denial of an must submit with the Form I–485 nonimmigrant status, may apply to have application for change of status. evidence sufficient to demonstrate that his or her nonimmigrant classification (c) * * * the victimization suffered was a central changed to any nonimmigrant reason for the unlawful presence in the classification other than that of a spouse (4) As a condition for approval, an United States. To qualify for this or fiance(e), or the child of such alien, alien seeking to change nonimmigrant exception, the victimization need not be under section 101(a)(15)(K) of the Act or classification must demonstrate that he the sole reason for the unlawful as an alien in transit under section or she has not received, since obtaining presence but the nexus between the 101(a)(15)(C) of the Act. Except where the nonimmigrant status from which he victimization and the unlawful presence the nonimmigrant classification to or she seeks to change, one or more must be more than tangential, which the alien seeks to change is public benefits, as defined in 8 CFR incidental, or superficial. exempted by law or regulation from 212.21(b), for more than 12 months in section 212(a)(4) of the Act, as a the aggregate within any 36-month PART 248—CHANGE OF condition for approval of a change of period (such that, for instance, receipt of NONIMMIGRANT CLASSIFICATION nonimmigrant status, the alien must two benefits in one month counts as two demonstrate that he or she has not months). For purposes of this ■ 15. The authority citation for part 248 received since obtaining the determination, DHS will only consider continues to read as follows: nonimmigrant status from which he or public benefits received on or after October 15, 2019 for petitions or Authority: 8 U.S.C. 1101, 1103, 1184, 1258; she seeks to change, public benefits, as 8 CFR part 2. described in 8 CFR 212.21(b), for more applications postmarked (or, if than 12 months in the aggregate within applicable, submitted electronically) on ■ 16. Section 248.1 is amended by: any 36-month period (such that, for or after that date. This provision does ■ a. Revising paragraph (a); instance, receipt of two benefits in one not apply to classes of nonimmigrants ■ b. Redesignating paragraphs (b) month counts as two months). DHS will who are explicitly exempt by law or through (e) as paragraphs (c) through (f), only consider public benefits received regulation from section 212(a)(4) of the respectively; and on or after October 15, 2019 for petitions Act. or applications postmarked (or, if ■ c. Adding a new paragraph (b); and * * * * * applicable, submitted electronically) on ■ d. Revising newly redesignated or after that date . An alien defined by Kevin K. McAleenan, paragraph (c)(4). section 101(a)(15)(V) or 101(a)(15)(U) of Acting Secretary of Homeland Security. The revisions and additions read as the Act may be accorded nonimmigrant [FR Doc. 2019–17142 Filed 8–12–19; 8:45 am] follows: status in the United States by following BILLING CODE 9111–97–P

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