Federal Register/Vol. 83, No. 196/Wednesday, October 10, 2018

51114 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

DEPARTMENT OF HOMELAND that the former Immigration and 4. Exemptions SECURITY Naturalization Service (INS) published 5. Waivers on May 26, 1999. B. Definition of Public Charge and Related Terms 8 CFR Parts 103, 212, 213, 214, 245 and DATES: Written comments and related 248 1. Public Charge material to this proposed rule, including 2. Public Benefit [CIS No. 2499–10; DHS Docket No. USCIS– the proposed information collections, (a) Types of Public Benefits 2010–0012] must be received to the online docket (b) Consideration of Monetizable and Non- via www.regulations.gov, or to the mail Monetizable Public Benefits RIN 1615–AA22 address listed in the ADDRESSES section i. ‘‘Primarily Dependent’’ Standard and Its below, on or before December 10, 2018. Limitations Inadmissibility on Public Charge ii. Fifteen Percent of Federal Poverty Grounds ADDRESSES: You may submit comments Guidelines (FPG) Standard for Monetizable on this proposed rule, including the Benefits AGENCY: U.S. Citizenship and proposed information collection iii. Twelve Month Standard for Non- Immigration Services, DHS. requirements, identified by DHS Docket Monetizable Benefits ACTION: Notice of proposed rulemaking. No. USCIS–2010–0012, by any one of iv. Combination of Monetizable Benefits the following methods: Under 15 Percent of FPG and One or SUMMARY: The U.S. Department of • Federal eRulemaking Portal More Non-Monetizable Benefits Homeland Security (DHS) proposes to (preferred): www.regulations.gov. (c) Monetizable Public Benefits i. Supplemental Security Income (SSI) prescribe how it determines whether an Follow the website instructions for ii. Temporary Assistance for Needy alien is inadmissible to the United submitting comments. • Families (TANF) States under section 212(a)(4) of the Mail: Samantha Deshommes, Chief, iii. General Assistance Cash Benefits Immigration and Nationality Act (INA) Regulatory Coordination Division, iv. Supplemental Nutrition Assistance because he or she is likely at any time Office of Policy and Strategy, U.S. Program (SNAP) v. Housing Programs to become a public charge. Aliens who Citizenship and Immigration Services, a. Section 8 Housing Choice Voucher seek adjustment of status or a visa, or Department of Homeland Security, 20 Program who are applicants for admission, must Massachusetts Avenue NW, b. Section 8 Project-Based Rental establish that they are not likely at any Washington, DC 20529–2140. To ensure Assistance proper handling, please reference DHS (d) Non-Monetizable Public Benefits time to become a public charge, unless i. Medicaid Congress has expressly exempted them Docket No. USCIS–2010–0012 in your a. Description of Program from this ground of inadmissibility or correspondence. Mail must be b. Exceptions for Certain Medicaid has otherwise permitted them to seek a postmarked by the comment submission Services waiver of inadmissibility. Moreover, deadline. c. Exception for Receipt of Medicaid by DHS proposes to require all aliens FOR FURTHER INFORMATION CONTACT: Foreign-Born Children of U.S. Citizens seeking an extension of stay or change Mark Phillips, Residence and ii. Institutionalization for Long-Term Care of status to demonstrate that they have Naturalization Division Chief, Office of iii. Premium and Cost Sharing Subsidies not received, are not currently receiving, Policy and Strategy, U.S. Citizenship Under Medicare Part D iv. Subsidized Public Housing nor are likely to receive, public benefits and Immigration Services, Department (e) Receipt of Public Benefits by Active as defined in the proposed rule. of Homeland Security, 20 Massachusetts Duty and Reserve Servicemembers and DHS proposes to define ‘‘public NW, Washington, DC 20529–2140; Their Families charge’’ as the term is used in sections telephone 202–272–8377. (f) Unenumerated Benefits 212(a)(4) of the Act. DHS also proposes SUPPLEMENTARY INFORMATION: (g) Request for Comment Regarding the to define the types of public benefits Children’s Health Insurance Program that are considered in public charge Table of Contents (CHIP) inadmissibility determinations. DHS I. Public Participation (h) Request for Comment Regarding Public would consider an alien’s receipt of II. Executive Summary Benefit Receipt by Certain Alien A. Major Provisions of the Regulatory Children public benefits when such receipt is (i) Request for Comment Regarding above the applicable threshold(s) Action B. Costs and Benefits Potential Modifications by Public Benefit proposed by DHS, either in terms of III. Purpose of the Proposed Rule Granting Agencies dollar value or duration of receipt. DHS A. Self-Sufficiency 3. Likely at Any Time To Become a Public proposes to clarify that it will make B. Public Charge Inadmissibility Charge public charge inadmissibility Determinations 4. Household determinations based on consideration IV. Background (a) Definition of Household in Public of the factors set forth in section A. Legal Authority Charge Context 212(a)(4) and in the totality of an alien’s B. Immigration to the United States (b) Definitions of ‘‘Household’’ and Similar C. Extension of Stay and Change of Status Concepts in Other Public Benefits circumstances. DHS also proposes to Contexts clarify when an alien seeking D. Public Charge Inadmissibility 1. Public Laws and Case Law (c) Definitions of Household and Similar adjustment of status, who is 2. Public Benefits Under PRWORA Concepts in Other Immigration Contexts inadmissible under section 212(a)(4) of (a) Qualified Aliens C. Public Charge Inadmissibility the Act, may be granted adjustment of (b) Public Benefits Exempt Under Determination status in the discretion of DHS upon the PRWORA 1. Absence of a Required Affidavit of giving of a public charge bond. DHS is 3. Changes Under IIRIRA Support also proposing revisions to existing 4. INS 1999 Interim Field Guidance 2. Prospective Determination Based on USCIS information collections and new E. Public Charge Bond Totality of Circumstances D. Age information collection instruments to V. Discussion of Proposed Rule A. Applicability, Exemptions, and Waivers E. Health accompany the proposed regulatory 1. Applicants for Admission 1. USCIS Evidentiary Requirements changes. With the publication of this 2. Extension of Stay and Change of Status 2. Potential Effects for Aliens With a proposed rule, DHS withdraws the Applicants Disability, Depending on Individual proposed regulation on public charge 3. Adjustment of Status Applicants F. Family Status

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51115

G. Assets, Resources, and Financial Status A. Executive Order 12866 (Regulatory Table of Abbreviations 1. Evidence of Assets and Resources Planning and Review), Executive Order 2. Evidence of Financial Status 13563 (Improving Regulation and AFM—Adjudicator’s Field Manual (a) Public Benefits Regulatory Review), and Executive Order ASEC—Annual Social and Economic (b) Fee Waivers for Immigration Benefits 13771 (Reducing Regulation and Supplement of the Current Population (c) Credit Report and Score Controlling Regulatory Costs) Survey (d) Financial Means To Pay for Medical 1. Summary BIA—Board of Immigration Appeals Costs 2. Background and Purpose of the Rule BLS—U.S. Bureau of Labor Statistics I. Education and Skills 3. Population CDC—Centers for Disease Control and 1. USCIS Evidentiary Requirements (a) Population Seeking Adjustment of Prevention J. Prospective Immigration Status and Status CBP—U.S. Customs and Border Protection Expected Period of Admission i. Exemptions From Determination of CFR—Code of Federal Regulations K. Affidavit of Support Inadmissibility Based on Public Charge CHIP—Children’s Health Insurance Program 1. General Consideration of Sponsorship Grounds CNMI—Commonwealth of the Northern and Affidavits of Support ii. Exemptions From the Requirement To Mariana Islands 2. Proposal To Consider Required Submit an Affidavit of Support DHS—U.S. Department of Homeland Affidavits of Support (b) Population Seeking Extension of Stay of Security L. Heavily Weighed Factors Change of Status DOS—U.S. Department of State 1. Heavily Weighed Negative Factors 4. Cost-Benefit Analysis FAM—Foreign Affairs Manual (a) Lack of Employability (a) Baseline Estimates of Current Costs FCRA—Fair Credit Reporting Act (b) Current Receipt of One of More Public i. Determination of Inadmissibility Based FPG—Federal Poverty Guidelines Benefit on Public Charge Grounds FPL—Federal Poverty Level (c) Receipt of Public Benefits Within Last Form DS–2054—Medical Examination For a. Form I–485, Application to Register 36 Months of Filing Application Immigrant or Refugee Applicant Permanent Residence or Adjust Status (d) Financial Means To Pay for Medical Form I–129—Petition for a Nonimmigrant b. Form I–693, Report of Medical Costs Worker Examination and Vaccination Record (e) Alien Previously Found Inadmissible or Form I–129CW—Petition for a CNMI-Only c. Form I–912, Request for Fee Waiver Deportable Based on Public Charge Nonimmigrant Transitional Worker d. Affidavit of Support Forms 2. Heavily Weighed Positive Factors Form I–130—Petition for Alien Relative ii. Consideration of Receipt, or Likelihood (f) Previously Excluded Benefits Form I–140—Immigrant Petition for Alien of Receipt of Public Benefits Defined in M. Summary of Review of Factors in the Worker Proposed 212.21(b) for Applicants Totality of the Circumstances Form I–290B—Notice of Appeal or Motion Requesting Extension of Stay or Change 1. Favorable Determination of Form I–356—Request for Cancellation of Admissibility of Status Public Charge Bond 2. Unfavorable Determination of a. Form I–129, Petition for a Nonimmigrant Form I–407—Record of Abandonment of Admissibility Worker Lawful Permanent Resident Status N. Valuation of Monetizable Benefits b. Form I–129CW, Petition for a CNMI- Form I–485—Application to Register O. Public Charge Bonds for Adjustment of Only Nonimmigrant Transitional Worker Permanent Residence or Adjust Status Status Applicants c. Form I–539, Application To Extend/ Form I–539—Application to Extend/Change 1. Overview of Immigration Bonds Change Nonimmigrant Status Nonimmigrant Status Generally (b) Costs of Proposed Regulatory Changes Form I–600—Petition to Classify Orphan as 2. Overview of Public Charge Bonds i. Form I–944, Declaration of Self- an Immediate Relative (a) Public Charge Bonds Sufficiency Form I–693—Report of Medical Examination (b) Current and Past Public Charge Bond ii. Extension of Stay/Change of Status and Vaccination Record Procedures Using Form I–129, Petition for a Form I–800—Petition to Classify Convention (c) Relationship of the Public Charge Bond Nonimmigrant Worker; Form I–129CW, Adoptee as an Immediate Relative to the Affidavit of Support Petition for a CNMI-Only Nonimmigrant Form I–864—Affidavit of Support Under (d) Summary of Proposed Changes Transitional Worker; or Form I–539, Section 213A of the INA 3. Permission To Post a Public Charge Application To Extend/Change Form I–864A—Contract Between Sponsor Bond Nonimmigrant Status and Household Member 4. Bond Amount and Submission of a iii. Public Charge Bond Form I–864EZ—Affidavit of Support Under Public Charge Bond (c) Transfer of Payments and Indirect Section 213A of the Act 5. Public Charge Bond Substitution Impacts of Proposed Regulatory Changes Form I–864P—HHS Poverty Guidelines for 6. Public Charge Bond Cancellation (d) Discounted Direct Costs and Reduced Affidavit of Support (a) Conditions Transfer Payments Form I–864W—Request for Exemption for (b) Definition of Permanent Departure i. Discounted Direct Costs Intending Immigrant’s Affidavit of Support (c) Bond Cancellation for Lawful ii. Discounted Reduction in Transfer Form I–912—Request for Fee Waiver Permanent Residents After 5 Years and Payments Form I–94—Arrival/Departure Record Cancellation if the Alien Obtains an (e) Costs to the Federal Government Form I–944—Declaration of Self-Sufficiency Immigration Status Exempt From Public (f) Benefits of Proposed Regulatory Form I–945—Public Charge Bond Charge Grounds of Inadmissibility Changes Form N–600—Application for Certificate of Following the Initial Grant of Lawful B. Regulatory Flexibility Act Citizenship Permanent Resident Status C. Congressional Review Act Form N–600K—Application for Citizenship (d) Request To Cancel the Bond, and D. Unfunded Mandates Reform Act and Issuance of Certificate Under Section Adjudication of the Cancelation Request E. Executive Order 13132 (Federalism) 322 (e) Decision and Appeal F. Executive Order 12988 (Civil Justice GA– General Assistance 7. Breach of a Public Charge Bond and Reform) GAO—U.S. Government Accountability Appeal G. Executive Order 13175 Consultation and Office (a) Breach Conditions and Adjudication Coordination With Indian Tribal HHS—U.S. Department of Health and Human (b) Decision and Appeal Governments Services (c) Consequences of Breach H. Family Assessment ICE—U.S. Immigration and Customs 8. Exhaustion of Administrative Remedies I. National Environmental Policy Act Enforcement IIRIRA—Illegal Immigration 9. Public Charge Processing Fees (NEPA) Reform and Immigrant Responsibility Act 10. Other Technical Changes J. Paperwork Reduction Act of 1996 11. Concurrent Surety Bond Rulemaking VII. List of Subjects and Regulatory INA—Immigration and Nationality Act VI. Statutory and Regulatory Requirements Amendments INS—Immigration and Naturalization Service

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51116 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

IRCA—Immigration Reform and Control Act Docket: For access to the docket and (Secretary) to accept a public charge of 1986 to read background documents or bond under section 213 of the Act, 8 NHE—National Health Expenditure comments received, go to http:// U.S.C. 1183, for those seeking PRA—Paperwork Reduction Act www.regulations.gov, referencing DHS adjustment of status. PRWORA—Personal Responsibility and Work Opportunity Reconciliation Act of Docket No. USCIS–2010–0012. You may also sign up for email alerts on the A. Major Provisions of the Regulatory 1996 Action RFE—Request for Evidence online docket to be notified when SAVE—Systematic Alien Verification for comments are posted or a final rule is DHS proposes to include the Entitlements published. following major changes: Secretary—Secretary of Homeland Security The docket for this rulemaking does • Amending 8 CFR 103.6, Surety SIPP—Survey of Income and Program not include any comments submitted on bonds. The amendments to this section Participation the related notice of proposed set forth DHS’s discretion to approve SNAP—Supplemental Nutrition Assistance rulemaking published by INS in 1999.1 public charge bonds, cancellation, bond Program Commenters to the 1999 notice of schedules, and breach of bond, and SSA—Social Security Administration proposed rulemaking that wish to have move principles governing public SSI—Supplemental Security Income TANF—Temporary Assistance for Needy their views considered should submit charge bonds to 8 CFR 213.1, as new comments in response to this proposed to be revised in this NPRM. Families • USDA—U.S. Department of Agriculture notice of proposed rulemaking. Amending 8 CFR 103.7, adding fees for new Form I–945, Public Charge U.S.C.—United States Code II. Executive Summary USCIS—U.S. Citizenship and Immigration Bond, and Form I–356, Request for Services DHS seeks to better ensure that aliens Cancellation of Public Charge Bond. WIC—Special Supplemental Nutrition subject to the public charge • Adding 8 CFR 212.20, Applicability Program for Women, Infants, and Children inadmissibility ground are self- of public charge inadmissibility. This I. Public Participation sufficient, i.e., do not depend on public section identifies the categories of aliens resources to meet their needs, but rather that are subject to the public charge All interested parties are invited to rely on their own capabilities, as well as inadmissibility determination. participate in this rulemaking by the resources of family members, • Adding 212.21, Definitions. This submitting written data, views, sponsors, and private organizations.2 section establishes key regulatory comments and arguments on all aspects DHS proposes to define the term definitions, including public charge, of this proposed rule. DHS also invites ‘‘public charge’’ in regulation and to public benefit, likely at any time to comments that relate to the economic, identify the types, amount, and duration become a public charge, and household. legal, environmental, or federalism of receipt of public benefits that would • Adding 212.22, Public charge effects that might result from this be considered in public charge determination. This section clarifies that proposed rule. Comments must be inadmissibility determinations. DHS evaluating the likelihood of becoming a submitted in English, or an English proposes to amend its regulations to public charge is a prospective translation must be provided. interpret the minimum statutory factors determination based on the totality of Comments that will provide the most for determining whether an alien is the circumstances. This section assistance to U.S. Citizenship and inadmissible because he or she is likely provides details on how the statute’s Immigration Services (USCIS) in to become a public charge. This mandatory factors would be considered implementing these changes will proposed rule would provide a standard when making a public charge reference a specific portion of the for determining whether an alien who inadmissibility determination. • proposed rule, explain the reason for seeks admission into the United States Adding 212.23, Exemptions and any recommended change, and include as a nonimmigrant or as an immigrant, waivers for the public charge ground of data, information, or authority that or seeks adjustment of status, is likely inadmissibility. This section provides a supports such recommended change. at any time to become a public charge list of statutory and regulatory Instructions: If you submit a under section 212(a)(4) of the Act, 8 exemptions from and waivers of comment, you must include the agency U.S.C. 1182(a)(4). DHS also provides a inadmissibility based on public charge. • name and the DHS Docket No. USCIS– more comprehensive framework under Adding 212.24 Valuation of 2010–0012 for this rulemaking. which USCIS will consider public monetizable benefits. This section Regardless of the method used for charge inadmissibility. DHS proposes provides the methodology for submitting comments or material, all that certain paper-based applications to calculating the annual aggregate amount submissions will be posted, without USCIS would require additional of the portion attributable to the alien change, to the Federal eRulemaking evidence related to public charge for the monetizable benefits and Portal at http://www.regulations.gov, considerations. Due to operational considered in the public charge and will include any personal inadmissibility determination. limitations, this additional evidence • information you provide. Therefore, would not generally be required at ports Amending 8 CFR 213.1, Adjustment submitting this information makes it of entry. of status of aliens on submission of a public. You may wish to consider DHS also proposes amending the public charge bond. The updates to this limiting the amount of personal nonimmigrant extension of stay and section change the title of this section information that you provide in any change of status regulations by and add specifics to the public charge voluntary public comment submission exercising its authority to set additional bond provision for aliens who are you make to DHS. DHS may withhold conditions on granting such benefits. seeking adjustment of status, including information provided in comments from Finally, DHS proposes to revise its the discretionary availability and the public viewing that it determines may regulations governing the discretion of minimum amount for a public charge impact the privacy of an individual or the Secretary of Homeland Security bond. is offensive. For additional information, • Amending 8 CFR 214.1, please read the Privacy Act notice that 1 See Inadmissibility and Deportability on Public Requirements for admission, extension, is available via the link in the footer of Charge Grounds, 64 FR 28676 (May 26, 1999). and maintenance of status. These http://www.regulations.gov. 2 See 8 U.S.C. 1601(1), (2)(A). amendments provide that, with limited

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51117

exceptions, an application for extension applicants may also incur additional from $3,164,375 to $31,643,752 of nonimmigrant stay will be denied costs if DHS determines that they are annually. unless the applicant demonstrates that required to submit Form I–944 in Simultaneously, DHS is proposing to he or she has not received since support of their applications for eliminate the use and consideration of obtaining the nonimmigrant status he or extension of stay or change of status. the Request for Exemption for Intending she seeks to extend, is not receiving, Moreover, the proposed rule would Immigrant’s Affidavit of Support (Form and is not likely to receive, public impose new costs associated with the I–864W), currently applicable to certain benefits as described in 8 CFR 212.21(b). proposed public charge bond process, classes of aliens. In lieu of Form I– Where section 212(a)(4) of the Act does including new costs for completing and 864W, the alien would indicate not apply to the nonimmigrant category filing Form I–945 (Public Charge Bond), eligibility for the exemption of the that the alien seeks to extend, this and Form I–356 (Request for affidavit of support requirement on provision does not apply. Cancellation of Public Charge Bond). • Form I–485, Application to Register Amending 8 CFR 245.4 DHS estimates that the additional Permanent Residence or Adjust Status. Documentary requirements. These total cost of the proposed rule would amendments require applicants for The proposed rule would potentially range from approximately $45,313,422 impose new costs on individuals or adjustment of status to file the new to $129,596,845 annually for the USCIS Form I–944, Declaration of Self- companies (obligors) if an alien has population applying to adjust status been found to be inadmissible on public Sufficiency, to facilitate USCIS’ public who also would be required to file Form charge inadmissibility determination. charge grounds, but has been given the • I–944, the population applying for opportunity to submit a public charge Amending 8 CFR 248.1, Change of extension of stay or change of status that nonimmigrant classification eligibility. bond, for which USCIS intends to use would experience opportunity costs in the new Form I–945. DHS estimates the This section provides that with limited time associated with the increased time exceptions, an application to change total cost to file Form I–945 would be burden estimates for completing Form at minimum about $34,234 annually.3 nonimmigrant status will be denied I–485, Form I–129, FormI–129CW, and unless the applicant demonstrates that The proposed rule would also impose FormI–539, and the population new costs on aliens or obligors who he or she has not received since requesting or cancelling a public charge obtaining the nonimmigrant status from would submit a Form I–356; DHS bond using Form I–945 and Form I–356, which the alien seeks to change, is not estimates the total cost to file Form I– respectively. currently receiving, nor is likely to 356 would be approximately $825 Over the first 10 years of 4 receive public benefits in the future, as annually. implementation, DHS estimates the total described in proposed 8 CFR 212.21(b). Moreover, the proposed rule would quantified new direct costs of the Where section 212(a)(4) of the Act does also result in a reduction in transfer proposed rule would range from about not apply to the nonimmigrant category payments from the federal government $453,134,220 to $1,295,968,450 to which the alien requests a change of to individuals who may choose to (undiscounted). DHS estimates that the status this provision does not apply. disenroll from or forego enrollment in a 10-year discounted total direct costs of public benefits program. Individuals B. Costs and Benefits this proposed rule would range from may make such a choice due to concern about $386,532,679 to $1,105,487,375 at This proposed rule would impose about the consequences to that person a 3 percent discount rate and about new costs on the population applying to receiving public benefits and being $318,262,513 to $910,234,008 at a 7 adjust status using Application to found to be likely to become a public percent discount rate. Register Permanent Residence or Adjust charge for purposes outlined under Status (Form I–485) that are subject to The proposed rule would impose new section 212(a)(4) of the Act, even if such the public charge grounds on costs on the population seeking individuals are otherwise eligible to inadmissibility. DHS would now require extension of stay or change of status receive benefits. For the proposed rule, any adjustment applicants subject to the using Form I–129, Form I–129CW, or DHS estimates that the total reduction public charge inadmissibility ground to Form I–539. For any of these forms, in transfer payments from the federal submit Form I–944 with their Form I– USCIS officers would then be able to and state governments would be 485 to demonstrate they are not likely exercise discretion in determining approximately $2.27 billion annually to become a public charge. whether it would be necessary to issue due to disenrollment or foregone The proposed rule would also impose a request for evidence (RFE) requesting enrollment in public benefits programs additional costs for seeking extension of the applicant to submit Form I–944. by aliens who may be receiving public stay or change of status by filing Form DHS conducted a sensitivity analysis benefits. DHS estimates that the 10-year I–129 (Petition for a Nonimmigrant estimating the potential cost of filing discounted transfer payments of this Worker); Form I–129CW (Petition for a Form I–129, Form I–129CW, or Form I– proposed rule would be approximately CNMI-Only Nonimmigrant Transitional 539 for a range of 10 to 100 percent of $19.3 billion at a 3 percent discount rate Worker); or Form I–539 (Application to filers receiving an RFE requesting they and about $15.9 billion at a 7 percent Extend/Change Nonimmigrant Status) as submit Form I–944. The costs to Form discount rate. Because state applicable. The associated time burden I–129 beneficiaries who may receive an estimate for completing these forms RFE to file Form I–944 range from 3 Calculation: $35.66 (cost per obligor to file Form would increase because these applicants $6,086,318 to $60,863,181 annually and I–945) * 960 (estimated annual population who would be required to demonstrate that the costs to Form I–129CW beneficiaries would file Form I–945) = $34,233.60 = $34,234 they have not received, are not currently who may receive such an RFE from (rounded) annual total cost to file Form I–945. receiving, nor are likely in the future to $114,132 to $1,141,315 annually. The 4 Calculation: $33.00 (cost per obligor to file Form receive, public benefits as described in costs to Form I–539 applicants who may I–356) * 25 (estimated annual population who proposed 8 CFR 212.21(b). These receive an RFE to file Form I–944 range would file Form I–356) = $825.00 annual total cost to file Form I–356.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51118 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

participation in these programs may healthcare providers participating in The primary benefit of the proposed vary depending on the type of benefit Medicaid, pharmacies that provide rule would be to help ensure that aliens provided, DHS was only able to estimate prescriptions to participants in the who apply for admission to the United the impact of state transfers. For Medicare Part D Low Income Subsidy States, seek extension of stay or change example, the federal government funds (LIS) program, companies that of status, or apply for adjustment of all SNAP food expenses, but only 50 manufacture medical supplies or status are self-sufficient, i.e., do not percent of allowable administrative pharmaceuticals, grocery retailers depend on public resources to meet costs for regular operating expenses.5 participating in SNAP, agricultural their needs, but rather rely on their own Similarly, Federal Medical Assistance producers who grow foods that are capabilities and the resources of their Percentages (FMAP) in some HHS eligible for purchase using SNAP family, sponsor, and private programs like Medicaid can vary from benefits, or landlords participating in organizations.7 DHS also anticipates between 50 percent to an enhanced rate federally funded housing programs. that the proposed rule would produce of 100 percent in some cases.6 However, Additionally, the proposed rule some benefits from the elimination of assuming that the state share of federal Form I–864W. The elimination of this financial participation (FFP) is 50 would add new direct and indirect costs on various entities and individuals form would potentially reduce the percent, the 10-year discounted amount number of forms USCIS would have to associated with regulatory of state transfer payments of this process, although it likely would not familiarization with the provisions of proposed policy would be reduce overall processing burden. DHS this rule. Familiarization costs involve approximately $9.65 billion at a 3 estimates the amount of cost savings the time spent reading the details of a percent discount rate and about $7.95 that would accrue from eliminating rule to understand its changes. To the billion at a 7 percent discount rate. DHS Form I–864W would be $35.78 per extent that an individual or entity recognizes that reductions in federal petitioner.8 However, DHS is unable to directly regulated by the rule incurs and state transfers under federal benefit determine the annual number of filings familiarization costs, those programs may have downstream and of Form I–864W and, therefore, is familiarization costs are a direct cost of upstream impacts on state and local currently unable to estimate the total the rule. For example, immigration economies, large and small businesses, annual cost savings of this change. A lawyers, immigration advocacy groups, and individuals. For example, the rule public charge bond process would health care providers of all types, non- might result in reduced revenues for provide benefits to applicants as they profit organizations, non-governmental potentially would be given the 5 organizations, and religious Per section 16(a) of the Food and Nutrition Act opportunity to adjust their status if of 2008. See also Per section 16(a) of the Food and organizations, among others, may need otherwise admissible, at the discretion Nutrition Act of 2008. See also USDA, FNS or want to become familiar with the Handbook 901, p. 41 available at: https://fns- of DHS, after a determination that they provisions of this proposed rule. An prod.azureedge.net/sites/default/files/apd/FNS_ are likely to become public charges. _ _ _ _ entity, such as a non-profit or advocacy HB901 v2.2 internet Ready Format.pdf Table 1 provides a more detailed 6 See Dept. of Health and Human Services, group, may have more than one person summary of the proposed provisions ‘‘Federal Financial Participation in State Assistance that reads the rule. Familiarization costs Expenditures; Federal Matching Shares for and their impacts. incurred by those not directly regulated Medicaid, the Children’s Health Insurance Program, BILLING CODE 4410–10–P and Aid to Needy Aged, Blind, or Disabled Persons are indirect costs. DHS estimates the for October 1, 2016 through September 30, 2017.’’ time that would be necessary to read 7 8 U.S.C. 1601(2). ASPE FMAP 2017 Report. Dec. 29, 2015. Available this proposed rule would be at https://aspe.hhs.gov/basic-report/fy2017-federal- 8 Calculation for the opportunity cost of time for medical-assistance-percentages. Accessed Sept. 13, approximately 8 to 10 hours per person, completing and submitting Form I–864W: ($34.84 2018. resulting in opportunity costs of time. per hour * 1.0 hours) = $34.84.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51119

Table 1. Summary of Major Provisions and Economic Impacts of the Proposed Rule

Provisions Purpose Expected Impact of Proposed Rule

Adding 8 CFR 212.20. To define the categories of aliens that Quantitative: Purpose and are subject to the public charge Benefits applicability of public inadmissibility determination. Cost savings of $35.78 per petitioner from no charge inadmissibility. • longer having to complete and file Fonn 1- 864W.

Costs: Adding 8 CFR 212.21. To establish key definitions, • DHS anticipates a likely increase in the Definitions. including public charge, public number of denials for adjustment of status benefit, likely to become a public applicants based on public charge charge, and household. inadmissibility determinations due to formalizing and standardizing the criteria Adding 8 CFR 212.22. Clarifies that evaluating public and process for public charge determinations. Public charge charge is a prospective determination determination. based on the totality of the circumstances. Qualitative: Outlines 1ninimum and additional Benefits factors considered when evaluating whether an alien is inadmissible as • Better ensure that aliens who are admitted to likely to become a public charge. the United States or apply for adjustment of Positive and negative factors are status are self-sufficient through an improved weighed to determine an individual's review process of the mandatory statutory likelihood of becoming a public factors. charge at any time in the future.

Adding 8 CFR 212.23. Outlines exemptions and waivers for Exemptions and inadmissibility based on public waivers for public charge grounds. charge ground of inadmissibility.

Adding 212.24. Provides the methodology for Valuation of calculating value of the benefit monetizable benefits. attributable to the alien in proportion to the total nUlllber of people covered by the benefit in the public charge inadmissibility determination.

Adding 8 CFR To provide, with limited exceptions, Quantitative: 214.l(a)(3)(iv) and that an application for extension of • Potential annual costs for those filing Form amending 8 CFR stay or change of noni111111igrant 214.l(c)(4). 1-129 range from $6.09 million to $60.9 status will be denied unless the Nonimmigrant general million depending on how many applicant demonstrates that he or she

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.000 51120 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

requirements; and has not received, is not currently beneficiaries are sent an RFE by USCIS to amending 8 CFR receiving, nor is likely to receive, complete Form I-944. 248.l(a) and adding 8 public benefits as defined in • Potential annual costs for those filing Form CFR 248.l(c)(4). proposed 8 CFR 212.2l(b). I-129CW range from $0.11 million to Change of $1.14 million depending on how many nonimmigrant beneficiaries are sent an RFE by USCIS to classification eligibility. complete Form I-944. • Potential annual costs for those filing Form I-539 applicants range from $3.16 million to $31.6 million depending on how many beneficiaries are sent an RFE by USCIS to complete Form I-944

Qualitative: Benefits • Better ensure that aliens who are 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 temporary stay. • Reduce the likelihood that an alien will receive a public benefit at any time in the future. Amending 8 CFR 245. To outline requirements that aliens Quantitative: Direct Costs Adjustment of status to submit a declaration of self- that of a person sufficiency on the form designated • Total annual direct costs of the proposed admitted for permanent rule would range from about $45.3 to $129.6 by DHS and any other evidence residence. million, including: requested by DHS in the public • $26.0 million to applicants who must file charge inadmissibility determination. Form I-944; • $0.69 million to applicants applying to adjust status using Form I-485 with an increased time burden; • $12.1 to $66.9 million for an increased time burden for completing and filing Form I-129; • $0.23 to $1.25 million for an increased time burden for completing and filing Form I -129CW and potential RFE to complete Form I-944; • $6.29 to $34.8 million for an increased time burden for completing and filing Form I-539 and potential RFE to complete Form I-944; • $0.34 million to obligors for filing Form I-945; and • $825 million to filers for filing Form I- 356.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.001 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51121

• Total direct costs over a 10-year period would range from: • $453.1 million to $1.30 billion for undiscounted costs; • $386.5 million to $1.11 billion at a 3 percent discount rate; and • $318.3 to $910.2 million at a 7 percent discount rate.

Transfer Payments • Total annual transfer payments of the proposed rule would be about $2.27 billion from foreign-born non-citizens and their households who disemoll from or forego emollment in public benefits programs. The federal-level share of annual transfer payments would be about $1.51 billion and the state-level share of annual transfer payments would be about $756 million. • Total transfer payments over a 10-year period, including the combined federal- and state-level shares, would be: • $22.7 billion for undiscounted costs; • $19.3 billion at a 3 percent discount rate; and • $15.9 billion at a 7 percent discount rate.

Qualitative: Benefits • Potential to improve the efficiency for US CIS in the review process for public charge inadmissibility.

Costs • DHS anticipates a likely increase in the number of denials for adjustment of status applicants based on public charge inadmissibility determinations due to formalizing and standardizing the criteria and process for public charge determinations. • DHS also anticipates costs to various entities and individuals associated with regulatory familiarization with the provisions of the rule. Costs would include the opportunity cost of time to read the proposed rule and subsequently determine applicability of the proposed rule's provisions. DHS estimates that the time to read this proposed rule in its

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.002 51122 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

BILLING CODE 4410–10–C adjustment of status, he or she is likely ability to be self-supporting.’’ 10 These III. Purpose of the Proposed Rule at any time to become a public charge. decisions, in general, conclude that an The statute requires DHS to consider the alien who is incapable of earning a A. Self-Sufficiency following minimum factors that reflect livelihood, who does not have sufficient DHS seeks to better ensure that the likelihood that an alien will become funds in the United States for support, applicants for admission to the United a public charge: The alien’s age; health; and who has no person in the United States and applicants for adjustment of family status; assets, resources, and States willing and able to assure the status to lawful permanent resident who financial status; and education and alien will not need public support are subject to the public charge ground skills. DHS may also consider any generally is inadmissible as likely to of inadmissibility are self-sufficient, i.e., affidavit of support submitted by the become a public charge.11 Furthermore, do not depend on public resources to alien’s sponsor and any other factor the following congressional policy meet their needs, but rather rely on their relevant to the likelihood of the alien statements relating to self-sufficiency, own capabilities and the resources of becoming a public charge. immigration, and public benefits inform their family, sponsor, and private As noted in precedent administrative DHS’s proposed administration of 9 organizations. Under section 212(a)(4) decisions, determining the likelihood of of the Act, 8 U.S.C. 1182(a)(4), an alien an alien becoming a public charge 10 Matter of Vindman, 16 I&N Dec. 131, 132 (Reg’l is inadmissible if, at the time of an involves ‘‘consideration of all the factors Comm’r 1977). application for a visa, admission, or bearing on the alien’s ability or potential 11 See, e.g., Matter of Vindman, 16 I&N Dec. 131 (Reg’l Comm’r 1977); Matter of Harutunian, 14 I&N 9 See 8 U.S.C. 1601(2). Dec. 583 (Reg’l Comm’r 1974).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.003 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51123

section 212(a)(4) of the Act, 8 U.S.C. which they are eligible, even though the emphasis on primary dependence on 1182(a)(4). public charge inadmissibility cash public benefits. This proposed rule (1) Self-sufficiency has been a basic determination does not directly apply to would improve upon the 1999 Interim principle of United States immigration them. Such aliens should have adequate Field Guidance by removing the law since this country’s earliest financial resources to maintain the artificial distinction between cash and immigration statutes. status they seek to extend or to which non-cash benefits, and aligning public (2) It continues to be the immigration they seek to change for the duration of charge policy with the self-sufficiency policy of the United States that— their temporary stay, and must be able principles set forth in the Personal (A) Aliens within the Nation’s borders to support themselves. Responsibility and Work Opportunity not depend on public resources to meet Reconciliation Act of 1996 B. Public Charge Inadmissibility their needs, but rather rely on their own (PRWORA).19 The proposed rule would Determinations capabilities and the resources of their provide clarification and guidance on families, their sponsors, and private DHS seeks to interpret the term the mandatory factors, including how organizations; and ‘‘public charge’’ for purposes of making these factors would be evaluated in (B) The availability of public benefits public charge inadmissibility relation to the new proposed definition not constitute an incentive for determinations. As noted above, of public charge and in making a public immigration to the United States.12 Congress codified the minimum charge inadmissibility determination.20 Within this administrative and mandatory factors that must be legislative context, DHS’s view of self- considered as part of the public charge IV. Background sufficiency is that aliens subject to the inadmissibility determination under Three principal issues 21 have framed public charge ground of inadmissibility section 212(a)(4) of the Act, 8 U.S.C. the development of public charge must rely on their own capabilities and 1182(a)(4): Age, health, family status, inadmissibility: (1) The factors involved secure financial support, including from assets, resources, financial status, in determining whether or not an alien family members and sponsors, rather education, and skills.14 In addition to is likely to become a public charge, (2) than seek and receive public benefits to these minimum factors, the statute the relationship between public charge meet their needs. Aliens subject to the states that any affidavit of support under and receipt of public benefits, and (3) public charge ground of inadmissibility section 213A of the Act may also be the consideration of a sponsor’s affidavit include: Immediate relatives of U.S. considered.15 In fact, since an affidavit of support within public charge citizens, fiance´(e)s, family-preference of support is required for family- inadmissibility determinations. immigrants, most employment-based sponsored immigrant applicants and immigrants, diversity visa immigrants, certain employment-sponsored 19 Public Law 104–193, 110 Stat. 2105. and certain nonimmigrants. Most immigrant applicants, these aliens are 20 Moreover, this proposed policy change is employment-based immigrants are inadmissible as likely to become a consistent with the March 6, 2017 Presidential coming to work for their petitioning public charge if they do not submit such Memorandum directing DHS to issue new rules, employers; DHS believes that by virtue 16 regulations, and/or guidance to enforce laws a sufficient affidavit of support. relating to such grounds of inadmissibility and 17 of their employment, such immigrants Although INS issued a proposed subsequent compliance. See Implementing should have adequate income and rule and Interim Field Guidance in Immediate Heightened Screening and Vetting of resources to support themselves without 1999, neither the proposed rule nor Applications for Visas and Other Immigration resorting to seeking public benefits. Benefits, Ensuring Enforcement of All Laws for Interim Field Guidance sufficiently Entry Into the United States, and Increasing Similarly, DHS believes that, consistent described the mandatory factors or Transparency Among Departments and Agencies of with section 212(a)(4), nonimmigrants explained how to weigh these factors in the Federal Government and for the American should have sufficient financial means the public charge inadmissibility People, 82 FR 16279 (Apr. 3, 2017), available at or employment, if authorized to work, to 18 https://www.whitehouse.gov/the-press-office/2017/ determination. The 1999 Interim Field 03/06/memorandum-secretary-state-attorney- support themselves for the duration of Guidance allows consideration of the general-secretary-homeland-security. their authorized admission and receipt of cash public benefits when 21 See, e.g., Report of the Committee of the temporary stay. In addition, immediate determining whether an applicant meets Judiciary Pursuant to S. Res. 137, S. Rep. No. 81– relatives of U.S. citizens, fiance´(e)s, the definition of ‘‘public charge,’’ but 1515, at 346–50 (1950). Prior to passage of the INA most family-preference immigrants, and of 1952, the Senate Judiciary Committee issued a excluded consideration of non-cash report assessing issues within the immigration some employment-based immigrants public benefits. In addition, the 1999 system, including public charge. The committee require a sponsor and a legally binding Interim Field Guidance placed its recommended retention of public charge exclusion affidavit of support under section 213A in the statute but highlighted two main problems related to its implementation: (1) How to determine of the Act showing that the sponsor 14 See INA section 212(a)(4)(B)(ii), 8 U.S.C. who is likely to become a public charge and (2) how 1182(a)(4)(B)(ii). agrees to provide support to maintain to find a better way of meeting the purpose for 15 the alien at an annual income that is not See INA section 212(a)(4)(B)(iii), 8 U.S.C. which affidavits of support were executed on the 1182(a)(4)(B)(iii). less than 125 percent of the FPG.13 alien’s behalf. The committee noted that there was 16 See INA section 212(a)(4)(C), 8 U.S.C. DHS’s view of self-sufficiency also no definition of the term ‘‘likely to become a public 1182(a)(4)(C). charge’’ and that the meaning of the term had been informs other aspects of this proposal. 17 On March 1, 2003, INS functions were left to the interpretation of administrative officials DHS proposes that aliens who seek to transferred from the Department of Justice to DHS. and the courts. Factors such as financial status, change their nonimmigrant status or See Homeland Security Act of 2002, Public Law business ownership, health, and employability were extend their nonimmigrant stay 107–296, sections 402(3), 441, 116 Stat. 2135, 2178, considerations, as were decisions rendered by the 2192. courts and in public charge determinations made by generally should also be required to 18 See Inadmissibility and Deportability on Public consular and immigration officers. The committee continue to be self-sufficient and not Charge Grounds, 64 FR 28676 (May 26, 1999); Field advised against defining public charge in the INA. remain in the United States to avail Guidance on Deportability and Inadmissibility on Instead, it recommended that the determination of themselves of any public benefits for Public Charge Grounds, 64 FR 28689 (May 26, whether an alien falls into the public charge 1999). Due to a printing error, the Federal Register category should rest within the discretion of version of the field guidance appears to be dated consular and immigration officials because the 12 Personal Responsibility and Work Opportunity ‘‘March 26, 1999’’ even though the guidance was elements constituting public charge are varied. It Reconciliation Act of 1996, Public Law 104–193, actually signed May 20, 1999, became effective May also recommended the use of a bond or suitable 110 Stat. 2105, codified in part at.8 U.S.C. 1601. 21, 1999 and was published in the Federal Register undertaking over the practice of using affidavits of 13 See INA section 213A(a), 8 U.S.C. 1183a(a). on May 26, 1999, along with the NPRM. support.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51124 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

A. Legal Authority adjustment of status to lawful C. Extension of Stay and Change of DHS’s authority for making public permanent residence. Section 248 of the Status charge inadmissibility determinations Act, 8 U.S.C. 1258, authorizes the Pursuant to section 214(a)(1) of the and related decisions is found in several Secretary to prescribe conditions under Act, 8 U.S.C. 1184(a)(1), DHS permits statutory provisions. Section 102 of the which an alien may change his or her certain nonimmigrants to remain in the Homeland Security Act of 2002 (Pub. L. status from one nonimmigrant United States beyond their current 107–296, 116 Stat. 2135), 6 U.S.C. 112, classification to another. The Secretary period of authorized stay to continue and section 103 of the Immigration and proposes the changes in this rule under engaging in activities permitted under Nationality Act (INA, or the Act), 8 these authorities. their current nonimmigrant status. The U.S.C. 1103, charge the Secretary with B. Immigration to the United States extension of stay regulations require a the administration and enforcement of nonimmigrant applying for an extension The INA governs whether an alien the immigration and naturalization laws of stay to demonstrate that he or she is may obtain a visa, be admitted to or of the United States. In addition to admissible to the United States.24 For remain in the United States, or obtain an establishing the Secretary’s general some extension of stay applications, the extension of stay, change of status, or authority for the administration and applicant’s financial status is an adjustment of status.22 The INA enforcement of immigration laws, element of the eligibility establishes separate processes for aliens section 103 of the Act enumerates determination.25 DHS has the authority seeking a visa, admission, change of various related authorities including the to set conditions in determining status, and adjustment of status. For whether to grant the extension of stay Secretary’s authority to establish example, where an immigrant visa request.26 The decision to grant an regulations and prescribe such forms of petition is required, USCIS will extension of stay application, with bond as are necessary for carrying out adjudicate the petition. If USCIS certain limited exceptions, is her authority. Section 212 of the Act, 8 approves the petition, the alien may discretionary.27 U.S.C. 1182, establishes classes of aliens apply for a visa with the U.S. that are ineligible for visas, admission, Under section 248 of the Act, 8 U.S.C. Department of State (DOS) and 1258, DHS may permit an alien to or adjustment of status and paragraph thereafter seek admission in the (a)(4) of that section establishes the change his or her status from one appropriate immigrant classification. If nonimmigrant status to another public charge ground of inadmissibility, the alien is present in the United States, including the minimum factors the nonimmigrant status, with certain he or she may be eligible to apply to exceptions, as long as the nonimmigrant Secretary must consider in making a USCIS for adjustment of status to that of determination that an alien is likely to is continuing to maintain his or her a lawful permanent resident. In the current nonimmigrant status and is not become a public charge. Section nonimmigrant context, the 212(a)(4) of the Act also establishes the inadmissible under section nonimmigrant typically applies directly 212(a)(9)(B)(i) of the Act, 8 U.S.C. affidavit of support requirement as to the U.S. consulate or embassy abroad applicable to certain family-based and 1182(a)(9)(B)(i).28 An applicant’s for a visa to enter for a limited purpose, financial status is currently part of the employment-based immigrants, and such as to visit for business or exempts certain aliens from both the 23 determination for changes to certain tourism. Applicants for admission are nonimmigrant classifications.29 Like public charge ground of inadmissibility inspected at or, when encountered, and the affidavit of support extensions of stay, change of status between the port of entry. The adjudications are discretionary requirement. Section 213 of the Act, 8 inspection is conducted by immigration U.S.C. 1183, provides the Secretary with determinations, and DHS has the officers in a timeframe and setting authority to set conditions that apply for discretion to admit into United States an distinct from the visa adjudication alien who is determined to be a nonimmigrant to change his or her process. If a nonimmigrant alien is status.30 inadmissible as a public charge under present in the United States, he or she section 212(a)(4) of the Act, but is may be eligible to apply to USCIS for an D. Public Charge Inadmissibility otherwise admissible, upon the giving of extension of nonimmigrant stay or Section 212(a)(4) of the Act, 8 U.S.C. a proper and suitable bond. That section change of nonimmigrant status. 1182(a)(4), provides that an alien authorizes the Secretary to establish the DHS has the discretion to waive applicant for a visa, admission, or amount and conditions of such bond. certain grounds of inadmissibility as adjustment of status is inadmissible if Section 213A of the Act, 8 U.S.C. 1183a, designated by Congress. Where an alien he or she is likely at any time to become sets out requirements for the sponsor’s is seeking an immigration benefit that is a public charge. The public charge affidavit of support, including subject to a ground of inadmissibility, ground of inadmissibility, therefore, reimbursement of government expenses DHS cannot approve the immigration applies to any alien applying for a visa where the sponsored alien received benefit being sought if a waiver of that to come to the United States temporarily means-tested public benefits. Section ground is unavailable under the INA, or permanently, for admission, or for 214 of the Act, 8 U.S.C. 1184, addresses the alien does not meet the statutory requirements for the admission of and regulatory requirements for the 24 See 8 CFR 214.1(a)(3)(i). nonimmigrants, including authorizing waiver, or the alien does not warrant the 25 See, e.g., 8 CFR 214.2(f)(1)(i)(B). the Secretary to prescribe the conditions waiver in any authorized exercise of 26 See INA section 214(a)(1), 8 U.S.C. 1184(a)(1); of such admission through regulations discretion. 8 CFR 214.1(a)(3)(i). and when necessary establish a bond to 27 See 8 CFR 214.1(c)(5). 28 ensure that those admitted as 22 See, e.g., INA section 212(a), 8 U.S.C. 1182(a) See INA section 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a). nonimmigrants or who change their (listing grounds of inadmissibility). 23 Certain nonimmigrant classifications are 29 See, e.g., Adjudicator’s Field Manual Ch. nonimmigrant status under section 248 subject to petition requirements and require that a 30.3(c)(2)(C) (applicants to change status to a of the Act, 8 U.S.C. 1258, depart if they petition be filed and approved by USCIS prior to nonimmigrant student must demonstrate that they violate their nonimmigrant status or application for a visa. See, e.g., INA section 214(c), have the financial resources to pay for coursework and living expenses in the United States) after such status expires. Section 245 of 8 U.S.C. 1184(c). In addition, certain aliens are not subject to a visa requirement in order to seek [hereinafter AFM]. the Act, 8 U.S.C. 1255, generally admission as a nonimmigrant. See, e.g., INA section 30 See INA section 248(a), 8 U.S.C. 1258(a); 8 CFR establishes eligibility criteria for 217, 8 U.S.C. 1187. 248.1(a).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51125

adjustment of status to that of a lawful charge bond process.38 This rule would Matter of Perez, the Board of permanent resident.31 Section 212(a)(4) outline a process under which USCIS Immigration Appeals (BIA) held that of the Act, does not, however, directly could, in its discretion, offer public ‘‘[t]he determination of whether an alien apply to applications for extension of charge bonds to applicants for is likely to become a public charge . . . stay or change of status because adjustment of status who are is a prediction based upon the totality extension of stay and change of status inadmissible only on public charge of the alien’s circumstances at the time applications are not applications for a grounds. he or she applies for an immigrant visa visa, admission, or adjustment of status. or admission to the United States. The 1. Public Laws and Case Law The INA does not define public fact that an alien has been on welfare charge. It does, however, specify that Since at least 1882, the United States does not, by itself, establish that he or when determining if an alien is likely at has denied admission to aliens on she is likely to become a public any time to become a public charge, public charge grounds.39 The INA of charge.’’ 43 As stated in Matter of consular officers and immigration 1952 excluded aliens who, in the Harutunian,44 public charge officers must, at a minimum, consider opinion of the consular officer at the determinations should take into the alien’s age; health; family status; time of application for a visa, or in the consideration factors such as an alien’s assets, resources, and financial status; opinion of the Government at the time age, incapability of earning a livelihood, and education and skills.32 of application for admission, are likely a lack of sufficient funds for self- Some immigrant and nonimmigrant at any time to become public charges.40 support, and a lack of persons in this categories are exempt from the public The Government has long interpreted country willing and able to assure that charge inadmissibility ground. DHS the words ‘‘in the opinion of’’ as the alien will not need public support. proposes to list these categories in the evincing the subjective nature of the The totality of circumstances regulation. DHS also proposes to list in determination.41 approach to public charge the regulation the applicants that the A series of administrative decisions inadmissibility determinations was law permits to apply for a waiver of the after passage of the Act clarified that a codified in relation to one specific class public charge inadmissibility ground.33 totality of the circumstances review was of aliens in the 1980s. In 1986, Congress Additionally, section 212(a)(4) of the the proper framework for making public passed the Immigration Reform and Act, 8 U.S.C. 1182(a)(4), permits the charge determinations and that receipt Control Act (IRCA), providing eligibility consular officer or the immigration of welfare would not, alone, lead to a for lawful status to certain aliens who officer to consider any affidavit of finding of likelihood of becoming a had resided in the United States support submitted under section 213A public charge. In Matter of Martinez- continuously prior to January 1, 1982.45 of the Act, 8 U.S.C. 1183a, on the Lopez, the Attorney General opined that No changes were made to the language applicant’s behalf when determining the statute ‘‘require[d] more than a of the public charge exclusion ground whether the applicant may become a showing of a possibility that the alien under former section 212(a)(15) of the public charge.34 In fact, with very will require public support. Some Act, but IRCA contained special public limited exceptions, aliens seeking specific circumstance, such as mental or charge rules for aliens seeking family-based immigrant visas and physical disability, advanced age, or legalization under 245A of the Act. adjustment of status, and a limited other fact showing that the burden of Although IRCA provided otherwise number of employment-based supporting the alien is likely to be cast eligible aliens an exemption or waiver immigrant visas or adjustment of status, on the public, must be present. A for some grounds of excludability, the must have a sufficient affidavit of healthy person in the prime of life aliens generally remained excludable on support or will be found inadmissible as cannot ordinarily be considered likely public charge grounds.46 Under IRCA, likely to become a public charge.35 to become a public charge, especially however, if an applicant demonstrated a In general, an alien whom DHS has where he has friends or relatives in the history of self-support through determined to be inadmissible based on United States who have indicated their employment and without receiving the public charge ground may, if ability and willingness to come to his public cash assistance, he or she would otherwise admissible, be admitted at the assistance in case of emergency.’’ 42 In not be ineligible for adjustment of status discretion of the Secretary upon giving on public charge grounds.47 In addition, a suitable and proper bond or 38 See AFM Ch. 61.1(b). aliens who were ‘‘aged, blind or undertaking approved by the 39 See Immigration Act of 1882, ch. 376, sections disabled’’ as defined in section Secretary.36 The purpose of issuing a 1–2, 22 Stat. 214, 214. Section 11 of the Act also provided that an alien who became a public charge 1614(a)(1) of the Social Security Act, public charge bond is to ensure that the within 1 year of arrival in the United States from could obtain a waiver from the public alien will not become a public charge in causes that existed prior to his or her landing, was charge provision.48 the future.37 Since the introduction of deemed to be in violation of law, and was to be returned at the expense of the person or persons, enforceable affidavits of support in 43 vessel, transportation, company or corporation who 15 I&N Dec. 136, 137 (BIA 1974). section 213A of the Act, the use of brought the alien into the United States. 44 See 14 I&N Dec. 583, 589 (Reg’l Comm’r 1974). public charge bonds has decreased and 40 See INA of 1952, ch. 477, section 212(a)(15), 66 45 See IRCA of 1986, Public Law 99–603, section USCIS does not currently have a public Stat. 163, 183. 201, 100 Stat. 3359, 3394. 41 See Matter of Harutunian, 14 I&N Dec. 583, 588 46 See INA section 245A(d)(2)(B)(ii)(IV), 8 U.S.C. 1255(d)(2)(B)(ii)(IV). 31 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). (Reg’l Cmm’r 1974) (‘‘[T]he determination of whether an alien falls into that category [as likely 47 See INA section 245A(d)(2)(B)(iii), 8 U.S.C. 32 See INA section 212(a)(4)(B)(i), 8 U.S.C. to become a public charge] rests within the 1255(d)(2)(B)(iii). 1182(a)(4)(B)(i). discretion of the consular officers or the 48 See INA section 245A(d)(2)(B)(ii); see also 42 33 See proposed 8 CFR 212.23. Commissioner . . . Congress inserted the words ‘in U.S.C. 1382c(a)(1). DHS does not propose to apply 34 See INA section 212(a)(4)(B)(ii), 8 U.S.C. the opinion of’ (the consul or the Attorney General) this proposed rule to legalization applications filed 1182(a)(4)(B)(ii). When required, the applicant must with the manifest intention of putting borderline pursuant to section 245A of the INA or otherwise submit an Affidavit of Support Under Section 213A adverse determinations beyond the reach of judicial amend the regulations at 8 CFR part 245a. That of the INA (Form I–864). review.’’ (citation omitted)); Matter of Martinez- provision is subject to legal standards and 35 See INA section 212(a)(4)(C), (D), 8 U.S.C. Lopez, 10 I&N Dec. 409, 421 (Att’y Gen. 1962) settlement agreements that impact public charge 1182(a)(4)(C), (D). (‘‘[U]nder the statutory language the question for inadmissibility determinations in this specific 36 See INA section 213, 8 U.S.C. 1183. visa purposes seems to depend entirely on the context. See, e.g., Catholic Soc. Servs., Inc. v. 37 See Matter of Viado, 19 I&N Dec. 252 (BIA consular officer’s subjective opinion.’’). Meese, vacated sub nom. Reno v. Catholic Soc. 1985). 42 10 I&N Dec. 409, 421–23 (BIA 1962). Continued

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51126 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

INS promulgated 8 CFR 245a.3,49 1990s. The Immigration Act of 1990 United States or by appropriated funds which established that immigration reorganized section 212(a) of the Act of the United States; and officers would make public charge and re-designated the public charge (B) Any retirement, welfare, health, determinations by examining the provision as section 212(a)(4) of the Act, disability, public or assisted housing, ‘‘totality of the alien’s circumstances at 8 U.S.C. 1182(a)(4).57 In 1996, postsecondary education, food the time of his or her application for PRWORA 58 and the Illegal Immigration assistance, unemployment benefit, or legalization.’’ 50 According to the Reform and Immigrant Responsibility any other similar benefit for which 59 regulation, the existence or absence of a Act of 1996 (IIRIRA) altered the payments or assistance are provided to particular factor could never be the sole legislative landscape of public charge an individual, household, or family 60 criterion for determining whether a considerably. Through PRWORA, eligibility unit by an agency of the person is likely to become a public which is commonly known as the 1996 United States or by appropriated funds 51 charge. Further, the regulation welfare reform law, Congress declared of the United States.65 established that the determination is a that aliens generally should not depend ‘‘prospective evaluation based on the on public resources and that these (a) Qualified Aliens alien’s age, health, income, and resources should not constitute an Generally, under PRWORA, vocation.’’ 52 A special provision in the incentive for immigration to the United ‘‘qualified aliens’’ are eligible for federal rule stated that aliens with incomes States.61 Congress also created section means-tested benefits after 5 years and below the poverty level are not 213A of the Act and made a sponsor’s are not eligible for ‘‘specified federal excludable if they are consistently affidavit of support for an alien programs,’’ and states are allowed to employed and show the ability to beneficiary legally enforceable.62 The support themselves.53 Finally, an alien’s affidavit of support provides a determine whether the qualified alien is eligible for ‘‘designated federal past receipt of public cash assistance mechanism for public benefit granting 66 would be a significant factor in a agencies to seek reimbursement in the programs.’’ The following table context that also considers the alien’s event a sponsored alien received means- provides a list of immigration categories 54 63 that are qualified aliens under consistent past employment. In Matter tested public benefits. 67 of A-,55 INS again pursued a totality of PRWORA. 2. Public Benefits Under PRWORA circumstances approach in public charge determinations. ‘‘Even though PRWORA also significantly restricted 65 See Public Law 104–193, section 401(c), 110 the test is prospective,’’ INS alien eligibility for many Federal, State, Stat. 2105, 2262 (1996) (codified as amended at 8 64 U.S.C. 1611(c)). Congress provided that such term ‘‘considered evidence of receipt of prior and local public benefits. With certain shall not apply— public assistance as a factor in making exceptions, Congress defined the term (A) to any contract, professional license, or public charge determinations.’’ INS also ‘‘Federal public benefit’’ broadly as: commercial license for a nonimmigrant whose visa considered an alien’s work history, age, (A) Any grant, contract, loan, for entry is related to such employment in the professional license, or commercial United States, or to a citizen of a freely associated capacity to earn a living, health, family state, if section 141 of the applicable compact of situation, affidavits of support, and license provided by an agency of the free association approved in Public Law 99–239 or other relevant factors in their totality.56 99–658 (or a successor provision) is in effect; The administrative practices 57 See Immigration Act of 1990, Public Law 101– (B) with respect to benefits for an alien who as surrounding public charge 649, section 601(a), 104 Stat. 4978, 5072. a work authorized nonimmigrant or as an alien 58 Public Law 104–193, 110 Stat. 2105. lawfully admitted for permanent residence under inadmissibility determinations began to 59 Public Law 104–208, div. C, 110 Stat 3009–546. the Immigration and Nationality Act [8 U.S.C. 1101 crystalize into legislative changes in the 60 In 1990, Congress reorganized INA section et seq.] qualified for such benefits and for whom the 212(a), redesignated the public charge provision as United States under reciprocal treaty agreements is Servs., Inc., 509 U.S. 43 (1993); League of United INA section 212(a)(4), and eliminated the exclusion required to pay benefits, as determined by the Latin Am. Citizens v. INS, vacated sub nom. Reno of paupers, beggars, and vagrants as these grounds Attorney General, after consultation with the v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993). were sufficiently covered under the public charge Secretary of State; or provision. See Immigration Act of 1990, Public Law 49 See Adjustment of Status for Certain Aliens, 54 (C) to the issuance of a professional license to, or 101–649, section 601(a), 104 Stat. 4978, 5072. FR 29442 (Jul. 12, 1989). the renewal of a professional license by, a foreign 61 See Public Law 104–193, section 400, 110 Stat. national not physically present in the United States. 50 8 CFR 245a.3(g)(4)(i). 2105, 2260 (codified at 8 U.S.C. 1601). 8 U.S.C. 1611(c)(2). 51 8 CFR 245a.3(g)(4)(i). 62 See Public Law 104–193, section 423, 110 Stat. 66 See Public Law 104–193, tit. IV, 110 Stat. 2105, 52 8 CFR 245a.3(g)(4)(i). 2105, 2271 (codified at INA section 213A, 8 U.S.C. 2260–77. 53 8 CFR 245a.3(g)(4)(iii). 1183a). The provision was further amended with 67 See Public Law 104–193, section 431, 110 Stat. 54 See 8 CFR 245a.3(g)(4)(iii). the passage of IIRIRA. 2105, 2274 (codified at 8 U.S.C. 1641); Trafficking 55 19 I&N Dec. 867 (Comm’r 1988). 63 See INA section 213A(b), 8 U.S.C. 1183a(b). Victims Protection Act of 2000 section 107(b)(1), 22 56 See 19 I&N Dec. 867, 869 (Comm’r 1988). 64 See 8 U.S.C. 1601–1646. U.S.C. 7105(b)(1).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51127

The Trafficking Victims Protection generally exempt from the public charge • Designated Federal Programs; and 73 Act of 2000 further provided that an inadmissibility ground. • Federal Means-Tested Benefits. alien who is a victim of a severe form With certain exceptions, aliens who of trafficking in persons, or an alien were not ‘‘qualified aliens,’’ including The following tables provide a classified as a nonimmigrant under nonimmigrants and unauthorized summary of the definition of federal section 101(a)(15)(T)(ii) of the Act, 8 aliens, were generally barred from public benefit and the three categories U.S.C. 1101(a)(15)(T)(ii), is eligible for obtaining Federal benefits.74 In addition of public benefits under PRWORA as benefits and services under any Federal to the federal public benefits applicable to aliens and qualified aliens. or State program or activity funded or definitions, PRWORA categorizes the BILLING CODE 4410–10–P administered by any official or benefits into the following categories: agency.72 These individuals are • Specified Federal Programs;

68 Lawful permanent residents seeking entry into 70 While an alien paroled into the United States 72 See Trafficking Victims Protection Act of 2000 the United States typically are not applicants for is not subject to an admission determination at the section 107(b)(1), 22 U.S.C. 7105(b)(1). admission, and therefore, generally are not subject time the decision to parole the alien is made, if an 73 However, while lawful permanent residents to section 212(a) of the INA, 8 U.S.C. 1182(a), alien who has been paroled into the United States seeking entry into the United States typically are including INA section 212(a)(4), 8 U.S.C 1182(a)(4), is applying for an immigration benefit for which not applicants for admission, and therefore, but lawful permanent residents described in INA admissibility is required, e.g. adjustment of status, generally are not subject to section 212(a) of the INA (including section 212(a)(4)), a lawful section 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), are the parolee will be subject to section 212(a)(4) of the permanent resident described in section regarded as seeking admission and generally are Act in the context of seeking the subsequent 101(a)(13)(C) of the INA is regarded as seeking subject to inadmissibility grounds. immigration benefit. admission and is subject to section 212(a)(4). 69 Parole is not a category of admission. See INA 71 As in effect immediately before the effective 74 See PRWORA, Public Law 104–193, section section 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); INA date of section 307 of division C of Public Law 104– 401(a), 110 Stat. 2105, 2261 (codified at 8 U.S.C. section 212(d)(5), 8 U.S.C. 1182(d)(5). 208, 110 Stat. 3009–546. 1611(a)).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.004 51128 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 3. PRWORA Public Benefits Summary Federal Public Benefit Definition • Any grant, contract, loan, professional license, or commercial license provided by an agency 8 U.S. C. of the United States or by appropriated funds of the United States; and 16ll(c)(1) • Any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of the United States or by appropriated funds of the United States.

The definition of federal public benefit does not include the following: 8 U.S. C. • Any contract, professional license, or commercial license for a nonimmigrant whose visa for 16ll(c)(2) entry is related to such employment in the United States or to a citizen of a freely associated state;75 • Benefits where there is a reciprocal treaty agreement for payment with another country for nonimmigrants aliens authorized to work or aliens admitted as lawful permanent residents; or • Professional license issued to or renewed by a foreign national not physically present in the United States. Exceptions • Medical assistance for emergency medical condition (42 U.S. C. 1396(v)(3)) . from the • Short-term, non-cash, in-kind emergency disaster relief. definition • Public health assistance for immunizations for immunizable diseases and for testing and 8 U.S. C. treatment of symptoms of communicable diseases. 16ll(b) • Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter) as specified by the Attorney General, which (i) deliver in-kind services at the community level, including through public or private nonprofit agencies; (ii) do not condition the provision of assistance, the amount of assistance provided, or the cost of assistance provided on the individual recipient's income or resources; and (iii) are necessary for the protection of life or safety. 76 • Programs for housing or community development assistance or financial assistance administered by the Secretary of Housing and Urban Development, any program under title V of the Housing Act of 1949 or any assistance under section 1926c of title 7 which the alien is receiving since before August 22, 1996. • Any benefit payable under title II of the Social Security Acf7 to an alien who is lawfully presenf8 in the United States, any benefit if nonpayment of such benefit would contravene an international agreement described in section 23 3 of the Social Security Act, 79 any benefit if nonpayment would be contrary to section 202(t) of the Social Security Act,80 or any benefit payable under title II of the Social Security Act to which entitlement is based on an application filed in or before August 1996. • Any benefit81 relating to the Medicare program to an alien who is lawfully present in the United States82 with respect to benefits payable under part A of such title,83 who was authorized to be employed with respect to wages attributable such benefits. • Any benefit payable under the Railroad Retirement Act of 197 4 84 or the Railroad Unemployment Insurance Act85 to an alien who is lawfully present in the United States or to an alien residing outside the United States. • Receipt of benefits on or before August 22, 1996 (including SSI and SNAP (Food Stamps)) . Categories of • Qualified aliens Aliens Eligible 8 U.S. C. 16ll(a) Categories of • Aliens not listed as qualified aliens Aliens Not Eligible

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.005 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51129

8 U.S. C. 16ll(a) I Specified Federal Program Definition • SSI86 8 U.S.C • SNAP (Food Stamps)87 1612(a)(3)

Exemption • Qualified aliens eligible after 5 years Certain grandfathering provision for aliens already receiving SSI88 and SNAP89

SNAP (Food-Stamps) specific exemptions:

• Children under 18. 90 • SNAP (Food Stamps) by- aliens who were lawfully residing in the United States on August 22, 1996 and were over the age of65. • SNAP (Food Stamps) Hmong and Highland Laotians tribe members who are lawfully residing in the United States and were members of a Hmong or Highland Laotian tribe at the time that the tribe rendered assistance to United States personnel by taking part in a military or rescue operation during the Vietnam era,91 and the spouse, unmarried dependent child, or un-remarried smviving spouse of such individuals.

Categories of • Lawful permanent residents with 40 Social Security quarters92 Aliens Eligible • Veterans and active duty military with honorable seiVice lawfully residing in the United States, and their spouses and mnnarried dependent children93 • American Indians born in Canada94 or who are members of an Indian tribe95 • Aliens who were receiving SSI on August 22, 199696 • Aliens who were lawfully residing in the United States on August 22, 1996 and blind or disabled97

The following categories are eligible for benefits within the first 7 years :98 • Refugee from the time of admission and asylee from the time status was granted; • Aliens whose deportation was withheld under section 243(h) of the Act, 8 U.S.C. 1253 99 or section 241(b)(3) of such Act, as amended;100 • Cuban and Haitians entrant from the time the status was granted;101 and Amerasians 102 Categories of • Qualified aliens and all other aliens Aliens Not Eligible Designated Federal Programs103 Definition • TANF!o4 8 U.S. C. • Social SeiVices Block Grane05 1612(b) • Medicaid106 Categories of States are authorized to determine the eligibility of an alien who is a qualified alien (as defined in Aliens Eligible 8 U.S. C. 1641) for any designated Federal program.

The following categories are eligible for Designated Federal programs without a time limit: • Lawful permanent residents with 40 Social Security quarters107 • Veterans and active duty personnel lawfully residing in the United States, with a discharge of honorable seiVice who fulfill minimum active-duty seiVice requirements, and their spouse and mnnarried dependent child or unmarried suiViving spouse108 • American Indian born in Canada or who is a member of an Indian tribe would still be eligible for Medicaid109

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.006 51130 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Specified Federal Program Medicaid, the following categories are eligible for benefits within the first 7 years and Social Services Block Grants and TANF for the first 5 years: 110 • Refugee from the time of admission and asylee from the time status was granted; • Aliens whose deportation was withheld under section 243(h) of the Act, 8 U.S. C. 1253m or section 24l(b )(3) of such Act, as amended;112 • Cuban and Haitians entrant from the time the status was granted; 113 and • Amerasians114

Categories of Aliens not listed as qualified aliens Aliens Not Eligible Federal Means-Tested Benefits Definition No statutory definition under PRWORA, however, some agencies have defined which benefits 8 U.S.C. 1613 would be considered means-tested. 115

Categories of In addition, qualified aliens eligible for all other means-tested benefits after 5 years of entry. Aliens Eligible However, all aliens are eligible for the following programs:116 • Emergency Medical assistance 8 U.S.C. 16ll(b)(1)(A) • Short -term, non-cash, in-kind emergency disaster relief. • National School Lunch Act • Child Nutrition Act of 1966 • Public health assistance for immunizations • Payments for foster care and adoption • Programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short -term shelter) • Programs of student assistance the Higher Education Act of 1965 • Means-tested programs under the Elementary and Secondary Education Act of 1965 • Benefits under the Head Start Act • Benefits under title I of the Workforce Innovation and Opportunity Act • Food Stamps for children under 18

In addition, the following aliens are eligible for federal means-tested benefits: 117 • Refugees and asylees; • Aliens whose deportation was withheld under section 243(h) of the Act, 8 U.S. C. 1253; • Cuban and Haitian entrants; 118 • Amerasians;119 • Veterans lawfully residing in the United States, with a discharge of honorable service who fulfill minimum active-duty service requirement, and active duty personnel lawfully residing in the United States, and their spouse and unmarried dependent child or unmarried surviving spouse; 120 and • American Indian born in Canada or who is a member of an Indian tribe121 Categories of Aliens who enter the United States on or after August 22, 1996, not listed as qualified aliens Aliens Not Eligible

BILLING CODE 4410–10–C 77 See 42 U.S.C. 401–434. 76 See Final Specification of Community Congress chose not to restrict 78 See 8 CFR 1.3(a). Programs Necessary For Protection Of Life Or Safety eligibility for certain benefits, including 79 42 U.S.C. 433. Under Welfare Reform Legislation, 66 FR 3613 (Jan. 80 16, 2001); see also Specification of Community 42 U.S.C. 402(t). 75 If section 141 of the applicable compact of free Programs Necessary for Protection of Life or Safety 81 Benefits payable under title XVIII of the Social association approved in Public Law 99–239 or 99– Under Welfare Reform Legislation, 61 FR 45985 Security Act. See 42 U.S.C. 1395–1395lll. 658 (or a successor provision) is in effect. (Aug. 30, 1996). 82 See 8 CFR 1.3(a).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.007 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51131

emergency medical assistance; short- treatment of the symptoms of a benefits available even to non-qualified term, in-kind, non-cash emergency communicable disease.122 aliens.130 Congress excluded certain disaster relief; and public health PRWORA defined the term ‘‘State or benefits, such as contracts, professional assistance related to immunizations and local public benefit’’ in broad terms licenses, and commercial licenses from except where the term encroached upon the ‘‘federal public benefit’’ 131 83 See 42 U.S.C. 1395c to 1395i–5. the definition of Federal public definition. In addition, Congress 123 84 See 45 U.S.C. 231–231v. benefit. With certain exceptions for further provided that the following 85 See 45 U.S.C. 351–369. qualified aliens, nonimmigrants, or public benefits are available to all 86 See 42 U.S.C. 1381–1383f. parolees, PRWORA also limited aliens’ aliens, regardless of whether an 87 See Food Stamp Act of 1977. ability to obtain certain State and local individual is a qualified alien: 132 88 In addition, there are certain extensions for SSI public benefits.124 Under PRWORA, • Medical assistance under title XIX benefits through fiscal year 2011. See 8 U.S.C. States may enact their own legislation to of the Social Security Act [42 U.S.C. 1612(a)(2)(M). provide public benefits to certain aliens 89 1396 et seq.] (or any successor program See 8 U.S.C. 1612(a)(2)(D). not lawfully present in the United 90 See 8 U.S.C. 162(a)(2)(J). to such title) for care and services that States.125 PRWORA also provided that a 91 As defined in 38 U.S.C. 101. are necessary for the treatment of an 92 See 8 U.S.C. 1612(a)(2)(B). State that chooses to follow the Federal emergency medical condition (as 93 See 8 U.S.C. 1612(a)(2)(C). ‘‘qualified alien’’ definition in defined in section 1903(v)(3) of such 94 See 8 U.S.C. 1612(a)(2)(G); see also INA section determining aliens’ eligibility for public Act [42 U.S.C. 1396b(v)(3)]) of the alien 289, 8 U.S.C. 1359. assistance ‘‘shall be considered to have involved and are not related to an organ 95 See 8 U.S.C. 1612(a)(2)(G); see also 25 U.S.C chosen the least restrictive means transplant procedure, if the alien 5304(e) (defining Indian tribe). available for achieving the compelling involved otherwise meets the eligibility 96 See 8 U.S.C. 1612(a)(2)(E). governmental interest of assuring that requirements for medical assistance 97 See 8 U.S.C. 1612(a)(2)(F). aliens be self-reliant in accordance with 98 under the State plan approved under See 8 U.S.C. 1612(a)(2)(A). national immigration policy.’’ 126 Still, 99 As in effect immediately before the effective such title (other than the requirement of date of section 307 of division C of Public Law 104– some States and localities have funded the receipt of aid or assistance under 208. public benefits (particularly medical title IV of such Act [42 U.S.C. 601 et 100 8 U.S.C. 1231(b)(3). and nutrition benefits) that aliens may seq.], supplemental security income 101 As defined in section 501(e) of the Refugee be not eligible for federally.127 benefits under title XVI of such Act [42 Education Assistance Act of 1980. While PRWORA allows both qualified 102 U.S.C. 1381 et seq.], or a State See section 584 of the Foreign Operations, aliens and non-qualified aliens to supplementary payment). Export Financing, and Related Programs receive certain benefits (e.g., emergency • Appropriations Act, 1988 (as contained in section Short-term, non-cash, in-kind 101(e) of Public Law 100–202, 101 Stat. 1329, and benefits (all aliens); SNAP (qualified emergency disaster relief.133 amended by the 9th proviso under migration and alien children under 18)), Congress did • Public health assistance (not refugee assistance in title II of the Foreign not exempt the receipt of such benefits including any assistance under title XIX Operations, Export Financing, and Related from consideration for purposes of INA of the Social Security Act [42 U.S.C. Programs Appropriations Act, 1989, Public Law section 212(a)(4).’’ 128 Therefore, DHS 100–461, 102 Stat. 2268, as amended). 1396 et seq.]) for immunizations with may take into consideration for 103 An alien who was lawfully residing in the respect to immunizable diseases and for United States and receiving benefits on August 2, purposes of a public charge testing and treatment of symptoms of 1996, would have continued to receive benefits determination, receipt of public benefits communicable diseases whether or not until January 1, 1997. In addition, an alien who was even if an alien may receive such such symptoms are caused by a receiving SSI would still be eligible to receive benefits under PRWORA. Medicaid. See 8 U.S.C. 1612(b)(2)(F). communicable disease. • 104 See 42 U.S.C. 601–619. (b) Public Benefits Exempt Under Programs, services, or assistance 105 See 42 U.S.C. 1397–1397h. PRWORA (such as soup kitchens, crisis counseling 106 See 42 U.S.C. 1396 to 1396w–5. and intervention, and short-term Although PRWORA provided a broad 107 See 8 U.S.C. 1612(b)(2)(B). shelter) specified by the Attorney definition of public benefits that only 108 See 8 U.S.C. 1612(b)(2)(C). General, in the Attorney General’s sole 109 See 8 U.S.C. 1612(b)(2)(E). qualified aliens are eligible to 129 and unreviewable discretion after 110 receive, it also made certain public See 8 U.S.C. 1612(b)(2)(A). consultation with appropriate Federal 111 As in effect immediately before the effective agencies and departments, which (i) date of section 307 of division C of Public Law 104– 122 See 8 U.S.C. 1611(b)(1); see also Final 208, 110 Stat. 3009. Specification of Community Programs Necessary for deliver in-kind services at the 112 8 U.S.C. 1231(b)(3). Protection of Life or Safety Under Welfare Reform community level, including through 113 As defined in section 501(e) of the Refugee Legislation, 66 FR 3613 (Jan. 16, 2001); Interim public or private nonprofit agencies; (ii) Education Assistance Act of 1980. Guidance on Verification of Citizenship, Qualified Alien Status and Eligibility Under Title IV of the do not condition the provision of 114 See section 584 of the Foreign Operations, Personal Responsibility and Work Opportunity assistance, the amount of assistance Export Financing, and Related Programs Reconciliation Act of 1996, 62 FR 61344 (Nov. 17, provided, or the cost of assistance Appropriations Act, 1988 (as contained in section 1997). 101(e) of Pub. L. 100–202, 101 Stat. 1329, and 123 See 8 U.S.C. 1621(c). amended by the 9th proviso under migration and 130 See 8 U.S.C. 1611(b). 124 See generally 8 U.S.C. 1621. refugee assistance in title II of the Foreign 131 See 8 U.S.C. 1611(c)(2). 125 Operations, Export Financing, and Related See 8 U.S.C. 1621(d). 132 See 8 U.S.C. 1611(b). 126 Programs Appropriations Act, 1989, Pub. L. 100– 8 U.S.C. 1601(7). 133 Such relief would include a range of services 461, 102 Stat. 2268, as amended). 127 See U.S. Dep’t of Health & Human Servs., and benefits provided by the Federal Emergency 115 See Federal Means-Tested Public Benefits, 63 Office of the Assistant Sec’y for Planning & Management Agency and other agencies. For FR 36653 (July 7, 1998). Evaluation, Overview of Immigrants Eligible for instance, it would include the Disaster SNAP, TANF, Medicaid and CHIP (Mar. 27, 2012), 116 See 8 U.S.C. 1613(c). Supplemental Nutrition Assistance Program (D– available at http://aspe.hhs.gov/hsp/11/ 117 SNAP), which ‘‘gives food assistance to low-income See 8 U.S.C. 1613(b)(1). ImmigrantAccess/Eligibility/ib.shtml. 118 households with food loss or damage caused by a See section 501(e) of the Refugee Education 128 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). natural disaster.’’ See DHS, Disaster Assistance.gov, Assistance act of 1980. 129 See Public Law 104–193, section 401(c), 110 Disaster Supplemental Nutrition Assistance 119 See 8 U.S.C. 1612(a)(2)(A)(i)(V). Stat. 2105, 2262 (codified as amended at 8 U.S.C. Program (D–SNAP), available at https:// 120 See 8 U.S.C. 1613(b)(2). 1611(c)). Only qualified aliens may be eligible for www.disasterassistance.gov/get-assistance/forms- 121 See 8 U.S.C. 1613(d). certain benefits. See 8 U.S.C. 1641. of-assistance/5769 (last updated June 25, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51132 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

provided on the individual recipient’s provided; or (c) the cost of the significantly. IIRIRA codified the income or resources; and (iii) are assistance provided on the individual following minimum factors that must be necessary for the protection of life or recipient’s income or resources. considered when making public charge safety. 3. Included within the specified determinations: 138 • Programs for housing or community programs, services, or assistance • Age; development assistance or financial determined to be necessary for the • Health; assistance administered by the Secretary protection of life or safety are the • Family status; of Housing and Urban Development, following types of programs: • Assets, resources, and financial any program under title V of the • Crisis counseling and intervention status; and • 139 Housing Act of 1949 [42 U.S.C. 1471 et programs; services and assistance Education and skills. seq.], or any assistance under section relating to child protection, adult Congress also generally permitted but 1926c of title 7, to the extent that the protective services, violence and abuse did not require consular and alien is receiving such a benefit on prevention, victims of domestic immigration officers to consider an August 22, 1996. violence or other criminal activity; or enforceable affidavit of support as a These benefits, which are described in treatment of mental illness or substance factor in the determination of 8 U.S.C. 1611(b), were further clarified abuse; inadmissibility,140 except in certain by the Department of Justice and some • Short-term shelter or housing cases where an affidavit of support is of the agencies that administer these assistance for the homeless, for victims required and must be considered at least public benefits. On January 16, 2001, of domestic violence, or for runaway, in that regard.141 The law required the Department of Justice published a abused, or abandoned children; affidavits of support for most family- notice of final order, ‘‘Final • Programs, services, or assistance to based immigrants and certain Specification of Community Programs help individuals during periods of heat, employment-based immigrants and Necessary for Protection of Life or cold, or other adverse weather provided that these aliens are Safety Under Welfare Reform conditions; inadmissible unless a satisfactory Legislation,’’ 134 which indicated that • Soup kitchens, community food affidavit of support is filed on their PRWORA does not preclude aliens from banks, senior nutrition programs such as behalf.142 In the Conference Report, the receiving police, fire, ambulance, meals on wheels, and other such committee indicated that the transportation (including paratransit), community nutritional services for amendments to INA section 212(a)(4), 8 persons requiring special assistance; U.S.C. 1182(a)(4), were designed to sanitation, and other regular, widely • available services programs, services, or Medical and public health services expand the public charge ground of 143 assistance. In addition, the notice (including treatment and prevention of inadmissibility. The report indicated provided for a three-part test in diseases and injuries) and mental that self-reliance is one of the identifying excluded benefits and health, disability, or substance abuse fundamental principles of immigration services for the protection of life and assistance necessary to protect life or law and aliens should have affidavits of 144 safety. Specified programs must satisfy safety; support executed. • Activities designed to protect the all three prongs of this test: DHS believes that the policy goals 1. The government-funded programs, life or safety of workers, children and articulated in PRWORA and IIRIRA services, or assistance specified are youths, or community residents; and should inform its administrative • Any other programs, services, or those that: Deliver in-kind (non-cash) implementation of the public charge assistance necessary for the protection services at the community level, ground of inadmissibility. There is no of life or safety. tension between the availability of including through public or private non- In congressional debates leading up to profit agencies or organizations; do not public benefits to some aliens as set the passage of IIRIRA, Senator Kennedy forth in PRWORA and Congress’s intent condition the provision, amount, or cost stated that ‘‘[t]hese benefit all, because of the assistance on the individual to deny visa issuance, admission, and they relate to the public health and are adjustment of status to aliens who are recipient’s income or resources; and in the public interest. Where the public likely to become a public charge. serve purposes of the type described in interest is not served, we should not Indeed, Congress, in enacting PRWORA the list below, for the protection of life provide the public assistance to illegal and IIRIRA very close in time, must or safety. immigrants.’’ 135 Therefore, these have recognized that it made certain 2. The community-based programs, benefits were provided to all aliens services, or assistance are limited to public benefits available to some aliens including illegal aliens. These benefits who are also subject to the public charge those that provide in-kind (non-cash) would not be part of the public charge benefits and are open to individuals grounds of inadmissibility, even though determination under the proposed receipt of such benefits could render the needing or desiring to participate rule.136 alien inadmissible as likely to become a without regard to income or resources. public charge. Programs, services, or assistance 3. Changes Under IIRIRA delivered at the community level, even 137 Under IIRIRA, the public charge 138 Public Law 104–208, div. C, section 531, 110 if they serve purposes of the type inadmissibility statute changed Stat. 3009–546, 3009–674 (1996) (amending INA described, are not within this section 212(a)(4), 8 U.S.C. 1182(a)(4)). 139 specification if they condition on the 135 See 142 Cong. Rec. S3282 (daily ed. Apr. 15, See INA section 212(a)(4)(B), 8 U.S.C. individual recipient’s income or 1996) (statement of Sen. Kennedy), available at 1182(a)(4)(B). 140 resources: (a) The provision of https://www.congress.gov/crec/1996/04/15/CREC- See INA section 212(a)(4)(B)(ii), 8 U.S.C. 1996-04-15-pt1-PgS3276.pdf. 1182(a)(4)(B)(ii). assistance; (b) the amount of assistance 136 See 8 U.S.C. 1611(b)(1)(B); see also Final 141 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4); Specification of Community Programs Necessary for INA section 213A, 8 U.S.C. 1183A. 134 See Final Specification of Community Protection of Life or Safety Under Welfare Reform 142 See INA section 212(a)(4)(C) and (D), 8 U.S.C. Programs Necessary for Protection of Life or Safety Legislation, 66 FR 3613 (Jan. 16, 2001); 1182(a)(4)(C) and (D). Under Welfare Reform Legislation, 66 FR 3613 (Jan. Specification of Community Programs Necessary for 143 See H.R. Rep. No. 104–828, at 240–41 (1996) 16, 2001); see also Specification of Community Protection of Life or Safety Under Welfare Reform (Conf. Rep.); see also H.R. Rep. No. 104–469(I), at Programs Necessary for Protection of Life or Safety Legislation, 61 FR 45985 (Aug. 30, 1996). 143–45 (1996). Under Welfare Reform Legislation, 61 FR 45985 137 Public Law 104–208, div. C, 110 Stat 3009– 144 See H.R. Rep. No. 104–828, at 241 (1996) (Aug. 30, 1996). 546 (1996). (Conf. Rep.).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51133

Under the carefully devised scheme continued following the public charge receipt of public cash benefits for envisioned by Congress, aliens generally guidance set forth in the FAM.150 income maintenance purposes or would not be issued visas, admitted to In the 1999 proposed rule, INS institutionalization for long-term care at the United States, or permitted to adjust proposed to ‘‘alleviate growing public government expense.155 The Deputy status if they are likely to become public confusion over the meaning of the Commissioner for Disability and Income charges. This prohibition may deter currently undefined term ‘public charge’ Security Programs at SSA agreed that aliens from making their way to the in immigration law and its relationship the receipt of SSI ‘‘could show primary United States or remaining in the to the receipt of Federal, State, or local dependence on the government for United States permanently for the public benefits.’’ 151 INS sought to subsistence fitting the INS definition of purpose of availing themselves of public reduce negative public health and public charge provided that all of the benefits.145 Congress must have nutrition consequences generated by the other factors and prerequisites for understood, however, that certain aliens confusion and to provide aliens, their admission or deportation have been who were unlikely to become public sponsors, health care and immigrant considered or met.’’ 156 And the USDA’s charges when seeking a visa, admission, assistance organizations, and the public Under Secretary for Food, Nutrition and or adjustment of status might thereafter with better guidance as to the types of Consumer Services advised that reasonably find themselves in need of public benefits that INS considered ‘‘neither the receipt of food stamps nor public benefits that, if obtained, would relevant to the public charge nutrition assistance provided under the render them a public charge. determinations.152 INS also sought to Special Nutrition Programs Consequently, in PRWORA, Congress address the public’s concerns about administered by [USDA] should be made limited allowances for that immigrants’ fears of accepting public considered in making a public charge possibility. But Congress also did not benefits for which they remained determination.’’ 157 While these letters correspondingly limit the applicability eligible, specifically in regards to supported the approach taken in the of the public charge statute; if an alien medical care, children’s immunizations, 1999 proposed rule and Interim Field subsequent to receiving public benefits basic nutrition and treatment of medical Guidance, the letters specifically wished to adjust status in order to conditions that may jeopardize public focused on the reasonableness of a given remain in the United States health. With its guidance, INS aimed to INS interpretation; i.e. primary permanently or left the United States stem the fears that were causing dependence on the government for and later wished to return, the public noncitizens to refuse limited public subsistence. The letters did not charge inadmissibility consideration benefits, such as transportation foreclose the agency adopting a different (naturally including consideration of vouchers and child care assistance, so definition consistent with statutory receipt of public benefits) would again that they would be better able to obtain authority. come into play. In other words, and retain employment and establish The 1999 proposed rule provided that although an alien may obtain public self-sufficiency.153 non-cash, supplemental and certain benefits for which he or she is eligible, INS defined public charge in its limited cash, special purpose benefits the receipt of those benefits may be proposed rule and 1999 Interim Field should not be considered for public considered for future public charge Guidance to mean ‘‘the likelihood of a charge purposes, in light of INS’ inadmissibility determination purposes. foreign national becoming primarily decision to define public charge by 154 dependent on the government for reference to primary dependence on 4. INS 1999 Interim Field Guidance subsistence, as demonstrated by either: • public benefits. Ultimately, however, On May 26, 1999, INS issued interim Receipt of public cash assistance for INS did not publish a final rule Field Guidance on Deportability and income maintenance; or conclusively addressing these issues. Inadmissibility on Public Charge • Institutionalization for long-term Grounds.146 This guidance identified care at government expense.’’ E. Public Charge Bond how the agency would determine if a When developing the proposed rule, If an alien is determined to be person is likely to become a public INS consulted with Federal benefit- inadmissible on public charge grounds charge under section 212(a)(4) of the granting agencies such as the under section 212(a)(4) of the Act, 8 Act, 8 U.S.C. 1182(a), for admission and Department of Health and Human U.S.C. 1182(a)(4), he or she may be adjustment of status purposes, and Services (HHS), the Social Security admitted in the discretion of the whether a person is deportable as a Administration (SSA), and the Secretary of Homeland Security, if public charge under section 237(a)(5) of Department of Agriculture (USDA). The otherwise admissible, upon the giving of the Act, 8 U.S.C. 1227(a)(5).147 INS Deputy Secretary of HHS, which a suitable and proper bond.158 proposed promulgating these policies as administers Temporary Assistance for regulations in a proposed rule issued on Needy Families (TANF), Medicaid, the 155 148 Children’s Health Insurance Program See 64 FR 28676, 28686–87 (May 26, 1999). May 26, 1999. DOS also issued a 156 (CHIP), and other benefits, advised that 64 FR 28676, 28687 (May 26, 1999). cable to its consular officers at that time 157 64 FR 28676, 28688 (May 26, 1999). The implementing similar guidance for visa the best evidence of whether an USDA letter did not include supportive reasoning. adjudications, and its Foreign Affairs individual is relying primarily on the As noted in greater detail elsewhere in this Manual (FAM) was similarly government for subsistence is either the preamble, DHS no longer believes that primary 149 dependence on the government for subsistence is updated. USCIS has continued to the appropriate standard for public charge 150 follow the 1999 Interim Field Guidance See Children’s Health Insurance Program determination purposes. In light of the proposed in its adjudications, and DOS has Reauthorization Act of 2009, Public Law 111–3, change in the public charge standard and the section 214, 123 Stat. 8, 56; 9 FAM 302.8–2(B)(2), passage of time, DHS does not believe that the Determining ‘‘Totality of Circumstances,’’ (g) Public views expressed in those interagency consultations 145 H.R. Rep. No. 104–469(I), at 144–45 (1996). Charge Bonds, available at https://fam.state.gov/ remain fully relevant. DHS has nonetheless 146 See 64 FR 28689 (May 26, 1999). fam/09fam/09fam030208.html. considered such views, and has addressed the 147 See 64 FR 28689 (May 26, 1999). 151 See 64 FR 28676, 28676 (May 26, 1999). relevant considerations—legal authority, 148 See Inadmissibility and Deportability on 152 See 64 FR 28676, 28676–77 (May 26, 1999). predictability, administrability, and adverse Public Charge Grounds, 64 FR 28676 (May 26, 153 See 64 FR 28676, 28676–77 (May 26, 1999). impacts—throughout this proposed rule. 1999). 154 Former INS defined ‘‘primarily dependent’’ as 158 See INA section 213, 8 U.S.C. 1183; see also 149 See 64 FR 28676, 28680 (May 26, 1999). ‘‘the majority’’ or ‘‘more than 50 percent.’’ 8 CFR 103.6; 8 CFR 213.1.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51134 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Historically, bond provisions started further explanation or consideration, the extension of stay and change of status with states requiring certain amounts to phrase that any sums or other security applications. assure an alien would not become a held to secure performance of the bond Finally, this proposed rule interprets 159 public charge. Bond provisions were shall be returned ‘‘except to the extent the public charge inadmissibility codified in federal immigration laws in forfeited for violation of the terms ground under section 212(a)(4) of the 1903.160 Notwithstanding codification thereof’’ upon termination of the 165 Act, 8 U.S.C. 1182(a)(4), not the public in 1903, the acceptance of a bond bond. Subsequently, IIRIRA amended charge deportability ground under posting in consideration of an alien’s the provision yet again when adding a section 237(a)(5) of the Act, 8 U.S.C. admission and to assure that he or she parenthetical which clarified that a 1227(a)(5). Department of Justice will not become a public charge bond is provided in addition to, and not precedent decisions would continue to apparently had its origin in federal in lieu of, the affidavit of support and govern the standards regarding public administrative practice earlier than this the deeming requirements under section charge deportability determinations. date. Beginning in 1893, immigration 213A of the Act, 8 U.S.C. 1183A.166 inspectors served on Boards of Special Regulations implementing the public A. Applicability, Exemptions, and Inquiry that reviewed exclusion cases of charge bond were promulgated in 1964 Waivers aliens who were likely to become public and 1966,167 and are currently found at charges because the aliens lacked funds 8 CFR 103.6 and 8 CFR 213.1. This rule would apply to any alien or relatives or friends who could subject to section 212(a)(4) of the Act, 8 V. Discussion of Proposed Rule provide support.161 In these cases, the U.S.C. 1182(a)(4), who is applying for Board of Special Inquiry usually This proposed rule would establish a admission to the United States or is admitted the alien if someone could proper nexus between public charge and applying for adjustment of status to that post bond or one of the immigrant aid receipt of public benefits by defining the of lawful permanent resident before societies would accept responsibility for terms public charge and public benefit, DHS.169 DOS screens applicants who the alien.162 among other terms. DHS proposes to are subject to public charge The present language of section 213 of interpret the minimum statutory factors inadmissibility grounds and who are the Act, 8 U.S.C. 1183, has been in the involved in public charge seeking nonimmigrant or immigrant law without essential variation since determinations and to establish a clear visas at consular posts worldwide. 1907.163 Under section 21 of the framework under which DHS would Nearly sixty percent of the 2.7 million Immigration Act of 1917, an evaluate those factors to determine immediate relatives, family- immigration officer could admit an alien whether or not an alien is likely at any sponsored,170 employment-based, and if a suitable bond was posted. In 1970, time in the future to become a public diversity visa-based immigrants who Congress amended section 213 of the charge. DHS also proposes to clarify the obtained lawful permanent resident Act to permit the posting of cash role of a sponsor’s affidavit of support status in the United States between received by the U.S. Department of the within public charge inadmissibility fiscal years 2014 and 2016 consular Treasury and to eliminate specific determinations. processed immigrant visa applications references to communicable diseases of In addition, DHS proposes that certain overseas prior to being admitted to the public health significance.164 At that factual circumstances would weigh United States as lawful permanent time, Congress also added, without heavily in favor of determining that an residents at a port-of-entry. Fifty-one alien is not likely to become a public percent of immediate relatives, ninety- 159 See, e.g., Mayor, Aldermen & Commonalty of charge and other factual circumstances two percent of family-sponsored City of N.Y. v. Miln, 36 U.S. 102 (1837) (upholding would weigh heavily in favor of immigrants, and ninety-eight percent of a New York statute that required vessel captains to determining that an alien is likely to diversity visa immigrants obtained an provide certain biographical information about become a public charge.168 The purpose every passenger on the ship and further permitting immigrant visa at a consular post the mayor to require the captain to provide a surety of assigning greater weight to certain overseas before securing admission as a of not more than $300 for each noncitizen passenger factual circumstances is to provide lawful permanent resident at a port-of- to indemnify and hold harmless the government clarity for the public and immigration entry between fiscal years 2014 and from all expenses incurred to financially support officers with respect to how DHS would the person and the person’s children); see also H.D. 2016.171 Johnson & W.C. Reddall, History of Immigration fulfill its statutory duty to assess public (Washington, 1856). charge admissibility. Ultimately, each This rule also addresses eligibility for 160 See Immigration Act of 1903, ch. 1012, 32 Stat. determination would be made in the extension of stay and change of 1213 (repealed by Act of Feb. 20, 1907, ch. 1134, totality of the circumstances based on 34 Stat. 898, and Immigration Act of 1917, ch. 29, consideration of the relevant factors. In 169 See proposed 8 CFR 212.20. 39 Stat. 874). 170 Including first, second, third and fourth 161 addition, DHS proposes that for Immigration Act of 1891, ch. 551, 26 Stat. preferences of family sponsored immigrants and 1084, created the Office of the Superintendent of applications for adjustment of status, immediate relatives. See DHS, Yearbook of Immigration within the Treasury Department. The the alien would be required to submit a Immigration Statistics 2016, Table 6, Persons Superintendent oversaw a new corps of U.S. Form I–944. Obtaining Lawful Permanent Resident Status by Immigrant Inspectors stationed at the country’s DHS also proposes to establish a Type and Major Class of Admission: Fiscal Years principal ports of entry. See USCIS History and 2014 to 2016, available at https://www.dhs.gov/ Genealogy, Origins of Federal Immigration Service, public charge bond process in the immigration-statistics/yearbook/2016/table6 (last https://www.uscis.gov/history-and-genealogy/our- adjustment of status context, and updated Dec. 18, 2017). history/agency-history/origins-federal-immigration- proposes to clarify DHS’s authority to 171 See DHS, Yearbook of Immigration Statistics service (last updated Feb. 4, 2016). set conditions for nonimmigrant 2016, Table 6, Persons Obtaining Lawful Permanent 162 See USCIS History and Genealogy, Origins of Resident Status by Type and Major Class of Federal Immigration Service, https:// Admission: Fiscal Years 2014 to 2016, available at 165 www.uscis.gov/history-and-genealogy/our-history/ See Public Law 91–313, 84 Stat. 413, 413 https://www.dhs.gov/immigration-statistics/ agency-history/origins-federal-immigration-service (1970). yearbook/2016/table6 (last updated Dec. 18, 2017). (last updated Feb. 4, 2016). 166 See Public Law 104–208, div. C, section 564(f), The 2016 Yearbook of Immigration Statistics is a 163 See Act of February 20, 1907, ch. 1134, section 110 Stat. 3009–546, 3009–684. compendium of tables that provide data on foreign 26, 34 Stat. 898, 907. 167 See Miscellaneous Amendments to Chapter, nationals who are granted lawful permanent 164 See Public Law 91–313, 84 Stat. 413, 413 29 FR 10579 (July 30, 1964); Miscellaneous Edits to residence (i.e., immigrants who receive a ‘‘green (1970); see also 116 Cong. Rec. S9957 (daily ed. Chapter, 31 FR 11713 (Sept. 7, 1966). card’’), admitted as temporary nonimmigrants, June 26, 1970). 168 See proposed 8 CFR 212.22. granted asylum or refugee status, or are naturalized.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51135

status.172 Because the processes, determining whether an applicant for inadmissibility determination includes evidentiary requirements, and nature of admission as a B–2 nonimmigrant whether the alien is inadmissible as the stay in the United States for aliens visitor for pleasure who is coming to the likely to become a public charge, which seeking a visa, admission, extension of United States for a one-week vacation is will be determined upon the lawful stay, change of status, and adjustment of inadmissible on public charge grounds, permanent resident’s return to the status differ, DHS proposes public DHS would consider that this temporary United States. charge processes appropriately tailored visit is short in nature and that the 2. Extension of Stay and Change of to the benefit the alien seeks. For individual likely would only need Status Applicants instance, aliens seeking adjustment of financial resources to cover the status undergo a different process than expenses associated with the vacation. As mentioned above, a nonimmigrant a temporary visitor for pleasure from Similarly, an alien who is the is admitted into the United States to Canada seeking admission to the United beneficiary of an immigrant visa stay for the limited period and purpose States. The length and nature of the stay petition approved by USCIS may apply of the classification under which he or of these two subsets of aliens differs to a DOS consulate abroad for an she was admitted and, in most significantly, as does frequency of entry. immigrant visa to allow him or her to instances, then is expected to depart the Accordingly, the processes and seek admission to the United States as United States and return to his or her evidentiary requirements proposed in an immigrant.174 As part of the country. However, consistent with the this rule vary in certain respects immigrant visa process, DOS determines INA and controlling regulations, DHS depending on the type of benefit and whether the applicant is eligible for the may, in its discretion, extend an alien’s status an alien is seeking, as set forth visa, which includes a determination of nonimmigrant status or change an below. whether the alien has demonstrated that alien’s nonimmigrant status from one he or she is admissible to the United classification to another.177 1. Applicants for Admission States and that no inadmissibility Furthermore, DHS is authorized under Under section 212(a)(4) of the Act, 8 grounds in section 212(a) of the Act the INA to set conditions on the U.S.C. 1182(a)(4), any alien who is apply. In determining whether the extension of stay or change of status. applying for a visa or for admission to applicant has demonstrated that he or Consistent with this authority, DHS is the United States is inadmissible if he she is not inadmissible on the public proposing to require an applicant for an or she is likely at any time to become charge ground, DOS reviews all of the extension of stay or change of status to a public charge. A nonimmigrant is mandatory factors, including any attest that he or she has neither received admitted into the United States to stay required affidavits of support submitted since obtaining the nonimmigrant status for the limited period and purpose of under section 213A of the Act, 8 U.S.C. he or she seeks to extend or to which the classification under which he or she 1183a. he or she seeks to change, is not was admitted and, in most instances, This process would not change under receiving, nor is likely to receive at any then is expected to depart the United the proposed rule, but it is likely that time in the future one or more public States and return to his or her country. DOS will amend its guidance to prevent benefits as defined in this proposed A visa applicant applies directly to a the issuance of visas to inadmissible rule. U.S. consulate or embassy abroad for a aliens,175 except as otherwise provided Although section 212(a)(4) of the Act nonimmigrant visa to travel to the in the Act. DOS would continue to by its terms only applies to applicants United States temporarily for a limited review affidavits of support and screen for visas, admission, and adjustment of purpose, such as to visit for business or aliens for public charge inadmissibility status, and thus does not, by its terms, tourism.173 DOS consular officers assess in accordance with applicable render aliens who are likely to become whether the alien would be regulations and instructions prior to the a public charge ineligible for the inadmissible, including under section alien undergoing inspection and extension of stay or change of status, the 212(a)(4) of the Act, as applicable. applying for admission at a pre- government’s interest in a Applicants for admission are inspection location or port-of-entry nonimmigrant alien’s ability to maintain inspected at, or when encountered Additionally, although lawful self-sufficiency for the duration of the between, ports of entry. They are permanent residents generally are not temporary stay does not end with his or inspected by immigration officers to considered to be applicants for her admission as a nonimmigrant. In assess, among other things, whether admission upon their return from a trip particular, the government has an they are inadmissible under section abroad, in certain limited circumstances interest in ensuring that aliens present 212(a) of the Act, including section a lawful permanent resident will be in the United States do not depend on 212(a)(4). Under the proposed rule, the considered an applicant for admission public benefits to meet their needs.178 type of nonimmigrant status and the and, therefore, subject to an Aliens therefore should remain self- duration of the nonimmigrant’s stay in inadmissibility determination.176 This sufficient for the entire period of their the United States would be considered stay, including any extension of stay or in assessing whether the applicant has 174 See INA sections 221 and 222, 8 U.S.C. 1201 additional period of stay afforded by a met his or her burden of demonstrating and 1202; 8 CFR 204; 22 CFR part 42. change of status. Accordingly, DHS is that he or she is likely to become a 175 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). proposing to consider whether the alien 176 public charge. For example, in Lawful permanent residents are regarded as applicants for admission in the following circumstances: (1) Lawful permanent residents who in section 212(a)(2) of the INA, 8 U.S.C. 1182(a)(2), 172 See proposed 8 CFR 214.1(a)(3)(iv); proposed have abandoned or relinquished that status; (2) unless granted a waiver of inadmissibility for such 8 CFR 214.1(c)(4)(iv); proposed 8 CFR 248.1(a); lawful permanent residents who have been outside offense or cancellation of removal; and (6) lawful proposed 8 CFR 248.1(c)(4). the United States for a continuous period in excess permanent residents attempting to enter at a time 173 Certain nonimmigrant classifications are of 180 days; (3) lawful permanent residents who or place other than as designated by immigration subject to petition requirements, and a petition have engaged in illegal activity after departing the officers or who have not been admitted to the generally must be approved on an alien’s behalf by United States; (4) lawful permanent residents who United States after inspection and authorization by USCIS prior to application for a visa. See, e.g., INA have departed the United States while under legal an immigration officer. See INA section section 214(c), 8 U.S.C. 1184(c). In addition, certain process seeking removal of the alien from the 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C). aliens are not subject to a visa requirement in order United States, including removal proceedings and 177 See INA sections 214(a)(1) and 248(a), 8 U.S.C. to seek admission as a nonimmigrant. See, e.g., INA extradition proceedings; (5) lawful permanent 1184(a)(1) and 1258(a); see also 8 CFR 214.1, 248.1. section 217, 8 U.S.C. 1187; see also 8 CFR 212.1. residents who have committed an offense identified 178 See 8 U.S.C. 1601(2)(A).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51136 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

has received since obtaining the likely to receive any such public means to pay for this additional medical nonimmigrant status he or she seeks to benefits, DHS will require applicants to treatment and otherwise support extend or to which he or she seeks to answer questions on their application himself or herself during the extended change, is currently receiving, or is form,182 under penalty of perjury, duration of his or her temporary stay. likely to receive public benefits as regarding their receipt of these public An alien seeking to extend his or her defined in the proposed rule, when benefits. The responses to these stay in, or change status to, F–1 or M– adjudicating an application to extend a questions would be used in determining 1 nonimmigrant status would submit nonimmigrant stay or change a whether the applicant has met his or her evidence of his or her financial ability nonimmigrant status. burden to establish eligibility for to pay for his or her study and to Extension of stay and change of status extension of stay or change of status financially support himself or herself.183 applicants are already required to under the proposed regulation. An alien seeking to extend stay in or provide evidence of maintenance of In adjudicating whether the applicant change to an employment-based their current nonimmigrant status.179 As has demonstrated that he or she is not nonimmigrant status, such as H–2B part of that determination, for some likely to receive public benefits as temporary non-agricultural worker applicants, DHS considers the alien’s defined in the proposed rule, at any status, would need to submit evidence financial status 180 and believes it sound time in the future, DHS would consider such as tax return transcripts, W–2, or policy to extend that consideration to the status to which the alien seeks to other documentation evidencing income extensions of stay and change of status extend or to which to change, as well as from gainful employment appropriate to generally, rather than to just subsets of the anticipated additional period of the nonimmigrant status being nonimmigrants. Although the INA does stay. DHS would also consider whether sought.184 not indicate that aliens seeking an the applicant has provided evidence of Table 4 below provides a summary of extension of stay or change of status maintenance of status and that he or she nonimmigrant categories and the must establish self-sufficiency, has sufficient financial means to applicability of the public charge consideration of such alien’s self- maintain the status he or she seeks, or condition to such categories. sufficiency aligns with the that he or she will be gainfully BILLING CODE 4410–10–P aforementioned policy statements set employed in such status, as applicable. forth in PRWORA.181 Based on the information the alien 183 See 8 CFR 214.2(f)(1)(i)(B) (students must Except where the nonimmigrant provides in support of the application present ‘‘documentary evidence of financial support status that the alien seeks to extend or for extension of stay or change of status, in the amount indicated on the SEVIS Form I–20 USCIS would determine whether the (or the Form I–20A–B/I–20ID)’’); AFM Ch. to which the alien seeks to change is 30.2(b)(2)(F) (‘‘(F) Students seeking reinstatement exempted by law from section 212(a)(4) applicant should also submit Form I– must submit evidence of eligibility, including of the Act, in order for an alien to 944 in order to demonstrate that he or financial information and a current I–20.’’); AFM demonstrate that he or she has neither she is unlikely to receive public benefits Ch. 30.3(c)(2)(C) (‘‘Aliens seeking F–1 or M–1 status during the temporary stay in the United must submit the appropriate Form I–20 and received since obtaining the evidence of financial ability to maintain the new nonimmigrant status he or she seeks to States. status. Aliens seeking J–1 status must submit Form extend or from which he or she seeks to For example, if the alien is a B–2 IAP–66.’’); AFM Ch. 30.3(b)(3)(D) (‘‘[T]he applicant change, nor is currently receiving or nonimmigrant who was admitted to the [for change of status] must demonstrate he or she United States to seek medical treatment is able to maintain him or herself in the status and is seeking to extend his or her visit sought, particularly financially. This issue needs 179 See INA 214(a)(1), 8 U.S.C. 1184; 8 CFR particular examination when the applicant seeks a 214.1(c)(4); INA 248(a), 8 U.S.C. 1258; 8 CFR because he or she requires additional prolonged stay in any status where employment is 248.1(a). medical treatment that was not a routine part of the status, for example student 180 See 8 CFR 214.2(f)(1)(i)(B); AFM Ch. unanticipated at the time of admission, status.’’). 30.2(c)(2)(F) (‘‘Students seeking reinstatement must the alien would need to submit 184 See, e.g., AFM Ch. 30.3(b)(3)(E) (‘‘Because the submit evidence of eligibility, including financial alien applicant on Form I–129 will be gainfully information . . . .’’); AFM Ch. 30.3(c)(2)(C) evidence that he or she has the financial employed once the new status is granted, it is (applicants applying to change status to a generally not necessary to further explore an nonimmigrant student must demonstrate that they 182 Aliens in nonimmigrant classifications whose applicant’s ability to maintain status financially have the financial resources to pay for coursework employers will be filing Form I–129 or Form I– (unless the rate of remuneration is so low that the and living expenses in the United States). 129CW on their behalf will be required to provide principal would be unable to support him/herself 181 8 U.S.C. 1601. this information to their employer. and all dependents).’’).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51137

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

A-1- Ambassador, Public Minister, No. Not applicable as Yes. Files I-539, 8 CFR No. INA 102; 22 Career Diplomat or Consular admitted for Duration of 248.l(a) CFR 41.2l(d) Officer, or Immediate Family Status, 8 CFR A-2- Other Foreign Government 214.l(c)(3)(v) Official or Employee, or Immediate Family INA 10l(a)(l5)(A), 22 CFR 41.21 A-3 -Attendant, SeiVant, or Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. INA 102; 22 Personal Employee of A-1 or A-2, CFR 214.l(c)(2) CFR 248.l(a) CFR 41.2l(d)(3) or Immediate Family INA 10l(a)(l5)(A), 22 CFR 41.21

B-1 -Temporary Visitor for Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. Business CFR 214.l(c)(2), 8 CFR CFR 248.l(a) B-2 - Temporary Visitor for 214.2(b)(l) Pleasure * not admitted under Visa Waiver Program INA 10l(a)(l5)(B) C-1 - Alien in Transit No.8 CFR No. 8 CFR 248.2(a)(2), Not Applicable as C-1/D - Combined Transit and 214.l(c)(3)(ii) except for change to T and not eligible for Crewmember Visa U, 8 CFR 248.2(b) using extension of stay or INA 10l(a)(l5)(C) and (D), INA Form I-914 or I-918 change of status 212(d)(8) C-2- Alien in Transit to United No. Not applicable as No, 8 CFR 248.2(a)(2) , No. 22 CFR Nations Headquarters District admitted for Duration of except for change to T and 41.2l(d) Under Section 11.(3), (4), or (5) of Status. 8 CFR U, 8 CFR 248.2(b) using the Headquarters Agreement 214.l(c)(3)(ii) Form I-914 or I-918 INA 10l(a)(l5)(C) and (D), INA 212(d)(8) C-3 -Foreign Government Official, No.8 CFR No, 8 CFR 248.2(a)(2) , No. 22 CFR Immediate Family, Attendant, 214.l(c)(3)(ii) except for change to T and 41.2l(d) SeiVant or Personal Employee, in U, 8 CFR 248.2(b) using Transit Form I-914 or I-918 INA 10l(a)(l5)(C) and (D), INA 212(d)(8)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.008 51138 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

CW -1 - Commonwealth of Yes. Files Form I- Yes. Files Form I- Yes. Northern Mariana Islands 129CW, 8 CFR 129CW, 8 CFR 248.l(a); Transitional Worker 214.l(c)(2) and 8 CFR 8 CFR 214.2(w)(l8) Section 6(d) of Public Law 94-241, 214.2(w)(l7) as added by 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 Yes. Files Form I-539, 8 CFR 214.l(c)(2) and 8 CFR 248.l(a); 8 CFR CFR 214.2(w)(l7)(v) 214.2(w)(l8)

D - Crewmember (Sea or Air) No.8 CFR No, 8 CFR 248.2(a)(2), Yes. D-2 - Crewmember departing from 214.l(c)(3)(iii) except for change to T and a different vessel than one of arrival U, 248.2(b) using Form I- INA 10l(a)(l5)(D) 914 or Form I-918 E-1, E-2- Treaty Trader (Principal) Yes. Files Form I-129, 8 Yes, Files Form I-129, 8 Yes. INA 10l(a)(l5)(E) CFR 214.l(c)(l); 8 CFR CFR 248.l(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 Yes. Files Form I-539, 8 Yes. Child CFR 214.l(c)(2) CFR 214.2(e)(2l)(ii), INA 10l(a)(l5)(E)

E-2-CNMI - Commonwealth of Yes. Files Form I-129, 8 Yes. FilesFormi-129,8 Yes. Northern Mariana Islands Investor CFR 214.2(e)(23)(xii) CFR 248.l(a), 8 CFR (Principal) 214.2( e )(23)(xiii) 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) E-2-CNMI - Commonwealth of Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. Northern Mariana Islands Investor, CFR 214.l(c)(2) CFR 248.l(a) Spouse or 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)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.009 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51139

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

E-3 - Australian Treaty Alien Yes. Files Form I-129, 8 Yes. Files Form I-129, 8 Yes. coming to the United States Solely CFR 214.l(c)(l) and (2) CFR 248.l(a) to Perform Services in a Specialty Occupation

E-3D- Spouse or Child ofE-3 Yes. Files I-539, 8 CFR Yes. Files I-539, 8 CFR Yes. E-3R- Returning E-3 214.l(c)(l) and (2) 248.l(a) INA 10l(a)(l5)(E)(iii)

F -1 - Student in an academic or Yes, only if the F-1 Yes. Files Form I-539, 8 Yes. language training program requesting reinstatement CFR 248.l(a), (principal) to F-1 status or if the F-1 INA 10l(a)(l5)(F). received a date-specific admission to attend high school and is now seeking an extension to D/S to attend college. 8 CFR 214.l(c)(3)(v); 8 CFR 214.2(f)(7); 8 CFR 214.2(f)(l6)

F-2- Spouse or Child ofF-1 No, not applicable as Yes. Files Form I-539, 8 Yes. INA 10l(a)(l5)(F). admitted for Duration of CFR 214.2(f)(3) Status. 8 CFR 214.l(c)(3)(v); 8 CFR 214.2(f)(3) G-1 - Principal Resident No, not applicable as Yes. Files Form I-539, 8 No. 22 CFR Representative of Recognized admitted for Duration of CFR 248.l(a) 41.2l(d) Foreign Government to Status 8 CFR International Organization, Staff, or 214.l(c)(3)(v) Immediate Family G-2- Other Representative of Recognized Foreign Member Government to International Organization, or Immediate Family G-3 - Representative of

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.010 51140 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

Nomecognized or Nonmember Foreign Government to International Organization, or Immediate Family G-4 - International Organization Officer or Employee, or Immediate Family INA 10l(a)(l5)(G). G-5 - Attendant, SeiVant, or Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. Personal Employee of G-1 through CFR 214.l(c)(2) CFR 248.l(a) G- 4, or Immediate Family.

H -lB - Alien in a Specialty Yes. Files Form I-129, 8 Yes. FilesFormi-129.8 Yes. Occupation, Fashion Models of CFR 214.l(c)(l) CFR 248.l(a) Distinguished Merit and Ability, and workers performing seiVices of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project INA 10l(a)(l5)(H)(i)(b); Section 222 ofPub. L. 101-649. H -lB 1 - Chilean or Singaporean Yes. Files Form I-129, 8 Yes. Files Form I-129. 8 Yes. National to Work in a Specialty CFR 214.l(c)(l) CFR 248.l(a) Occupation INA 10l(a)(l5)(H)(i)(bl). 185 H-1C - Nurse in health Yes. Filed Form I-129, 8 Yes. FiledFormi-129, 8 Yes. professional shortage area CFR 212.2(h)(4)(v)(E) CFR 212.2(h)(4)(v)(E) INA 10l(a)(l5)(H)(i)(c).

H-2A- Temporary Worker Yes. Files Form I-129, 8 Yes. FilesFormi-129 Yes. Performing Agricultural SeiVices CFR 214.l(c)(l) Unavailable in the United States INA 10l(a)(l5)(H)(ii)(a).

H-2B- Temporary Worker Yes. Files Form I-129, 8 Yes. FilesFormi-129 Yes. Performing Other SeiVices CFR 214.l(c)(l) Unavailable in the United States INA 10l(a)(l5)(H)(ii)(b). H-3 - Trainee Yes. Files Form I-129, 8 Yes. FilesFormi-539 Yes. INA 10l(a)(l5)(H)(iii) CFR 214.l(c)(l)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.011 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51141

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

H -4 - Spouse or Child of Alien Yes. Files Form I-539, 8 Yes. Files Form I-539. 8 Yes. Classified HlB/B 1/C, H2A/B, or CFR 214.l(c)(2) CFR 248.l(a) H-3 INA 10l(a)(l5)(H)(iv). I- Representative of Foreign No, not applicable as Yes. FilesFormi-539 Yes. Information Media, Spouse and admitted for Duration of Child Status 8 CFR INA 10l(a)(l5)(1). 214.l(c)(3)(v) J-1- Exchange Visitor No, not applicable, as Yes, subject to receiving a Yes. J-2- Spouse or Child of Jl generally admitted for waiver of the foreign INA 10l(a)(l5)(J). Duration of Status186 8 residence requirement, if CFR 214.l(c)(3)(v) necessary, 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 No.8 CFR No. 8 CFR 248.2(a)(2) Not Applicable Citizen 214.l(c)(3)(iv) except for change to T and K-2- Child of Fiance( e) of U.S. U, 248.2(b) using Form I- Citizen 914 or I-918 INA 10l(a)(l5)(K). K-3- Spouse of U.S. Citizen Yes. Files Form I-539, 8 No. 8 CFR 248.2(2) Yes. awaiting availability of immigrant CFR 214.l(c)(2) and 8 except for change to T and visa CFR 214.2(k)(l0) U, 248.2(b) using Form I- K-4 - Child of K-3 914 or I-918 INA 10l(a)(l5)(K). L-1 - Intracompany Transferee Yes. Files Form I-129, 8 Yes. Files Form I-129, 8 Yes. (Executive, Managerial, and CFR 214.l(c)(l) CFR 248.l(a) Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation) INA 10l(a)(l5)(L). L-2 - Spouse or Child of Yes. Files I-539 8 CFR Yes. Files Form I-539, 8 Yes. Intracompany Transferee 214.l(c)(l) and (2) CFR 248.l(a)

M -1 - Vocational Student or Other Yes. Files Form I-539, 8 Yes. FilesFormi-539. Yes. Nonacademic Student CFR 214.l(c)(2) Not eligible if requesting INA 10l(a)(l5)(M). F-1, 8 CFR 248.l(c)(l)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.012 51142 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

M-2- Spouse or Child ofM-1 Yes. Files Form I-539, 8 Yes. FilesFormi-539 Yes. INA 10l(a)(l5)(M). CFR 214.l(c)(2)

N-8- Parent of an Alien Classified Yes. FilesForm]I-539, Yes. Files Form I-539, 8 Yes. SK3 (Unmarried Child Employee of 8 CFR 214.l(c)(2) CFR 248.l(e) International Organization) or SN- 3 N-9 - Child of N-8 or of SK-1 (Retired Employee 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 10l(a)(l5)(N). NATO-I- Principal Permanent No, not applicable as Yes. Files Form I-539, 8 No. INA 102; 22 Representative of Member State to admitted for Duration of CFR 248.l(a) CFR 41.2l(d) NATO (including any of its Status 8 CFR Subsidiary Bodies) Resident in the 214.l(c)(3)(v) 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. NAT0-2- Other Representative of No, not applicable as Yes. Files Form I-539, 8 No. INA 102; 22 member state to NATO (including admitted for Duration of CFR 248.l(a) CFR 41.2l(d) any of its Subsidiary Bodies) Status 8 CFR including Representatives, 214.l(c)(3)(v) Advisers, and Technical Experts of Delegations, or Immediate Family; Dependents of Member of a Force Entering in Accordance with the Provisions of the NATO Status-of- Forces Agreement or in Accordance with the provisions of the "Protocol on the Status of International Military Headquarters"; Members of Such a Force if Issued Visas Art. 13, 5 UST 1094; Art. 1, 4 UST 1794; Art. 3, 4 UST 1796.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.013 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51143

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

NAT0-3 -Official Clerical Staff No, not applicable as Yes. Files Form I-539, 8 No. INA 102; 22 Accompanying Representative of admitted for Duration of CFR 248.l(a) CFR 41.2l(d) Member State to NATO (including Status 8 CFR any of its Subsidiary Bodies), or 214.l(c)(3)(v) Immediate Family Art. 14, 5 UST 1096.

NAT0-4- Official of NATO (Other No, not applicable as Yes. Files Form I-539, 8 No. INA 102; 22 Than Those Classifiable as admitted for Duration of CFR 248.l(a) CFR 41.2l(d) NATOl), or Immediate Family Status 8 CFR Art. 18, 5 UST 1098. 214.l(c)(3)(v)

NAT0-5- Experts, Other Than No, not applicable as Yes. Files Form I-539, 8 No. INA 102; 22 NATO Officials Classifiable Under admitted for Duration of CFR 248.l(a) CFR 41.2l(d) NATO 4, Employed in Missions on Status 8 CFR Behalf of NATO, and their 214.l(c)(3)(v) Dependents Art. 21, 5 UST llOO.

NAT0-6 - Member of a Civilian No, not applicable as Yes. Files Form I-539, 8 No. INA 102; 22 Component Accompanying a Force admitted for Duration of CFR 248.l(a) CFR 41.2l(d) Entering in Accordance with the Status 8 CFR Provisions of the NATO Status-of- 214.l(c)(3)(v) Forces Agreement; Member of a Civilian Component Attached to or Employed by an Allied Headquarters Under the "Protocol on the Status of International Military Headquarters" Set Up Pursuant to the North Atlantic Treaty; and their Dependents Art. 1, 4 UST 1794; Art. 3, 5 UST 877. NATO 7- Attendant, Servant, or Yes. Files Form I-539, Yes. Files Form I-539, 8 No. INA 102; 22 Personal Employee of NATO 1, 8 CFR 214.2(s)(l)(ii). CFR 248.l(a) CFR 41.2l(d) NATO 2, NATO 3, NATO 4, NATO 5, and NATO 6 Classes, or Immediate Family Arts. 12-20, 5 UST 1094-1098

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.014 51144 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

0-1 - Alien with Extraordinary Yes. Files Form I-129, 8 Yes. Files Form I-129, 8 Yes. Ability in Sciences, Arts, CFR 214.l(c)(l) CFR 248.l(a) Education, Business or Athletics or Extraordinary Achievement in the Motion Picture or Television Industry 0-2- Essential Support Workers Accompanying and Assisting in the Artistic or Athletic Performance by 0-1 INA 10l(a)(l5)(0). 0-3 - Spouse or Child of 0-1 or 0- Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. 2 CFR 214.l(c)(l) and (2) CFR 248.l(a) INA 10l(a)(l5)(0).

P-1 - Internationally Recognized Yes. Files Form I-129, 8 Yes. Files Form I-129, 8 Yes. Athlete or Member of CFR 213.l(c)(3)(i) CFR 248.l(a) Internationally Recognized Entertainment Group P-2 - Artist or Entertainer in a Reciprocal Exchange Program P-3 -Artist or Entertainer in a Culturally Unique Program INA 10l(a)(l5)(P). P-1 S/P-2S/P-3 S -Essential Support Workers 8 CFR 214.2(p) P-4- Spouse or Child ofP-1, P-2, Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. orP-3 CFR 214.l(c) (1) and (2) CFR 248.l(a) INA 10l(a)(l5)(P). Q-1 - Participant in an International Yes. Files Form I-129, 8 Yes. Files Form I-129, 8 Yes. Cultural Exchange Program INA CFR 213.l(c)(3)(i) CFR 248.l(a) 10 l(a)(l5)(Q)(i). R -1 - Alien in a Religious Yes. Files Form I-129, 8 Yes. Files Form I-129, 8 Yes. Occupation CFR 213.l(c)(3)(i) CFR 248.l(a) INA 10l(a)(l5)(R). R-2- Spouse or Child ofR-1 Yes. Files Form I-539, Yes. Files Form I-539, 8 Yes. INA 10l(a)(l5)(R). 8 CFR 214.l(c)(l) and CFR 248.l(a) (2)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.015 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51145

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition Category Eligible to apply for Eligible to apply for Subject to Public Extension of Stay Change of Status Benefit Condition (i.e. May File Form 1- (i.e. May File Form 1-129 under proposed 8 129 or Form 1-539)* or I-Form 539)* CFR 214.1(a)(3)(iv), 214.1(a)(4)(iv); 248.1(c)(4)

S-5 - Certain Aliens Supplying No.8 CFR No. 8 CFR 248.2(2) Yes. Critical Information Relating to a 213.l(c)(3)(vi) except for change to T and Criminal Organization or Enterprise U, 248.2(b) using Form I- S-6 - Certain Aliens Supplying 914 or I-918 Critical Information Relating to Terrorism S-7 - Qualified Family Member of S-5 or S-6 INA 10l(a)(l5)(S).

T -1 - Victim of a severe form of Yes. FilesFormi-539. Yes. Files Form I-539, 8 No. trafficking in persons INA§ 214(o)(7)(B); 8 CFR 248.l(a). INA 10l(a)(l5)(T). CFR 214.11(1)(1) and (2); 8 CFR 214.l(c)(2).

T-2- Spouse ofT-1 Yes. FilesFormi-539. Yes. Files Form Files I- No. T-3- Child ofT-1 INA 214(o)(7)(B); 8 539, 8 CFR 248.l(a) T -4 - Parent of T -1 under 21 years CFR 214.l(c)(2) of age T-5 -Unmarried Sibling under age 18 ofT-1 T -6 - Adult or Minor Child of a Derivative Beneficiary of a T -1 INA 10l(a)(l5)(T). TN- NAFTA Professional Yes. Files Form I-129, 8 Yes. Files Form Files I- Yes. INA 214(e)(2) CFR 214.l(c)(l) 129, 8 CFR 248.l(a)

TD - Spouse or Child of NAFT A Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 Yes. Professional CFR 214.l(c)(2) CFR 248.l(a) INA 214(e)(2) U -1 - Victim of criminal activity Yes. Files Form I-539, 8 Yes. Files Form I-539, 8 No. U-2- Spouse ofU-1 CFR 214.l(c)(2); 8 CFR CFR 248.l(a) U-3- Child ofU-1 214.14(g)(2) U -4 - Parent of U -1 under 21 years of age U-5- Unmarried Sibling under age 18 ofU-1 under 21 years of age INA 10l(a)(l5)(U).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.016 51146 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

BILLING CODE 4410–10–C part of the adjustment process, USCIS is inadmissible on the public charge 3. Adjustment of Status Applicants responsible for determining whether the ground, DHS proposes to review the mandatory statutory factors together In general, an alien who is physically applicant has met his or her burden of with any required affidavit of support present in the United States may be proof to establish eligibility for the 188 and any other relevant information, in eligible to apply for adjustment of status benefit, which includes a before USCIS to that of a lawful determination of whether the alien has the totality of the circumstances. permanent resident if the applicant was demonstrated that no inadmissibility Tables 5 through 9 below provide a inspected and admitted or paroled, is grounds in section 212(a) of the Act summary of immigrant categories for eligible to receive an immigrant visa, is apply (or, if they do apply, the alien is adjustment of status and the admissible to the United States, and has eligible for a waiver of the applicability of the public charge an immigrant visa immediately inadmissibility ground). In determining inadmissibility determination to such available at the time of filing the whether the adjustment applicant has categories. adjustment of status application.187 As demonstrated that he or she is not BILLING CODE 4410–10–P

185 This classification can no longer be sought as 186 J nonimmigrant who are admitted for a may also apply for adjustment of status pursuant to of December 20, 2009. See the Nursing Relief for specific time period are not eligible for an extension 8 CFR 1245. Disadvantaged Areas Reauthorization Act of 2005, of stay. 188 See INA section 291, 8 U.S.C. 1361. Public Law 109–423. 187 See INA section 245, 8 U.S.C. 1255. Aliens in removal proceedings before an immigration judge

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.017 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51147

Table 5. Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications189 Category Subject to INA 212(a)(4) and INA 213A and Form I-864, must file Form I-944, Declaration Affidavit of Support of Self-Sufficiency? * Required or Exempt? Immediate Relatives of U.S. citizens Yes. INA 212(a)(4)(A) Required. INA 212(a)(4)(C) including spouses, children and parents190

Family-Based First Preference: Yes. INA 212(a)(4)(A) Required. INA 212(a)(4)(C) Unmarried sons/daughters of U.S. citizens and their children191

Family-Preference Second: Spouses, Yes. INA 212(a)(4)(A) Required. INA 212(a)(4)(C) children, and unmarried sons/daughters of alien residents192

Family Preference Third: Married Yes. INA 212(a)(4)(A) Required. INA 212(a)(4)(C) sons/daughters of U.S. citizens and their spouses and children 193

Family Preference Fourth: Yes. INA 212(a)(4)(A) Required. INA 212(a)(4)(C) Brothers/sisters of U.S. citizens (at least 21 years of age) and their spouses and children194

Fiance195 Yes. INA 212(a)(4)(A) Required. INA 212(a)(4)(C) * admitted as nonimmigrant K-l/K2

Amerasians based on preference Yes. INA 212(a)(4)(A) Exempt. Amerasian Act, Pub. L. category -born between December 31, 97-359 (Oct. 22, 1982). 1950 and before October 22, 1982.196

Amerasians, born in Vietnam between No. (1-360 and adjustment) Section Exempt. Section 584 of the l/1/62-1/1/76 584 of the Foreign Operations, Foreign Operations, Export Immediate Relative: AM-6, Export Financing, and Related Financing, and Related Programs AR-6 Children Programs Appropriations Act of Appropriations Act of 1988, Pub. 1988, Pub. L. 100-202 L. 100-202 Amerasians under Amerasian Homecoming Act, ;Pub. L. 100-202 197 (Dec. 22, 1987) - born between l/1/1962-l/l/1976

IW-6 Spouses, widows or widowers Yes. INA 212(a)(4)(A) Exempt. 8 CFR 204.2 and 71 FR 35732.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.018 51148 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 5. Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications189 Category Subject to INA 212(a)(4) and INA 213A and Form I-864, must file Form I-944, Declaration Affidavit of Support of Self-Sufficiency? * Required or Exempt? Immediate Relative VA W A applicant, No. INA 212(a)(4)(E) Exempt. INA 212(a)(4)(E) including spouses and children198

First Preference VAW A No. INA 212(a)(4)(C)(i) Exempt. INA 212(a)(4)(C)(i) B-16 Unmarried sons/daughters ofU.S. citizens, self-petitioning B-17 ChildrenofB-16

Second Preference VAW A applicant, No. INA 212(a)(4)(C)(i) Exempt. INA 212(a)(4)(C)(i) including spouses and children199

Third Preference VAW A Married No. INA 212(a)(4)(C)(i) Exempt. INA 212(a)(4)(C)(i) son/daughters of U.S. citizen, including spouses and children200

* If found madnussible based on the pubhc charge ground, USCIS, at Its discretiOn, may pernut the ahen 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 proposed rule.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.019 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51149

Table 6. Applicability of INA 212(a)(4) to Employment-Based Adjustment of Status Applications Category Subject to INA 212(a)(4) and must INA 213A, and Form I-864, file Form I-944, Declaration of Self- Affidavit of Support Sufficiency?* Required or Exempt?

First Preference : Priority Yes. INA 212(a)(4)(D) Exempt, unless qualifying relative workers201 or entity in which such relative has a significant ownership interest (5% or more)202 in filed Form I-140. INA 212(a)(4)(D), 8 CFR213a.l Second Preference: Professionals Yes. INA 212(a)(4)(D) Exempt, unless qualifying relative with advanced degrees or aliens of or entity in which such relative has a exceptional ability203 significant ownership interest (5% or more) in filed Form I-140. INA 212(a)(4)(D), 8 CFR213a.l

Third: Skilled workers, Yes. INA 212(a)(4)(D) Exempt, unless qualifying relative professionals, and other or entity in which such relative has a workers204 significant ownership interest (5% or more) in filed Form I-140. INA 212(a)(4)(D), 8 CFR213a.l Fifth: I-526 Immigrant Petition by Yes. INA 212(a)(4)(D) Not Applicable206 Alien Entrepreneur (EB-5)205

INA 203(b)(5), 8 CFR 204.6

* If found madnussible based on the pubhc charge ground, USCIS, at Its discretiOn, may pernut 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), r 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.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.020 51150 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 7. Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Application Category Subject to INA 212(a)(4) INA 213A, and Form I- and must file Form I-944, 864, Affidavit of Support Declaration of Self- Required or Exempt? Sufficiency? *

Special Immigrant (EB-4)- Religious Workers207 Yes. INA 212(a)(4) Not Applicable208 8 CFR 204.5(m); INA 10l(a)(27)(C)

Special Immigrant (EB-4)- International employees Yes. INA 212(a)(4) Not Applicable210 of US government abroad209

INA 10l(a)(27)(D), 22 CFR 42.32(d)(2) Special Immigrant (EB-4) Employees of Panama Yes. INA 212(a)(4) Not Applicable212 Canae11

22 CFR 42.32(d)(3); INA 10l(a)(27)(E), INA 10l(a)(27)(F), and INA 10l(a)(27)(G) Special Immigrant (EB-4) -Foreign Medical School Yes. INA 212(a)(4) Not Applicable214 Graduates213

INA 10l(a)(27)(H), INA 203(b)(4)

Special Immigrant (EB-4) -Retired employees of Yes. INA 212(a)(4) Not Applicable217 International Organizations including G-4 International Organization Officer15

International Organizations (G-4s international organization officer/ Retired G-4 Employee)216 INA 10l(a)(27)(1) and INA 10l(a)(27)(L); 8 CFR 101.5; 22 CFR 42.32(d)(5); 22 CFR 41.24;22 CFR 41.25 Special Immigrant (EB-4) -SL-6 Juvenile court No. SIJ are exempt under Not Applicable. INA dependents, adjustments 245(h). 245(h)

Special Immigrant (EB-4)- U.S. Armed Forces Yes. INA 212(a)(4) Not Applicable219 Personnee18

INA 10l(a)(27)(K)

Special Immigrant - International Broadcasters220 Yes- INA 212(a)(4) Not Applicable221

INA 10l(a)(27)(M); 8 CFR 204.13

Special Immigrant (EB-4)- Special immigrant No. Section 1059(a)(2) of Exempt. Section 602(b )(9) interpreters who are nationals of Iraq or the National Defense of the Afghan Allies Afghanistan222 Authorization Act for Fiscal Protection Act of 2009, Year 2006, as amended; Title VI of Pub. L. 111-8, Public Law 109-163-Jan. 6, 123 Stat. 807, 809 (March 2006, Section 1244(a)(3) of 11, 2009) which states that the National Defense INA 245(c)(2), INA

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.021 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51151

Table 7. Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Application Category Subject to INA 212(a)(4) INA 213A, and Form I- and must file Form I-944, 864, Affidavit of Support Declaration of Self- Required or Exempt? Sufficiency? *

Authorization Act for Fiscal 245(c)(7), and INA Year 2008, as amended ; Pub. 245(c)(8) do not apply to L. 110-181 (Jan. 28, 2008) special immigrant Iraq and Section 602(b) of the Afghan Afghan nationals who were Allies Protection Act of 2009, employed by or on behalf as amended section (a)(2)(C), of the U.S. government (for Pub. L. 111-8 (Mar. 11, Section 602(b) and 1244 2009) adjustment applicants who were either paroled into the United States or admitted as nonimmigrants). See Section l(c) of Pub. L. 110-36, 121 Stat. 227, 227 (June 15, 2007), which amended Section 1059(d) of the National Defense Authorization Act for Fiscal Year 2006, Pub. L. 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 adjustment applicants. * If found madnussible based on the pubhc charge ground, USCIS, at Its discretiOn, may pernut 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.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.022 51152 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 8. Applicability of INA 212(a)(4) to Refugee, Asylee, and Parolee Adjustment of Status Applications Category Subject to INA 212(a)(4) INA 213A, and Form I- and must file Form I-944, 864, Affidavit of Declaration of Self- Support Sufficiency? * Required or Exempt? Asylees223 No. INA 209(c) Exempt. INA 209(c)

Indochinese Parolees from Vietnam, Cambodia, and No. Section 586, Pub. L. Exempt. Section 586, Laos 106-429 (Nov. 6, 2000) Pub. L. 106-429 (Nov. 6, IC-6 Indochinese refugees (Pub. L. 95-145 of 1977) 2000) IC-7 Spouses or children of Indochinese refugees not qualified as refugees on their own Polish and Hungarian Parolees (Poland or Hungary who No. Title VI, SubtitleD, Exempt. Title VI, were paroled into the United States from November 1, Section 646(b ), Pub. L. SubtitleD, Section 1989 to December 31, 1991)224 104-208; 8 CFR 245.12 646(b), Pub. L. 104-208; 8 CFR245.12

Refugees225 No. INA 207(c)(3); INA Exempt. INA207; INA 209(c) 209(c)

Cuban-Haitian Entrant under IRCA- CH-6, CH-7226 No. Section 202, Pub. L. Exempt. Section 202, 99-603, 100 Stat. 3359 Pub. L. 99-603, 100 Stat. (1986) (as amended), 8 3359 (1986) (as U.S.C. 1255a. amended), 8 U.S.C. 1255a.

HRIF A -Principal HRIF A Applicant who applied for No. Section 902 Pub. L. Exempt. Section 902 asylum before December 31, 1995227 105-277, 112 Stat. 2681 Pub. L. 105-277, 112 (Oct. 21, 1998), 8 U.S.C. Stat. 2681 (Oct. 21, 1255. 1998), 8 U.S.C. 1255. * If found madnussible based on the pubhc charge ground, USCIS, at Its discretiOn, may pernut 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.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.023 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51153

Table 9. Applicability of INA 212(a)(4) to Other Applicants Who Must be Admissible Category Subject to INA INA 213A, and Form I-864, 212(a)(4) and must file Affidavit of Support Form I-944, Required or Exempt? Declaration of Self- Sufficiency? * Diplomats Section 13 Yes. Section 13 of Exempt, by statute, as they are Public Law 85-316 not listed in INA 212(a)(4) as a (September 11, 1957), category that requires an as amended by Public Affidavit of Support. Law 97-116 (December 29, 1981); 8 CFR 245.3. Individuals Born in the US under Diplomatic Status Yes. INA 212(a)(4) Exempt. 8 CFR 101.3 (NA-3) 8 CFR 101.3 Diversity, DV-1 diversity immigrant, spouse and Yes. INA 212(a)(4) Exempt, by statute, as they are child not listed in INA 212(a)(4) as a category that requires an Affidavit of Support. 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 Yes. INA 212(a)(4) Exempt, by statute as they are W -26 Entered as nonimmigrant and overstayed visa (except for certain not listed in INA 212(a)(4) as a before 1/1/82. Certain Entrants before January 1, aged, blind or disabled category that requires an 1982 individuals as defined Affidavit of Support. in 1614(a)(l) of the Social Security Act). INA 245A(b)(l)(C)(i) and (a)(4)(a))- application for adjustment 42 U.S. C. 1382c(a)(l). Special Rule for determination of public charge - See INA 245A(d)(2)(B)(iii). T, T-1 victim, spouse, child, parent, sibling Yes. Under INA Exempt, by statute as they are INA 10l(a)(l5)(T), INA 212(d)(l3)(A) 212(d)(l3)(A), INA not listed in INA 212(a)(4) as a 212(a)(4) only does not category that requires an apply at the Affidavit of Support. nonimmigrant status Adjustment of status based on T stage. However, nonimmigrant status is under a waiver is available for INA 245(1) which does not fall T nonimmigrant under INA 212(a)(4)(C) or (D). adjustment applicants. INA 245(l)(c) INA 10l(a)(l5)(T), American Indians - INA 289 No. INA289 Exempt. INA 289 Texas Band ofKickapoo Indians of the Kickapoo No. Pub. L. 97-429 Exempt. Pub. L. 97-429 (Jan. 8, Tribe of Oklahoma, Pub. L. 97-429 (Jan. 8, 1983) (Jan. 8, 1983) 1983)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.024 51154 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 9. Applicability of INA 212(a)(4) to Other Applicants Who Must be Admissible Category Subject to INA INA 213A, and Form I-864, 212(a)(4) and must file Affidavit of Support Form I-944, Required or Exempt? Declaration of Self- Sufficiency? * KIC - Kickapoo Indian Citizen KIP - Kickapoo Indian Pass S (Alien witness or informant) Yes, but there is a Exempt. INA 245(j); INA waiver available- INA 10l(a)(l5)(S); 8 CFR 245(j); INA 214.2(t)(2); 8 CFR 1245.11 10l(a)(l5)(S); 8 CFR (Waiver filed on I-854, Inter- 214.2(t)(2); 8 CFR 124 5 .11 (Waiver filed Infonnant on Form I -854, Inter- Witness and Infonnant Record) Private Immigration Bill providing for alien's Dependent on the text Dependent on the text of the adjustment of status of the Private Bill. Private Bill.

NACARA (202)228 No. Section 202(a), Exempt. Section 202(a), Pub. L. Principal NC-6, (NC 7-9) spouse and children Pub.L. 105-100,111 105-100, 111 Stat. 2193 (1997) Stat. 2193 (1997) (as (as amended), 8 U.S.C. 1255. amended), 8 U.S.C. 1255.

NACARA203 No. Section 203, Pub. Exempt. Section 203, Pub. L. Cancellation of removal (Z-13) Battered spouses or L. 105-100, 111 Stat. 105-100, 111 Stat. 2193 (1997) children (Z-14) Salvadoran, Guatemalan and former 2193 (1997) (as (as amended), 8 U.S.C. 1255. Soviet bloc country nationals (Form I-881, amended), 8 U.S.C. Application for Suspension of Deportation or Special 1255. Rule Cancellation of Removal (Pursuant to Section 203 of Public Law 105-100 (NACARA)) Lautenberg, LA-6229 No. Section 599E, Pub. Exempt. Section 599E, Pub. L. L. 101-167, 103 Stat. 101-167, 103 Stat. 1195 (Nov. 1195 (Nov. 21, 1989), 8 21, 1989), 8 U.S.C.A. 1255. U.S.C.A. 1255.

Registry, Z-66- Aliens who entered the United States No. INA 249 of the Exempt. INA 249 of the Act prior to January 1, 1972 and who meetthe other Act and 8 CFR part 249 and 8 CFR part 249 conditions U, U -1 Crime Victim, spouse, children and parents, No. INA 212(a)(4)(E) Exempt. INA 212(a)(4)(E) and siblings under INA 245(m)

Temporary Protected Status (TPS) No. 8 CFR 244.3(a)230 Exempt. 8 CFR 244.3(a)231

* If found inadmissible based on the public charge ground, USCIS, at its discretion, may pennit 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.

of the Act upon admission to the United States are Authorization Act For Fiscal Year 2004, Public Law exempt from submitting an affidavit of support. See 108–136, section 1703(e), 117 Stat. 1392, 1695 189 Applicants who filed a Form I–485 prior to 8 CFR 213a.2(a)(2)(ii)(E); Child Citizenship Act, (2003). December 19, 1997 are exempt from the Affidavit Public Law 106–395, section 101, 114 Stat. 1631, 190 Including the following categories: IR–6 of Support requirement. See Public Law 104–208, 1631 (2000) (amending INA section 320). In Spouses; IR–7 Children; CR–7 Children, div. C., section 531(b), 110 Stat. 3009–546, 3009– addition, the surviving spouses, children, and conditional; IH–8 Children adopted abroad under 675; 8 CFR 213a.2(a)(2)(i) (adjustment applicants) the Hague Adoption Convention; IH–9 Children and 213a.2(a)(2)(ii)(B) (applicants for admission). parents of a deceased member of the military who coming to the United States to be adopted under the Aliens who acquired citizenship under section 320 obtain citizenship posthumously are exempt from a public charge determination. See National Defense Hague Adoption Convention; IR–8 Orphans

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.025 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51155

adopted abroad; IR–9 Orphans coming to the United that this program does not have a specific sunset States to be adopted; IR–0 Parents of adult U.S. date and technically applicants could apply but citizens. Note children adopted abroad generally do should have already applied. not apply for adjustment of status. Children of alien residents, subject to country 210 For this category, although the applicants are limits, self-petitioning; BX–7 Children of alien 191 Including the following categories: A–16 subject to public charge under INA section residents, exempt from country limits, self- Unmarried Amerasian sons/daughters of U.S. 212(a)(4), the employers (for example, the U.S. petitioning; BX–8 Children of BX–6, or BX–7, citizens F–16 Unmarried sons/daughters of U.S. armed forces), would generally not be a relative of exempt from country limits; B–29 Unmarried sons/ citizens; A–17 Children of A–11 or A–16; F–17 the alien or a for-profit entity and therefore the daughters of alien residents, subject to country requirements for an affidavit of support under INA Children of F–11 or F–16; B–17 Children of B–11 limits, self-petitioning. or B–16. section 212(a)(4)(D) is inapplicable. 200 Includes the following categories: B–36 211 192 Including the following categories: F–26 Includes the following categories: SF–6 Married sons/daughters of U.S. citizens, self- Former employees of the Panama Canal Company Spouses of alien residents, subject to country limits; petitioning B–37 Spouses of B–36, adjustments; B– C–26 Spouses of alien residents, subject to country or Canal Zone Government; SF–7 Spouses or 38 Children of B–36, subject to country limits; children of SF–6; SG–6 Former U.S. government limits, conditional; FX–6 Spouses of alien residents, Third Preference VAWA; B–36 Married sons/ exempt from country limits; CX–6 Spouses of alien employees in the Panama Canal Zone; SG–7 daughters of U.S. citizens, self-petitioning; B–37 Spouses or children of SG–6; SH–6 Former residents, exempt from country limits, conditional; Spouses of B–36, adjustments B–38 Children of B– F–27 Children of alien residents, subject to country employees of the Panama Canal Company or Canal 36, subject to country limits; Third Preference Zone government, employed on April 1, 1979; SH– limits; C–28 Children of -C–26, or C–27, subject to VAWA; B–37 Spouses of B–36, adjustments; B–38 7 Spouses or children of SH–6. Note that this country limits, conditional; B–28 Children of, B–26, Children of B–36, subject to country limits. program does not have a specific sunset date and or B–27, subject to country limits; F–28 Children of 201 Includes the following categories: E–16 Aliens F–26, or F–27, subject to country limits; C–20 technically applicants could apply but should have with extraordinary ability; E–17 Outstanding already applied. Children of C–29, subject to country limits, professors or researchers; E–18 Certain 212 For this category, although the applicants are conditional; B–20 Children of B–29, subject to Multinational executives or managers; E–19 country limits; F–20 Children of F–29, subject to Spouses of E–11, E–12, E–13, E–16, E–17, or E–18; subject to public charge under INA section country limits; C–27 Children of alien residents, E–10 Children of E–11, E–12, E–13, E–16, E–17, or 212(a)(4), the employers generally would not be a subject to country limits, conditional; FX–7 E–18. relative of the alien or a for-profit entity and therefore the requirements for an affidavit of Children of alien residents, exempt from country 202 Relative means a husband, wife, father, support under INA section 212(a)(4)(D) is limits; CX–8 Children of CX–7, exempt from mother, child, adult son, adult daughter, brother, or country limits, conditional; FX–8 Children of FX– sister. Significant ownership interest means an inapplicable. 7, or FX–8, exempt from country limits; CX–7 ownership interest of 5 percent or more in a for- 213 Includes the following categories: SJ–6 Foreign Children of alien residents, exempt from country profit entity that filed an immigrant visa petition to medical school graduate who was licensed to limits, conditional; F–29 Unmarried sons/daughters accord a prospective employee an immigrant status practice in the United States on Jan. 9, 1978; SJ– of alien residents, subject to country limits; C–29 under section 203(b) of the Act. See 8 CFR.213a.1. 7 Spouses or children of SJ–6; Note that this Unmarried children of alien residents, subject to 203 Includes the following categories: E–26 program does not have a specific sunset date and country limits, conditional. Professionals holding advanced degrees; ES–6 technically applicants could apply but should have 193 Including the following categories: A–36 Soviet scientists; E–27 Spouses of E–21 or E–26; E– already applied. Married Amerasian sons/daughters of U.S. citizens; 28 Children of E–21 or E–26. 214 For this category, although the applicants are F–36 Married sons/daughters of U.S. citizens; C–36 204 Includes the following categories: EX–6 subject to public charge under INA section Married sons/daughters of U.S. citizens, Schedule—A worker; EX–7 Spouses of EX–6; EX– 212(a)(4), the employers would generally not be a conditional; A–37 Spouses of A–31 or A–36; F–37 8 Children of EX–6; E–36 Skilled workers; E–37 relative of the alien or a for-profit entity and Spouses of married sons/daughters of U.S. citizens; Professionals with baccalaureate degrees; E–39 therefore the requirements for an affidavit of C–37 Spouses of married sons/daughters of U.S. Spouses of E–36, or E–37; E–30 Children of E–36, support under INA section 212(a)(4)(D) is citizens, conditional; B–37 Spouses of B–31 or B– or E–37; EW–8 Other workers; EW–0 Children of inapplicable. 36; A–38 Children of A–31 or A–36, subject to EW–8; EW–9 Spouses of EW–8; EC–6 Chinese 215 Includes the following categories: SK–6 country limits; F–38 Children of married sons/ Student Protection Act (CSPA) principals; EC–7 Retired employees of international organizations; daughters of U.S. citizens; C–38 Children of C–31 Spouses of EC–6; EC–8 Children of EC–6. SK–7 Spouses of SK–1 or SK–6; SK–8 Certain or C–36, subject to country limits, conditional; B– 205 Includes the following categories: C–56 unmarried children of SK–6; SK–9 Certain 38 Children of B–31 or B–36, subject to country Employment creation, not in targeted area, surviving spouses of deceased international limits. adjustments, conditional E–56 Employment organization employees. 194 Includes the following categories: F–46 creation; I–56 Employment creation, targeted area, 216 Includes SN–6 Retired NATO–6 civilian Brothers/sisters of U.S. citizens, adjustments; F–47 pilot program, adjustments, conditional; T–56 employees; SN–7 Spouses of SN–6; SN–9 Certain Spouses of brothers/sisters of U.S. citizens, Employment creation, targeted area, conditional; R– surviving spouses of deceased NATO–6 civilian adjustments; F–48 Children of brothers/sisters of 56 Investor pilot program, not targeted, conditional; employees; SN–8 Certain unmarried sons/daughters U.S. citizens, adjustments. C–57 Spouses of C–51 or C–56, conditional; E–57 of SN–6. Spouses of E–51 or E–56; I–57 Spouses of I–51 or 195 Includes the following categories: CF–1 217 For this category, although the applicants are I–56, conditional; T–57 Spouses of T–51 or T–56, Spouses, entered as fiance(e), adjustments subject to public charge under INA section conditional; R–57 Spouses of R–51 or R–56, conditional; IF–1 Spouses, entered as fiance(e), 212(a)(4), the employers would generally not be a conditional; C–58 Children of C–51 or C–56, relative of the alien or a for-profit entity and adjustments. conditional; E–58 Children of E–51 or E–56; I–58 196 Includes the following categories: Immediate therefore the requirements for an affidavit of Children of I–51 or I–56, conditional; T–58 support under INA section 212(a)(4)(D) is Relative AR–6 Children, Amerasian, First Children of T–51 or T–56, conditional; R–58 Preference: A–16 Unmarried Amerasian sons/ inapplicable. Children of R–51 or R–56, conditional. 218 daughters of U.S. citizens; Third Preference A–36 206 Includes the following categories: SM–6 U.S. EB–5 applicants are Form I–526, Immigrant Armed Forces personnel, service (12 years) after 10/ Married Amerasian sons/daughters of U.S. citizens; Petition by Alien Entrepreneur, self-petitioners. The See INA 204(f). Note that this program does not 1/91 SM–9 U.S. Armed Forces personnel, service regulation at 8 CFR 213a.1 relates to a person (12 years) by 10/91; SM–7 Spouses of SM–1 or SM– have a specific sunset date and technically having ownership interest in an entity filing for a 6; SM–0 Spouses or children of SM–4 or SM–9; applicants could apply but should have already prospective employee and therefore the SM–8 Children of SM–1 or SM–6. applied. requirements for an affidavit of support under INA 219 197 Includes the following categories: AM–1 section 212(a)(4)(D) is inapplicable. For this category, although the applicants are subject to public charge under INA section principal (born between 1/1/1962–1/1/1976); AM– 207 Includes the following categories: SD–6 212(a)(4), the employers would generally not be a 2 Spouse, AM–3 child; AR–1 child of U.S. citizen Ministers; SD–7 Spouses of SD–6; SD–8 Children of relative of the alien or a for-profit entity and born Cambodia, Korea, Laos, Thailand, Vietnam. SD–6; SR–6 Religious workers; SR–7 Spouses of therefore the requirements for an affidavit of Note that this program does not have a specific SR–6; SR–8 Children of SR–6. support under INA section 212(a)(4)(D) is sunset date and technically applicants could apply 208 For this category, although the applicants are inapplicable. but should have already applied. subject to public charge under INA section 220 Includes the following categories: BC–6 198 Includes the following categories: IB–6 212(a)(4), the employers (for example, a religious Broadcast (IBCG of BBG) employees; BC–7 Spouses Spouses, self-petitioning; IB–7 Children, self- institution), would generally not be a relative of the of BC–1 or BC–6; BC–8 Children of BC–6. petitioning; IB–8 Children of IB–1 or IB–6; IB–0 alien or a for-profit entity and therefore the 221 Parents battered or abused, of U.S. citizens, self- requirements for an affidavit of support under INA For this category, although the applicants are petitioning. section 212(a)(4)(D) is inapplicable. subject to public charge under INA section 212(a)(4), the employers would generally not be a 199 Includes the following categories: B–26 209 Includes the following categories: SE–6 relative of the alien or a for-profit entity and Spouses of alien residents, subject to country limits, Employees of U.S. government abroad, adjustments; therefore the requirements for an affidavit of self-petitioning; BX–6 Spouses of alien residents, SE–7 Spouses of SE–6; SE–8 Children of SE–6. Note exempt from country limits, self-petitioning; B–27 Continued

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51156 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

sections 207(c)(3) and 209(c) of the Act, • A nonimmigrant described in BILLING CODE 4410–10–C 8 U.S.C. 1157(c)(3), 1159(c); section 101(a)(15)(A)(i) and (A)(ii) of the • Amerasian immigrants at Act, 8 U.S.C. 1101(a)(15)(A)(i) and 4. Exemptions admission, pursuant to in section (A)(ii) (Ambassador, Public Minister, The public charge inadmissibility 584(a)(2) of the Foreign Operations, Career Diplomat or Consular Officer, or ground does not apply to all applicants Export Financing, and Related Programs Immediate Family or Other Foreign who are seeking a visa, admission, or Appropriations Act of 1988, Public Law Government Official or Employee, or adjustment of status.232 Congress has 100–202, 101 Stat. 1329–183 (Dec. 22, Immediate Family), pursuant to section specifically exempted certain groups 1987) (as amended), 8 U.S.C. 1101 note 102 of the Act, 8 U.S.C. 1102, 22 CFR from the public charge inadmissibility 5; 41.21(d); ground and DHS regulations permit • Afghan and Iraqi Interpreter, or • A nonimmigrant classifiable as C–2 waivers of the ground for certain other Afghan or Iraqi national employed by or (alien in transit to U.N. Headquarters) or groups, as follows: on behalf of the U.S. Government, C–3 (foreign government official), • Refugees and asylees at the time of pursuant to section 1059(a)(2) of the pursuant to 22 CFR 41.21(d); admission and adjustment of status to National Defense Authorization Act for • A nonimmigrant described in lawful permanent resident, pursuant to Fiscal Year 2006 Public Law 109–163 section 101(a)(15)(G)(i), (G)(ii), (G)(iii), (Jan. 6, 2006), section 602(b) of the and (G)(iv), of the Act (Principal support under INA section 212(a)(4)(D) is Afghan Allies Protection Act of 2009, as Resident Representative of Recognized inapplicable. Foreign Government to International 222 Includes the following categories: SI–6 Special amended Public Law 111–8 (Mar. 11, 234 immigrant interpreters who are nationals of Iraq or 2009), and section 1244(g) of the Organization, and related categories), Afghanistan; SI–6, SI–7, SI–8—spouse and child of National Defense Authorization Act for 8 U.S.C. 1101(a)(15)(G)(i), (G)(ii), SI–6; SQ–6 Certain Iraqis and Afghans employed by Fiscal Year 2008, as amended Public (G)(iii), and (G)(iv), pursuant to section U.S. Government SQ–6, SQ–7, SQ–8 Spouses and 102 of the Act, 8 U.S.C. 1102, 22 CFR children of SQ–6; SI–6 Special immigrant Law 110–181 (Jan. 28, 2008); interpreters who are nationals of Iraq or • Cuban and Haitian entrants at 41.21(d); Afghanistan; SI–7 Spouses of SI–1 or SI–6; SI–8 adjustment, pursuant to section 202 of • A nonimmigrant classifiable as a Children of SI–1 or SI–6. the Immigration Reform and Control Act NATO representative and related 223 Including the following categories: AS–6 of 1986 (IRCA), Public Law 99–603, 100 categories,235 pursuant to 22 CFR Asylees; AS–7 Spouses of AS–6; AS–8 Children of AS–6; SY–8 Children of SY–6; GA–6 Iraqi asylees; Stat. 3359 (Jan. 3, 1986) (as amended), 41.21(d); GA–7 Spouses of GA–6; GA–8 Children of GA–6. 8 U.S.C. 1255a, note; 224 Note that this program does not have a specific • Aliens applying for adjustment of section 212(a), 8 U.S.C. 1182(a) ground, except for sunset date and technically applicants could apply status, pursuant to the Cuban those that Congress specifically noted could not be but should have already applied. waived. Adjustment Act, Public Law 89–732 234 225 Includes the following categories: RE–6 Other Includes the following categories: G–1— refugees (Refugee Act of 1980, Public Law 96–212, (Nov. 2, 1966) as amended; 8 U.S.C. Principal Resident Representative of Recognized 94 Stat. 102); RE–7 Spouses of RE–6; RE–8 Children 1255, note; Foreign Government to International Organization, of RE–6; RE–9 Other relatives. • Nicaraguans and other Central Staff, or Immediate Family; G–2—Other 226 Note that this program has a sunset date of two Representative of Recognized Foreign Member Americans who are adjusting status, Government to International Organization, or years after enactment, however, some cases may pursuant to section 202(a) and section still be pending. Immediate Family; G–3—Representative of Non- recognized or Nonmember Foreign Government to 227 Includes the following categories: 1995—HA– 203 of the Nicaraguan Adjustment and International Organization, or Immediate Family; 6 Principal HRIFA Applicant; Spouse of HA–6, Central American Relief Act (NACARA), G–4—International Organization Officer or HA–7 and Child of HA–6, HA–8; Unmarried Son or Public Law 105–100, 111 Stat. 2193 Employee, or Immediate Family; G–5—Attendant, Daughter 21 Years of Age or Older of HA–6, HA– (Nov. 19, 1997) (as amended), 8 U.S.C. Servant, or Personal Employee of G–1 through G– 9 Principal HRIFA Applicant paroled into the 4, or Immediate Family. United States before December 31, 1995- HB–6; 1255 note; • 235 Spouse of HB–6, HB–7; Child of HB–6, HB–8; Haitians who are adjusting status, Includes the following categories: NATO 1— Unmarried Son or Daughter 21 Years of Age or pursuant to section 902 of the Haitian Principal Permanent Representative of Member State to NATO (including any of its Subsidiary Older of HB–6 HB–9; Principal HRIFA Applicant Refugee Immigration Fairness Act of who arrived as a child without parents in the Bodies) Resident in the U.S. and Resident Members United States HC–6; Spouse of HC–6, HC–7; Child 1998, Public Law 105–277, 112 Stat. of Official Staff; Secretary General, Assistant of HC–6, HC–8; Unmarried Son or Daughter 21 2681 (Oct. 21, 1998), 8 U.S.C. 1255 note; Secretaries General, and Executive Secretary of Years of Age or Older of HC–6, HC–9; Principal • Lautenberg parolees, pursuant to NATO; Other Permanent NATO Officials of Similar HRIFA Applicant child who was orphaned Rank, or Immediate Family; NATO 2—Other section 599E of the Foreign Operations, Representative of member state to NATO (including subsequent to arrival in the United States HD–6, Export Financing, and Related Programs Spouse of HD–6, HD–7; Child of HD–6, HD–8; any of its Subsidiary Bodies) including Unmarried Son or Daughter 21 Years of Age or Appropriations Act of 1990, Public Law Representatives, Advisers, and Technical Experts of Older of HD–6, HD–9 Principal HRIFA Applicant 101–167, 103 Stat. 1195 (Nov. 21, 1989), Delegations, or Immediate Family; Dependents of child who was abandoned subsequent to arrival and Member of a Force Entering in Accordance with the 8 U.S.C.A. 1255 note; Provisions of the NATO Status-of-Forces Agreement prior to April 1, 1998—HE–6; Spouse of HE–6, HE– • Special immigrant juveniles, 7; Child of HE–6, HE–8; Unmarried Son or Daughter or in Accordance with the provisions of the 21 Years of Age or Older of HE–6, HE–9. Note that pursuant to section 245(h) of the Act, 8 ‘‘Protocol on the Status of International Military this program has a sunset date of March 31, 2000; U.S.C. 1255(h); Headquarters’’; Members of Such a Force if Issued however, dependents may still file for adjustment • Aliens who entered the United Visas; NATO 3—Official Clerical Staff of status. Accompanying Representative of Member State to States prior to January 1, 1972, and who NATO (including any of its Subsidiary Bodies), or 228 Note that this program has a sunset date of meet the other conditions for being Immediate Family; NATO–4—Official of NATO April 1, 2000; however, some cases may still be (Other Than Those Classifiable as NATO–1), or pending. granted lawful permanent residence Immediate Family; NATO–5—Experts, Other Than 229 under section 249 of the Act, 8 U.S.C. Note that this program sunset date of NATO Officials Classifiable Under NATO–4, September 30, 2014, only applies to parole. Eligible 1259, and 8 CFR part 249; Employed in Missions on Behalf of NATO, and applicants may still apply for adjustment of status. • Aliens applying for Temporary their Dependents; NATO 6—Member of a Civilian 230 INA section 244(c)(2)(ii), 8 U.S.C. Protected Status, pursuant to section Component Accompanying a Force Entering in 1254a(c)(2)(ii), authorizes DHS to waive any section Accordance with the Provisions of the NATO 212(a) ground, except for those that Congress 244(c)(2)(ii) of the Act, 8 U.S.C. 233 Status-of-Forces Agreement; Member of a Civilian specifically noted could not be waived. 1254a(c)(2)(ii) and 8 CFR 244.3(a); Component Attached to or Employed by an Allied 231 See INA section 244(c)(2)(ii), 8 U.S.C. Headquarters Under the ‘‘Protocol on the Status of 1254a(c)(2)(ii). 233 INA section 244(c)(2)(ii), 8 U.S.C. International Military Headquarters’’ Set Up 232 See proposed 8 CFR 212.23(a). 1254a(c)(2)(ii), authorizes DHS to waive any INA Pursuant to the North Atlantic Treaty; and their

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51157

• A nonimmigrant described in • Nonimmigrants who were admitted subcommittee highlighted concerns section 101(a)(15)(T) of the Act (Victim under section 101(a)(15)(T) of the Act, 8 raised by an immigration inspector of Severe Form of Trafficking), 8 U.S.C. U.S.C. 1101(a)(15)(T) (Victims of Severe about aliens receiving old age 1101(a)(15)(T), pursuant to section Form of Tracking in Persons) at the time assistance. The Senate subcommittee 212(d)(13)(A) of the Act, 8 U.S.C. of their adjustment of status under recommended against establishing a 1182(d)(13)(A), at time of admission; section 245(l)(2)(A) of the Act, 8 U.S.C. • strict definition of the term public An applicant for, or who is granted, 1255(l)(2)(A); charge by law. Because the elements • nonimmigrant status under section S (alien witness or informant) that could constitute any given 101(a)(15)(U) of the Act, 8 U.S.C. nonimmigrants described in section individual’s likelihood of becoming a 1101(a)(15)(U) (Victim of Criminal 101(a)(15)(S), of the Act, 8 U.S.C. public charge vary, the subcommittee Activity), pursuant to section 1101(a)(15)(S); instead recommended that the 212(a)(4)(E)(ii) of the Act, 8 U.S.C. • Applicants for admission and determination of whether an alien is 1182(a)(4)(E)(ii); adjustment of status under section 245(j) • Nonimmigrants who were admitted of the Act, 8 U.S.C. 1255(j) (alien likely to become a public charge should under section 101(a)(15)(U) (Victim of witness or informant); and rest within the discretion of consular Criminal Activity) of the Act, 8 U.S.C. • Other waivers of the public charge officers and the Commissioner.241 1101(a)(15)(U), at the time of their inadmissibility provisions in section Before Congress passed IIRIRA in adjustment of status under section 212(a)(4) of the Act permissible under 1996, debates on public charge 245(m) of the Act, 8 U.S.C. 1155(m), and the law. exclusion and deportation grounds 8 CFR 245.24; considered the significance of an alien’s • An alien who is a VAWA self- B. Definitions of Public Charge and use of public benefits and self- petitioner as defined in section Related Terms sufficiency.242 One Senator opined that 101(a)(51) of the Act, 8 U.S.C. 1101, DHS proposes to add several immigrants, upon seeking admission, pursuant to section 212(a)(4)(E)(i) of the definitions that apply to public charge make a ‘‘promise to the American Act, 8 U.S.C. 1182(a)(4)(E)(i); inadmissibility determinations. • A qualified alien described in people that they will not become a section 431(c) of the PRWORA of 1996 1. Public Charge burden on the taxpayers,’’ 243 and (8 U.S.C. 1641(c)) (certain battered The term ‘‘public charge,’’ as used in expressed that it is not ‘‘unreasonable aliens as qualified aliens), pursuant to section 212(a)(4) of the Act, is not for the taxpayers of this country to section 212(a)(4)(E)(iii) of the Act, 8 defined.236 DHS is proposing to define require recently arrived immigrants to U.S.C. 1182(a)(4)(E)(iii); a public charge as an alien who receives depend on their sponsors for the first 5 • Applicants adjusting status under one or more public benefits, as defined years under all circumstances if the section National Defense Authorization in 8 CFR 212.21(b).237 DHS believes that sponsor has the assets.’’ 244 Congress Act For Fiscal Year 2004, Public Law its proposed definition of public charge through PRWORA 245 further 108–136, 117 Stat. 1392 (Nov. 24, 2003) is consistent with legislative history, emphasized that ‘‘the availability of (posthumous benefits to surviving case law, and the ordinary meaning of public benefits not constitute an spouses, children, and parents); • public charge. incentive for immigration to the United American Indians Born in Canada, Consistent with the public charge States.’’ 246 pursuant to section 289 of the Act, 8 inadmissibility statute 238 and Absent a clear statutory definition, U.S.C. 1359; and Congressional objectives announced in • some courts and administrative Nationals of Vietnam, Cambodia, PRWORA, DHS proposes that aliens authorities have tied public charge to and Laos adjusting status, pursuant to subject to the public charge receipt of public benefits without section 586 of Public Law 106–429 inadmissibility ground 239 should ‘‘not (Nov. 1, 2000). depend on public resources to meet quantifying the level of public support In general, the aforementioned classes their needs, but rather rely on their own or the type of public support required. of aliens are vulnerable populations of capabilities and the resources of their For example, in analyzing the term immigrants and nonimmigrants. Some families, their sponsors, and private public charge in the context of have been persecuted or victimized and organizations.’’ 240 deportability under section 19 of the others have little to no private support There is a scarcity of legislative network in the United States. These guidance and case law defining public 241 See The 1950 Omnibus Report of the Senate individuals tend to require government charge. Legislative history, however, Judiciary Committee, S. Rep. No. 81–1515, at 349 (1950); see also Matter of Harutunian, 14 I&N Dec. protection and support. Admission of suggests a link between public charge these aliens also serves distinct public 583 (Reg’l Comm’r 1974). and the receipt of public benefits. 242 See 142 Cong. Rec. S4609 (May 2, 1996) policy goals separate from the general According to a 1950 Senate Judiciary (statement of Sen. Byrd) (‘‘[S]elf-sufficiency will be immigration system. Other legal Committee report, which preceded the the watchword for those coming to the United provisions may permit waivers of public passage of the 1952 Act, a Senate States. By making noncitizens ineligible for Federal charge provisions under section means-tested programs, and by ‘deeming’ a sponsor’s income attributable to an immigrant, the 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4). 236 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). American taxpayer will no longer be financially 5. Waivers 237 See proposed 8 CFR 212.21(a) and (c). responsible for new arrivals.’’), available at https:// 238 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4) www.congress.gov/crec/1996/05/02/CREC-1996-05- The proposed regulation at 8 CFR (emphasis added). The alien is inadmissible if he 02-pt1-PgS4592.pdf. 212.23(b) lists the categories of or she ‘‘is likely at any time to become a public 243 142 Cong. Rec. S4495 (May 1, 1996) (statement applicants Congress has authorized to charge.’’ of Sen. Simon), available at https:// 239 www.congress.gov/crec/1996/05/01/CREC-1996-05- apply for waivers of the public charge Aliens subject to the public charge ground of inadmissibility are aliens outside the United States 01-pt1-PgS4457.pdf. inadmissibility ground, as follows: seeking admission to the country, seeking a visa to 244 142 Cong. Rec. S4495 (May 1, 1996) (statement permit them to apply for admission as a of Sen. Simon), available at https:// Dependents; NATO–7—Attendant, Servant, or nonimmigrant or immigrant to the United States, or www.congress.gov/crec/1996/05/01/CREC-1996-05- Personal Employee of NATO–1, NATO–2, NATO– in the United States seeking to adjust status to that 01-pt1-PgS4457.pdf. 3, NATO–4, NATO–5, and NATO–6 Classes, or of lawful permanent residents. 245 8 U.S.C. 1601(2)(A). Immediate Family. 240 See 8 U.S.C. 1601(2)(A). 246 8 U.S.C. 1601(2)(B).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51158 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Immigration Act of 1917,247 the U.S. example, in Matter of Perez, the BIA in Merriam-Webster Dictionary as ‘‘a District Court for the Northern District acknowledged the respondent’s ability person or thing committed into the care of California in Ex parte Kichmiriantz to remedy her reliance on welfare in of another’’ 261 and Black’s Law explained that public charge should be determining that she may be able to Dictionary defines charge as ‘‘a person interpreted as ‘‘a money charge upon, or overcome the public charge ground or thing entrusted to another’s care,’’ an expense to, the public for support inadmissibility ground in a prospective e.g., ‘‘a charge of the estate.’’ 262 These and care.’’ 248 The court made clear that application for a visa.254 On the other definitions generally suggest that an the money charge or expense must be hand, in Matter of Harutunian and impoverished or ill individual who upon the public, rather than relatives, Matter of Vindman, the respondents receives public benefits for a substantial but did not specifically identify how failed to show a capacity to overcome component of their support and care can much public support renders a person a their dependence on public support.255 be reasonably viewed as being a public public charge. Similarly, the U.S. INS expected them to continue charge. The proposed definition of District Court for the Northern District receiving public support and public charge is also consistent with the of New York and the U.S. District Court determined that they were inadmissible concept of an indigent, which is defined for the Southern District of New York, as public charges.256 as ‘‘one who is needy and poor . . . and in Ex parte Mitchell and In re Bearing in mind the operative ordinarily indicates one who is destitute Keshishian respectively, indicated that a legislative history and case law of means of comfortable subsistence so public charge is one who is supported examined above, DHS is proposing a as to be in want.’’ 263 DHS believes its at public expense without qualifying or new definition of public charge.257 The proposed definition reflects Congress’s quantifying the level of support at definitions cited in the 1999 Interim intent in having aliens be self-sufficient public expense necessary.249 Field Guidance and proposed rule and not reliant on the government (i.e., Furthermore, when the Fifth Circuit indicates that a person becomes a public public benefits) for assistance to meet Court of Appeals considered criminal charge when he or she is committed to their needs. misconduct and imprisonment within the care, custody, management, or the context of public charge in support of the public, but DHS does not 2. Public Benefit Coykendall v. Skrmetta, the court believe that these definitions suggest or DHS proposes to define public opined: ‘‘It cannot well be supposed require a primary dependence on the benefit 264 to include a specific list of that the words in question were government in order for someone to be cash aid and noncash medical care, intended to refer to anything other than a public charge.258 DHS believes that a housing, and food benefit programs a condition of dependence on the public person should be considered a public where either (1) the cumulative value of for support.’’ 250 The Second Circuit charge based on the receipt of financial one or more such benefits that can be Court of Appeals, in Iorio v. Day, support from the general public through monetized (i.e., where DHS can likewise stated: ‘‘The language (sic) government funding (i.e., public determine the cash value of such itself, ‘public charge,’ suggests rather benefits). benefit) exceeds 15 percent of the dependency than imprisonment.’’ 251 This is consistent with various Federal Poverty Guidelines (FPG) for a Neither circuit court elaborated on the dictionary definitions of public charge household of one within a period of 12 degree of dependence required to and ‘‘charge’’ also support a definition consecutive months based on the per- sustain a public charge finding. that involves the receipt of public month FPG for the months during In Matter of Martinez-Lopez, the benefits. The current edition of the which the benefits are received Attorney General indicated that public Merriam-Webster Dictionary defines (hereafter referred to as the 15 percent support or the burden of supporting the public charge simply as ‘‘one that is 259 of FPG or the proposed 15 percent alien being cast on the public was a supported at public expense.’’ standard or threshold); or (2) for benefits Black’s Law Dictionary (6th ed.) further fundamental consideration in public that cannot be monetized, the benefits defines public charge as ‘‘an indigent; a charge inadmissibility are received for more than 12 months in 252 person whom it is necessary to support determinations. While an alien’s past the aggregate within a 36-month period. at public expense by reason of poverty receipt of welfare alone does not The proposed definition also addresses alone or illness and poverty.’’ 260 In establish that he or she is likely to circumstances where an alien receives a addition, the term ‘‘charge’’ is defined become a public charge, case law combination of monetizable benefits strongly suggests that an alien’s ability equal to or below the 15 percent or inability to remedy his or her past or 254 See Matter of Perez, 15 I&N Dec. at 137. 255 See Matter of Harutunian, 14 I&N Dec. at 590 threshold together with one or more current reliance on public welfare for and Matter of Vindman, 16 I&N Dec. at 132. benefits that cannot be monetized. In financial support plays a critical role in 256 See id. such cases, DHS proposes that the the outcome of a public charge 257 See, e.g., Taniguchi v. Kan Pac. Saipan, Ltd., threshold for duration of receipt of the inadmissibility determination.253 For 566 U.S. 560, 566 (2012) (‘‘When a term goes non-monetizable benefits would be 9 undefined in statute, we give the term its ordinary meaning.’’). months in the aggregate within a 36- 247 Section 19 of the Immigration Act of 1917 265 258 month period. addresses aliens who are deportable within five DHS acknowledges the importance of years of entry. increasing access to health care and helping people As proposed in this rule, DHS would to become self-sufficient in certain contexts (such 248 consider the following public benefits: 283 F. 697, 698 (N.D. Cal. 1922). as with respect to other agencies’ administration of 249 See Ex parte Mitchell 256 F. 230, 234 (N.D. NY government assistance programs). The INA, 1919) and In re Keshishian 299 F. 804 (S.D. NY however, does not dictate advancement of those 261 Merriam-Webster Online Dictionary, 1924). goals in the context of public charge inadmissibility Definition of Charge, https://www.merriam- 250 See Coykendall v. Skrmetta 22 F.2d 121 (5th determinations. webster.com/dictionary/charge (last updated Sept. Cir. 1927). 259 Merriam-Webster Online Dictionary, 5, 2018). 251 See Iorio v. Day 34 F.2d 921 (2d Cir. 1929). Definition of Public Charge, https://www.merriam- 262 Black’s Law Dictionary Charge (10th ed. 2014). 252 See Matter of Martinez-Lopez, 10 I&N Dec. webster.com/dictionary/public%20charge (last 263 Black’s Law Dictionary 773 (6th ed. 1990), 409, 421 (Att’y Gen. 1964) visited Sept. 4, 2018). available at http://www.republicsg.info/ _ 253 See, e.g., Matter of Vindman, 16 I&N Dec. 131 260 Black’s Law Dictionary 233 (6th ed. 1990), dictionaries/1990 black’s-law-dictionary-edition- (Reg’l Comm’r 1977); Matter of Perez, 15 I&N Dec. available at http://www.republicsg.info/ 6.pdf. 136 (BIA 1974); Matter of Harutunian, 14 I&N Dec. dictionaries/1990_black’s-law-dictionary-edition- 264 See proposed 8 CFR 212.21(b). 583 (Reg’l Comm’r 1974). 6.pdf. 265 See proposed 8 CFR 212.21(c).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51159

• Monetizable benefits: support to the needy’’ and ‘‘essentially inadmissibility determinations. Food, Æ Any Federal, State, local, or tribal supplementary benefits directed to the shelter, and necessary medical cash assistance 266 for income general welfare of the public as a treatment are basic necessities of life. A maintenance, including: Supplemental whole.’’ 272 The BIA similarly observed person who needs the public’s Security Income (SSI),267 Temporary a distinction between individualized assistance to provide for these basic Assistance for Needy Families receipt of welfare benefits and ‘‘the necessities is not self-sufficient. (TANF),268 and Federal, State or local countless municipal and State services DHS proposes to consider specific cash benefit programs for income which are provided to all residents, public benefit programs as part of the maintenance (often called ‘‘General alien and citizen alike, without specific public charge inadmissibility analysis. Assistance’’ in the State context, but charge of the municipality or the State, Consistent with the 1999 Interim Field which may exist under other names); and which are paid out of the general Guidance, DHS is proposing to consider Æ Benefits that can be monetized in tax fund’’ in assessing the relevance of all federal, state, local, and tribal cash accordance with proposed 8 CFR receipt of a government benefit or assistance for income maintenance as 212.24: service to public charge part of the public benefits definition. • Supplemental Nutrition Assistance determinations.273 Specific public The receipt of these public benefits Program (SNAP, or formerly called benefits considered relevant to public indicates that the recipient, rather than ‘‘Food Stamps’’), 7 U.S.C. 2011 to 2036c; charge determinations have included being self-sufficient, needs the • Public housing defined as Section 8 old age assistance, Supplemental government’s assistance to meet basic Housing Choice Voucher Program; 269 Security Income (SSI), and receipt of living requirements such as housing, • Section 8 Project-Based Rental ‘‘public funds from the New York food, and medical care. Therefore, DHS Assistance (including Moderate Department of Social Services.’’ 274 believes that continuing to consider Rehabilitation); 270 and PRWORA, with certain exceptions, these benefits in the public charge • Non-cash benefits that cannot be defined Federal public benefits as ‘‘any inadmissibility consideration is monetized: grant, contract, loan, professional appropriate.277 Æ Benefits paid for by Medicaid, 42 license, or commercial license provided DHS also proposes consideration of U.S.C. 1396 et seq., except for by an agency of the United States or by certain non-cash benefits, because emergency medical conditions as appropriated funds of the United States; receipt of such benefits is relevant to prescribed in in section 1903(v) of Title and . . . any retirement, welfare, health, determining whether an alien is self- XIX of the Social Security Act, 42 U.S.C. disability, public or assisted housing, sufficient. DHS recognizes that the 1396b(v), 42 CFR 440.255(c), and for postsecondary education, food universe of non-cash benefits is quite services or benefits funded by Medicaid assistance, unemployment benefit, or large, and that some benefits are more but provided under the Individuals with any other similar benefit for which commonly used, at greater taxpayer Disabilities Education Act (IDEA); and payments or assistance are provided to expense, than others. In addition, benefits provided to foreign-born an individual, household, or family incorporating specific non-cash benefit children of U.S. citizen parents; eligibility unit by an agency of the programs into the public charge Æ Premium and Cost Sharing United States or by appropriated funds inadmissibility determination entails Subsidies for Medicare Part D; 271 of the United States.’’ 275 DHS believes certain indirect costs—for instance, as a Benefits provided for the definition of public benefits used in result of a final rule, the benefits- institutionalization for long-term care at PRWORA is in some respects too broad granting agency may make changes to government expense; for public charge inadmissibility forms or to enrollment or disenrollment Æ Subsidized Housing under the determinations. The principal reason procedures. In light of these Housing Act of 1937, 42 U.S.C. 1437 et PRWORA’s definition does not work in considerations, and to provide seq. the public charge inadmissibility consistency in adjudications and determination is that it includes grants, appropriate certainty for aliens and (a) Types of Public Benefits contracts, and licensures that are benefits-granting agencies, DHS In formulating the proposed transactional in nature and may involve proposes to incorporate consideration of definition of public benefits, DHS the exchange of government resources a limited list of non-cash benefits in the contemplated pertinent case law, the for value provided by the alien.276 public charge inadmissibility definition of public benefits in Because they are value-exchanged determination context. Specifically, as PRWORA, and the treatment of certain benefits and do not evidence a lack of indicated above, DHS would consider public benefits under the current public self-sufficiency, DHS does not believe the following non-cash benefits: charge policy. The cases examined draw that grants, contracts, and licensures are Nonemergency Medicaid, Premium and a distinction between the types of appropriate for consideration in public Cost Sharing Subsidies for Medicare public benefits that are appropriately charge inadmissibility determinations. Part D; the Supplemental Nutrition considered in public charge Certain cash aid and non-cash Assistance Program (SNAP); benefits determinations, and the types that are benefits directed toward food, housing, provided for institutionalization for not. In Matter of Harutunian, an INS and healthcare, on the other hand, are Regional Commissioner noted a directly relevant to public charge 277 Not all cash assistance would qualify as cash fundamental difference between assistance for income maintenance under the proposed rule. For instance, DHS would not 272 See Matter of Harutunian, 14 I&N Dec. 583, consideration of ‘‘individualized public consider Stafford Act disaster assistance, including 589 (Reg’l Comm’r 1974). financial assistance provided to individuals and 273 See Matter of B —, 3 I&N Dec. 323, 324–25 266 Cash assistance would include any households under Individual Assistance under the (BIA 1948). government assistance in the form of cash, checks Federal Emergency Management Agency’s 274 See Matter of Harutunian 14 I&N Dec. 583, or other forms of money transfers, or instruments. Individuals and Households Program (42 U.S.C. 590 (Reg’l Comm’r 1974) (considering old age 267 See 42 U.S.C. 1381–1383f 5174) as cash assistance for income maintenance. assistance for public charge excludability The same would hold true for comparable disaster 268 See 42 U.S.C. 601–619. purposes); Matter of Vindman, 16 I&N Dec. 131, 132 assistance provided by State, local, or tribal 269 See 24 CFR part 984; 42 U.S.C. 1437f and (Reg’l Comm’r 1977) (receipt of public funds from governments. Other categories of cash assistance 1437u. the New York Department of Social Services). that are not intended to maintain a person at a 270 See 24 CFR parts 5, 402, 880–884 and 886. 275 See 8 U.S.C. 1611(c)(1) and (2). minimum level of income would similarly not fall 271 See 42 U.S.C. 1395w–14. 276 See 8 U.S.C. 1611(c). within the definition.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51160 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

long-term care at government expense; Rehabilitation), and Subsidized Public individuals and bear directly on self- and housing programs, including Housing. sufficiency. Table 10 illustrates the Section 8 Housing Assistance under the Cash aid and non-cash benefits estimated average annual public Housing Choice Voucher Program, directed toward food, housing, and benefits payments and average annual Section 8 Project-Based Rental healthcare account for significant benefit for each assistance program Assistance (including Moderate federal expenditure on low-income under consideration in this rule.

In addition to federal expenditure and Program Participation (SIPP), DHS analyzed by nativity and citizenship impact, participation rates in these cash analyzed data detailing the participation status, the results also suggest and non-cash benefits programs are rates for various cash and non-cash comparable levels of program significant. In fact, participation rates in federal public benefits programs.286 The participation by native-born some non-cash programs are far higher results suggest that receipt of non-cash individuals, foreign-born individuals, than participation rates in some cash public benefits is more prevalent than and noncitizens.288 DHS recognizes that programs, regardless of a person’s receipt of cash benefits.287 When the SIPP Panel includes respondent- immigration status or citizenship. Using provided data on nativity, citizenship the 2014 Panel of the Survey of Income 286 The 2014 Panel represents the most recent full status, and initial immigration status, year of data, and may not represent current participation rates. but does not provide data on current 278 For a list of federal expenditures by program, 287 immigration classification. see fiscal year 2016 data from table 2 of Gene Falk The SIPP is a longitudinal survey providing et al., Cong. Research Serv., R45097, Federal detailed information about public benefit receipt Additionally, the categories represented Spending on Benefits and Services for People with and the economic status of the U.S. civilian non- in the SIPP immigration status item do Low Income: In Brief (2018), available at https:// institutionalized population residing in households not align precisely with the populations or group quarters. See U.S. Census Bureau, Survey fas.org/sgp/crs/misc/R45097.pdf. covered by this rule—for instance, the 279 See Table 50: Estimated Average Annual of Income and Program Participation: 2014 Panel Benefit per Person, by Public Benefit Program, Users’ Guide (2016), available at https:// results include refugees, asylees, and unless otherwise noted. www.census.gov/content/dam/Census/programs- other populations that may access surveys/sipp//-SIPP-Panel-Users-Guide.pdf. In this 280 Ibid. proposed rule, estimates of income, poverty, and public benefits but are not subject to the 281 Note that per enrollee Medicaid costs will vary program participation by immigration status are public charge ground of inadmissibility. by eligibility group and State. produced from the September 27, 2017 re-release of The SIPP data and DHS’s analysis of 282 Note that ‘‘Federal Rental Assistance’’ Wave 1 of the SIPP. See U.S. Census Bureau, this data do not examine whether the includes HUD Section 8 Project-based Rental Release Notes: 2014 SIPP Wave 1, available at Assistance, HUD Section 8 Housing Choice https://www2.census.gov/programs-surveys/sipp/ receipt of public benefits was Vouchers, HUD Public Housing, HUD Section 202/ tech-documentation/2014/2014-wave1- authorized, and DHS did not examine 811, and USDA Section 521. releasenotes.pdf. The 2014 Panel may be used for program payment rate error information 283 Note that spending on LIS beneficiaries varies estimates representative of any month in calendar by individual. year 2013. In the tables presenting SIPP data 284 See U.S. Dep’t of Health and Human Servs. throughout this preamble, annual averages are (Apr. 7, 2017), available at https:// (HHS), Centers for Medicare & Medicaid (CMS), presented, which are averages across the 12 www2.census.gov/programs-surveys/sipp/tech- Expenditure Reports from MBES/CBES. Available at monthly estimates for the calendar year. Estimates documentation/source-accuracy-statements/2014/ https://www.medicaid.gov/medicaid/finance/state- represent persons residing in the household at the sipp-2014-source-and-accuracy-statement.pdf expenditure-reporting/expenditure-reports/ time of the interview, and exclude those who lived [hereinafter Source and Accuracy Statement]. index.html. (Accessed Aug. 2, 2018). in the household during the month but not at the 288 For this study, the foreign-born include those 285 The estimated CHIP enrollment is 6,464,117, time of interview (referred to as ‘‘Type 2’’ people who were not born in the U.S. and were either which is shown in the Medicaid & CHIP Enrollment in SIPP documentation). See id.; see also noncitizens or became citizens through Data Highlights, available at https:// Memorandum from James B. Treat, Chief, naturalization, military service, or adoption. www.medicaid.gov/medicaid/program-information/ Demographic Statistical Methods Div., to Jason Noncitizens are identified by self-responses to the medicaid-and-chip-enrollment-data/report- Fields, Survey Director, Source and Accuracy question of whether they are citizens of the United highlights/index.html (last visited Aug. 23, 2018). Statement for Wave 1 Public Use Files (S&A–20) States.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.026 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51161

for this purpose. Notwithstanding these Table 11 also shows Medicaid themselves are estimates, and were calculated using limitations, DHS believes the SIPP data design effects described in the Source and Accuracy participation rates were 16.1 percent on noncitizen participation is Statement. Participation in Supplemental Nutrition (43,301,000) among native-born instructive with respect to the receipt of Assistance Program (SNAP), Temporary Assistance individuals and 15.1 percent (6,272,000) non-cash benefits by the noncitizen for Needy Families (TANF), and General Assistance among foreign-born persons, while rates population on the whole. DHS (GA) for a given month is identified by the monthly among noncitizens were 15.5 percent coverage variables for those benefits. These welcomes comments on its use of this variables identify household members who were (3,130,000). Participation rates in SNAP data, and whether alternative reliable eligible for the benefit and were reported as being among native-born, foreign-born, and data sources are available. covered in the given month. Supplemental Security noncitizen populations are 11.6 percent Table 11 shows public benefit Income (SSI) and Medicaid receipt are defined by (31,308,000), 8.7 percent (3,605,000), the coverage spell; if a given month is contained in participation, by nativity and the range of months of coverage, then the individual and 9.1 percent (1,828,000), citizenship status, in 2013. The total is identified as a recipient of the benefit for that respectively. The rate of receipt of cash population studied was 310,867,000. month. The rent subsidy benefit for a given month benefits was 3.5 percent among the The data shows that the rate of receipt indicates the respondent reported that their rent native-born and foreign-born, and about for either cash or non-cash public was lower because of a federal, state, or local 2 percent among noncitizens. Although government housing program, and the housing benefits was approximately 20 percent voucher benefit furthermore indicates that the these results do not precisely align with among the native-born and foreign-born, renter was able to choose where to live. Finally, the the categories of aliens subject to this including noncitizens. The rate of 2014 Panel of SIPP does not distinguish between rule, they support the general receipt of cash benefits was only 2 to 4 Medicaid, CHIP, and other types of comprehensive proposition that non-cash public medical assistance for low-income people. For a percent for these populations, with number of reasons, DHS anticipates that CHIP benefits play a significant role in the receipt of non-cash benefits dominating enrollees represent a relatively small portion of the Nation’s social safety net, including the overall rate.289 ‘‘Medicaid/CHIP’’ population. Typically, only with respect to noncitizens generally. persons below age 20 are eligible for CHIP, which reduces its impact on the overall estimates of 289 In the discussion of SIPP data in this proposed Proctor, U.S. Census Bureau, Current Population Medicaid/CHIP. Furthermore, using data from the rule, the estimates provided are based on a sample, Reports: Income and Poverty in the United States: 2008 Panel of SIPP (Wave 13, reference month 1, which may not be identical to the totals and rates 2013 (Sept. 2014), available at https:// if all households and group quarters in the representing September through December, 2012), it www2.census.gov/library/publications/2014/ population were interviewed. The standard errors was found that 0.7 percent of noncitizen demographics/p60-249.pdf; Kayla Fontenot et al., provided in the tables give an indication of the respondents reported receiving CHIP, and 23% of U.S. Census Bureau, Monthly and Average Monthly accuracy of the estimates. Any estimate for which noncitizen Medicaid/CHIP recipients below age 20 Poverty Rates by Selected Demographic the estimate divided by its standard error (the overall reported receiving CHIP. For general Characteristics: 2013 (Mar. 2017), available at relative standard error) is greater than 30 percent is reference, see the following publications, in https://www.census.gov/content/dam/Census/ considered unreliable. The standard errors addition to the cited sources in the preceding library/publications/2017/demo/p70br-145.pdf. footnotes: Carmen DeNavas-Walt & Bernadette D.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51162 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 12 reflects that noncitizens residents at admission to the U.S., as about 1 percent of noncitizens who were showed comparable rates of program well as noncitizens who were not lawful lawful permanent residents at participation regardless of whether their permanent residents at admission, admission, as well as those who were status at admission to the U.S. was as a received non-cash benefits, and not, received SSI while less than 1 lawful permanent resident or not. For approximately 2 percent of these percent received either TANF or example, approximately 20 percent of populations receive cash benefits. General Assistance. noncitizens who were lawful permanent Among the cash benefits considered,

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.027 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51163

In sum, the data from Tables 11 and DHS recognizes the challenges of threshold is not exclusively prospective 12 show that for native-born and quantifying or qualifying reliance or and is instead based on whether an foreign-born populations alike, non-cash dependence on public benefits. Indeed, alien has received since obtaining the public benefits play a significant role in in the course of evaluating welfare nonimmigrant status that the alien seeks many peoples’ lives. DHS does not dependence or dependence on public to end or from which the alien seeks to believe it is appropriate to ignore the benefits, HHS acknowledges that change, is receiving, or is likely at any receipt of non-cash benefits in its public ‘‘welfare dependence, like poverty, is a time to receive benefits above the charge inadmissibility analysis. Further, continuum, with variations in degree proposed threshold(s). we note that certain non-cash benefits, and in duration.’’ 291 As discussed just like cash benefits, provide below, DHS believes that its proposed i. ‘‘Primarily Dependent’’ Standard and assistance to those who are not self- monetizable, non-monetizable, and Its Limitations sufficient. DHS, therefore, proposes to combined standards appropriately The proposed 15 percent of FPG consider cash benefits and non-cash capture sufficient levels of dependence threshold would represent a change public benefits. DHS believes that on public benefits in degree and from the standard set forth in the 1999 consideration of cash and non-cash duration to sustain a finding of public INS proposed rule and Interim Field benefit receipt represents an charge or likelihood of becoming a Guidance, which generally define a appropriately comprehensive and also public charge. In arriving at these public charge as a person who is readily administrable application of the thresholds, DHS considered the current ‘‘primarily dependent’’ on public public charge ground of inadmissibility. policy’s ‘‘primarily dependent’’ benefits, i.e., a person for whom public standard, other agencies’ definitions of (b) Consideration of Monetizable and benefits represent more than half of dependence, and the Federal Poverty Non-Monetizable Public Benefits their income and support. INS stated Guidelines. DHS notes, as discussed that the primary dependence model of While an alien’s receipt of one or elsewhere in the rule, that for public assistance provided context to more of these benefits alone would not admissibility and adjustment of status the development of public charge establish that he or she is likely at any purposes, the receipt of such benefits exclusion in immigration in the late time in the future to become a public would be determined on a prospective 19th century, because individuals who charge, as explained above, case law basis, i.e., likely at any time to receive became dependent on the Government strongly suggests that an alien’s self- benefits above the proposed were institutionalized in asylums or sufficiency, i.e., the alien’s ability to threshold(s). For extension of stay and placed in ‘‘almshouses’’ for the poor. At meet his or her needs without change of status applicants, the the time, the wide array of limited- depending on public resources, plays a determination regarding the receipt of purpose public benefits now available critical role in the outcome of a public such benefits above the proposed did not yet exist. After consulting with 290 charge inadmissibility determination. SSA, HHS, and USDA, INS suggested 291 See U.S. Dep’t of Health & Human Servs., that the best evidence of primary 290 See, e.g., Matter of Vindman, 16 I&N Dec. 131 Welfare Indicators and Risk Factors, at I–2 (2015), (Reg’l Comm’r 1977); Matter of Perez, 15 I&N Dec. available at https://aspe.hhs.gov/report/welfare- dependence on the government was the 137 (BIA 1974); Matter of Harutunian 14 I&N Dec. indicators-and-risk-factors-fourteenth-report- receipt of cash assistance for income 583 (Reg’l Comm’r 1974). congress. maintenance or institutionalization for

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.028 51164 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

long-term care at government expense. would in many cases be sufficient to December). For example, this 15 percent INS further argued that non-cash public render a person a public charge. This is of FPG threshold would exclude up to benefits generally provide only because a person with limited means to $1,821 worth of monetizable public ‘‘supplementary’’ support in the form of satisfy basic living needs who uses benefits for a household of one if the vouchers or direct services to support government assistance to fulfill such monetizable public benefits are received nutrition, health, and living condition needs frequently will be dependent on from January 2018 through December needs. such assistance to such an extent that 2018.295 On the other hand, the The current policy’s definition is the person is not self-sufficient. threshold requires a slightly more consistent, in some respects, with how In addition, as noted above, DHS complex calculation when evaluating 12 other agencies have defined dependence considers the current policy’s focus on consecutive months spanning two in certain contexts. For example, in cash benefits to be insufficiently calendar years. To illustrate, an alien certain congressional reports, HHS has protective of the public budget, receives monetizable public benefits defined welfare dependence as ‘‘the particularly in light of significant public between April 2017 and March 2018. proportion of individuals who receive expenditures on non-cash benefits. DHS would compare the amount more than half of their total family Therefore, the DHS proposal takes into received for the 12 consecutive month income in one year from the Temporary account a finite list of non-cash benefits, period against 15 percent of FPG Assistance for Needy Families (TANF) including some that can be monetized applicable to each month in question. program, the Supplemental Nutrition and some that cannot. DHS proposes to Fifteen percent of FPG is $150.75 per Assistance Program (SNAP) and/or the apply the aforementioned 15 percent month for April through December 2017 Supplemental Security Income (SSI) threshold for the cumulative value of and $151.75 per month for January program.’’ 292 The IRS has also defined benefits only to the former, and to apply through March 2018 based on the a qualifying dependent child as one a standard tied to the duration of receipt respective poverty guidelines in effect who cannot have provided more than of public benefits to the latter, as for calendar years 2017 and 2018, which half of his or her own support for the discussed in more detail below. would equal $1,812 for this 12 month year and a qualifying dependent relative In sum, DHS does not believe that the consecutive period. In evaluating likely as generally someone who depends on plain text of section 212(a)(4) of the Act, receipt of future monetizable public another for more than half of his or her 8 U.S.C. 1182(a)(4), requires an alien to benefits, DHS would use the FPG in total support during the calendar be ‘‘primarily’’ (50 percent or more) effect on the date of adjudication. year.293 Within the context of preparing dependent on the government or rely on only cash assistance to be considered a In formulating this 15 percent of FPG reports to Congress on welfare threshold, DHS proposes to use FPG as dependence or constructing certain tax public charge. Nor does DHS believe that such limitations are mandated by the baseline for the percentage of rules, a ‘‘primary dependence’’ monetizable public benefits receipt approach may be appropriate. As HHS the principles of PRWORA or the century-plus of case law regarding the being considered in the totality of the has noted, ‘‘using a single point—in this circumstances because the poverty case 50 percent—yields a relatively public charge ground of inadmissibility. As discussed above, the term public guidelines are authoritative and straightforward measure that can be transparent. The poverty guidelines are tracked easily over time, and is likely to charge is ambiguous as to how much government assistance an individual a simplified version of the Census be associated with any large changes in Bureau’s poverty thresholds, which total dependence.’’ 294 must receive or the type of assistance an individual must receive to be Census uses to prepare its estimates of DHS agrees with HHS that although a the number of individuals and families 50 percent threshold creates a bright considered a public charge. The statute in poverty.296 HHS updates and adjusts line that may be useful for certain and case law do not prescribe the degree the FPG annually based on the purposes, it is possible and likely to which an alien must be receiving Consumer Price Index for All Urban probable that individuals below such public benefits to be considered a public Consumers (CPI–U).297 As HHS notes, a threshold will lack self-sufficiency and charge. Given that neither the statute number of federal programs use the be dependent on the public for support. nor the case law prescribe the degree to which an alien must be dependent on poverty guidelines as an eligibility Because of the nature of the public public benefits to be considered a public criterion.298 ‘‘Some federal programs benefits that would be considered under charge, DHS has determined that it is use a percentage multiple of the this rule—which are generally means- permissible and reasonable to propose a guidelines (for example, 125 percent or tested and provide cash for income different approach. 185 percent of the guidelines)’’ to maintenance and for basic living needs determine public benefit eligibility.299 such as food, medical care, and ii. Fifteen Percent of Federal Poverty In the immigration context, DHS uses housing—DHS believes that receipt of Guidelines (FPG) Standard for the FPG as a standard for purposes of such benefits even in a relatively small Monetizable Benefits the affidavit of support requirement amount or for a relatively short duration DHS proposes to consider receipt of under section 213A of the Act, 8 U.S.C. monetizable public benefits as listed in 292 The Welfare Indicators Act of 1994 requires HHS to submit annual welfare dependence 8 CFR 212.21(b)(1), where the 295 The calculation is an FPG of $12,140 for a indicators reports to Congress. See U.S. Dep’t of cumulative value of one or more of the household of one, multiplied by 0.15. See U.S. Health & Human Servs., Welfare Indicators and listed benefits exceeds 15 percent of the Dep’t of Health & Human Servs., HHS Poverty Risk Factors 1 (2018), available at https:// Federal Poverty Guidelines (FPG) for a Guidelines for 2018, available at https:// aspe.hhs.gov/pdf-report/welfare-indicators-and- aspe.hhs.gov/poverty-guidelines (last visited Feb. risk-factors-seventeenth-report-congress. household of one within any period of 11, 2018). 293 See IRS Publication 501 (Jan. 2, 2018), 12 consecutive months, based on the 296 See Annual Update of the HHS Poverty available at https://www.irs.gov/pub/irs-pdf/ per-month average FPG for the months Guidelines, 83 FR 2642 (Jan. 18, 2018). p501.pdf. during which the benefits are received. 297 See Annual Update of the HHS Poverty 294 See U.S. Dep’t of Health & Human Servs., This proposed threshold is most Guidelines, 83 FR 2642 (Jan. 18, 2018). Welfare Indicators and Risk Factors, at I–2 (2015), 298 See Annual Update of the HHS Poverty available at https://aspe.hhs.gov/report/welfare- straightforward to calculate within the Guidelines, 83 FR 2642 (Jan. 18, 2018). indicators-and-risk-factors-fourteenth-report- context of a 12-month period that spans 299 See Annual Update of the HHS Poverty congress. a single calendar year (January through Guidelines, 83 FR 2642 (Jan. 18, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51165

1183a.300 DOS also uses FPG to evaluate light of the stated goals of the rule. For institutionalization at government’s immigrant visa applicants who are not instance, DHS welcomes the submission expense.304 Additionally, in the context subject to the requirements of 213A of of views and data regarding whether the of both state welfare reform efforts and the Act, 8 U.S.C. 1183a, and who are proposed standard is appropriate, too the 1990s Federal welfare reform, relying solely on personal income to low, or too high for assessing reliance Federal government and state establish eligibility under section on public benefits (and why), and governments imposed various limits on 212(a)(4) of the Act, 8 U.S.C. 1183a.301 whether there is a more appropriate the duration of benefit receipt as an The poverty guidelines thus provides a basis for a monetizable threshold, other effort to foster self-sufficiency among proven, useful, and easily administrable than value as a percentage of the FPG or recipients and prevent long-term or measure of the level of income and duration of receipt, that indicates indefinite dependence. States have resources below which a person whether an alien is a public charge. developed widely varying approaches to becomes increasingly likely to need DHS also seeks public comments on time limits. Currently, 40 states have public benefits to satisfy basic living whether DHS should consider the time limits that can result in the (and other) needs. receipt of designated monetizable public termination of families’ welfare benefits; DHS believes that the 15 percent benefits at or below the 15 percent 17 of those states have limits of fewer threshold is a reasonable approach. The threshold as evidence in the totality of than 60 months.305 Similarly, on the threshold would not lead to unintended the circumstances. For instance, DHS Federal level, PRWORA established a consequences, as could be the case if could revise the rule to allow 60-month time limit on the receipt of there was no threshold or the threshold adjudicators to assign some weight to TANF.306 was much smaller. Indeed, DHS past or current receipt of designated As with the proposed 15 percent of recognizes that individuals may receive monetized public benefits in an amount FPG standard, DHS believes that an public benefits for in relatively small equal to 10 percent of FPG, and less individual who receives monetizable amounts to supplement their ability to weight to past or current receipt of such public benefits for more than 12 meet their needs and the needs of their benefits in an amount equal to 5 percent cumulative months during a 36-month household without seriously calling into of FPG. The ultimate inquiry would period is neither self-sufficient nor on question their self-sufficiency. remain whether the alien is likely in the the road to achieving self-sufficiency. At the same time, DHS believes that totality of the circumstances to become Receipt of public benefits for such a an individual who receives monetizable a public charge, i.e., to receive the duration exceeds what could reasonably public benefits in excess of 15 percent designated public benefits above the be defined as a nominal level of support of FPG is neither self-sufficient nor on applicable threshold(s), either in terms that merely supplements an alien’s the road to achieving self-sufficiency. of dollar value or duration of receipt. independent ability to meet his or basic Receipt of monetizable public benefits iii. Twelve Month Standard for Non- living needs. In DHS’s view, individuals above the 15 percent threshold exceeds Monetizable Benefits who receive the non-monetizable public what could reasonably be defined as a benefits covered by this rule for more nominal level of support that merely In addition to proposing a 15 percent than 12 months are unable to meet their supplements an alien’s independent threshold for assessing the alien’s basic needs without government help; ability to meet his or her basic living likelihood to remain or become self- they therefore are not self-sufficient and needs; individuals who receive the sufficient in the context of receipt of so would be considered public charges designated benefits in such an amount monetizable public benefits (e.g., cash under this rule. assistance and SNAP), DHS is proposing are not self-sufficient and so would be By way of illustration, under the to consider the receipt of certain non- considered public charges under this proposed policy, an alien’s receipt of monetizable public benefits (e.g., rule. Medicaid for 9 months and receipt of DHS believes the proposed 15 percent Medicaid) if received for more than 12 public housing for 6 months, if both threshold is consistent with DHS’s cumulative months during a 36-month occurred within the same 36-month interpretation of the term public charge period. As indicated above, DHS period, would amount to 15 months of and would achieve the policy aims of believes that it is appropriate to expand receipt of non-monetizable benefits, this proposed rulemaking. The proposed the list of previously included public regardless of whether these periods of benefits (under the 1999 INS Interim threshold is consistent with the self- time overlapped, were consecutive, or Field Guidance) to include certain non- sufficiency policy objective set forth in occurred at different points in time cash benefits based on the Federal PRWORA that aliens should be able to during the 36-month period. As such, government’s expenditures and non- financially support themselves with the receipt of those benefits would be citizen participation rates in those their own resources or by relying on the considered for purposes of this rule. programs. However, following aid of family members, without consultation with interagency partners depending on government’s 304 In assessing the probative value of past receipt such as HHS and HUD, DHS lacks an assistance.302 Though not defined in of public benefits, ‘‘the length of time . . . is a easily administrable standard for significant factor.’’ 64 FR 28689, 28690 (May 26, PRWORA, self-sufficiency, as used in assessing the monetary value of an 1999) (internal quotation marks and citation PRWORA, is tied to an alien’s ability to omitted). alien’s receipt of some non-cash support him or herself without 305 See, e.g., MDRC, formerly Manpower benefits. DHS believes that, like the 15 depending on public benefits.303 DHS Demonstration Research Corporation, Welfare Time percent of FPG threshold described Limits State Policies, Implementation, and Effects seeks public comments on whether the above, the duration of the alien’s receipt on Families. https://www.mdrc.org/sites/default/ proposed 15 percent threshold _ of these benefits over a period of time files/full 607.pdf (last visited Sep. 12, 2018). applicable to monetizable public 306 See Temporary Assistance for Needy Families is also reasonable proxy for assessing an benefits is an appropriate threshold in Program (TANF), Final Rule; 64 FR 17720, 17723 alien’s reliance on public benefits. (Apr. 12, 1999) (‘‘The [Welfare to Work (WtW)] The duration of receipt is a relevant provisions in this rule include the amendments to 300 See INA section 213A(f)(1)(E), 8 U.S.C. factor under the existing guidance with the TANF provisions at sections 5001(d) and 1183a(f)(1)(E). 5001(g)(1) of Pub. L. 105–33. Section 5001(d) allows 301 See 22 CFR 40.41(f). respect to covered benefits and is a State to provide WtW assistance to a family that 302 See 8 U.S.C. 1601(a)(2). specifically accounted for in the has received 60 months of federally funded TANF 303 See 8 U.S.C. 1601(a)(2). guidance’s inclusion of long-term assistance . . .’’).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00053 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51166 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

DHS seeks public comments on this does not reach the 15 percent threshold Social Security retirement benefits, proposed approach, including any and his or her receipt of non- which are financed through payroll alternatives for assessing self-sufficiency monetizable benefits does not surpass taxes, SSI is financed by general based on the receipt of non-monetizable the 12-month duration threshold. Under revenues.308 According to one analysis, benefits. DHS seeks public comments on this proposal, if an alien receives a SSI expenditures totaled approximately whether the proposed 12-month combination of monetizable benefits $54.7 billion in fiscal year 2017, and threshold applicable to non-monetizable equal to or below the 15 percent represented one of the largest Federal public benefits is an appropriate threshold together with one or more expenditures for low-income people.309 threshold in light of the stated goals of benefits that cannot be monetized, the ii. Temporary Assistance for Needy the rule. For instance, DHS welcomes threshold for duration of receipt of the Families (TANF) 310 the submission of views and data non-monetizable benefits would be 9 regarding whether the proposed months in the aggregate (rather than 12 TANF, which is a monetizable public standard is appropriate, too low, or too months) within a 36-month period (e.g, benefit, provides monthly income high for assessing reliance on public receipt of two different non-monetizable assistance payments to low-income benefits (and why), and whether there is benefits in one month counts as two families and is intended to foster self- a more appropriate basis for a non- months, as would receipt of one non- sufficiency, economic security, and monetizable threshold, other than monetizable benefit for one month in stability for families with children.311 duration of receipt, that indicates January 2018 and another such benefit According to one analysis, TANF cash whether an alien is a public charge. for one month in June 2018). assistance expenditures totaled DHS also seeks public comments on DHS believes that reducing the approximately $4.4 billion in fiscal year whether DHS should consider the 12-month timeframe by 3 months to 2016, and represented one of the largest receipt of one or more designated non- account for use of monetizable benefits Federal expenditures out of all Federal monetizable public benefits for any is a reasonable and easily administrable programs for low-income people.312 period less of than 12 months in the guideline for determining whether an iii. General Assistance Cash Benefits aggregate as part of the public charge individual who receives both inadmissibility determination. For monetizable and non-monetizable Federal, State, local, and tribal cash instance, similar to the potential public benefits is self-sufficient or on benefit programs for income alternative described in the call for the road to achieving self-sufficiency. In maintenance (often called ‘‘General comment in the preceding section, DHS line with the other thresholds described Assistance’’ in the State context, but could revise the rule to allow above, receipt of a designated non- sometimes given other names), is a term adjudicators to assign some weight to monetizable public benefits for three- used to describe ‘‘aid provided by State past or current receipt of 2 designated quarters of a year, compounded by and local governments to needy non-monetized benefits for a total of 8 receipt of a designated monetizable individuals or families who do not months, and less weight to past or public benefit, exceeds what could qualify for major assistance programs current receipt of such benefits for a reasonably be defined as a nominal level and to those whose benefits from other total of 4 months. The ultimate inquiry of support that merely supplements an would remain whether the alien is Income (SSI) Overview—2018 Edition, available at alien’s independent ability to meet his https://www.ssa.gov/ssi/text-over-ussi.htm (last likely in the totality of the or basic living needs. In DHS’s view, circumstances to become a public visited July 27, 2018). individuals who receive public benefits 308 See U.S. Soc. Sec. Admin., Office of Research, charge, i.e., to receive the designated in these combinations are unable to Statistics, & Policy Analysis, Annual Report of the public benefits above the applicable meet their basic needs without Supplemental Security Income Program 46 threshold(s), either in terms of dollar tbl.IV.B9, 47 tbl.IV.C1 (2017), available at https:// government help, consequently are not value or duration of receipt. www.ssa.gov/oact/ssir/SSI17/ssi2017.pdf (last self-sufficient, and therefore would be visited July 31, 2018); see also U.S. Soc. Sec. DHS is also considering whether there Admin., Office of Research, Statistics, & Policy are other potential approaches to considered public charges under this rule. Analysis, SSI Monthly Statistics, January 2018, monetizing these benefits, and seeks available at https://www.ssa.gov/policy/docs/ comments on any such alternatives. In DHS seeks public comments on this statcomps/ssi_monthly/2018-01/table01.html (last addition, DHS seeks comments on the approach, including any alternatives for visited July 31, 2018). 309 See Gene Falk et al., Cong. Research Serv., proposed timeframes, including, if addressing receipt of a combination of public benefits, some of which can be R45097, Federal Spending on Benefits and Services applicable, any studies or data that for People with Low Income: In Brief (2018), would provide a basis for an alternative monetized and others which cannot to available at https://fas.org/sgp/crs/misc/ duration. ensure a consistent methodology for R45097.pdf. treating recipients of these two types of 310 See 42 U.S.C. 601. iv. Combination of Monetizable Benefits benefits. 311 See U.S. Dep’t of Health & Human Servs., Under 15 Percent of FPG and One or Admin. for Children & Families, Office of Family More Non-Monetizable Benefits (c) Monetizable Public Benefits Assistance, About TANF, available at https:// www.acf.hhs.gov/ofa/programs/tanf/about (last DHS is proposing a separate approach i. Supplemental Security Income (SSI) visited February 23, 2018); U.S. Dep’t of Health and when an alien receives a combination of Human Servs., Admin. for Children and Families, SSI, which is monetizable public Office of Family Assistance, TANF 12th Report to monetizable benefits in an amount that benefit, provides monthly income Congress. is equal to or less than the proposed 15 payments intended to help ensure that 312 See Gene Falk et al., Cong. Research Serv., percent threshold while also receiving a disabled, blind, or aged person with R45097, Federal Spending on Benefits and Services one or more non-monetizable public limited income and resources has a for People with Low Income: In Brief (2018), 307 available at https://fas.org/sgp/crs/misc/ benefits. This approach is intended to minimum level of income. Unlike R45097.pdf; U.S. Dep’t of Health & Human Servs., address circumstances where an alien’s Office of Family Assistance. TANF Financial self-sufficiency is in question by virtue 307 See U.S. Soc. Sec. Admin., Social Security Data—FY 2016, available at https:// of a combination of receipt of both Handbook, Ch. 21, section 2102.1, available at www.acf.hhs.gov/ofa/resource/tanf-financial-data- https://www.ssa.gov/OP_Home%2Fhandbook/ fy-2016 (last visited June 11, 2018). Note that the monetizable and non-monetizable handbook.21/handbook-2102.html (last updated latter link shows fiscal year 2016 TANF financial benefits, even if his or her receipt of Feb. 24, 2009); U.S. Soc. Sec. Admin., Social data, but links to financial data for other fiscal years monetizable designated public benefits Security, Understanding Supplemental Security can also be accessed.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51167

assistance programs are insufficient to significant resources on Section 8 and fits into one of the clearly meet basic needs. General assistance is Housing Choice Vouchers, Section 8 enumerated 7 categories.322 often the only resource for individuals Project-Based Rental Assistance, and a. Section 8 Housing Choice Voucher who cannot qualify for unemployment Public Housing. These programs impose Program insurance, or whose benefits are a significant expense upon multiple inadequate or exhausted. Help may levels of government, and because these The Section 8 Housing Choice either be in cash or in kind, including benefits relate to a basic living need (i.e., Voucher Program,323 which is a non- such assistance as groceries and shelter), receipt of these benefits cash public benefit that can be rent.’’ 313 To the extent that such aid is suggests a lack of self-sufficiency. At the monetized, provides assistance to very in the form of cash, check, or money same time, DHS recognizes that these low-income families to afford decent, 324 instrument (as compared to in-kind programs do not involve the same level safe, and sanitary housing. The goods or services through vouchers and of expenditure as the other programs Housing Choice Vouchers are similar means) and intended for income listed in this proposed rule, and that administered locally by Public Housing maintenance, it would qualify as a cash noncitizen participation in these Agencies. The participant is responsible for finding their own suitable housing public benefit under this rule. For programs is currently relatively low.318 unit, where the owner agrees to rent example, in Minnesota, the ‘‘General DHS nonetheless proposes to consider under the program. Once an owner has Assistance (GA) program helps people these programs as part of public charge been identified, the public housing without children pay for basic needs. It determinations, for the above-stated agency enters into a housing assistance provides money to people who can[no]t reasons and because the total Federal work enough to support themselves, and payment contract with the landlord. The expenditure for the programs overall PHA pays the landlord housing whose income and resources are very remains significant. low.’’ 314 subsidies based on a payment standard There are also numerous programs established by HUD and the participant iv. Supplemental Nutrition Assistance that provide incentives for private- is responsible for paying the difference Program (SNAP) sector affordable housing preservation between the actual rent charged and the DHS proposes to consider SNAP 315 and development.319 The Housing Act amount subsidized by the program.325 benefits, because the program is among of 1961 320 provides housing to low- and Under certain circumstances, housing the largest Federal expenditures for low- moderate-income households through vouchers may also be used to purchase income people, and because receipt of the private sector.321 U.S. Department of homes.326 SNAP benefits indicates a lack of self- Housing and Urban Development (HUD) b. Section 8 Project-Based Rental sufficiency in satisfying a basic living oversees and administers the various Assistance need, i.e., food and nutrition. SNAP, programs. There are various programs which is a non-cash, monetizable public within the public housing program The Section 8 Project-Based Rental benefit, provides nutrition assistance to which provide payment for rent or Assistance Program (including Moderate low-income individuals and housing either to the person or the Rehabilitation), which is a non-cash but households 316 who must meet certain housing unit or owner on behalf of the monetizable public benefit, provides income and resource limitations to be person (privately owned subsidized rental assistance for extremely low- to eligible. An eligible person or housing). low-income households in obtaining household receives SNAP benefits on an decent, safe, and sanitary housing in These programs provide low-income 327 Electronic Benefit Transfer (EBT) card private accommodations. This on which the dollar amount of benefits individuals and families with housing at program refers to a category of federally are automatically available each month. below-market rent or rent subsidies for assisted housing produced through a The household can then purchase market-rate housing. While there are public-private partnership to build and eligible food at authorized retail food important variations between these maintain affordable rental housing for stores.317 programs, they all use the same or low-income households. HUD provides similar standard when establishing subsidies to private owners of v. Housing Programs income eligibility and contribution multifamily housing to lower rental DHS is also proposing to include towards rent. Specific to aliens, DHS costs for low-income families and help certain high-expenditure housing- notes that Section 214 of the HCD Act offset construction, rehabilitation, and related benefits. As noted in Table 10 of 1980 requires that HUD may not above, the Federal government expends make financial assistance available for 322 See section 214 of the Housing and the benefit of any alien, notwithstanding Community Development Act of 1980, 42 U.S.C. 1436a. 313 See U.S. Soc. Sec. Admin., Social Security any other provision of law, unless that 323 Programs in the United States—General Assistance, alien is a resident of the United States See 24 CFR part 982; 42 U.S.C. 1437f, 1437u. available at https://www.ssa.gov/policy/docs/ 324 See U.S. Dep’t of Housing & Urban Dev., progdesc/sspus/genasist.pdf (last visited June 24, Housing Choice Vouchers Fact Sheet, available at 2018). 318 An analysis of Wave 13 of the 2008 Panel of https://www.hud.gov/topics/housing_choice_ _ _ _ 314 See Minn. Dep’t of Human Servs., General the Survey of Income and Program Participation voucher program section 8 (last visited Feb. 24, Assistance (GA), available at https://mn.gov/dhs/ (SIPP) suggests that 0.2% of noncitizens lived in 2018). people-we-serve/adults/economic-assistance/ Section 8 housing, while 0.4% lived in housing 325 See U.S. Dep’t of Housing & Urban Dev., income/programs-and-services/ga.jsp (last visited subsidized through some other government Housing Choice Vouchers Fact Sheet, available at June 24, 2018). program. Similarly, 0.7 percent of noncitizens https://www.hud.gov/topics/housing_choice_ 315 Formerly called ‘‘Food Stamps.’’ See 7 U.S.C. reported receiving CHIP benefits. voucher_program_section_8 (last visited Feb. 24, 2011–2036c. 319 See Public Law 86–372, 73 Stat. 654. See also 2018). 316 See USDA, Food and Nutrition Service, Maggie McCarty et al., Cong. Research Serv., 326 See U.S. Dep’t of Housing & Urban Dev., Supplemental Nutrition Assistance Program RL34591, Overview of Federal Housing Assistance Housing Choice Vouchers Fact Sheet, available at (SNAP), available at https://www.fns.usda.gov/ Programs and Policy 3 (2014), available at https:// https://www.hud.gov/topics/housing_choice_ snap/supplemental-nutrition-assistance-program- www.hsdl.org/?view&did=752738. voucher_program_section_8 (last visited July 11, snap (last visited Feb. 24, 2018). 320 See Public Law 87–70, 75 Stat. 149. 2018). 317 The listing of SNAP would not include 321 See Maggie McCarty et al., Cong. Research 327 U.S. Dep’t of Housing & Urban Dev., Moderate Disaster SNAP, which is provided under a separate Serv., RL34591, Overview of Federal Housing Rehabilitation, available at https://www.hud.gov/ legal authority, under different circumstances. See Assistance Programs and Policy 4 (2014), available program_offices/public_indian_housing/programs/ 42 U.S.C. 5179. at https://www.hsdl.org/?view&did=752738. ph/modrehab (last visited July 3, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51168 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

preservation costs. The rental assistance (d) Non-Monetizable Public Benefits groups.331 Medicaid provides is the difference between what the i. Medicaid continuous coverage, services, and household can afford and the approved funding for medical treatment and can rent for the housing unit in the a. Description of Program impose substantial costs on multiple multifamily project. Authority to use Medicaid, which is a non-cash, non- levels of government, and a person’s project-based rental assistance for new monetizable public benefit, is a joint participation generally indicates a lack construction or substantial Federal and state program that provides of ability to be self-sufficient in rehabilitation was repealed in 1983. health coverage to individuals in the satisfying a basic living need, i.e., Therefore, HUD renews Section 8 United States.329 Medicaid is generally medical care. As indicated in Table 10 project-based housing assistance available to needy persons who meet above, the total Federal expenditure for payments (‘‘HAP’’) contracts for units specific income and resource the Medicaid program overall is larger already assisted with project-based requirements. Certain individuals are by far than any other programmatic 328 Section 8 renewal assistance. The generally covered under Medicaid, Federal expenditure for low-income contracts are with private owners of including low-income families, people.332 Table 13 below highlights multifamily rental housing including qualified pregnant women and children, average costs per enrollee by eligibility both profit-motivated and nonprofit or and people already receiving SSI.330 In group as a percentage of FPG. cooperative organizations. addition, a State may opt to cover other

On the whole, Medicaid expenditures pronounced among persons with costs reflect the relatively healthier per enrollee by enrollment group are disabilities and the aged. In its 2016 status of children and adults enrolled in significant and are particularly report, HHS observes that these average the program as compared to aged

328 U.S. Dep’t of Housing & Urban Dev., Moderate medicaid/eligibility/index.html (last visited Feb. 23, Expenditure amounts are net outlays unless Rehabilitation, available at https://www.hud.gov/ 2018). otherwise noted. See also Gene Falk et al., Cong. _ _ _ program offices/public indian housing/programs/ 331 See Ctrs. for Medicare & Medicaid Services, Research Serv., R45097, Federal Spending on ph/modrehab (last visited July 3, 2018). Eligibility, available at https://www.medicaid.gov/ Benefits and Services for People with Low Income: 329 See Ctrs. for Medicare & Medicaid Services, medicaid/eligibility/index.html (last visited Feb. 23, In Brief (2018), available at https://fas.org/sgp/crs/ Eligibility, available at https://www.medicaid.gov/ 2018). misc/R45097.pdf. Note however that neither HHS medicaid/eligibility/index.html (last visited Feb. 23, 332 See Table 26–1 Policy, Net Budget Authority nor DHS are able to disaggregate emergency and 2018). by Function, Category, and Program, available at 330 See Ctrs. for Medicare & Medicaid Services, https://www.whitehouse.gov/wp-content/uploads/ non-emergency Medicaid expenditures. Therefore, Eligibility, available at https://www.medicaid.gov/ 2018/02/26-1-fy2019.pdf (last visited Aug. 8, 2018). this rule considers overall Medicaid expenditures.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.029 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51169

enrollees and persons with disabilities, In 8 U.S.C. 1611(b), Congress not limit an alien patient to treatment who represent the smallest enrollment specifically excluded emergency rendered in the emergency room, but groups in Medicaid but account for the medical conditions from the definition applied to treatment for leukemia that majority of expenditures.333 Despite the of Federal public benefits, and States are had ‘‘reached a crisis stage’’ and high level of Medicaid expenditure in required to provide Medicaid payments required ‘‘immediate medical treatment, aggregate and per enrollee by for ‘‘emergency medical conditions’’ without which the patient’s physical enrollment group, Medicaid is one of regardless of the alien’s status. well-being would likely be put in the most daunting public benefits to PRWORA sets apart treatment for jeopardy or serious physical impairment monetize on an individual basis. emergency medical conditions and or dysfunction would result.’’ However, Medicaid eligibility, enrollment, and makes funds available for the in Diaz v. Division of Social Services receipt vary state-by-state and receipt of reimbursement of states regardless of an and Div. of Medical Assistance, North goods and services vary enrollee-to- alien’s immigration status, and Carolina Dept. of Health and Human enrollee. Therefore, DHS does not regardless of whether or not an alien Services,338 the Supreme Court of North propose a methodology to monetize would be subject to INA section Carolina indicated that an alien’s acute Medicaid benefits for purposes of the 15 212(a)(4) or other grounds of lymphocytic leukemia was not an 335 percent of FPG standard. Rather, DHS inadmissibility. Congress intended ‘‘emergency medical condition’’ where Medicaid would be categorized as a that PRWORA exceptions generally, and there was is nothing to indicate that the non-monetizable benefit under the treatment of emergency medical prolonged chemotherapy treatments proposed rule. conditions in particular, be narrowly must have been ‘‘immediate’’ to prevent construed. To qualify for emergency placing the alien’s health in serious b. Exceptions for Certain Medicaid medical condition exclusion, medical jeopardy, or causing serious impairment Services conditions must be of an emergency or dysfunction.339 nature, such as medical treatment In addition, DHS believes that Notwithstanding DHS’s proposal to administered in an emergency room, preservation of life from an immediate consider benefits under Medicaid, DHS critical care unit, or intensive care unit. threat is an important policy proposes to exclude two main types of The same principle applies to pre-natal consideration. ‘‘Emergency medical Medicaid services from consideration. or delivery care assistance; it was services’’ are often involuntary and First, DHS proposes to except intended to be of emergency nature. must be provided by doctors and consideration of assistance for an Similarly, treatment for mental health hospitals regardless of the ability to ‘‘emergency medical condition’’ as disorders was intended to be limited to pay,340 such as medical services at a provided under section 1903(v) of Title circumstances in which the alien’s hospital after a car accident. Further, XIX of the Social Security Act, 42 U.S.C. condition is such that he is a danger to Congress did not authorize any 1396b(v) and in implementing himself or to others and has therefore consideration of an alien’s immigration regulations at 42 CFR 440.255(c). These been judged incompetent by a court of status for purposes of eligibility for provisions specifically indicate that appropriate jurisdiction.336 Over the these benefits or to allow for continuous payment may be made to a State for years since the enactment of PRWORA, services/treatment relating to them. medical assistance furnished to an alien courts have refined the definition of Therefore, DHS will not consider under certain specific emergency emergency medical condition. treatment for emergency medical circumstances.334 Under 42 CFR Depending on the state, and the medical 440.255(c), ‘‘ ‘emergency medical condition, categorization as an 338 See 628 S.E.2d 1, 5 (N.C. 2006). condition’ means a medical condition ‘‘emergency medical condition’’ for 339 See also Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d 226, 233 (2d Cir. 1998) (aliens (including emergency labor and purposes of Medicaid reimbursement who suffered serious traumatic head injuries delivery) manifesting itself by acute may not be limited to hospital initially satisfied the plain meaning of Sec. symptoms of sufficient severity emergency room visits. For example, in 1902(v)(3), but the continuous and regimented care (including severe pain) such that the Szewczyk v. Department of Social subsequently provided to them did not constitute 337 emergency medical treatment pursuant to the absence of immediate medical attention Services, the Supreme Court of statute); Luna ex rel. Johnson v. Div. of Soc. Servs., could reasonably be expected to result Connecticut indicated that coverage for 589 S.E.2d 917, 920 (N.C. 2004) (the absence of the in placing the patient’s health in serious an ‘‘emergency medical condition’’ did continued medical services could be expected to jeopardy, serious impairment to bodily result in one of the three consequences outlined in the Medicaid statute for cancer patient that 335 functions, or serious dysfunction of any H.R. Rep. No. 104–469 (VI), at 263–64 (1996) underwent surgery after presenting at hospital’s bodily organ or part.’’ States determine (‘‘This section provides that sections 601 and 602 emergency room with weakness and numbness in shall not apply to the provision of emergency the lower extremities); Scottsdale Healthcare, Inc. whether an illness or injury is an medical services, public health immunizations, ‘‘emergency medical condition’’ and v. Ariz. Health Care Cost Containment Sys. Admin., short-term emergency relief, school lunch programs, 75 P.3d 91, 98 (Ariz. 2003) (medical conditions had provide payment to the healthcare child nutrition programs, and family violence not ceased when patients’ conditions had been provider as appropriate. Under this services. Section 601 restricted unauthorized aliens stabilized and they had been transferred from an proposed rule, DHS would exclude from receiving public assistance, contracts, and acute ward to a rehabilitative type ward after initial licenses, and section 602 made unauthorized aliens injury); Spring Creek Mgmt., L.P. v. Dep’t of Pub. receipt of Medicaid if the State ineligible for employment benefits.’’) Welfare, 45 A.3d 474, 483–84 (Pa. Commw. Ct. determines that the relevant treatment 336 H.R. Rept. 104–469 (VI), at 264–65 (1996). 2012) (alien’s condition as result of stroke, which falls under 42 U.S.C. 1396b(v) and 42 This report also discusses treatment of had sent her to emergency room, was not CFR 440.255(c). communicable diseases and indicates that such ‘‘emergency medical condition’’ when alien treatment is intended ‘‘to only apply where received medical services from rehabilitation and absolutely necessary to prevent the spread of such health care center even though alien could 333 See United States Department of Health & diseases. This is only a short term measure until the eventually, suffer another stroke or other medical Human Services, Centers for Medicare & Medicaid deportation of an alien who is unlawfully present problem; coverage was not being sought for an acute Services, Office of the Actuary, 2016 Actuarial in the U.S. It is not intended to provide authority condition, but for long term or open-ended nursing Reports on the Financial Outlook for Medicaid, pp. for continued long-term treatment of such diseases care); Quiceno v. Dep’t of Soc. Servs., 728 A.2d 553, 7–8, at https://www.cms.gov/Research-Statistics- as a means for illegal aliens to delay their removal 554 (Conn. Super. Ct. 1999) (permanent dialysis Data-and-Systems/Research/ActuarialStudies/ from the country.’’ treatment was not for ‘‘emergency medical Downloads/MedicaidReport2016.pdf. (Site last 337 See 881 A.2d 259, 273 (Conn. 2005) (quoting condition’’). checked 9–11–2018). Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d 340 See Emergency Medical Treatment & Labor 334 See 42 U.S.C. 1396b(v); 42 CFR 440.255(c). 226, 233 (2d Cir.1998)). Act (EMTALA), 42 U.S. Code 1395dd.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51170 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

conditions funded by Medicaid in the program reimburses for the provision of Children of U.S. citizens, including context of a public charge IDEA services. By excluding services those adopted abroad, typically receive determination. provided under IDEA that may be one of several types of immigrant visas The second proposed exclusion is for funded in whole or in part by Medicaid, as listed below and are admitted to the services or benefits under the DHS would better ensure that schools United States as lawful permanent Individuals with Disabilities Education continue to receive financial resources residents. Such children may become Act (IDEA) 341 and school-based benefits to cover the cost of special education U.S. citizens (1) automatically, (2) provided to children who are at or and related services, which they would following their admission to the United below the oldest age of children eligible be legally required to provide at no cost States and upon the finalization of their for secondary education as determined to the parents regardless of the outcome adoption, or (3) upon meeting other under State law. The IDEA protects of this rulemaking. eligibility criteria.344 educational opportunities for all The following categories of children students with disabilities and requires c. Exception for Receipt of Medicaid by acquire citizenship upon admission as schools to provide certain services to all Foreign-Born Children of U.S. Citizens lawful permanent residents and children with disabilities. States and DHS proposes to exclude beginning to reside in the legal and school districts may bill and receive consideration of the receipt of all physical custody of their U.S. citizen reimbursement for the cost of providing Medicaid benefits by foreign-born parent(s): special education and health care children as defined in section 101(c) of • IR–2/IR–7 (Child of a U.S. citizen)— related services from a State’s public the Act who either have U.S. citizen requires an approval of a Form I–130 insurance program (e.g., Medicaid). parents, who have been adopted by U.S. (Petition for Alien Relative). These Benefits or services under these laws citizens, or who are coming to the children are generally admitted as generally are not based on income United States to be adopted by U.S. lawful permanent residents or their eligibility, and where a reimbursement citizens, where such children will status is adjusted to that of lawful is available, it is provided to the school automatically acquire U.S. citizenship permanent resident. The child must or eligible entity. For example, under under section 320 of the Act or be then file a Form N–600 (Application for the statutory framework created by eligible to naturalize under section 322 Certificate of Citizenship) to receive the Congress for Part B of IDEA, school of the Act upon or after being admitted Certificate of Citizenship. The certificate districts, in meeting their obligation to to the United States. In some cases, generally would be dated as of the date make a free appropriate public these children will acquire citizenship the child was admitted as a lawful education available to all children with permanent resident. upon finalization of their adoption in • disabilities, may receive reimbursement the United States, under section 320 of IR–3/IR–8 (Orphan adopted abroad for the cost of providing special the Act, or the children will naturalize by a U.S. citizen)—requires an approval education and related services if parents upon taking the Oath of Allegiance (or of the Form I–600 (Petition to Classify provide consent for the school districts having it waived) under section 322 of Orphan as an Immediate Relative). to release their personally identifiable the Act. In other cases, the children will These children are generally admitted as information to a State public insurance acquire citizenship upon taking up lawful permanent residents, and USCIS program (e.g., Medicaid) for billing residence in United States in the legal will send a Certificate of Citizenship to purposes. Subject to parental consent, and physical custody of their U.S. the child without a Form N–600 being schools, and not individual parents or citizen parent as a lawful permanent filed or adjudicated. • IH–3 (Hague Convention orphan students, may obtain reimbursement for resident. adopted abroad by a U.S. citizen)— the cost of providing certain health- Alien children of U.S. citizens, who requires an approval of the Form I–800 related services included in a child’s must first establish eligibility for (Petition to Classify Convention individualized education program (IEP) admission, are subject to section Adoptee as an Immediate Relative). that are considered covered services 212(a)(4) even though they may These children are generally admitted as under such subsidized health insurance automatically acquire U.S. citizenship lawful permanent residents and USCIS programs. The IDEA provides in 20 upon taking up residence in the United will send a Certificate of Citizenship to U.S.C. 1412(a)(12)(B) that, when a non- States after admission as lawful educational public agency, such as a permanent residents.342 Children of U.S. State Medicaid agency, is assigned 213a.2(a)(2)(ii)(E). Stepchildren of U.S. citizens are citizens eligible for acquisition of not eligible for acquisition of citizenship under responsibility under State or Federal citizenship under section 320 of the Act, section 320 of the Act or naturalization under law to provide or pay for any services however, are exempt from the affidavit section 322 of the Act unless the child is adopted that are also considered special of support requirement.343 by the U.S. citizen step-parent. See INA section education and related services, the 101(c)(1), 8 U.S.C. 1101(c)(1). 344 International adoptions vary depending on the financial responsibility of the State 342 Note that children born abroad to U.S. citizen laws of the country of origin, the laws of the U.S. Medicaid agency or other public insurer parents may also acquire U.S. citizenship at birth state of residence, and multiple other factors. In the of children with disabilities must under certain circumstances, such as where both majority of cases, adoptions are finalized in the precede that of the LEA or State agency parents are U.S. citizens and one parent had resided country of origin before the child enters the United responsible for developing a child’s IEP. in the United States prior to the child’s birth, or States and the child automatically acquires U.S. where one parent is a U.S. citizen who was citizenship. A minority of children whose Also, 20 U.S.C. 1412(e) reinforces that physically present in the United States for at least adoptions are not finalized until after their Part B of the IDEA may not be construed five years, two of which were after age 14. Such admission do not automatically acquire citizenship to permit a State to reduce medical or children would enter the United States as U.S. after admission, but may acquire it upon being other assistance available, or to alter citizens and would not be subject to an readopted, and are eligible to naturalize after they admissibility determination. See INA sections 301 have been finally adopted in the United States or eligibility, under the Social Security and 309, 8 U.S.C. 1401 and 1409. DOS would issue had the foreign adoption recognized by the state Act. There are no restrictions on how a Consular Report of Birth Abroad upon request. where they are permanently residing. See U.S. Dep’t school districts and schools are See Dep’t of State, Birth of U.S. Citizens Abroad, of State, 2017 Annual Report on Intercountry permitted to spend any funds that available at https://travel.state.gov/content/travel/ Adoptions, available at https://travel.state.gov/ en/international-travel/while-abroad/birth- content/dam/NEWadoptionassets/pdfs/Annual%20 Medicaid or other public insurance abroad.html (last visited Aug. 28, 2018). Report%20on%20Intercountry%20Adoptions%20 343 See Child Citizenship Act, Public Law 106– FY2017%20(release%20date%20March%2023 341 See 20 U.S.C. 1400–1482. 395, 114 Stat. 1631 (Oct. 30, 2000); 8 CFR %2020.._.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51171

the child without a Form N–600 being the Intercountry Adoption Act of 2000 child’s disability alone rather than filed or adjudicated. (IAA) 350 to implement the Hague financial means of the parents. The following categories of children are Convention on Protection of Children Excluding consideration of the receipt admitted as lawful permanent residents and Co-operation in Respect of of public benefits by such children for finalization of adoption: Intercountry Adoption,351 which would be consistent with Congress’ • IR–4/IR–9 (Orphan to be adopted by established international standards of strong interest in supporting U.S. a U.S. citizen). Generally, the parent(s) practices for intercountry adoptions. citizens seeking to welcome foreign- must complete the adoption in the The IAA protects the rights of children, born children into their families. United States. However, the child will birth families, and adoptive parents, and Additionally, because the children are also be admitted as an IR–4 if the improves the Government’s ability to being brought to the United States by foreign adoption was obtained without assist U.S. citizens seeking to adopt their U.S. citizen parents (including either parent having seen the child, or children from abroad.352 adoptive parents) and will generally when the parent(s) must establish that DOS has advised DHS that many U.S. become U.S. citizens upon or after they have either ‘‘readopted’’ the child citizens seek to adopt children with admission, and because their families or obtained recognition of the foreign disabilities or serious medical have been found to have the resources adoption in the State of residence (this conditions, and that a significant to care for them, such a reading is not requirement can be waived if there is a proportion of children adopted abroad at odds with Congress’ concerns in statute or precedent decision that have special medical needs. U.S. enacting PRWORA, or as reflected in its clearly shows that the foreign adoption citizens seeking to adopt foreign-born concurrent enactment of the public is recognized in the State of children abroad generally must undergo charge grounds of inadmissibility, that residence).345 a rigorous home study that includes a aliens should rely on their own • IH–4 (Hague Convention Adoptee to detailed assessment of finances, capabilities and the resources of their be adopted by a U.S. citizen). These emotional, mental, and physical health, families, their sponsors, and private children are admitted as lawful and other factors to determine their organizations; and that the availability permanent residents and the parent(s) eligibility and suitability as prospective of public benefits should not constitute must complete the adoption in the adoptive parents.353 Accordingly, such an incentive for immigration to the United States.346 parents generally will have sufficient United States.356 Furthermore, children of U.S. financial resources to provide for the Accordingly, DHS proposes to citizens, who are residing outside of the child.354 exclude from consideration for purposes United States and are eligible to Nevertheless, many U.S. citizens who of the public charge inadmissibility naturalize under section 322 of the have foreign-born children with special determination receipt of Medicaid Act,347 must apply for an immigrant or medical needs may seek Medicaid for benefits by children of U.S. citizen nonimmigrant visa to enter the U.S. their children.355 Medicaid programs parents: before they naturalize. These children vary by state, and may be based on the • Whose lawful admission for are generally issued a B–2 permanent residence and subsequent nonimmigrant visa in order to complete Intercountry-Adoption/adopt_ref/adoption-FAQs/ residence in the legal and physical the process for naturalization through child-citizenship-act-of-2000.html (last visited Aug. custody of the U.S. citizen parent will 16, 2018). an interview and taking the Oath of 350 Public Law 106–279, 114 Stat. 1631 (codified result automatically in the child’s Allegiance under section 322 of the Act. at 42 U.S.C. 14901–14954); see also Hague acquisition of citizenship or whose Congress has enacted numerous laws Convention on Intercountry Adoption; Intercountry lawful admission for permanent over the last two decades to ensure that Adoption Act of 2000; Accreditation of Agencies; residence will result automatically in foreign-born children of U.S. citizens Approval of Persons, 71 FR 8064 (Feb. 15, 2006). the child’s acquisition of citizenship 351 The United States signed the Convention in are not subject to adverse immigration 1994, and the Convention entered into force for the upon finalization of the adoption in the consequences in the United States on United States on April 1, 2008. Deposit of United States by the U.S. citizen account of their foreign birth. Most Instrument of Ratification by the United States of parent(s) or upon meeting other notably, the Child Citizenship Act of the Hague Convention on Protection of Children eligibility criteria pursuant to the Child 348 and Co-operation in Respect of Intercountry 2000 provides that children, Adoption, 72 FR 71730 (Dec. 18, 2007). The full text Citizenship Act of 2000, Public Law including adopted children, of U.S. of the Convention is available at https:// 106–395 (section 320(a)–(b) of the Act, citizen parents automatically acquire www.hcch.net/en/instruments/conventions/full- 8 U.S.C. 1431(a)–(b)), in accordance U.S. citizenship if certain conditions are text/?cid=69 (last visited Aug. 16, 2018). with 8 CFR part 320; or 352 349 IAA § 2, 42 U.S.C. 14901(a); see also 146 Cong. • Who are entering the United States met. The same year, Congress passed Rec. S8938–01, S8938 (daily ed. Sept. 21, 2000) (statement by Sen. Landrieu) (‘‘I have said it before for the primary purpose of attending an 345 See 8 CFR 320.1. and I believe it rings true here, adoption brings interview under the Child Citizenship 346 See INA section 101(b)(1), 8 U.S.C. 1101(b). people, whether they are Republican, Democrat, Act of 2000, Public Law 106–395 347 These children would file the N–600K, conservative, liberal, American, Russian or Chinese, (section 322 of the Act, 8 U.S.C. 1433)), Application for Citizenship and Issuance of together. United by the belief that all children Certificate Under Section 322 and then receive an deserve to grow in the love of a permanent family. in accordance with 8 CFR part 322. interview notice to in come into the United States. Adoption breaks down barriers and helps build ii. Institutionalization for Long-Term 348 Public Law 106–395, section 101(a), 114 Stat. families.’’). A year earlier, Congress passed Public 1631, 1631 (codified at INA section 320(a)–(b), 8 Law 106–139, 113 Stat. 1696 (1999), to amend the Care U.S.C. 1431(a)–(b)); see also Children Born Outside definition of ‘‘child’’ in section 101(b)(1)(E) of the Consistent with the 1999 Interim INA, 8 U.S.C. 1101(b)(1)(E), a change that allowed the United States; Applications for Certificate of Field Guidance, DHS proposes to Citizenship, 66 FR 32138 (June 13, 2001). The CCA children adopted abroad to maintain their familial applies to children who were under 18 as of relationship with their natural siblings, making it consider institutionalization for long- February 27, 2001. The law was passed after several easier for siblings to be adopted together. term care at government expense—at high-profile cases in which children who were 353 See 8 CFR 204.3(e), 204.311(g)(3). any level of government—as a form of adopted abroad were subject to deportation despite 354 See 8 CFR 204.311(h) (financial government assistance included in the having grown up in the United States and having considerations); see also USCIS, Home Study believed that they were United States citizens. Information, available at https://www.uscis.gov/ definition of public benefit. 349 See 8 CFR part 320; see also Dep’t of State, adoption/home-study-information (last visited Aug. FAQ: Child Citizenship Act of 2000, available at 16, 2018). 356 See Public Law 104–193, section 400, 110 Stat. https://travel.state.gov/content/travel/en/ 355 See Public Law 97–248, 96 Stat. 324. 2105, 2260 (codified at 8 U.S.C. 1601).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51172 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Institutionalization for long-term care at health insurance for people 65 or older, low-income subsidy to an individual government expense is a non-cash, non- certain people under 65 with can impose substantial costs on monetizable public benefit. The U.S. disabilities, and people of any age with multiple levels of government and government subsidizes health End-Stage Renal Disease (permanent generally indicates a lack of ability to be insurance, which pays for expenses kidney failure requiring dialysis or a self-sufficient in satisfying a basic living associated with institutionalization of kidney transplant).360 Medicare has four need, i.e., medical care. As noted above, individuals in the United States for both parts. Medicare Part A is for hospital by at least one measure, this program long-term care; therefore, the receipt of coverage and is mandatory for eligible entails one of the most largest Federal benefits to provide for the costs of participants; Part B provides optional expenditures for low-income people.367 institutionalization indicates a lack of medical coverage; Part C provides a self-sufficiency in satisfying a basic managed care option through contracts iv. Subsidized Public Housing living need, i.e., cost of medical care, with commercial insurers; and Part D is The considerations leading to housing, and food. There are certain 361 the optional Prescription Drug Plan. inclusion of high-expenditure housing- inpatient, comprehensive services In general, people over age 65 or young provided by institutions which may be related benefits, generally, including people with disabilities are eligible for subsidized public housing, are outlined covered under Medicaid or the Social Medicare 362 if the person or his or her above. Subsidized public housing is Security Act, including hospital spouse worked and paid Medicare taxes available to low-income individuals in services, Intermediate Care Facilities for for at least 10 years.363 People who did certain areas. Public housing was People with Intellectual disability (ICF/ not pay Medicare taxes, are age 65 or ‘‘established to provide decent and safe ID), Nursing Facility (NF), Preadmission older, and are U.S. citizens or lawful rental housing for eligible low-income Screening & Resident Review (PASRR), permanent residents may also be able to families, the elderly, and persons with Inpatient Psychiatric Services for buy Medicare.364 Generally, DHS does disabilities by entering into Annual Individuals Under Age 21, and Services not propose to consider all of Medicare Contributions Contracts (ACC) with for Individuals Age 65 or Older in an as part of the definition of public 357 Public Housing Agencies, which are Institution for Mental Diseases. benefits. DHS is only proposing to state-created agencies with jurisdiction Institutions are residential facilities, consider Premium and Cost Sharing and assume total care of the basic living to operate within a clearly delineated Subsidies (i.e., low-income subsidies) 368 requirements of individuals who are for Medicare Part D as part of the area.’’ Public housing may include admitted, including room and board.358 single-family houses or high-rise definition of public benefits, for the 369 Benefits provided by Medicaid for reasons stated below. apartments. HUD administers institutions may depend on the person’s ‘‘[f]ederal aid to local housing agencies The Medicare Prescription Drug, need and institutional level of care.359 (HAs) that manage the housing for low- Improvement, and Modernization Act of In general, DHS would not assume that income residents at rents they can 2003 (MMA), provides subsidies for a child or a person who is severely afford.’’ 370 HUD uses the median prescription drugs for eligible disabled or has severe medical income of the county or metropolitan individuals whose income and conditions that may need area of where the person chooses to live resources are limited.365 Beneficiaries institutionalization would be may apply for the Low-Income Subsidy to determine the income eligibility inadmissible under the public charge 371 with the Social Security Administration standards. Specially, HUD sets the ground. Instead, DHS would, in the ‘‘lower income limits at 80% and very totality of the circumstances, take into (SSA) or with their State Medicaid agency.366 The provision of a Part D low income limits at 50% of the median account the assets, resources, and income.’’ 372 financial status of the alien’s parents or 360 See Ctrs. for Medicare and Medicaid Servs., A legal guardians to determine whether Quick Look at Medicare (October 2017), available LowIncSubMedicarePresCov/Downloads/ there is sufficient income and resources at https://www.medicare.gov/Pubs/pdf/11514-A- StateLISGuidance021009.pdf. to provide for his or her care. Parents Quick-Look-at-Medicare.pdf. Medicare may also be 367 See Table 26–1 Policy, Net Budget Authority and legal guardians at the time of subsidized if he or she qualifies for both Medicare by Function, Category, and Program, available at adjudication of a petition may have and Medicaid. Medicare.gov, Are Medicare https://www.whitehouse.gov/wp-content/uploads/ Advantage Plans Subsidized?, available at https:// 2018/02/26-1-fy2019.pdf (last visited Aug. 8, 2018). sufficient sources to provide for the medicare.com/medicare-advantage/are-medicare- Expenditure amounts are net outlays unless alien in the future and may also have advantage-plans-subsidized (last visited Feb. 27, otherwise noted. See also Gene Falk et al., Cong. the ability to gather assets and resources 2018). Research Serv., R45097, Federal Spending on for the alien’s future care (i.e. long-term 361 See id. Benefits and Services for People with Low Income: 362 See HHS, Who is Eligible for Medicare?, In Brief (Feb. 6, 2018), available at https://fas.org/ care insurance). available at https://www.hhs.gov/answers/ sgp/crs/misc/R45097.pdf. iii. Premium and Cost Sharing Subsidies medicare-and-medicaid/who-is-elibible-for- 368 See U.S. Dep’t of Housing & Urban Dev., medicare/index.html (last visited Feb. 24, 2018). HUD’s Public Housing Program, available at https:// Under Medicare Part D 363 See HHS, Who is Eligible for Medicare?, www.hud.gov/topics/rental_assistance/phprog (last Like Medicaid, Medicare helps an available at https://www.hhs.gov/answers/ visited July 3, 2018). individual satisfy a basic living need, medicare-and-medicaid/who-is-elibible-for- 369 See U.S. Dep’t of Housing & Urban Dev., medicare/index.html (last visited Feb. 24, 2018). HUD’s Public Housing Program, available at https:// i.e., medical care. Medicare provides 364 See HHS, Who is Eligible for Medicare?, www.hud.gov/topics/rental_assistance/phprog (last available at https://www.hhs.gov/answers/ visited July 3, 2018). 357 See Ctrs. for Medicare & Medicaid Servs., medicare-and-medicaid/who-is-elibible-for- 370 See U.S. Dep’t of Housing & Urban Dev., Institutional Long Term Care, available at https:// medicare/index.html (last visited Feb. 24, 2018). HUD’s Public Housing Program, available at https:// www.medicaid.gov/medicaid/ltss/institutional/ 365 See Ctrs. for Medicare & Medicaid Servs., www.hud.gov/topics/rental_assistance/phprog (last index.html (last visited Feb. 26, 2018). Guidance to States on the Low Income Subsidy visited July 3, 2018). 358 See Ctrs. for Medicare & Medicaid Servs., Guidance 5 (Feb. 2009), available at https:// 371 See U.S. Dep’t of Housing & Urban Dev., Institutional Long Term Care, available at https:// www.cms.gov/Medicare/Eligibility-and-Enrollment/ HUD’s Public Housing Program, available at https:// www.medicaid.gov/medicaid/ltss/institutional/ LowIncSubMedicarePresCov/Downloads/ www.hud.gov/topics/rental_assistance/phprog (last index.html (last visited Feb. 26, 2018). StateLISGuidance021009.pdf. visited July 3, 2018). 359 See Ctrs. for Medicare & Medicaid Servs., 366 See Ctrs. for Medicare & Medicaid Servs., 372 See U.S. Dep’t of Housing & Urban Dev., Institutional Long Term Care, available at https:// Guidance to States on the Low Income Subsidy HUD’s Public Housing Program, available at https:// www.medicaid.gov/medicaid/ltss/institutional/ Guidance 5 (Feb. 2009), available at https:// www.hud.gov/topics/rental_assistance/phprog (last index.html (last visited Feb. 26, 2018). www.cms.gov/Medicare/Eligibility-and-Enrollment/ visited July 3, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51173

(e) Receipt of Public Benefits by Active result in a finding of inadmissibility welcomes comment regarding whether Duty and Reserve Servicemembers and under section 212(a)(4) when such it should expand the list of designated Their Families aliens apply for adjustment of status. public benefits in a final rule, to include DHS proposes to exclude Following consultation with DOD, specific public benefits that recipients consideration of the receipt of any DHS has concluded that such an are generally aware they receive and public benefits by active duty outcome may give rise to concerns about must opt into receipt and otherwise servicemembers, including those in the servicemembers’ immigration status or similar in nature to the benefits Ready Reserve of the U.S. Armed the immigration status of currently designated under the Forces, and their families. The United servicemembers’ spouses and children proposed rule, i.e., other benefits States Government is profoundly as defined in section 101(b) of the Act, intended to help low-income people grateful for the unparalleled sacrifices of which would reduce troop readiness meet basic living needs. Consistent with the members of our armed services and and interfere significantly with U.S. the proposal described in the section of their families. Servicemembers who, armed forces recruitment efforts. This this preamble entitled ‘‘Previously during their service, receive public exclusion is consistent with DHS’s Excluded Benefits’’, any such expansion benefits, in no way burden the public; longstanding policy of ensuring support would be prospective in nature (i.e., not indeed, their sacrifices are vital to the for our military personnel who serve effective until following publication of a public’s safety and security. The and sacrifice for our nation, and their final rule). Department of Defense (DOD) has families, as well as supporting military In addition, DHS seeks public advised DHS that many of the aliens readiness and recruitment. comments on whether an alien’s receipt Accordingly, DHS proposes to who enlist in the military are early in of benefits other than those proposed to exclude the consideration of the receipt their careers, and therefore, consistent be included in this rule as public of all benefits listed in 8 CFR 212.21(b) with statutory pay authorities, earn benefits should nonetheless be from the public charge inadmissibility relatively low salaries that are considered in the totality of determination, when received by active supplemented by certain allowances circumstances, either above the duty servicemembers, including those and tax advantages.373 Although data thresholds set forth in the proposed rule in the Ready Reserve and their spouses limitations exist, evidence suggests that for public monetizable and non- and children. Applicants that fall under as a consequence of the unique monetizable public benefits, or at some this exclusion would be required to compensation and tax structure afforded other threshold. DHS could construct a submit proof that the servicemember is by Congress to aliens enlisting for process under which it provides serving in active duty or the Ready military service, some active duty alien appropriate notice for consideration of Reserve. servicemembers, as well as their such benefits to the extent that they spouses and children, as defined in (f) Unenumerated Benefits have a bearing on the public charge inquiry, i.e., whether the alien is likely section 101(b) of the Act, may rely on The definition of the term ‘‘public SNAP 374 and other listed public in the totality of the circumstances to charge’’ would not include receipt of receive the designated public benefits benefits. As a result, the general any non-cash public benefit not listed standard proposed in this rule could above the applicable threshold(s), either under the proposed 8 CFR 212.21(b). in terms of dollar value or duration of Benefits such as Social Security 373 receipt. DHS welcomes comments and See, e.g., 37 U.S.C. 201–212, 401–439 (Basic retirement benefits, general Medicare, Pay and Allowances Other than Travel and data on this potential alternative. Transportation Allowances, respectively); Lawrence and a wide range of Veteran’s benefits Kapp, Cong. Research Serv., Defense Primer: would not be included in the definition. (g) Request for Comment Regarding the Regular Military Compensation 2 tbl.1 (Jan. 2, Similarly, the proposed definition Children’s Health Insurance Program 2018), available at https://fas.org/sgp/crs/natsec/ (CHIP) IF10532.pdf (reporting average regular military would not include social insurance compensation of $41,384 at the E–1 level in 2017, programs such as worker’s In addition to the public benefits comprised of $19,199 in average annual basic pay, compensation and non-cash benefits listed in proposed 8 CFR 212.21(b), DHS plus allowances and tax advantage); Lawrence Kapp that provide education, child et al., Cong. Research Serv., RL33446, Military Pay: is considering adding to the list of Key Questions and Answers 6–9 (2018), available at development, and employment and job included benefits. The Children’s https://fas.org/sgp/crs/natsec/RL33446.pdf training. Furthermore, DHS believes that Health Insurance Program (CHIP),375 (describing types of military compensation and exclusion of education-related benefits formerly known as the State Children’s federal tax advantages). is justifiable in the interest of Health Insurance Program (SCHIP),376 374 See U.S. Gov’t Accountability Office, GAO– 16–561, Military Personnel: DOD Needs More administrability (e.g., many such provides low-cost health coverage to Complete Data on Active-Duty Servicemembers’ benefits are received indirectly through children in families that earn too much Use of Food Assistance Programs (July 2016), schools). In sum, under this proposal, money to qualify for Medicaid but still available at https://www.gao.gov/assets/680/ any exclusively state, local or tribal 377 678474.pdf (reporting estimates ranging from 2,000 need assistance to pay for healthcare. active duty servicemembers receiving SNAP to public benefit that is not cash assistance CHIP is administered by states in 22,000 such servicemembers receiving SNAP). for income maintenance, accordance with federal requirements. Effective FY16, Congress implemented a institutionalization for long-term care at Eligibility for CHIP is based on income recommendation by the Military Compensation and government expense, or another public Retirement Modernization Commission to sunset DOD’s Family Subsistence Supplemental benefit program not specifically listed in 375 See 42 U.S.C. 1397aa to 1397mm. Allowance Program within the United States, the regulation, would not be included in 376 Beginning with the Children’s Health Puerto Rico, the U.S. Virgin Islands, and Guam; the definition of the term ‘‘public Insurance Program Reauthorization Act of 2009 SNAP reliance may have increased somewhat charge.’’ (CHIPRA), SCHIP was referred to simply as CHIP. following termination of the program. See Public Older references to SCHIP were not changed, and Law 114–92, div. A, § 602, 129 Stat. 726, 836 As noted above, the definition of any statutory or regulatory reference to one applies (2015); Military Comp. & Ret. Modernization public charge is based on DHS’s interchangeably to the other. See Public Law Comm’n, Final Report 187 (Jan. 2015) (‘‘The preference to prioritize those programs 111–3, 123 Stat. 8. [Family Subsistence Supplemental Allowance that impose the greatest cost on the 377 See HealthCare.gov, The Children’s Health Program] should be sunset in the United States, Insurance Program (CHIP), available at https:// Puerto Rico, Guam, and other U.S. territories where Federal government as well as those www.healthcare.gov/medicaid-chip/childrens- SNAP or similar programs exist, thereby reducing programs that assist an individual with health-insurance-program (last visited Feb. 23, the administrative costs of a duplicative program.’’). satisfying basic living needs. DHS 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51174 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

levels and the upper income level varies ‘‘family status,’’ ‘‘assets, resources, and DHS seeks comments and by state. According to the Centers for financial status,’’ and ‘‘education and recommendations from potentially Medicare & Medicaid Services, 46 States skills.’’ Each of these factors must be affected state, local and tribal and the District of Columbia cover taken into account in determining governments and from the public children up to or above 200 percent the whether an alien will be a charge on the generally. Federal Poverty Level (FPL), and 24 of federal taxpayer. The United States has these states offer coverage to children in separate immigration programs, such as 3. Likely at Any Time To Become a families with income at 250 percent of refugee admissions and asylum, where Public Charge the FPL or higher. States may get the aliens regardless of age and financial DHS proposes to define ‘‘likely at any CHIP enhanced match for coverage up circumstance are exempted from public time to become a public charge’’ to to 300 percent of the FPL.378 While charge inadmissibility. Alien children mean likely at any time in the future to coverage differs from state to state, all who are not asylees, refugees, or receive one or more public benefits, as states provide comprehensive coverage, otherwise exempt from the public defined in 8 CFR 212.21(b), based on the like routine check-ups, immunizations, charge ground of inadmissibility are totality of the alien’s circumstances. doctor visits, and prescriptions. The subject to it, just as adult aliens are. program is funded jointly by states and However, because the public charge Under this proposed definition, DHS the federal government.379 inadmissibility determination is a would find an alien inadmissible as a As noted in Table 10, the Federal prospective determination in the totality public charge if DHS finds the alien is government expends significant of the circumstances, the circumstances likely at any time in the future to resources on CHIP.380 CHIP imposes a surrounding an alien’s receipt of public receive one or more public benefits, as significant expense upon multiple levels benefits as a child, including the age at defined in 8 CFR 212.21(b), in an of government, and because these which such benefits were received, are amount or for a duration exceeding the benefits relate to a basic living need (i.e., a relevant consideration. For instance, thresholds described above. medical care), receipt of these benefits as alien children approach or reach DHS proposes to distinguish between suggests a lack of self-sufficiency. At the adulthood, they may age out of an alien who is a public charge based on same time, DHS recognizes that this eligibility for certain benefits, choose to current receipt of public benefits and an program does not involve the same level disenroll from such benefits (for which alien who is likely to become a public of expenditure as most of the other their parents may have enrolled them), charge at any time in the future. This programs listed in this proposed rule, or modify their chances of becoming distinction is consistent with the and that noncitizen participation in self-sufficient depending upon whether prospective nature of the statute. DHS these programs is currently relatively they acquire education and skills, understands that its proposed definition low.381 secure employment, and accumulate of public charge may suggest that DHS DHS is nonetheless considering assets and resources. Therefore, DHS would automatically find an alien who including this program in a final rule, seeks public comment on the best is currently receiving public benefits, as because the total Federal expenditure mechanism to administer public charge defined in this proposed rule, to be for the program remains significant, and inadmissibility determinations for those inadmissible as likely to become a because it does provide for basic living aliens who receive benefits while under public charge. But DHS does not needs (i.e., medical care), similar to the age of majority (frequently 18) or propose to establish a per se policy Medicaid (elements of which are while still children under section 101(b) whereby an alien is likely at any time included on the proposed list of public of the INA, 8 U.S.C. 1101(b). DHS is to become a public charge if the alien benefits). DHS specifically requests particularly interested in views and data is receiving public benefits at the time public comments on whether to include that would inform whether and to what of the application for a visa, admission, CHIP in the final rule. extent DHS should weigh past or or adjustment of status. Under the current receipt of benefits by such an (h) Request for Comment Regarding ‘‘likely at any time to become a public alien in the totality of the circumstances Public Benefit Receipt by Certain Alien charge’’ definition, an alien who is as a potential indicator of likely future Children currently receiving public benefits is not receipt of public benefits. necessarily inadmissible, because The language of the public charge (i) Request for Comment Regarding current receipt of public benefits does statute under section 212(a)(4)(B)(i) of not automatically mean that the alien is the Act states that an alien’s ‘‘age’’ shall Potential Modifications by Public Benefit Granting Agencies likely to receive public benefits at any be one of several minimum enumerated time in the future. considerations in a public charge DHS recognizes that as a result of a determination, alongside ‘‘health,’’ future final rule, some benefit-granting As discussed above and explained agencies may decide to modify further below, receiving public benefits 378 See Medicaid.gov, Eligibility, available at enrollment processes and program by itself does not establish that an alien https://www.medicaid.gov/chip/eligibility- documentation for designated benefits is likely to become a public charge; standards/index.html (last visited Feb. 23, 2018). programs. For instance, agencies may rather, as set forth in the statute, a 379 See Benefits.gov, State Children’s Health public charge inadmissibility Insurance Program, available at https:// choose to advise potential beneficiaries www.benefits.gov/benefits/benefit-details/607 (last of the potential immigration determination requires a determination visited July 11, 2018). consequences of receiving certain public predicated on an opinion as to the 380 DHS would not consider services or benefits benefits. DHS requests public comments likelihood of future events.382 funded by CHIP but provided under the Individuals regarding such potential modifications, Accordingly, as set forth in proposed 8 with Disabilities Education Act (IDEA), 20 U.S.C. 1400–1482, nor would DHS consider school-based including information regarding how CFR 212.21, DHS proposes that an alien services provided to children who are at or below long it would take to make such who is currently receiving public the oldest age of children eligible for secondary modifications, and the resources benefits is not necessarily inadmissible, education as determined under State law. required to make such modifications. because such current receipt of public 381 An analysis of Wave 13 of the 2008 Panel of benefits does not necessarily mean that the Survey of Income and Program Participation DHS may use this information to (SIPP) suggests that 0.7 percent of noncitizens determine the appropriate effective date reported receiving CHIP benefits. for a final rule, among other purposes. 382 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51175

the alien will continue to receive public • The alien’s other children, as required to provide at least 50 percent benefits at any time in the future. defined in section 101(b)(1) of the Act, of financial support to the alien as 8 U.S.C. 1101(b)(1), not physically evidenced by a child support order or 4. Household residing with the alien for whom the agreement, a custody order or For purposes of public charge alien provides or is required to provide agreement, or any other order or inadmissibility determinations under at least 50 percent of financial support, agreement specifying the amount of section 212(a)(4) of the Act, 8 U.S.C. as evidenced by a child support order or financial support to be provided by the 1182(a)(4), DHS proposes to consider agreement, a custody order or alien; the alien’s household size as part of the agreement, or any other order or • The parents’ or legal guardians’ family status factor, as well as the agreement specifying the amount of other children, as defined in section assets, resources, and financial status financial support to be provided to the 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1), factor. The number of people in the alien; physically residing with the alien; alien’s household has an effect on the • Any other individuals (including a • The parents’ or legal guardians’ alien’s assets and resources, and in spouse not physically residing with the other children, as defined in section many cases may influence the alien) to whom the alien provides, or is 101(b)(1) of the Act, 8 U.S.C. 1101(b)(1), likelihood that an alien will become a required to provide, at least 50 percent not physically residing with the alien public charge. Household size would be of the individual’s financial support, or for whom the parent or legal guardian used to determine whether the alien’s who are listed as a dependent on the provides or is required to provide at household income is at least 125 alien’s federal income tax return; and least 50 percent of the other children’s percent of the FPG in the public charge • Any individual who provides to the financial support, as evidenced by a inadmissibility determination, because alien at least 50 percent of the alien’s child support order or agreement, a the alien is either a head of household financial support, or who lists the alien custody order or agreement, or any other who has responsibilities to the as a dependent on his or her federal order or agreement specifying the household or is a member of a income tax return. amount of financial support to be household who is supported by other Thus, for example, the applicant’s provided by the parents or legal members of the household beyond the household size would include the guardians; and sponsor. DHS notes that while the applicant, her children, and her parents, • Any other individuals to whom the number of children, including U.S. if: alien’s parents or legal guardians citizen children, may count towards an • The applicant is an unmarried 23 provide or are required to provide at alien’s household size for purposes of year-old applicant for adjustment of least at least 50 percent of the determining inadmissibility on the status; individuals’ financial support, or who public charge ground, the direct receipt • The applicant lives with two are listed as a dependent on the parents’ of public benefits by those children children and her parents, who provide or legal guardians’ federal income tax would not factor into the public charge 53 percent of financial support to the return. inadmissibility determination. applicant; and As discussed in greater detail below, • For example, if a five year old is The applicant has no other applying for adjustment of status, the in developing the proposed definition of individuals for whom she provides or is an alien’s household, DHS reviewed the applicant’s household would include required to provide (or from whom she the applicant, the applicant’s mother individuals that public benefit granting receives) financial support or who list agencies include as part of a household and father, the applicant’s two siblings, her on their tax return. and the applicant’s maternal and/or as dependents in determining DHS would consider the income, assets, eligibility for a public benefit, as well as grandparents, if: and resources of all of these household • The applicant lives with his how USCIS determines household size members (total of 5) in determining and income in the affidavit of support mother, father, and two siblings and has whether the applicant has income at or no other siblings; context. The individuals identified as above 125 percent of the FPG. part of the alien’s household are • The mother and father provide 52 intended to include individuals who are Second, if the alien is a child as percent of the financial support to the financially interdependent with the defined in section 101(b)(1) of the Act, mother’s parents (i.e., the alien’s alien, either legally or otherwise. 8 U.S.C. 1101(b)(1), the alien’s maternal grandparents) and do not and household would include: are not required to provide financial (a) Definition of Household in Public • The alien; support to anyone else; • Charge Inadmissibility Context The alien’s children, as defined in • Nobody else provides financial DHS proposes to define an alien’s section 101(b)(1) of the Act, 8 U.S.C. support to the applicant; household for the purposes of making a 1101(b)(1), physically residing with the • Neither the mother or the father public charge inadmissibility alien; • have any other children and have no determination as follows. First, if the The alien’s other children, as other dependents listed on their tax alien is 21 years of age or older, or defined in section 101(b)(1) of the Act, return; and under the age of 21 and married, and 8 U.S.C. 1101(b)(1), not physically • The mother and father do not therefore not a child as defined in residing with the alien, for whom the receive financial support from anyone section 101(b)(1) of the Act, 8 U.S.C. alien provides or is required to provide else. 1101(b)(1), the alien’s household would at least 50 percent of the children’s DHS would consider the income of all include: financial support, as evidenced by a • The alien; child support order or agreement, a of the above individuals in determining • The alien’s spouse, if physically custody order or agreement, or any other whether the alien can meet 125 percent residing with the alien; order or agreement specifying the of the FPG. • The alien’s children, as defined in amount of financial support to be As another example, if an 18 year old section 101(b)(1) of the Act, 8 U.S.C. provided by the alien; is applying for adjustment of status, the 1101(b)(1), physically residing with the • The alien’s parents, legal guardians, alien’s household would only include alien; or any other individuals providing or the alien and the alien’s daughter, if:

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51176 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

• The 18 year old lives in her own sufficient assets and resources in the addition, the DHS definition focuses on apartment with only her 1 year old context of a public charge both individuals living in the alien’s daughter; determination. home, as well as individuals not living • The applicant has no other children The U.S. Department of Housing and in the alien’s home but for whom the or siblings; Urban Development (HUD), per the alien and/or the alien’s parent(s)/legal • The applicant does not receive any 1937 Act, uses the term ‘‘families’’ 384 guardian(s) is providing or is required to financial support from his or her parents which includes: (i) Single persons in the provide at least 50 percent of financial or any other individual and has no legal case of an elderly person, a disabled support. guardian; The IRS defines ‘‘dependent’’ to • person, a displaced person, the No individuals are required to remaining member of a tenant family, include a qualifying child (which has a provide the applicant with any financial and any other single persons; or (ii) 5-part test), or a qualifying relative support; and families with children and in the cases (which has a 4-part test).389 These tests • The applicant’s parents and the of elderly families, near-elderly families, generally include some type of applicant do not provide and are not and disabled families respectively.385 relationship to the person filing required to provide any support to The U.S. Housing Act of 1937 (The 1937 (including step and foster children and anyone else and list no one else as a Act) 386 requires that dwelling units their children) whether or not the dependent on their federal income tax assisted under it must be rented only to dependent is living with the person returns. families who are low-income 387 at the filing and the amount of support being The proposed household definition time of their initial occupancy. Section provided by the person filing (over 50 would not include any person employed 3 of the 1937 Act also defines income percent).390 In general, the dependent by the household who is living in the as income from all sources of each must also be a U.S. citizen or lawful home, such as a nanny, or an individual member of the household, excluding permanent resident in order to qualify who is renting a part of the home from earned income of minors, as determined as a dependent for tax purposes.391 one of the household members, or a by the Secretary. Beyond the statutory Because the IRS definition of landlord, unless such individual framework defining families, and as ‘‘dependent’’ would generally exclude otherwise meets one of the enumerated provided by the 1937 Act, HUD allows alien dependents and the DHS criteria. public housing agencies the discretion definition would not, DHS’s proposed (b) Definitions of ‘‘Household’’ and to determine particularities related to definition of household results in a Similar Concepts in Other Public family composition, as determined larger number of people being captured Benefits Contexts under each public housing agency’s than if DHS simply tracked the IRS’s The poverty guidelines do not define plan. definition of ‘‘dependent.’’ DHS also who should be considered part of the While DHS’s proposed definition does proposes to consider those individuals household, and different agencies and not precisely track HUD’s definition, it who are supported by the alien and are programs have different would encompass many of the themselves aliens, or those who may be contributing to the alien’s income, in requirements.383 Public benefit granting individuals identified in the HUD order to determine whether the alien’s agencies generally consider an definition including spouses and 388 financial resources are sufficient to applicant’s income for purposes of children as defined under the Act. In support the alien and other members of public benefit eligibility and either use 384 See U.S. Dep’t of Hous. & Urban Dev., the alien’s household. For example, if the household size or family size to Occupancy Handbook ch. 3 (June 2007), available an alien is living with a younger sibling determine the income threshold needed _ at https://www.hud.gov/sites/documents/DOC who is attending school and providing to qualify for a public benefit. Each 35645.PDF. 385 51 percent or more financial support for federal program or State determines the The term includes in cases of elderly, near- the younger sibling, that sibling is a part general eligibility requirements needed elderly, and disabled families, 2 or more elderly persons, near-elderly persons, or persons with of the alien’s household, even though to qualify for the public benefits and disabilities living together, and 2 or more such the younger sibling may be earning how to define whose income is included persons living with 1 or more persons determined some wages from a part-time job. for purposes of determining income under the public housing agency plan to be Similarly, if the alien has an older based eligibility thresholds. For essential to their care of well-being. See U.S. Dep’t of Hous. & Urban Dev., Occupancy Handbook ch. sibling who is providing 51 percent of example, SNAP uses the term 3 (June 2007), available at https://www.hud.gov/ support to the alien, that older sibling ‘‘household’’ and includes everyone sites/documents/DOC_35645.PDF. HUD also makes would also be included in the alien’s who lives together and purchases and their income determination based on Median household and his/her income counted prepares meals together. DHS is not Family Income estimates and Fair Market Rent area definitions for each metropolitan area, parts of some toward the requisite income threshold proposing to incorporate the SNAP metropolitan areas, and each non-metropolitan along with any income earned by the definition because an alien or an county. See U.S. Dep’t of Hous. & Urban Dev., alien. DHS’s definition would adopt the individual who is financially Office of Policy Dev. & Research, Income Limits, IRS consideration of the amount of responsible for the alien’s support may available at https://www.huduser.gov/portal/ datasets/il.html (last visited June 14, 2018). The support being provided to the not have the legal responsibility to 1937 Act also provides that the temporary absence individuals (50 percent) as the threshold support each person living in the home. of a child from the home due to placement in foster for considering as an individual as part Instead, the proposed DHS definition care shall not be considered in determining family would take into account individuals for composition and family size. 386 See ch. 896, 50 Stat. 888 (codified as amended the age of 18 if natural siblings of another adopted whom the alien or the alien’s parent(s) at 42 U.S.C. 1437 to 1437zz–10). child. or legal guardian(s) or other individual 387 Section 3 of the 1937 Act defines ‘‘low-income 389 See 26 U.S.C. 152; see also IRS Publication is providing at least 50 percent of families’’ as those families whose incomes do not 501 (Jan 2, 2018), available at https://www.irs.gov/ financial support because such exceed 80 percent of the median income for the pub/irs-pdf/p501.pdf. expenditure would have significant area, as determined by the Secretary. 390 See IRS Publication 501 (Jan 2, 2018), 388 The definition of child in INA section 101(b), available at https://www.irs.gov/pub/irs-pdf/ bearing on whether the alien has 8 U.S.C. 1101(b), generally includes unmarried p501.pdf. persons under 21 years of age who are born in or 391 See IRS Publication 501 (Jan 2, 2018), 383 See Annual Update of the HHS Poverty out of wedlock, stepchildren, legitimated children, available at https://www.irs.gov/pub/irs-pdf/ Guidelines, 83 FR 2642 (Jan. 18, 2018). adopted children if adopted under the age of 16 or p501.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51177

of the household in the public charge • The sponsor’s spouse; 1101(b)(1), is filing for adjustment of determination, rather than consider any • All of the sponsor’s children as status as the child of a U.S. citizen or support being provided.392 defined in 101(b)(1) of the Act, 8 U.S.C. lawful permanent resident, the affidavit DHS believes that the ‘‘at least 50 1101(b)(1), (including a stepchild who of support sponsor would also be the percent of financial support’’ threshold meets the requirements of 101(b)(1)(b) of parent. Because the parent is part of the as used by the IRS is reasonable to apply the Act, 8 U.S.C. 1101(b)(1), unless the household, the parent’s income would to the determination of who belongs in stepchild does not reside with the be included as part of the household an alien’s household, without regard to sponsor, is not claimed by the sponsor income.398 The parent’s income would whether these individuals physically as a dependent for tax purposes, and is be reviewed as part of the assets, reside in the alien’s home. This would not seeking to immigrate based on the resources, and financial status factor include those individuals the alien may stepparent/stepchild relationship), based on the total household size. not have a legal responsibility to except those children that have reached However, for example, if there is a co- support but may nonetheless be the age of majority or are emancipated sponsor, who is the alien’s cousin and supporting. For example, this may under the law of the person’s domicile who is not physically residing with the include a parent, legal guardian, sibling, and are not claimed as dependents on alien, then the cousin would not be or a grandparent living with the alien, the sponsor’s most recent tax return; counted as part of the household and • or an adult child, sibling, or any other Any other persons (whether related his or her income would not be adult who the alien may be supporting to the sponsor or not) whom the sponsor included as part of the assets, resources or required to support or who has claimed as dependents on the or financial status unless the sponsor is contributes to the alien’s financial sponsor’s federal income tax return for already contributing 50 percent or more support. the most recent tax year, even if such of the alien’s financial support. persons do not have the same principal In addition, if the sponsor is a (c) Definitions of Household and Similar residence as the sponsor; member of the alien’s household and Concepts in Other Immigration Contexts • Any aliens the sponsor has included in the calculation of the 125 DHS also considered how household sponsored under any other affidavit of percent of the FPG, DHS would only size is determined in the affidavit of support for whom the sponsor’s support count the sponsor’s income once for support context. There, USCIS defines obligation has not terminated; and purposes of determining the alien’s total • the terms ‘‘household income’’ and If the sponsor elects, any siblings, household assets and resources. A ‘‘household size.’’ 393 ‘‘Household parents, and/or adult children who have sponsor’s income as reported on the income’’ is used to determine whether the same principal residence as the affidavit of support would be added to a sponsor meets the minimum income sponsor, and have combined their the income of the other members of the requirements based on the FPG.394 The income with the sponsor’s income by alien’s household. The sponsor’s 397 affidavit of support household income submitting Form I–864A. income that is added to the alien’s total generally includes the income of: The affidavit of support is part of the household assets and resources would • The sponsor; public charge determination in that an not be increased because the sponsor • The sponsor’s spouse; alien who is required to submit an also submitted an affidavit of support • Any other person included in affidavit of support pursuant to sections promising to support the alien at least determining the sponsor’s household 212(a)(4)(C) and (D) of the Actbut does 125 percent of the FPG for the sponsor’s size who must also be over the age of not submit a sufficient affidavit of household size. For example, assuming 18 and must have signed the additional support is de facto deemed to be the alien and sponsor’s household sizes household member contract through the inadmissible as likely to become a are the same, if the sponsor’s total Form I–864A; and public charge. In addition, because the income reported on the affidavit of • The intending immigrant only if he affidavit of support serves as an support is 250 percent of the FPG for the or she either is the sponsor’s spouse or agreement that the sponsor will use his household size, that income would be has the same principal residence as the or her resources to support the alien if added to the alien’s assets and sponsor and certain additional necessary, DHS is proposing to consider resources; the alien’s total household criteria.395 the affidavit of support in the totality of income would then be at least 250 Also, in the affidavit of support context, the circumstances when determining percent of the FPG, which constitutes a whether the alien is likely at any time the ‘‘household size’’ is generally heavily weighed positive factor. to become a public charge. However, the defined as the total number of people As discussed above, in proposing this proposed definition of household in this including: definition of household, DHS aims to rule does not specifically include or account for both (1) the persons whom • The sponsor; exclude the sponsor and the sponsor’s the alien is supporting and (2) those • The intending immigrant(s) being household. Rather, DHS is only persons who are contributing to the sponsored on the Form I–864; 396 including those persons who rely upon household, and thus the alien’s assets or contribute to the alien’s asserts and and resources. DHS believes that an 392 See Internal Revenue Serv., Dependency resources. Therefore, if the sponsor is Exemptions, available at https://apps.irs.gov/app/ alien’s ability to support a household is vita/content/globalmedia/4491_dependency_ already providing 50 percent or more of relevant to DHS’s consideration of the exemptions.pdf (last visited Aug. 10, 2018); see also financial support to the alien, the alien’s assets, resources, financial status, Internal Revenue Serv., Table 2: Dependency sponsor would be included in the and family status. DHS recognizes that Exemption for Qualifying Relative, available at proposed definition of household. For https://apps.irs.gov/app/vita/content/globalmedia/ household circumstances can vary and table_2_dependency_exemption_relative_4012.pdf example, when a child, as defined in expects the proposed definition could in (last visited Aug. 10, 2018). section 101(b) of the Act, 8 U.S.C. certain circumstances be over- or under- 393 See 8 CFR 213a.1. inclusive. DHS welcomes public 394 See INA section 213A, 8 U.S.C. 1183a. is not seeking to immigrate at the same time as, or comments on who should be counted as 395 See 8 CFR 213a.1. will not seek to immigrate within six months of the 396 If a child, as defined in INA section 101(b)(1), principal intending immigrant’s immigration, the members of a household, and whose 8 U.S.C. 1101(b)(1), or spouse of the principal sponsor may exclude that child or spouse in intending immigrant is an alien who does not calculating the sponsor’s household size. 398 See INA section 213A(3)(f), 8 U.S.C. currently reside in the United States and who either 397 See 8 CFR 213a.1, 213a.2(c)(2)(i)(C)(1). 1183a(3)(f).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51178 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

income, assets and resources should be DHS would, as required by the statute, an alien is likely to become a public reviewed in the totality of the assess whether the alien is likely to charge.409 circumstances when USCIS makes a become a public charge and not whether DHS’s proposed totality of the public charge inadmissibility the alien is currently a public charge. circumstances standard would involve determination. While past or current receipt of public weighing all the positive and negative considerations related to an alien’s age; C. Public Charge Inadmissibility benefits may make an alien, at present, health; family status; assets, resources, Determination a public charge, the past or current receipt of public benefits, alone, is and financial status; education and DHS proposes codifying the public insufficient to sustain a finding that an skills; required affidavit of support; and charge inadmissibility determination as alien is likely to become a public charge any other factor or circumstance that a prospective determination based on at any point in the future.405 Other than may warrant consideration in the public the totality of an alien’s circumstances an absent or insufficient required charge inadmissibility determination.410 at the time of adjudication. As provided affidavit of support,406 no single factor If the negative factors outweigh the by statute, if an alien is required to or circumstance that Congress mandated positive factors, then the alien would be provide an affidavit of support and the DHS to consider, or which DHS may found to be inadmissible as likely to affidavit is insufficient, the alien will be otherwise determine to consider, would become a public charge; if the positive found inadmissible based on public determine the outcome of a public factors outweigh the negative factors, charge regardless of any other evidence then the alien would not be found 399 charge inadmissibility determination. the alien may submit. inadmissible as likely to become a Consistent with the statute, DHS public charge. 1. Absence of a Required Affidavit of proposes to codify the totality of the Support 407 The proposed totality of the circumstances standard, as follows: circumstances approach is also Section 212(a)(4) of the Act, 8 U.S.C. An alien’s age; health; family status; consistent with the body of 1182(a)(4), permits DHS to consider any assets, resources, and financial status; administrative case law that has submitted affidavit of support under and education and skills. In the developed over the past 50 years, which 213A of the Act, 8 U.S.C. 1183a, in Government’s discretion, the generally directs the agency to public charge inadmissibility determination can also account for an ‘‘consider[ ] all the factors bearing on determinations. The absence of a affidavit of support filed under section the alien’s ability or potential ability to statutorily required affidavit of support 213A of the Act, 8 U.S.C. 1183a. Courts be self-supporting ....’’411 On the under section 213A of the Act, 8 U.S.C. previously considered similar factors whole, this case law strongly supports 1183a, conclusively establishes an when evaluating the likelihood of an the forward-looking totality of the alien’s inadmissibility on public charge 408 alien to become a public charge. INS, circumstances approach, considering grounds.400 Family-sponsored the Board, and DHS have consistently the following factors, where no one immigrants and employment-based reviewed the totality of the factor is outcome-determinative: immigrants petitioned by a relative (or circumstances in determining whether • The ability of the alien to earn a by an entity in which a relative has a living, as evidenced or impacted by the significant ownership interest) are employment, and friends or relatives in the United alien’s age, health, work history, current subject to such a requirement.401 Other States willing and able to provide assistance); see also Field Guidance on Deportability and employment status, future employment than failure to submit an affidavit of prospects, and skills; support when required under section Inadmissibility on Public Charge Grounds, 64 FR 28689, 28689–93 (May, 26 1999) (in addition to the • The sufficiency of the alien’s funds 213A of the Act, 8 U.S.C. 1183a, DHS statutory factors, the public charge inadmissibility for self-support; would not make a public charge analysis also includes consideration of the alien’s • The obligation and sufficiency of current and past receipt of cash public assistance determination based on any single sponsorship to assure that the alien will 402 for income maintenance, repayment of cash public factor. assistance, current or past institutionalization for not need public support; and 2. Prospective Determination Based on long-term care at government expense, specific • The ability of the alien to remedy circumstances ‘‘reasonably tending to show that the any current dependence on public Totality of Circumstances burden of supporting the alien is likely to be cast benefits in the United States, as As noted above, section 212(a)(4) of on the public,’’ and whether the alien has a sponsor evidenced or impacted by the alien’s the Act, 8 U.S.C. 1182(a)(4), uses the who is willing and able to assist). 405 See Matter of Perez, 15 I&N Dec. 136, 137 (BIA age, health, ability to earn a living, words ‘‘likely at any time.’’ 403 DHS’s 1974) (‘‘The fact that an alien has been on welfare funds, and sponsorship.412 review is predictive: An assessment of does not, by itself, establish that he or she is likely To illustrate, in Matter of Martinez- an alien’s likelihood at any time in the to become a public charge.’’). Lopez,413 rather than concluding that future to become a public charge.404 406 See INA section 213A, 8 U.S.C. 1183a. 407 See proposed 8 CFR 212.22. the respondent was likely to become a 408 public charge based solely on the fact 399 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). See, e.g., Matter of Perez, 15 I&N Dec. 136, 137 (BIA 1974); see also Zambrano v. INS, 972 F.2d 400 See INA section 212(a)(4)(C), 8 U.S.C. that the respondent had no job offer in 1122 (9th Cir. 1992), vacated on other grounds, 509 1182(a)(4)(C); 8 CFR 213a.2. U.S. 918 (1993); Matter of Martinez-Lopez, 10 I&N 401 409 See Matter of A—,19 I&N Dec. 867, 869 See INA sections 212(a)(4) and 213A, 8 U.S.C. Dec. 409, 421–22 (Att’y Gen. 1964) (in determining (Comm’r 1988) (citing Matter of Perez, 15 I&N Dec. 1182(a)(4), 1183a. whether a person is likely to become a public 402 136, 137 (BIA 1974)). See generally Matter of Martinez-Lopez, 10 charge, factors to consider include age, health and 410 I&N Dec. 409, 421–22 (Att’y Gen. 1964). physical condition, physical or mental defects See proposed 8 CFR 212.22. 403 The ‘‘likely’’ language in the public charge which might affect earning capacity, vocation, past 411 See Matter of Vindman 16 I&N Dec. 131, 132 inadmissibility provision also appeared in the record of employment, current employment, offer of (Reg’l Comm’r 1977). initial codification in the INA of 1952. See ch. 477, employment, number of dependents, existing 412 DHS derived this framework from its analysis 66 Stat. 163, 183. conditions in the United States, sufficient funds or of the statements and findings in Matter of 404 See Matter of Perez, 15 I&N Dec. 136, 137 (BIA assurances of support by relatives or friends in the Martinez-Lopez, 10 I&N Dec. 409 (Att’y Gen. 1964), 1974) (concluding that the determination of United States, bond or undertaking, or any ‘‘specific Matter of Harutunian 14 I&N Dec. 583 (Reg’l whether an alien is likely to become a public charge circumstance . . . reasonably tending to show that Comm’r 1974), Matter of Perez 15 I&N Dec. 136 requires consideration of the totality of the burden of supporting the alien is likely to be (BIA 1974), Matter of Vindman 16 I&N Dec. 131 circumstances, including specific circumstances cast on the public’’); Field Guidance on (Reg’l Comm’r 1977), and Matter of A—, 19 I&N such as mental or physical disability, health, age, Deportability and Inadmissibility on Public Charge Dec. 867 (Comm’r 1988). current reliance on welfare benefits, capacity to find Grounds, 64 FR 28689 (May 26, 1999). 413 See 10 I&N Dec. 409 (Att’y Gen. 1964).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51179

the United States, the Attorney General they presented no prospect of future factors and circumstances outweigh the considered the respondent’s future employment.423 specific positive factors and ability to earn a living based on his 10- DHS proposes that certain factors and circumstances in an alien’s case year work history in the United States, circumstances would generally carry indicating that the alien is more likely his age, and his health.414 The Attorney heavy weight, as discussed below. The than not to receive public benefits as General also considered the fact that the weight given to an individual factor not described in 8 CFR 212.21(b), at any respondent had a brother and other designated as carrying heavy weight time in the future, then DHS would close family members who could would depend on the particular facts conclude that the applicant is likely to 425 provide financial support.415 In Matter and circumstances of each case and the become a public charge. relationship of the factor to other factors of Perez,416 the Board made clear that D. Age in the analysis. Some facts and the respondent’s past and current circumstances may be positive while An alien’s age is a mandatory factor receipt of welfare was not determinative other facts and circumstances may be that must be considered when as to whether she was likely to become negative. Any factor or circumstance determining whether an alien is likely a public charge in the future, instead that decreases the likelihood of an to become a public charge in the looking to the totality of her applicant becoming a public charge is future.426 As discussed below, a circumstances, including her age, positive; any factor or circumstance that person’s age may impact his or her health, ability to find employment in increases the likelihood of an applicant ability to legally or physically work and the future, and the availability of family becoming a public charge is negative. is therefore relevant to being self- support.417 In Matter of A—,418 Multiple factors operating together may sufficient, and the likelihood of although the respondent and her be weighed more heavily since those becoming a public charge. Accordingly, husband had been unemployed for the factors in tandem may show that the DHS proposes to consider the alien’s age 4 years prior to the filing of her alien is already a public charge or is or primarily in relation to employment or application for temporary resident is not likely to become one. employability, and secondarily to other status, the INS Commissioner held that For example, an alien’s assets, the respondent was not likely to become resources, and financial status together 425 As explained, the proposed public charge would frequently carry considerable policy is consistent with the totality of the a public charge ‘‘due to her age and circumstances approach undertaken by the former ability to earn a living,’’ as shown by her positive weight, because they are the INS Commissioner in Matter of A—. We recognize recent employment among other most tangible factors to consider in the Commissioner, in that decision, cited an earlier factors.419 public charge determinations. An alien’s decision of the Attorney General for the proposition assets, resources, and financial status that ‘‘[a] healthy person in the prime of life cannot ordinarily be considered likely to become a public An INS Regional Commissioner took examined together may show that the a similar totality of the circumstances charge, especially where he has friends or relatives alien is not likely to be a public charge in the United States who have indicated their 420 approach in Matter of Harutunian despite concerns about the alien’s age, ability and willingness to come to his assistance in and determined that the respondent in education, skills, and health. At the case of emergency.’’ 19 I&N Dec. 867, 869 (Comm’r that case was inadmissible as likely to 1988) (quoting Matter of Martinez-Lopez, 10 I&N same time, an alien’s assets, resources, Dec. 409, 421–22 (Att’y Gen. 1964)). In Matter of become a public charge because the and financial status examined together A— and Matter of Martinez-Lopez, the INS respondent lacked the means to support may be so limited that a finding that the Commissioner and the Attorney General, herself, the ability to earn a living, and alien is not likely to become a public respectively, implicitly acknowledge that, although the presence of a sponsor to assure that individuals in the prime of life will not ordinarily charge would have to be based on become public charges, they certainly may; 421 she would not need public support. positive attributes associated with the otherwise, it would have been pointless to assert Furthermore, the alien was increasingly alien’s education, skills, health, family that what ordinarily is the case is especially true in likely to become dependent, disabled, status, age, or sponsorship. certain instances. See Matter of A—, 19 I&N Dec. 867, 869 (Comm’r 1988) (acknowledging that ‘‘all and sick because of her older age, and Ultimately, DHS recognizes that, as factors should be considered in their totality’’ in accordingly was expected to become the Attorney General has noted, ‘‘the determining whether an individual is likely to dependent on old-age assistance for statute requires more than a showing of become a public charge). Accordingly, adverse support.422 Similarly, an INS Regional a possibility that the alien will require factors particular to a given circumstance may counterbalance what otherwise is ordinarily true in Commissioner, in Matter of Vindman, public support. Some specific a vacuum, such that aliens may still be found held that a husband and wife were circumstance, such as mental or inadmissible under INA section 212(a)(4), 8 U.S.C. inadmissible as likely to become public physical disability, advanced age, or 1182(a)(4) notwithstanding their being ‘‘in the other fact reasonably tending to show prime of life.’’ Also consistent with those decisions, charges, because they had been which instruct that additional positive weight receiving public benefits for that the burden of supporting the alien should be afforded where friends or relatives in the approximately three years, they were is likely to be cast on the public, must United States are willing and able to assist in 424 unemployed in the United States, and be present.’’ Indeed, if DHS finds emergencies, DHS would give positive weight to a that the specific positive factors and Form I–864, Affidavit of Support, that satisfies circumstances outweigh the specific statutory and regulatory requirements and to 414 See 10 I&N Dec. 409, 422–23 (Att’y Gen. 1964). income and resources of certain household 415 See 10 I&N Dec. 409, 423 (Att’y Gen. 1964). negative factors and circumstances in an members, although the filing of the Form I–864 and 416 15 I&N Dec. 136 (BIA 1974). alien’s case, indicating that the alien is shared resources likewise would not be determinative. To the extent this proposed rule may 417 15 I&N Dec. 136, 137 (BIA 1974). less likely than not to receive one or be viewed as inconsistent with Matter of A—, 418 19 I&N Dec. 867 (Comm’r 1988). DHS notes, more public benefits at any time in the however, including because the scope of the public however, that this case involves the special public future as described in 8 CFR 212.21(b), benefits covered by this proposed rule is broader charge rule applicable only to applications under then DHS would conclude that the alien than under the longstanding administration of the INA section 245A, 8 U.S.C. 1255a. is not likely to become a public charge. public charge ground, and the threshold for being 419 See 19 I&N Dec. 867, 870 (Comm’r 1988). considered a public charge under the definition of 420 Matter of Harutunian 14 I&N Dec. 583 (Reg’l If DHS finds that the specific negative that term in this proposed rule is lower than it has Comm’r 1974). been for at least the past two decades, that decision 421 See 14 I&N Dec. 583, 589–90 (Reg’l Comm’r 423 See Matter of Vindman, 16 I&N Dec. 131, 132 would be superseded if this rule is finalized as 1974). (Reg’l Comm’r 1977). drafted. 422 See 14 I&N Dec. 583, 589–90 (Reg’l Comm’r 424 Matter of Martinez-Lopez, 10 I&N Dec. 409, 426 See INA section 212(a)(4)(B), 8 U.S.C. 1974). 421 (Att’y Gen. 1964). 1182(a)(4)(B).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51180 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

factors as relevant to determining may work up to the age of 18.430 11.1 percent of persons aged 18 and whether someone is likely to become a Further, most States require children to over (27,363,000) lived below the public charge. attend school until a certain age, poverty level in 2016.435 The U.S. 431 Specifically, DHS proposes to assess generally until the ages of 16 or 18. Census Bureau also reported that whether the alien is between 18 and the DHS notes that the Fair Labor Standards persons under the age of 18 were more minimum ‘‘early retirement age’’ for Act provides for certain exemptions for likely to receive means-tested benefits 432 436 social security purposes (see 42 U.S.C. children under 16 to work, and than all other age groups. 416(l)(2)) (61 as of 2017), and whether children may be otherwise able to work. Similarly, studies show a relationship At the other end of the age range, the alien’s age otherwise makes the between advanced age and receipt of retirement is the age at which a person public benefits. DHS’s analysis of SIPP alien more or less likely to become a may begin receiving retirement benefits public charge, such as by impacting the data in Tables 14 and 15 shows from Social Security.433 The minimum noncitizens age 62 and older were more alien’s ability to work. DHS would age for retirement for purposes of Social consider a person’s age between 18 and likely to receive cash and non-cash Security is generally 62.434 People who benefits than U.S. citizens in the same 61 as a positive factor in the totality of are at the minimum retirement age may the circumstances, and consider a age group. Of noncitizens age 62 and stop working and start receiving older, 11.8 percent received SSI, TANF, person’s age under 18 or over 61 to be retirement benefits such as Social or GA in 2013 compared to 4.5 percent a negative factor in the totality of the Security. If a person does have access to of U.S. citizens age 62 and older. The circumstances when determining the Social Security benefits or a retirement rate of receipt of either cash or non-cash likelihood of becoming a public charge. pension, he or she may not need public benefits was about 40 percent among However, DHS acknowledges that benefits for income maintenance or U.S. citizens and noncitizens age 0 to people under the age of 18 and over the other benefits to be self-sufficient as the 17. Among noncitizens, the receipt of age of 61 may be working or have income from Social Security or the non-cash benefits was much lower adequate means of support, and would pension may suffice. among individuals between age 18 and recognize such means as positive Other age-related considerations may 61 (19.3 percent) than individuals under factors. also be relevant to public charge age 18 (40.2 percent), or individuals The 18 through 61 age range is based inadmissibility determinations, in over age 61 (36.3 percent). Among U.S. on the age at which people are generally individual circumstances. Individuals citizens, the receipt of non-cash benefits able to work full-time and the age at under the age of 18 may be more likely was lower among individuals between which people are generally able to retire to qualify for and receive public age 18 and 61 (15.3 percent) than with some social security retirement benefits. The U.S. Census Bureau individuals under age 18 (39.7 percent), benefits under Federal law.427 At one reported that 18 percent of persons and higher among individuals over age under the age of 18 (13,253,000) and end of the spectrum, children under the 61 (11.4 percent).

age of 18 generally face difficulties 430 BILLING CODE 4410–10–P 428 See 29 U.S.C. 213(c); 29 CFR part 570; see also working full-time. In general, the Fair Dep’t of Labor, Table of Employment/Age Labor Standards Act sets 14 years of age Certification Issuance Practice Under State Child 435 See Jessica L. Semega et al., U.S. Census as the minimum age for employment, Labor Laws, available at https://www.dol.gov/whd/ Bureau, Income and Poverty in the United States: and limits the number of hours worked state/certification.htm (last updated Jan. 1, 2018). 2016, at 13 tbl.3 (Sept. 2017), available at https:// 431 www.census.gov/content/dam/Census/library/ 429 See Nat’l Ctr. for Educ. Statistics, Table 5.1: by children until the age of 16. States Compulsory School Attendance Laws, Minimum publications/2017/demo/P60-259.pdf. Statistics have varying laws addressing at what and Maximum Age Limits for Required Free provided for those aged 18 and over were inferred. age and for how many hours children Education, by State: 2015, available at https:// 436 In an average month during 2012, 39.2 percent nces.ed.gov/programs/statereform/tab5_1.asp (last of children received some type of means-tested visited Sept. 10, 2018). benefit. See Shelley K. Irving & Tracy A. Loveless, 427 See 29 U.S.C. 213(c), 42 U.S.C. 416(l)(2). 432 See 29 CFR 570.122. U.S. Census Bureau, Household Economic Studies, 428 See 29 U.S.C. 213(c); 29 CFR part 570; see also 433 See 42 U.S.C. 416(l); see also U.S. Soc. Sec. Dynamics of Economic Well-Being: Participation in Dep’t of Labor, Table of Employment/Age Admin., Retirement Planner: Benefits by Year of Government Programs, 2009–2012: Who Gets Certification Issuance Practice Under State Child Birth, available at https://www.ssa.gov/planners/ Assistance? 6 (May 2015), available at https:// Labor Laws, available at https://www.dol.gov/whd/ retire/agereduction.html (last visited Sept. 10, www.census.gov/content/dam/Census/library/ state/certification.htm (last updated Jan. 1, 2018). 2018). publications/2015/demo/p70-141.pdf; see also U.S. 429 See 29 U.S.C. 213(c); 29 CFR part 570; see also 434 See 42 U.S.C. 416(l); see also U.S. Soc. Sec. Census Bureau, News Release, 21.3 Percent of U.S. Dep’t of Labor, Table of Employment/Age Admin., Retirement Planner: Benefits by Year of Population Participates in Government Assistance Certification Issuance Practice Under State Child Birth, available at https://www.ssa.gov/planners/ Programs Each Month (May 28, 2015), available at Labor Laws, available at https://www.dol.gov/whd/ retire/agereduction.html (last visited Sept. 10, https://www.census.gov/newsroom/press-releases/ state/certification.htm (last updated Jan. 1, 2018). 2018). 2015/cb15-97.html.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51181

Table 14. Public Benefit Participation Among U.S. Citizens by Age, 2013 (in thousands) 0-17 18-61 62+

%of Total %of Total %of Total Total Population Population Population Population Population Population Population 310,867 68,689 22.1% 167,058 53.7% 54,957 17.7%

Benefit program Total Pet. S.E. Total Pet. S.E. Total Pet. S.E. Cash or non-cash 27,406 39.9% 0.5% 26,251 15.7% 0.3% 6,824 12.4% 0.4%

Cash benefits 2,715 4.0% 0.2% 5,268 3.2% 0.1% 2,446 4.5% 0.3% SSI 1,005 1.5% 0.1% 4,295 2.6% 0.1% 2,352 4.3% 0.2% TANF 1,564 2.3% 0.2% 606 0.4% 0.0% *11 *0.0% 0.0% GA 240 0.3% 0.1% 502 0.3% 0.0% 158 0.3% 0.1%

Non-cash benefits 27,246 39.7% 0.5% 25,529 15.3% 0.3% 6,254 11.4% 0.4% Medicaid 25,225 36.7% 0.5% 17,084 10.2% 0.2% 4,133 7.5% 0.3% SNAP 14,158 20.6% 0.4% 15,738 9.4% 0.2% 3,188 5.8% 0.3% Housing vouchers 1,801 2.6% 0.2% 2,296 1.4% 0.1% 549 1.0% 0.1% Rent subsidy 3,915 5.7% 0.3% 5,676 3.4% 0.1% 1,970 3.6% 0.2% Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program ParticipatiOn (SIPP). * Estimate is considered unreliable due to a high relative standard error. -Estimate of zero.

Table 15. Public Benefit Participation Among Noncitizens by Age, 2013 (in thousands) 0-17 18-61 62+

%of Total %of Total %of Total Total Population Population Population Population Population Population Population 310,867 1,705 0.5% 17,006 5.5% 1,452 0.5%

Benefit program Total Pet. S.E. Total Pet. S.E. Total Pet. S.E. Cash or non-cash 685 40.2% 3.5% 3,326 19.6% 0.9% 547 37.6% 3.8%

Cash benefits *29 *1.7% 0.9% 169 1.0% 0.2% 172 11.8% 2.5% SSI - -- *91 *0.5% 0.2% 163 11.2% 2.5% TANF *29 *1.7% 0.9% *44 *0.3% 0.1% - -- GA - -- *38 *0.2% 0.1% *9 *0.6% 0.6%

Non-cash benefits 685 40.2% 3.5% 3,286 19.3% 0.9% 527 36.3% 3.8% Medicaid 592 34.8% 3.4% 2,123 12.5% 0.8% 415 28.6% 3.5% SNAP 258 15.1% 2.5% 1,339 7.9% 0.6% 232 16.0% 2.9% Housing vouchers *51 *3.0% 1.2% 209 1.2% 0.3% *27 *1.9% 1.1% Rent subsidy 104 6.1% 1.7% 625 3.7% 0.4% 140 9.6% 2.3% .. Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program ParticipatiOn (SIPP). * Estimate is considered unreliable due to a high relative standard error. -Estimate of zero.

BILLING CODE 4410–10–C investments, or other resources— E. Health Regardless of age, DHS recognizes that including Social Security benefits and an alien may have financial assets, Medicare—to support him or herself An alien’s health is a factor that must resources, benefits through and the household. In addition, as be considered when determining employment, education or skills, family, people age, they may become eligible for whether an alien is likely to become 437 or other means of support that decrease certain earned benefits including Social public charge in the future. Prior to his or her likelihood of becoming a Security benefits, health insurance from Congress establishing health as a factor public charge. For example, the alien or Medicare, and benefits from an for the public charge determination, the the alien’s spouse or parent may have employer pension or retirement benefit. sufficient income, or savings, 437 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.030 51182 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

courts, the BIA and INS had also held or financially support him or herself. change of status to that of a spouse of that a person’s physical and mental Such medical conditions may also a legal permanent resident (V–1) or condition was of major significance to increase the likelihood that the alien child (V–2) status must submit a the public charge determination, could resort to Medicaid, or Premium medical examination.448 In addition, a generally in relation to the ability to and Cost Sharing Subsidies for Medicare consular officer may request a medical earn a living.438 Accordingly, DHS Part D.443 However, DHS recognizes that examination if the officer has concerns proposes that when considering an regardless of the alien’s health status, that the applicant may be inadmissible alien’s health, DHS will consider the alien may have financial assets, on health-related grounds.449 Likewise, whether the alien has any physical or resources, or support, including private a CBP officer at a port of entry may mental condition that, although not health insurance or the means to require a nonimmigrant to submit to a considered a condition or disorder that purchase it, that allows him or her to be medical examination to determine would render the alien inadmissible self-sufficient.444 medical inadmissibility.450 under the health-related ground of Nevertheless, an alien’s inability to Civil surgeons and panel physicians inadmissibility,439 is significant enough work due to a medical condition, and test for Class A 451 and Class B 452 to interfere with the person’s ability to failure to maintain health insurance or medical conditions, and report the care for him- or herself or to attend the financial resources to pay for the findings on the appropriate medical school or work, or that is likely to medical costs, could make it likely that examination form. An alien is require extensive medical treatment or such alien would become a public inadmissible on a health-related ground institutionalization in the future. charge. In addition, long-term health for being diagnosed with a Class A The mere presence of a medical care expenses to treat such a medical medical condition unless a waiver is condition would not render an alien condition could decrease an available and authorized.453 Class A inadmissible. Instead, DHS would individual’s available financial medical conditions, as defined in HHS consider the existence of a medical resources. regulations, include the following: 454 condition in light of the effect that such • Communicable disease of public 1. USCIS Evidentiary Requirements medical condition is likely to have on health significance, including the alien’s ability to attend school or DHS proposes that USCIS’ review of gonorrhea, Hansen’s Disease work, and weigh such evidence in the the health factor would include, but not (infectious), syphilis (infectious stage), totality of the circumstances. As part of be limited to, the consideration of the and active tuberculosis; 455 the assets, resources and financial status following types of evidence: (1) Any • Failure to meet vaccination factor, DHS would consider whether the required Report of Medical Examination requirements; 456 alien has private health insurance, or and Vaccination Record (Form I–693) or • Present or past physical or mental the financial resources to pay for applicable DOS medical examination disorders with associated harmful associated medical costs. form 445 submitted in support of the behavior or harmful behavior that is Research and data establish that application for the diagnosis of any likely to recur; 457 and healthcare is costly, particularly for the medical conditions; 446 or (2) evidence • Drug abuse or addiction.458 government. In 2016, the National of a medical condition that is likely to In identifying a Class A medical Health Expenditure (NHE) grew to $3.3 require extensive medical treatment or condition, the HHS regulations direct trillion, or $10,348 per person, which institutionalization after arrival, or that physicians conducting the immigration represents an increase of 4.3 percent will interfere with the alien’s ability to medical examinations to explain on the from 2015.440 Medicaid spending, care for him- or herself, to attend school, medical report ‘‘the nature and extent of which is 17 percent of the total NHE, or to work. the abnormality; the degree to which the grew by 3.9 percent to $565.5 billion.441 The specific reference to the Form alien is incapable of normal physical The Federal Government (28.3 percent) I–693 or similar form is intended to help activity; and the extent to which the and households (28.1 percent) paid the standardize USCIS’ assessment of health condition is remediable . . . [as well as] largest shares of total health as a factor for public charge the likelihood, that because of the spending.442 consideration and avoid multiple condition, the applicant will require An alien’s medical conditions may medical examinations for the alien. impose costs that a person is unable to Most immigrant visa applicants 448 See INA section 101(a)(15)(v), 8 U.S.C. afford, and may also reduce that applying with the DOS and those aliens 1101(a)(15)(v); see also 8 CFR 214.15. applying for adjustment of status with 449 See INA section 221(d), 8 U.S.C. 1201(d). person’s ability to attend school, work, 450 USCIS are required to submit a medical See INA section 232, 8 U.S.C. 1222. 451 The alien would be inadmissible for health- 438 447 See, e.g., Matter of Martinez-Lopez, 10 I&N examination. Nonimmigrants related grounds under INA section 212(a)(1), 8 Dec. 409, 421–23 (Att’y Gen. 1964); see also Matter applying with DOS and nonimmigrants U.S.C. 1182(a)(1). of A-, 19 I&N Dec. 867, 869 (Comm’r 1988) (citing seeking a change of status or extension 452 Class B medical conditions do not make an Matter of Harutunian, 14 I&N Dec. 583 (Reg’l alien inadmissible on health-related grounds under Comm’r 1974); Matter of Vindman, 16 I&N Dec. 131 of stay with USCIS are generally not INA section 212(a)(1), 8 U.S.C. 1182(a)(1), but are (Reg’l Comm’r 1977)). required to submit a medical relevant to the public charge determination. 439 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1). examination with their applications. 453 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1). 440 See Ctrs. for Medicare & Medicaid Servs., NHE However, nonimmigrants seeking a 454 Fact Sheet, available at https://www.cms.gov/ See 42 CFR 34.2(d). The alien with a Class A research-statistics-data-and-systems/statistics- medical condition would be inadmissible based on 443 trends-and-reports/nationalhealthexpenddata/nhe- See 42 U.S.C. 1395w–114. health-related grounds under INA section 212(a)(1), fact-sheet.html (last visited Feb. 3, 2018). 444 For example, a person may have savings, 8 U.S.C. 1182(a)(1). However, these medical conditions may also be considered as part of the 441 See Ctrs. for Medicare & Medicaid Servs., NHE investments or trust funds. 445 public charge inadmissibility determination. Fact Sheet, available at https://www.cms.gov/ This is currently the Immigrant or Refugee 455 research-statistics-data-and-systems/statistics- Applicant (Form DS–2054). See 42 CFR 34.2(b) and (d)(1); see also INA trends-and-reports/nationalhealthexpenddata/nhe- 446 The medical examination documentation section 212(a)(1)(i), 8 U.S.C. 1182(a)(1)(i). fact-sheet.html (last visited Feb. 3, 2018). indicates whether the applicant has either a Class 456 See 42 CFR 34.2(d); see also INA section 442 See Ctrs. for Medicare & Medicaid Servs., NHE A or Class B medical condition. In addition, the 212(a)(1)(ii), 8 U.S.C. 1182(a)(1)(ii). Fact Sheet, available at https://www.cms.gov/ alien must provide a vaccination record. Class A 457 See 42 CFR 34.2(d); see also INA section research-statistics-data-and-systems/statistics- and Class B medical conditions are defined in the 212(a)(1)(iii), 8 U.S.C. 1182(a)(1)(iii). trends-and-reports/nationalhealthexpenddata/nhe- HHS regulations. See 42 CFR 34.2. 458 See 42 CFR 34.2(d), (h), (i); see also INA fact-sheet.html (last visited Feb. 3, 2018). 447 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1). section 212(a)(1)(iv), 8 U.S.C. 1182(a)(1)(iv).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51183

extensive medical care or If the physician conducting the The presence or absence of a medical institutionalization.’’ 459 A waiver of the immigration medical examination condition would only be considered a health-related ground of inadmissibility identifies a Class B medical condition positive or negative factor as it pertains is available for communicable diseases that is ‘‘a substantial departure from to the alien’s likelihood of becoming a of public health significance, physical normal well-being,’’ 463 the HHS public charge; frequently, this would or mental disorder accompanied by regulations direct the physician to entail consideration of whether, in light harmful behavior, and lack of explain in the medical notification 464 of the alien’s health, the alien will be vaccinations.460 ‘‘the degree to which the alien is able to adequately care for him- or A Class B medical condition is incapable of normal physical activity, herself, to attend school, or to work.466 defined as a physical or mental and the extent to which the condition is condition, disease, or disability serious remediable . . . [and] the likelihood, 2. Potential Effects for Aliens With a in degree or permanent in nature.461 that because of the condition, the Disability, Depending on Individual Currently, the CDC Technical applicant will require extensive medical Circumstances Instructions for Medical Examinations care or institutionalization.’’ 465 As noted above, DHS would consider of Aliens, which direct physicians to DHS would consider any of the above- any immigration medical examination provide information about Class B described conditions in the totality of submitted with the alien’s application, conditions, describe a Class B condition the circumstances. Any such condition as well as any other evidence as one that, although it does not would not serve as the sole factor demonstrating that the individual has a ‘‘constitute a specific excludable considered in whether an alien is likely medical condition that will affect the condition, represents a departure from to become a public charge. Absence of alien’s ability to work, attend school, or normal health or well-being that is a diagnosis of such a condition would otherwise support himself or herself. As significant enough to possibly interfere be a positive factor. DHS recognizes that part of the immigration medical with the person’s ability to care for him- some conditions that are Class A and examination, when identifying a Class B or herself, to attend school or work, or Class B are treatable and the person may medical condition, civil surgeons and that may require extensive medical in the future be able to work or attend panel physicians are required to report treatment or institutionalization in the school. These circumstances, as on certain disabilities, including the future.’’ 462 identified by a civil surgeon or panel physician, would also be taken into nature and severity of the disability, its 459 42 CFR 34.4(b)(2). consideration in the totality of the impact on the alien’s ability to work, 460 See INA section 212(g)(1), 8 U.S.C. 1182(g)(1). circumstances. attend school, or otherwise support Although a waiver is unavailable for inadmissibility In addition to the types of evidence himself or herself, and whether the due to drug abuse or addiction, an applicant may described above, DHS would also take disability will require hospitalization or still overcome this inadmissibility if his or her drug institutionalization. Under the proposed abuse or addiction is found to be in remission. See into consideration any additional Ctrs. for Disease Control & Prevention, Technical medical records or related information rule, DHS would only consider Instructions for Panel Physicians and Civil provided by the alien to clarify any disability as part of the health factor to Surgeons, Remission, available at https:// medical condition included on the the extent that such disability, in the www.cdc.gov/immigrantrefugeehealth/exams/ti/ context of the alien’s individual civil/mental-civil-technical-instructions.html (last medical form or other information that updated Oct. 23, 2017). may outweigh any negative factors. circumstances, impacts the likelihood of 461 See 42 CFR 34.2(b)(2). Such documentation may include, for the alien becoming a public charge. 462 See Ctrs. for Disease Control & Prevention, instance, a licensed doctor’s attestation Frequently, this would entail Required Evaluations—Other Physical or Mental of prognosis and treatment of a medical consideration of the potential effects on Abnormality, Disease, or Disability, Technical the alien’s ability to work, attend school Instructions For Medical Examination Of Aliens, condition. available at https://www.cdc.gov/ or otherwise support him or herself. immigrantrefugeehealth/exams/ti/panel/technical- updated Aug. 3, 2010). The HHS regulations require instructions/panel-physicians/other-physical- physicians conducting medical examinations for an 466 Relatedly, as part of the assets, resources and mental.html (last updated Nov. 23, 2016); Ctrs. for alien to comply with the CDC’s Technical financial status factor, DHS would consider Disease Control & Prevention, Required Evaluation Instructions for Medical Examinations of Aliens. 42 whether the alien either has sufficient household CFR 34.3(i). Components Other Physical or Mental Abnormality, assets and resources, including private health 463 See 42 CFR 34.4(c)(1). Disease or Disability, Technical Instructions for the insurance, to cover any reasonably foreseeable Medical Examination of Aliens in the United States, 464 See 42 CFR 34.2(l) (defining a medical medical costs related to a medical condition that is available at https://www.cdc.gov/ notification as ‘‘[a] medical examination document immigrantrefugeehealth/exams/ti/civil/technical- issued to a U.S. consular authority or DHS by a likely to require extensive medical treatment or instructions/civil-surgeons/required-evaluation- medical examiner’’). institutionalization or that will interfere with the components/other-disease-disability.html (last 465 42 CFR 34.4(c)(2). alien’s ability to provide care for him- or herself, to attend school, or to work.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00071 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51184 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

The Rehabilitation Act of 1973 467 and CDC.473 The ADA,474 the Rehabilitation to become a public charge in the the Americans with Disabilities Act Act of 1973,475 and the IDEA 476 provide future.478 When considering an alien’s (ADA) of 1990 468 prohibit further protections for individuals with family status, DHS proposes to consider discrimination against individuals disabilities to better ensure that such whether the alien has a household to based on their disabilities.469 Both laws individuals have the opportunity to support, or whether the alien is being require, among other things, that make such contributions.477 supported by another household and employers provide reasonable Ultimately, DHS has determined that whether the alien’s household size accommodations for individuals with considering, as part of the health factor, makes the alien more or less likely to disabilities who need them to apply for an applicant’s disability diagnosis that, become a public charge. DHS notes that a job, perform a job’s essential in the context of the alien’s individual it would frequently view family status circumstances, affects his or her ability functions, or enjoy equal benefits and in connection with, among other things, to work, attend school, or otherwise care privileges of employment, absent undue the alien’s assets and resources, because for him or herself, is not inconsistent hardship (i.e., significant difficulty or the amount of assets and resources with federal statutes and regulations necessary to support a larger number of expense). The Individuals with with respect to discrimination, as the 470 people in a household is generally Disabilities Education Act (IDEA) alien’s disability is treated just as any ensures equality of educational greater. Thus, as described in the Assets, other medical condition that affects an Resources, and Financial Status section opportunity and assists States in alien’s likelihood, in the totality of the below, DHS’s proposed standard for providing special education and related circumstances, of becoming a public evaluating assets, resources and services to children with disabilities. charge. Under the totality of the financial status requires DHS to Further, DHS is specifically prohibited circumstances framework, an alien with consider whether the alien can support from discriminating against individuals a disability is not being treated him or herself and the household as with disabilities and otherwise differently, or singled out, and the defined in 8 CFR 212.21(d), at the level preventing individuals with disabilities disability itself would not be the sole of at least 125 percent of the most recent from participating in benefits basis for an inadmissibility finding. In programs.471 Congress has noted that other words, as with any other factor FPG based on the alien’s household ‘‘[d]isability is a natural part of the and consideration in the public charge size. human experience and in no way inadmissibility determination, DHS As noted in the description above of diminishes the right of individuals to would look at each of the mandatory the proposed definition of the ‘‘alien’s . . . contribute to society; pursue factors, and the affidavit of support, if household,’’ an alien who has no meaningful careers; and enjoy full required, as well as all other factors in dependents would have a household of inclusion and integration in the the totality of the circumstances. one, and would only have to support economic, political, social, cultural, and In sum, an applicant’s disability could him or herself. By contrast, a child alien educational mainstream of American not be the sole basis for a public charge who is part of a parent’s household society.’’ 472 Individuals with inadmissibility finding. In addition, as would be part of a larger household, and disabilities make substantial part of its totality of the circumstances would have to demonstrate that his or contributions to the American economy. determination, DHS would always her own assets, resources and financial For example, in 2010, 41.1 percent of recognize that the ADA, the status and his or her parent’s or legal people with disabilities between the Rehabilitation Act, IDEA, and other guardian’s assets, resources, and ages of 21 to 64 were employed (27.5 laws provide important protections for financial status are sufficient to support percent of adults with severe disability individuals with disabilities, including the alien and the rest of the household. and 71.2 percent of adults with non- with respect to employment The research and data below discuss severe disabilities were employed) opportunities. Furthermore, as it relates how the number of household members during a study conducted by the to a determination of inadmissibility may affect the likelihood of receipt of under section 212(a)(4) of the Act, DHS public benefits. Table 16 and Table 17 does not stand in the position of an 467 Public Law 93–112, section 504, 87 Stat. 355, show that among both U.S. citizens and employer vis-a-vis when the alien is 394 (codified as amended at 29 U.S.C. 794) noncitizens, the receipt of non-cash (prohibiting discrimination solely on the basis of applying for the immigration benefit. benefits generally increased as family disability in Federal and federally-funded programs DHS is also not proposing to include size increased. Among U.S. citizens, and activities). employee benefits of any type in the 468 Public Law 101–336, 104 Stat. 327 (codified as individuals in families with 3 or 4 definition of public benefit. amended at 42 U.S.C. 12101–12213). persons were more likely to receive non- 469 See 42 U.S.C. 12112(b)(5); see also 29 CFR F. Family Status cash benefits compared to families of 2, 1630.2(o), 1630.9. while individuals in families of 5 or 470 Public Law 108–446, 118 Stat 2647 (2004) An applicant’s family status is a factor (codified as amended at 20 U.S.C. 1400–1482). that must be considered when more were about three times as likely to 471 See 6 CFR 15.30(b)(1)(i) (‘‘The Department, in determining whether the alien is likely receive non-cash benefits as families of providing any aid, benefit, or service, may not 2. Among noncitizens in families with directly or through contractual, licensing, or other 473 3 or 4 people, about 20 percent received arrangements, on the basis of disability . . . [d]eny See Mathew W. Brault, U.S. Census Bureau, a qualified individual with a disability the Americans With Disabilities: 2010, at 10 (2012), non-cash assistance, while about 30 opportunity to participate in or benefit from the aid, available at https://www2.census.gov/library/ percent of noncitizens in families of 5 benefit, or service . . . .’’); 6 CFR 15.30(b)(4) (‘‘The publications/2012/demo/p70-131.pdf. or more received non-cash benefits. 474 See Public Law 101–336, 104 Stat. 327 (1990) Department may not, directly or through Across family sizes, the rate of receipt contractual or other arrangements, utilize criteria or (codified as amended at 42 U.S.C. 12101–12213). methods of administration the purpose or effect of 475 See Public Law 93–112, section 504, 87 Stat. of cash assistance ranged from about 3 which would [s]ubject qualified individuals with a 355, 394 (codified as amended at 29 U.S.C. 794). to 5 percent among U.S. citizens, and disability to discrimination on the basis of 476 See Public Law 108–466, 118 Stat 2647 (2004) about 1 to 3 percent among noncitizens. disability; or [d]efeat or substantially impair (codified as amended at 20 U.S.C. 1400–1482). The rate of receipt of either TANF or GA accomplishment of the objectives of a program or 477 See generally Dep’t of Justice, Civil Rights activity with respect to individuals with a Div., Disability Rights Sec., A Guide to Disability disability.’’). Rights Laws (July 2009), https://www.ada.gov/ 478 See proposed 8 CFR 212.2; see also INA 472 See 29 U.S.C. 701(3). cguide.htm. section 212(a)(4), 8 U.S.C. 1182(a)(4).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51185

was about 1 percent or less regardless of family size or citizenship status. BILLING CODE 4410–10–P

Table 16. Public Benefit Participation Among U.S. Citizens by Family Size, 2013 (in thousands) Nonfamily household Family size 2 Family size 3

%of Total %of Total %of Total Total Population Population Population Population Population Population Population 310,867 59,207 19.0% 76,493 24.6% 51,516 16.6%

Benefit program Total Pet. S.E. Total Pet. S.E. Total Pet. S.E. Cash or non-cash 11,002 18.6% 0.5% 9,867 12.9% 0.4% 11,296 21.9% 0.5%

Cash benefits 3,072 5.2% 0.3% 2,221 2.9% 0.2% 2,000 3.9% 0.2% SSI 2,795 4.7% 0.3% 1,794 2.3% 0.2% 1,332 2.6% 0.2% TANF *83 *0.1% 0.0% 269 0.4% 0.1% 544 1.1% 0.1% GA 279 0.5% 0.1% 222 0.3% 0.1% 194 0.4% 0.1%

Non-cash benefits 10,640 18.0% 0.5% 9,451 12.4% 0.4% 11,014 21.4% 0.5% Medicaid 6,617 11.2% 0.4% 7,108 9.3% 0.3% 8,920 17.3% 0.5% SNAP 6,095 10.3% 0.4% 5,231 6.8% 0.3% 6,154 11.9% 0.4% Housing vouchers 1,038 1.8% 0.2% 747 1.0% 0.1% 938 1.8% 0.2% Rent subsidy 3,488 5.9% 0.3% 2,170 2.8% 0.2% 2,058 4.0% 0.3% Family size 4 Family size 5+

%of Total %of Total Total Population Population Population Population Population 310,867 53,883 17.3% 49,604 16.0%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 11,200 20.8% 0.5% 17,115 34.5% 0.6%

Cash benefits 1,342 2.5% 0.2% 1,796 3.6% 0.2% SSI 708 1.3% 0.1% 1,023 2.1% 0.2% TANF 592 1.1% 0.1% 693 1.4% 0.2% GA *81 *0.2% 0.0% 124 0.3% 0.1%

Non-cash benefits 11,035 20.5% 0.5% 16,888 34.0% 0.6% Medicaid 9,387 17.4% 0.5% 14,412 29.0% 0.6% SNAP 5,895 10.9% 0.4% 9,709 19.6% 0.5% Housing vouchers 802 1.5% 0.2% 1,121 2.3% 0.2% Rent subsidy 1,668 3.1% 0.2% 2,179 4.4% 0.3% .. Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program ParticipatiOn (SIPP). *Estimate is considered umeliable due to a high relative standard error. - Estimate of zero. **Nonfamily households consist of an individual living alone or living only with nomelatives.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00073 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.031 51186 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

BILLING CODE 4410–10–C status, education, and skills) that weigh financial status in making a public In light of the above data on the for or against a finding that the alien is charge determination.479 The statute relationship between family size and likely to become a public charge. For does not define these terms, but the receipt of public benefits, DHS proposes instance, an alien who is part of a large agency has historically interpreted these that in evaluating family status for household may have his or her own terms to include information that would purposes of the public charge income or access to additional assets provide an overview of the alien’s inadmissibility determination, DHS and resources that would assist in financial means and overall financial would consider the number of people in supporting the household and therefore health. Since Legacy INS issued the a household as defined in the proposed would also be considered in the totality 1999 Interim Field Guidance, the 8 CFR 212.21(d). As with the other of the circumstances. practical focus has been primarily on factors, household size, on its own, the sufficiency of an Affidavit of G. Assets, Resources, and Financial would never dictate the outcome of a Support submitted on the alien’s behalf. Status public charge inadmissibility However, given that the statute sets out determination. Regardless of household In addition to age, health, and family the Affidavit of Support as a separate size, that an alien may present other status, USCIS must consider an factors (e.g., assets, resources, financial applicant’s assets, resources, and 479 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00074 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.032 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51187

requirement and the statute includes the of the FPG based on the household are other potential alternatives, mandatory review of assets, resources size.484 including any studies or data that would and financial status as a factor,480 DHS DHS has chosen a household income provide a basis for a different measure is proposing to consider in the totality of at least 125 percent of the FPG, which or threshold. of the circumstances whether the alien has long served as a touchpoint for 1. Evidence of Assets and Resources can, taking into account both the alien’s public charge inadmissibility assets and liabilities, establish the determinations.485 As of February 2018, DHS proposes that USCIS would ability to support himself or herself and within the contiguous United States, consider certain types of evidence when the household as defined in the 125 percent of FPG ranges from reviewing this factor. USCIS proposed 8 CFR 212.21(d). approximately $20,300 for a family of consideration of an alien’s assets and All else being equal, the more assets two to $51,650 for a family of eight.486 resources would include, but not be and resources an alien has, the more Additionally, consistent with the limited to, a review of such information self-sufficient the alien is likely to be, affidavit of support context, if the as: and the less likely the alien is to receive alien’s household income is under 125 • The alien’s annual gross household public benefits. On the other hand, an percent of the FPG, the alien may use income (i.e., all sources of income alien’s lack of assets and resources, his or her assets, as well household before deductions), excluding any including income, makes an alien more members’ assets, to meet the minimum income from public benefits; likely to receive public benefits. income threshold to avoid the alien’s • Any additional income from Whether a person may be qualified for household income being considered a individuals not included in the alien’s public benefits frequently depends on negative factor in the totality of the household as defined in the proposed 8 where the person’s household income circumstances review.487 If using CFR 212.21(d) who physically reside 481 falls with respect to the FPG. Federal, household assets to demonstrate that the with the alien and whose income will State, and local public benefit granting alien can meet the 125 percent of FPG be relied on by the alien to meet the agencies frequently use the FPG to threshold, the alien must present proposed standard of household income determine eligibility for public evidence that the assets total value is at at or above 125 percent of FPG; 482 benefits. Some major means-tested least 5 times the difference between the • Any additional income to the alien programs, however, rely on different household income and 125 percent of from another person or source not income-related measurements for FPG for the household size. 483 included in the alien’s household on a purposes of determining eligibility. The following example illustrates continuing monthly or yearly basis for Because assets and resources include how an applicant would be able to use the most recent calendar year, excluding the employment income earned by an his or her household assets and any income from public benefits; alien and the members of an alien’s resources to demonstrate that he or she • household, and are an important factor The household’s cash assets and has financial support at 125 percent of resources, including as reflected in in determining whether the alien is the FPG. The applicant has filed an likely to receive public benefits in the checking and savings account application for adjustment of status. The statements in the last 12 months; future, DHS proposes that when applicant has a household size of 4, • considering an alien’s assets and The household’s non-cash assets where 125 percent of the FPG for that and resources that can be converted into resources, DHS will consider whether household size is $31,375. The the alien has gross household income of cash within 12 months, such as net cash applicant’s household income is value of real estate holdings minus the at least 125 percent of the FPG based on $24,000, which is $7,375 below 125 the household size. If the alien’s sum of all loans secured by a mortgage, percent of the FPG for a household of trust deed, or other lien on the home; household income is less than 125 4. Therefore, in order to avoid DHS percent of the FPG, the alien’s other annuities; securities; retirement and determining that the applicant’s educational accounts; and any other household assets and resources should household income is a negative factor in be at least 5 times the difference assets that can be converted into cash the totality of the circumstances, the easily. between the household income and 125 alien would need $36,875 in household All of this information is potentially assets and resources. 480 relevant to a determination of the alien’s See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). An alien’s financial status would also 481 assets and resources, and likelihood of The poverty guidelines are updated include the alien’s liabilities as periodically in the Federal Register by HHS. The becoming a public charge. U.S. Census Bureau definition of family and family evidenced by the alien’s credit report household can be found in U.S. Census Bureau, and score, as well as whether the alien 2. Evidence of Financial Status Current Population Survey 2017 Annual Social and has in the past, or is currently, receiving When reviewing whether the alien Economic Supplement (ASEC) 9–1 to 9–2, available public benefits, among other at https://www2.census.gov/programs-surveys/cps/ has any financial liabilities or past considerations. Below, DHS describes techdocs/cpsmar17.pdf (last visited Sept. 13, 2018). reliance on public benefits that make 482 Different Federal programs use different the proposed rule’s evidentiary the alien more or less likely to become percentages of the FPG such as 125 percent, 150 requirements for this factor. percent, or 185 percent. See U.S. Dep’t of Health & DHS welcomes public comments on a public charge, DHS proposes to review Human Servs., Office of the Assistant Sec’y for whether 125 percent of the FPG is an the following evidence: Planning & Evaluation, Frequently Asked Questions • Evidence that the alien has applied Related to the Poverty Guidelines and Poverty, appropriate threshold in considering the What Programs Use the Federal Poverty Guidelines, alien’s assets and resources or if there for or received any public benefit, as available at https://aspe.hhs.gov/frequently-asked- defined in the proposed 8 CFR questions-related-poverty-guidelines-and-poverty 484 212.21(b), on or after the effective date #collapseExample9 (last visited Sept. 8, 2018). This is consistent with the provisions for assets under the affidavit of support in 8 CFR of the final rule; 483 See U.S. Dep’t of Health & Human Servs., 213a.2(c)(2)(iii)(B)(3). • Office of the Assistant Sec’y for Planning & Been certified or approved to 485 Evaluation, Frequently Asked Questions Related to See INA section 213A(f)(1)(E), 8 U.S.C. receive public benefits, as defined in 8 the Poverty Guidelines and Poverty, What Programs 1183a(f)(1)(E). CFR 212.21(b), on or after the effective 486 Use the Federal Poverty Guidelines, available at Annual Update of the HHS Poverty date of the final rule; https://aspe.hhs.gov/frequently-asked-questions- Guidelines, 83 FR 2642 (Jan. 18, 2018). • related-poverty-guidelines-and-poverty#collapse 487 See INA section 213A(f)(1)(E), 8 U.S.C. Evidence that the alien has applied Example9 (last visited Sept. 8, 2018). 1183a(f)(1)(E). for or received a fee waiver for

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00075 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51188 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

immigration benefits after the effective in the review of the totality of the (b) Fee Waivers for Immigration Benefits date of the final rule; circumstances, the alien would not be • Under INA section 286(m), 8 U.S.C. Credit histories and credit scores; found likely to become a public charge. 1356(m), USCIS collects fees at a level Review of past applications for or and that will ensure recovery of the full • Whether the alien has the private receipt of public benefits would include costs of providing adjudication and health insurance or the financial a review of both cash and non-cash naturalization services, including the resources to pay for medical costs public benefits as defined in the costs of providing similar services associated with a medical condition proposed 8 CFR 212.21(b). According to without charge to asylum applicants identified in 8 CFR 212.22(b)(2). the U.S. Census Bureau, in 2012, approximately 52.2 million people in and other immigrants. USCIS may waive (a) Public Benefits the United States (or 21.3 percent of the fees for specific immigration benefit Current or past applications for or forms if a person demonstrates overall population) participated in 494 receipt of public benefits, as defined in major means-tested government ‘‘inability to pay.’’ the proposed 8 CFR 212.21(b), suggests assistance programs each month.489 In DHS proposes that USCIS would that the alien’s overall financial status is addition, among those with family consider past receipt of a fee waiver as 495 so weak that he or she is or was unable income below the poverty level 490 an part of the financial status factor. to fully support him or herself without average of 61.3 percent participated in Requesting or receiving a fee waiver for government assistance, i.e., that the at least one major means tested an immigration benefit suggests a weak alien will receive such benefits in the benefit.491 Participation rates were financial status. Since fee waivers are future. DHS, therefore, proposes to highest for Medicaid (15.3 percent) and based on an inability to pay, a fee consider any current and past receipt of SNAP (13.4 percent).492 The largest waiver for an immigration benefit public benefits as set forth in 8 CFR share of participants (43.0 percent) who suggests an inability to be self-sufficient. 212.21(b) as a negative factor in the benefited from one or more means- In addition, the Senate Appropriations totality of the circumstances, because it tested assistance programs between Report, which accompanied the fiscal is indicative of a weak financial status January 2009 and December 2012 stayed year 2017 Department of Homeland 496 and increases the likelihood that the in the programs between 37 and 48 Security Appropriations Act, alien will become a public charge in the months.493 expressed concern about the increased future. The weight given to this factor use of fee waivers, as those paying fees would depend on how recently the alien 489 See Shelley K. Irving & Tracy A. Loveless, U.S. are forced to absorb costs for which they 497 has received public benefits, and Census Bureau, Dynamics of Economic Well-Being: receive no benefit. The committee Participation in Government Programs, 2009–2012: specifically expressed concern that whether the person has received public Who Gets Assistance? (May 2015), available at benefits for an extended period of time https://www.census.gov/content/dam/Census/ those unable to pay fees are less likely (i.e., receives public benefits for library/publications/2015/demo/p70-141.pdf; see to live in the United States independent 498 multiple years) or at multiple different also U.S. Census Bureau, News Release: 21.3 of government assistance. Percent of U.S. Population Participates in DHS would not consider a fee time periods (i.e., 3 times in the last two Government Assistance Programs Each Month (May years).488 28, 2015), available at https://www.census.gov/ exemption as part of the determination DHS would also consider whether the newsroom/press-releases/2015/cb15-97.html. The of whether an alien is likely to become 499 alien has been certified or approved to U.S. Census Bureau included Temporary Assistance a public charge, as such exemption for Needy Families (TANF), General Assistance would have no bearing on whether an receive public benefits, as defined in 8 (GA), Supplemental Security Income (SSI), CFR 212.21(b), on or after the effective Supplemental Nutrition Assistance Program alien would be likely to become a public date of the final rule. For example, a (SNAP), Medicaid, and housing assistance as major charge in the future. Fee exemptions are person may be certified for SNAP means-tested benefits as major means-tested not fee waivers and are not affirmatively government benefits. benefits for a month or up to 24 months requested by an alien based on an 490 See U.S. Census Bureau, News Release: 21.3 inability to pay. Instead, fee exemptions at one time and then receive the benefits Percent of U.S. Population Participates in from the EBT card on a monthly basis. Government Assistance Programs Each Month (May are provided either to specific forms or In general, an alien who is certified or 28, 2015), at 5, available at https://www.census.gov/ immigrant categories based on statutory newsroom/press-releases/2015/cb15-97.html. Note authority, regulations, or agency policy. preapproved for benefits in the future is that the Census reports use the term income to likely to continue to receive public poverty ratio.’’ A ratio of less than 1 indicates a (c) Credit Report and Score benefits in the future. An alien person’s income is below the poverty level. The nevertheless may otherwise establish census report refers to average monthly As also noted above, DHS also that he or she has terminated the receipt participation rates. proposes that USCIS would consider an 491 See Shelley K. Irving & Tracy A. Loveless, U.S. alien’s liabilities and information of of those benefits through documentation Census Bureau, Household Economic Studies, from the benefit-granting agency. Dynamics of Economic Well-Being: Participation in Government Programs, 2009–2012: Who Gets Government Programs, 2009–2012: Who Gets DHS recognizes that a person who Assistance? 6 (May 2015), available at https:// Assistance? 6 (May 2015), available at https:// previously received public benefits may www.census.gov/content/dam/Census/library/ www.census.gov/content/dam/Census/library/ publications/2015/demo/p70-141.pdf. have changed circumstances and DHS publications/2015/demo/p70-141.pdf. This report 494 would review those circumstances as includes Temporary Assistance for Needy Families See 8 CFR 103.7(c). part of the totality of the circumstances. (TANF), General Assistance (GA), Supplemental 495 This would be inclusive of fee exceptions For example, where an alien is currently Security Income (SSI), Supplemental Nutrition where an applicant actively requests a fee waiver Assistance Program (SNAP), Medicaid, and housing under 8 CFR 103.7(d). unemployed and finishing a college assistance as major means-tested benefits. 496 See Public Law 115–31, div. F, 131 Stat. 135, education and received benefits, the 492 See Shelley K. Irving & Tracy A. Loveless, U.S. 404. alien may provide evidence that he or Census Bureau, Household Economic Studies, 497 See S. Rep. No. 114–264, at 125 (2016). she has pending employment with Dynamics of Economic Well-Being: Participation in 498 See S. Rep. No. 114–264, at 125 (2016). benefits upon graduation from college Government Programs, 2009–2012: Who Gets 499 See 8 CFR 103.7(d); see also 22 CFR 41.107(c) Assistance? 6 (May 2015), available at https:// (listing categories of aliens exempt from and attaining a degree. It is possible that www.census.gov/content/dam/Census/library/ nonimmigrant visa fees); 9 FAM 403.4–3 (same). publications/2015/demo/p70-141.pdf. Diplomats, UN visitors, U.S. Government 488 This proposed policy is generally consistent 493 See Shelley K. Irving & Tracy A. Loveless, U.S. employees, and those coming to perform charitable with longstanding policy affording less weight to Census Bureau, Household Economic Studies, work are typical classes of aliens whose benefits that were received longer ago in the past. Dynamics of Economic Well-Being: Participation in nonimmigrant visa fees are exempted.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00076 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51189

such liabilities in a U.S. credit report consumers,505 and therefore the person of the circumstances. DHS would not and score as part of the financial status may be self-sufficient and less likely to consider health insurance provided factor. Not everyone has a credit history become a public charge. A poor credit through government employment as a in the United States. Nevertheless, a report is well below the average of U.S. public benefit, but instead consider it a good credit score in the United States is consumers.506 positive factor in the totality of the a positive factor that indicates a person DHS recognizes that not everyone has circumstances. By contrast, lack of is likely to be self-sufficient and support a credit report in the United States. The health insurance or lack of the financial the household. Conversely, a lower absence of an established U.S. credit resources to pay for the medical costs credit score or negative credit history in history would not necessarily be a would be a negative factor in the totality the United States may indicate that a negative factor when evaluating public of the circumstances for any person.508 person’s financial status is weak and charge in the totality of the While having health insurance would that he or she may not be self-sufficient. circumstances. Absent a U.S. credit generally be a positive factor in the Credit reports contain information about report or score, USCIS may give positive a person’s bill payment history, loans, weight to an alien who can show little totality of the circumstances, recent current debt, and other financial to no debt and a history of paying bills (within the past 36 months) or current information.500 Credit reports may also timely. An alien may provide evidence receipt of health insurance that provide information about work and of regular and timely payment of bills, constitutes a public benefit under residences, lawsuits, arrests, and and limited balances on credit cards and proposed 8 CFR 212.21(b), would bankruptcies in the United States.501 loans. In addition, USCIS would not generally be weighed heavily as a A U.S. credit score is a number that consider any error on a credit score that negative factor. Regardless of health rates a person’s credit risk at a point in has been verified by the credit agency in status, DHS recognizes that an alien may time.502 It can help creditors determine determining whether an alien is likely have financial assets, resources, earned whether to give the person credit, affect to become a public charge in the future. benefits, education or skills, or other the terms of credit the person is offered, DHS welcomes comments on whether support that may decrease his or her or impact the rate the person will pay DHS should also consider credit scores likelihood of becoming a public charge for a loan in the United States.503 U.S. that are categorized less than ‘‘good,’’ and would consider those factors in the banks and other entities use credit the types of credit reports to be totality of the circumstances. scoring to determine whether a person considered and the type of information I. Education and Skills is likely to repay any loan or debt. A from the credit history that should be credit report takes into account a reviewed. An applicant’s education and skills person’s bill-paying history, the number (d) Financial Means To Pay for Medical are mandatory statutory factors that and type of accounts with overdue Costs must be considered when determining payments, collection actions, whether an alien is likely to become a DHS also proposes that USCIS would outstanding debt, and the age of the public charge in the future.509 In 504 consider evidence of whether an alien accounts in the United States. general, an alien with educational has the financial means for pay for Because credit reports and scores credentials and skills is more certain reasonably foreseeable medical provide information on a person’s employable and less likely to become a costs, including through private health financial status, DHS is proposing that public charge. DHS, therefore, proposes insurance, as part of the financial factor USCIS would review any available U.S. that when considering this factor, DHS for public charge inadmissibility credit reports as part of its public charge would consider whether the alien has inadmissibility determinations. USCIS determinations. Health insurance helps cover the cost adequate education and skills to either would generally consider a credit score obtain or maintain employment characterized as ‘‘good’’ or better to be of health care and being covered by health insurance programs, other than sufficient to avoid becoming a public a positive factor as it demonstrates an charge, if authorized for employment.510 applicant may be able to support him or the ones included in the definition of public benefits under proposed 8 CFR herself and any dependents assuming 508 In 2016, 6,147,000 (26 percent) noncitizens all other financial records are sufficient. 212.21(b). Some aliens currently obtain and 1,726,000 (8.4 percent) naturalized citizens did A ‘‘good’’ credit report is generally near health insurance with government not have health insurance. See U.S. Census Bureau, or slightly above the average of U.S. funding.507 Current Population Survey, available at https:// Having private health insurance www.census.gov/cps/data/cpstablecreator.html (last visited Feb. 20, 2018) (Nativity and Health 500 See USA.gov, Credit Reports and Scores, would be a positive factor in the totality available at https://www.usa.gov/credit-reports (last Insurance Coverage). In 2005, the estimated number of uninsured noncitizens was 45 percent (9.6 updated Mar. 8, 2018). 505 MyFICO, Understanding FICO Scores 5, million people); U.S. Dep’t of Health & Human 501 See USA.gov, Credit Reports and Scores, available at https://www.myfico.com/Downloads/ Servs., Office of the Assistant Sec’y for Planning & available at https://www.usa.gov/credit-reports (last Files/myFICO_UYFS_Booklet.pdf (last visited Aug. updated Mar. 8, 2018). 6, 2018). Evaluation, Estimating The Number Of Individuals in the U.S. Without Health Insurance, Table: 502 See USA.gov, Credit Reports and Scores, 506 MyFICO, Understanding FICO Scores 5, available at https://www.usa.gov/credit-reports (last available at https://www.myfico.com/Downloads/ Immigration Status (Apr. 8, 2005), available at updated Mar. 8, 2018). Files/myFICO_UYFS_Booklet.pdf (last visited Aug. https://aspe.hhs.gov/dataset/table-1immigration- 503 See USA.gov, Credit Reports and Scores, 6, 2018). status. available at https://www.usa.gov/credit-reports (last 507 See Jessica C. Barnett & Edward R. Berchick, 509 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). updated Mar. 8, 2018). U.S. Census Bureau, Health Insurance Coverage in 510 The level of education may be an indicator for 504 See Fed. Trade Comm’n, Consumer the United States: 2016 Current Population Reports continued employment. See U.S. Bureau of Labor Information: Credit Scores (Sept. 2013), available at (Sept. 2017), available at https://www.census.gov/ Statistics, Employment Projections, Unemployment https://www.consumer.ftc.gov/articles/0152-credit- content/dam/Census/library/publications/2017/ Rates and Earnings by Educational Attainment, scores#how. demo/p60-260.pdf. 2016, available at https://www.bls.gov/emp/ep_ chart_001.htm (last updated Mar. 27, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00077 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51190 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Various studies and data support the Additionally, the data suggest that relationship between education level concept that a person’s education and people who have lower education levels and public benefit participation rates skills are positive factors for self- are not only more likely to receive among both U.S. citizens and sufficiency. The U.S. Bureau of Labor public benefits but they tend to stay on noncitizens in 2013. U.S. citizens with Statistics (BLS) observed in 2016 that them longer. For example, 49.4 percent less than a high school education were there was a relationship between the of people with less than 4 years of high more likely to participate in either cash educational level and unemployment school who received public benefits or non-cash welfare programs compared rate.511 The unemployment rate for an from a major means-tested program to U.S. citizens with any other individual with a doctoral degree was between January 2009 and December education level. In particular, 37.2 only 1.6 percent compared to 7.4 2012 stayed on the benefit program for percent of U.S. citizens with less than percent for an individual with less than 37 to 48 months. In contrast, only 39.3 a high school education received either 512 a high school diploma. According to percent of high school graduates and cash or non-cash benefits, while 19.2 the U.S. Census Bureau, lower 29.0 percent of those with 1 or more percent of those with a high school educational attainment was associated years of college who received public degree and about 13.3 percent with with higher public benefit program benefits during the same time period some college received those benefits. participation rates for people over the stayed on the public benefit program for 513 515 When examining the cohort of U.S. age of 18. In 2012, 37.3 percent of 37 to 48 months. The National Center citizens that have attained a college people who did not graduate from high for Education Statistics found that ‘‘[i]n degree, only 5.5 percent with a school received means-tested benefits, 2015, the poverty rate for children Bachelor’s degree, and 2.8 percent with compared with 21.6 percent of high under age 18 was highest for those a graduate degree received those school graduates and 9.6 percent of whose parents had not completed high benefits. For the noncitizen population, individuals with 1 or more years of school (52 percent) and lowest for those the rate of receipt of cash or non-cash college.514 whose parents had attained a bachelor’s benefits among those with less than a or higher degree (4 percent).’’ 516 The high school education was 28.2 percent, 511 See U.S. Bureau of Labor Statistics, data suggests that a lack of education Employment Projections, Unemployment Rates and increases the likelihood of poverty and while among those with a diploma had Earnings by Educational Attainment, 2016, a rate of receipt at 23.6 percent. Among available at https://www.bls.gov/emp/ep_chart_ unemployment, which may in turn increase the likelihood to need public those with some college the rate of 001.htm (last updated Mar. 27, 2018). receipt for cash and non-cash benefits 512 See U.S. Bureau of Labor Statistics, assistance. Employment Projections, Unemployment Rates and The results of DHS’s analysis of the was 18.0 percent, and with a Bachelor’s Earnings by Educational Attainment, 2016, or graduate degree, the rate was about _ _ SIPP data also show a relationship available at https://www.bls.gov/emp/ep chart between education level and self- 10 percent. For U.S. citizens and 001.htm (last updated Mar. 27, 2018). noncitizens alike, the rate of receipt of 513 See Shelley K. Irving & Tracy A. Loveless, U.S. sufficiency. Tables 18 and 19 indicate a Census Bureau, Dynamics of Economic Well-Being: cash benefits was much higher among Participation in Government Programs, 2009–2012: 515 See Shelley K. Irving & Tracy A. Loveless, U.S. those without a high school education Who Gets Assistance? 10 (May 2015), available at Census Bureau, Dynamics of Economic Well-Being: (12.2 percent of U.S. citizens and 3.7 https://www.census.gov/content/dam/Census/ Participation in Government Programs, 2009–2012: percent of noncitizens) than among any library/publications/2015/demo/p70-141.pdf. Who Gets Assistance? 10 (May 2015), available at 514 See Shelley K. Irving &Tracy A. Loveless, U.S. https://www.census.gov/content/dam/Census/ other education group (ranging from Census Bureau, Dynamics of Economic Well-Being: library/publications/2015/demo/p70-141.pdf. between 1 and 4 percent of U.S. Participation in Government Programs, 2009–2012: 516 See Nat’l Ctr. for Educ. Statistics, citizens, and 1 percent or less of Who Gets Assistance? 10 (May 2015), available at Characteristics of Children’s Families, available at noncitizens). https://www.census.gov/content/dam/Census/ https://nces.ed.gov/programs/coe/indicator_ library/publications/2015/demo/p70-141.pdf. cce.asp# (last updated May 2018). BILLING CODE 4410–10–P

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00078 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51191

Table 18. Public Benefit Participation of U.S. Citizens Age 18+, by Education Level, 2013 (in thousands)

Some college/Associate's Less than High School High School graduate degree

%of Total %of Total %of Total Total Population Population Population Population Population Population Population 310,867 23,141 7.4% 65,539 21.1% 67,138 21.6%

Benefit program Total Pet. S.E. Total Pet. S.E. Total Pet. S.E. Cash or non-cash 8,607 37.2% 0.9% 12,577 19.2% 0.4% 8,896 13.3% 0.4%

Cash benefits 2,823 12.2% 0.6% 2,835 4.3% 0.2% 1,453 2.2% 0.2% SSI 2,489 10.8% 0.6% 2,438 3.7% 0.2% 1,182 1.8% 0.1% TANF 198 0.9% 0.2% 242 0.4% 0.1% 141 0.2% 0.1% GA 232 1.0% 0.2% 228 0.3% 0.1% 163 0.2% 0.1%

Non-cash benefits 8,250 35.7% 0.9% 12,152 18.5% 0.4% 8,587 12.8% 0.4% Medicaid 5,904 25.5% 0.8% 8,131 12.4% 0.4% 5,478 8.2% 0.3% SNAP 5,176 22.4% 0.7% 7,435 11.3% 0.4% 5,051 7.5% 0.3% Housing vouchers 808 3.5% 0.3% 993 1.5% 0.1% 811 1.2% 0.1% Rent subsidy 2,155 9.3% 0.5% 2,728 4.2% 0.2% 2,004 3.0% 0.2% Bachelor's degree Graduate degree

%of Total %of Total Total Population Population Population Population Population 310,867 42,426 13.6% 23,771 7.6%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 2,319 5.5% 0.3% 676 2.8% 0.3%

Cash benefits 414 1.0% 0.2% 189 0.8% 0.2% SSI 367 0.9% 0.1% 170 0.7% 0.2% TANF *17 *0.0% 0.0% *19 *0.1% 0.1% GA *37 *0.1% 0.0% - --

Non-cash benefits 2,186 5.2% 0.3% 608 2.6% 0.3% Medicaid 1,309 3.1% 0.3% 396 1.7% 0.3% SNAP 930 2.2% 0.2% 335 1.4% 0.2% Housing vouchers 197 0.5% 0.1% *35 *0.1% 0.1% Rent subsidy 609 1.4% 0.2% 151 0.6% 0.2% .. Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program ParticipatiOn (SIPP). *Estimate is considered umeliable due to a high relative standard error. -Estimate of zero.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00079 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.033 51192 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Moreover, according to the National school degree, 18 percent required a In particular, 8.5 percent of U.S. citizens Center for Education Statistics, bachelor’s degree, and 16 percent and 13.7 percent of noncitizens with increased education is associated with required more than a bachelor’s professional certificates or licenses increased employment productivity and degree).519 received non-cash benefits compared to increased earnings.517 Unemployment Tables 20 and 21 below show that about 20 percent of the overall U.S. decreases as skills gained through among U.S. citizens and noncitizens, citizen and noncitizen populations. The education increase.518 In 2013, only 27 individuals holding professional rate of receipt of cash benefits among percent of U.S. jobs required less than certificates or licenses had lower rates of those with a professional certificate was a high school degree, while 74 percent non-cash means-tested public benefits 1.4 percent for U.S. citizens and 0.4 required skills associated with formal participation compared to their percent for noncitizens, compared to a education (39 percent required a high respective overall populations in 2013. rate of 3.6 percent among U.S. citizens

517 See Nat’l Ctr. for Educ. Statistics, Education 518 See U.S. Bureau of Labor Statistics, 519 See U.S. Bureau of Labor Statistics, Education and the Economy: An Indicators Report (Mar. Employment Projections, Unemployment Rates and Level and Jobs: Opportunities by State (Sept. 2014), 1997), available at https://nces.ed.gov/pubs97/web/ Earnings by Educational Attainment, 2016, available at https://www.bls.gov/careeroutlook/ _ _ 97939.asp. available at https://www.bls.gov/emp/ep chart 2014/article/education-level-and-jobs.htm. 001.htm (last updated Mar. 27, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00080 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.034 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51193

overall, and 1.8 percent among noncitizens overall.

Table 20. Public Benefit Participation of U.S. Citizens Overall, and with a Professional Certification or License, 2013 (in thousands) Citizen Citizen with prof. cert. %of Total %of Total Total Population Population Population Population Population 310,867 290,704 93.5% 52,514 16.9%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 60,480 20.8% 0.2% 4,683 8.9% 0.4%

Cash benefits 10,429 3.6% 0.1% 724 1.4% 0.2% SSI 7,652 2.6% 0.1% 571 1.1% 0.1% TANF 2,181 0.8% 0.0% *76 *0.1% 0.0% GA 900 0.3% 0.0% *93 *0.2% 0.1%

Non-cash benefits 59,029 20.3% 0.2% 4,447 8.5% 0.4% Medicaid 46,443 16.0% 0.2% 2,808 5.3% 0.3% SNAP 33,085 11.4% 0.2% 2,579 4.9% 0.3% Housing vouchers 4,645 1.6% 0.1% 381 0.7% 0.1% Rent subsidy 11,562 4.0% 0.1% 1,032 2.0% 0.2% Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program ParticipatiOn (SIPP). *Estimate is considered umeliable due to a high relative standard error. -Estimate of zero.

Table 21. Public Benefit Participation of Noncitizens Overall, and with a Professional Certification or License, 2013 (in thousands) Noncitizen Noncitizen with prof. cert. %of Total %of Total Total Population Population Population Population Population 310,867 20,163 6.5% 2,020 0.6%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 4,558 22.6% 0.9% 280 13.8% 2.4%

Cash benefits 370 1.8% 0.3% *8 *0.4% 0.4% SSI 254 1.3% 0.2% *8 *0.4% 0.4% TANF *73 *0.4% 0.1% - -- GA *47 *0.2% 0.1% - --

Non-cash benefits 4,498 22.3% 0.9% 276 13.7% 2.4% Medicaid 3,130 15.5% 0.8% 197 9.8% 2.1% SNAP 1,828 9.1% 0.6% *63 *3.1% 1.2% Housing vouchers 287 1.4% 0.3% *16 *0.8% 0.6% Rent subsidy 869 4.3% 0.4% *65 *3.2% 1.3% .. Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program ParticipatiOn (SIPP). *Estimate is considered umeliable due to a high relative standard error. -Estimate of zero.

Similar to those holding professional overall populations in 2013, as percent overall. Among noncitizens, the certificates or licenses, the rates of non- highlighted in Tables 22 and 23. For participation rate for non-cash benefits cash participation among the U.S. example, among U.S. citizens, the was very similar to that of U.S. citizens, citizen and noncitizen populations were participation rate for non-cash benefits with a rate of 13.1 percent among those lower for those having an educational was 12.7 percent for those having an having an educational certificate certificate compared to their respective educational certificate compared to 20.3 compared to 21.3 percent overall. The

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00081 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.035 EP10OC18.036 51194 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

rate of receipt of cash benefits among citizens and 0.8 percent among those having an educational certificate noncitizens. was about 2.4 percent among U.S.

Table 22. Public Benefit Participation of U.S. Citizens Overall, and with an Educational Certificate from a College, University, or Trade School, 2013 (in thousands) Citizen Citizen with ed. certificate %of Total %of Total Total Population Population Population Population Population 310,867 290,704 93.5% 32,068 10.3%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 60,480 20.8% 0.2% 4,250 13.3% 0.6%

Cash benefits 10,429 3.6% 0.1% 764 2.4% 0.3% SSI 7,652 2.6% 0.1% 624 1.9% 0.2% TANF 2,181 0.8% 0.0% *75 *0.2% 0.1% GA 900 0.3% 0.0% *86 *0.3% 0.1%

Non-cash benefits 59,029 20.3% 0.2% 4,061 12.7% 0.5% Medicaid 46,443 16.0% 0.2% 2,504 7.8% 0.4% SNAP 33,085 11.4% 0.2% 2,587 8.1% 0.4% Housing vouchers 4,645 1.6% 0.1% 442 1.4% 0.2% Rent subsidy 11,562 4.0% 0.1% 1,022 3.2% 0.3% Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program Participation (SIPP).520 *Estimate is considered umeliable due to a high relative standard error. -Estimate of zero.

520 The SIPP includes questions on professional Current Population Survey (Nov. 2016), available at do a specific job. Both certifications and licenses certification and licenses developed by the https://www.bls.gov/opub/mlr/2016/article/pdf/ are time-limited, so must be renewed periodically. Interagency Working Group on Expanded Measures adding-questions-on-certifications-and-licenses-to- Educational certificates are awarded by an of Enrollment and Attainment (GEMEnA). See Nat’l the-current-population-survey.pdf. GEMEnA educational institution and need not be renewed. Ctr. for Educ. Statistics, Working Definitions of Non- developed working definitions that categorize See also See U.S. Bureau of Labor Statistics, Degree Credentials, https://nces.ed.gov/surveys/ certification as a credential awarded by a non- Education Level and Jobs: Opportunities by State gemena/definitions.asp (last visited Sept. 12, 2018); governmental body, and involve successfully (Sept. 2014), available at https://www.bls.gov/ see also U.S. Bureau of Labor Statistics, Adding passing an examination. A license is awarded by a careeroutlook/2014/article/education-level-and- Questions on Certifications and Licenses to the government agency and provides legal authority to jobs.htm.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00082 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.037 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51195

Relatedly, English language English at home were less likely to be Among the noncitizen adults who speak proficiency is a skill that also is relevant employed, and less likely to find full- a language other than English at home, in determining whether an alien is time work when employed.524 In a 2005 the participation rates for both cash and likely to become a public charge in the study, ‘‘on average, workers who spoke non-cash benefits are higher among future. An inability to speak and only English earned $5,600 more than those who do not speak English well, or understand English may adversely affect people who spoke another at all, than among those who speak the whether an alien can obtain language,’’ 525 however, between the language well. The SIPP data indicate 522 employment. Aliens who cannot people who spoke English ‘‘very well’’ that the rate of coverage of non-cash speak English may be unable to obtain and people who spoke only English the benefits among those who spoke English employment in areas where only 526 difference was only $966. People either well or very well (about 15 to 20 English is spoken. People with the who spoke English ‘‘very well’’ had percent) was significantly lower than lowest English speaking ability tend to higher earnings than people who spoke the rate among those who either spoke have the lowest employment rate, English ‘‘well’’—an earning differential English poorly or not at all (about 25 to lowest rate of full-time employment, of $7,000.527 and lowest median earnings.523 Table 24 highlights a relationship 30 percent). The rate of receipt of cash According to U.S. Census Bureau data, between English language proficiency benefits for each of these groups ranged people who spoke a language other than and public benefit participation in 2013. from about 1 to 5 percent.

521 See Nat’l Ctr. for Educ. Statistics, Working at https://www.census.gov/hhes/socdemo/language/ 526 See Jennifer Cheeseman Day and Hyon B. Definitions of Non-Degree Credentials, https:// data/acs/PAA_2005_AbilityandEarnings.pdf. Shin, U.S. Census Bureau, How Does Ability to nces.ed.gov/surveys/gemena/definitions.asp (last 524 See Jennifer Cheeseman Day and Hyon B. Speak English Affect Earnings? 6 (2005), available visited Sept. 12, 2018). Shin, U.S. Census Bureau, How Does Ability to at https://www.census.gov/hhes/socdemo/language/ 522 See Jennifer Cheeseman Day and Hyon B. Speak English Affect Earnings? 6 (2005), available data/acs/PAA_2005_AbilityandEarnings.pdf. Shin, U.S. Census Bureau, How Does Ability to at https://www.census.gov/hhes/socdemo/language/ 527 Speak English Affect Earnings? 2 (2005), available data/acs/PAA_2005_AbilityandEarnings.pdf. See Jennifer Cheeseman Day and Hyon B. at https://www.census.gov/hhes/socdemo/language/ 525 See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census Bureau, How Does Ability to data/acs/PAA_2005_AbilityandEarnings.pdf. Shin, U.S. Census Bureau, How Does Ability to Speak English Affect Earnings? 6 (2005), available 523 See Jennifer Cheeseman Day and Hyon B. Speak English Affect Earnings? 6 (2005), available at https://www.census.gov/hhes/socdemo/language/ Shin, U.S. Census Bureau, How Does Ability to at https://www.census.gov/hhes/socdemo/language/ data/acs/PAA_2005_AbilityandEarnings.pdf. Speak English Affect Earnings? 6 (2005), available data/acs/PAA_2005_AbilityandEarnings.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00083 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.038 51196 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

BILLING CODE 4410–10–C DHS may also consider an applicant’s • The alien’s academic degree or Additionally, numerous studies have proficiency in other languages in certifications including a high school shown that immigrants’ English addition to English, with appropriate degree (or equivalent) or higher; language proficiency or ability to consideration given to market demand, • The alien’s occupational skills, acquire English proficiency directly when reviewing the education and skills certifications, or licenses; and correlate to a newcomer’s economic factor. • assimilation into the United States.528 The alien’s proficiency in English 1. USCIS Evidentiary Requirements or proficiencies in additional languages. 528 Barry R. Chiswick & Paul W. Miller, DHS proposes that USCIS would J. Prospective Immigration Status and Immigrant Earnings: Language Skills, Linguistic consider certain types of evidence when Concentrations and the Business Cycle, 15 J. Expected Period of Admission Population Econ., 31, 31–57 (2002); Christian reviewing this factor. For the reasons Dustmann, Fluency, Writing Fluency, and Earnings expressed above, USCIS’ review would DHS would also take into of Migrants, 7 J. Population Econ., 133, 133–156 include, but not be limited to: consideration the immigration status (1994); Ingo E. Isphording, IZA Discussion Paper • Evidence of the alien’s recent and duration of admission sought by an No. 7360, Disadvantages of Linguistic Origin: alien, and the classification the alien is Evidence from Immigrant Literacy Scores (2013), history of employment; available at http://ftp.iza.org/dp7360.pdf; Org. for seeking, as part of this determination. Econ. Cooperation & Dev./European Union, (2015), available at http://www.oecd.org/els/mig/ The type of evidence generally required Indicators of Immigrant Integration 2015: Settling In Indicators-of-Immigrant-Integration-2015.pdf. of an applicant for an immigrant visa,

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00084 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.039 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51197

admission as an immigrant, or affidavit of support 531 as part of the As part of PRWORA, benefit-granting adjustment of status would generally totality of the circumstances. agencies assess the combined income and resources of the sponsor (and his or differ in scope from the evidence 1. General Consideration of Sponsorship her spouse) and the alien to determine required of a bona fide applicant and Affidavits of Support seeking a nonimmigrant visa or whether the combined income and admission as a nonimmigrant. For DHS would consider a sponsor’s resources meet the eligibility example, an alien seeking permanent facially sufficient affidavit of support as requirements.537 This is called residence in the United States may be a positive factor in the totality of the ‘‘sponsor-to-alien deeming.’’ Public eligible for certain public benefits upon circumstances, but a sufficient affidavit benefits agencies, however, have his or her entry as a permanent resident of support alone would not result in a encountered challenges obtaining finding that an alien is unlikely at any or after five years. As a result, there is information about the sponsor’s income time to become a public charge due the a chance that he or she would avail him when determining the alien’s eligibility statute’s requirement to consider the or herself of the available public benefit. for public benefits. A U.S. Government mandatory factors. Moreover, DHS has Accountability Office (GAO) 2009 report USCIS would consider this possibility concerns about relying on sponsors to in the totality of the circumstances. found that although the number of ensure that aliens will not become a sponsored noncitizens potentially On the other hand, aliens who are public charge, as submitting a sufficient affected by such deeming is unknown, coming to the United States temporarily affidavit of support does not guarantee most recent information then available as a nonimmigrant may be less likely to that the alien will not receive public suggested that 11 percent (473,000) of avail themselves of public benefits, benefits in the future. sponsored aliens in 2007 applied for particularly if they are coming to the PRWORA and IIRIRA amended the TANF, Medicaid, or SNAP during the INA by setting forth requirements for United States for a short period of time course of 2007, and less than one submitting what would be an or if they are coming to the United percent applied for SSI.538 In addition, enforceable affidavit of support, i.e., States for employment purposes. For according to a 2002 study of the New current Form I–864.532 Approximately 1 example, an alien coming to the United York and Los Angeles areas by the month after PRWORA was enacted, States on a nonimmigrant visitor (B–2) Urban Institute for the Office of the Congress amended the public charge for a vacation in the United States for Assistant Secretary for Planning and inadmissibility ground, through passage two weeks must establish he or she has Evaluation of HHS, individuals who of IIRIRA, to require certain applicants sufficient funds to cover any expenses have become lawful permanent for lawful permanent resident status to in the United States. Therefore, residents since the affidavit of support submit an affidavit of support in generally, a nonimmigrant visitor would under section 213A of the Act was accordance with section 213A of the be unlikely to avail him or herself of any 533 enacted in 1996 were poorer (with public benefits for which he or she Act, 8 U.S.C. 1183a. An Affidavit of Support under Section 213A of the INA incomes below 100 percent of the FPL) would be eligible based on being 539 (Form I–864) 534 is a contract between than those who arrived earlier. ‘‘Legal lawfully present in the United States. the sponsor and the U.S. Government immigrants who entered the country Therefore, such an alien, if otherwise that imposes on the sponsor a legally since 1996 are poorer than those who entitled to a nonimmigrant visa and enforceable obligation to support the arrived earlier, despite new policies admission as a nonimmigrant, generally alien. The sponsor generally must requiring their sponsors to demonstrate would not be subject to the public demonstrate that he or she is able to incomes over 125 percent of the 540 charge inadmissibility ground under maintain the sponsored alien at an [FPL].’’ The report also indicates that section 212(a)(4) of the Act, 8 U.S.C. annual income of not less than 125 some immigrant families with incomes 541 1182(a)(4), although it is possible that percent of the FPG.535 By creating these below twice the poverty level evidence may exist that gives rise to a requirements in section 213A of the Act, received SNAP, TANF or Medicaid from 542 public charge concern. 8 U.S.C. 1183a, Congress intended to 1999–2000. For example, in Los Angeles 13 percent and in New York K. Affidavit of Support ensure that affidavits of support were enforceable and that public benefit- City 22 percent of noncitizen families Failure to submit a required affidavit granting agencies could be reimbursed of support when required under section for certain aid provided to the 537 See PRWORA, Public Law 104–193, section 212(a)(4)(C) or section 212(a)(4)(D) of sponsored alien.536 423, 11 Stat. 2105, 2271–74. 538 See U.S. Gov’t Accountability Office, GAO– the Act, 8 U.S.C. 1182(a)(4)(C) or 09–375, Sponsored Noncitizens and Public Benefits 1182(a)(4)(D), necessarily results in a 531 See INA section 212(a)(4)(C) and (a)(4)(D), 8 (May 2009), available at https://www.gao.gov/ determination of inadmissibility based U.S.C. 1182(a)(4)(C) and 1182(a)(4)(D). products/GAO-09-375. 532 on the public charge ground without See INA sections 212(a)(4) and 213A, 8 U.S.C. 539 See Randy Capps et al., How Are Immigrants 1182(a)(4) and 1183a. Faring After Welfare Reform? Preliminary Evidence 529 review of any other statutory factors. 533 See IIRIRA, Public Law 104–208, div. C, from Los Angeles and New York City ii (Mar. 4, For aliens who submit an affidavit of section 531(b), 110 Stat. 3009–546, 3009–675. 2002), available at https://aspe.hhs.gov/system/ support, the statute allows DHS to 534 The Affidavit of Support Under Section 213A files/pdf/72691/report.pdf. consider the affidavit of support under of the INA, Form I–864EZ, may be used instead of 540 Randy Capps et al., How Are Immigrants Form I–864 in certain circumstances. References to Faring After Welfare Reform? Preliminary Evidence section 213A of the Act, 8 U.S.C. 1183a, the affidavit of support in this rule include Form from Los Angeles and New York City ii (Mar. 4, in public charge inadmissibility I–864EZ. 2002), available at https://aspe.hhs.gov/system/ determinations.530 DHS, therefore, 535 See INA section 213A, 8 U.S.C. 1183a. files/pdf/72691/report.pdf. proposes to consider any required 536 In explaining the provision, Congress 541 The report describes these families as low- continued to emphasize that the affidavits of income families. support (before 1996) were previously 542 See Randy Capps et al., How Are Immigrants 529 Certain applicants are exempt from filing the unenforceable. Congress highlighted the difference Faring After Welfare Reform? Preliminary Evidence affidavit of support under INA section 213A, 8 between the situation at the time, before 1996, and from Los Angeles and New York City iv (Mar. 4, U.S.C. 1183a. the new law which would make the affidavits 2002), available at https://aspe.hhs.gov/system/ 530 See INA section 212(a)(4)(B)(ii), 8 U.S.C. enforceable and permit benefit-providing agencies files/pdf/72691/report.pdf. Note that this report 1182(a)(4)(B)(ii); see also proposed 8 CFR to seek reimbursement. See H.R. Rep. No. 104–651, uses a household centered approach to evaluate 212.22(b)(7). at 1449 (1996). data.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00085 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51198 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

with income below twice the poverty willingness or ability to financially generally involves people being capable level received food stamps (SNAP).543 support the alien. and willing to work and being able to To the extent that the initial evidence maintain gainful employment. A person 2. Proposal To Consider Required submitted by the sponsor is insufficient who is capable and able to work but Affidavits of Support to make this determination, USCIS does not work demonstrates a lack of Certain aliens are required to submit would request additional information self-sufficiency. As previously an affidavit of support.544 With certain from the sponsor or interview the discussed, various studies and data exceptions, the requirement to submit sponsor to determine whether the support the concept that a person’s an affidavit of support applies to sponsor is willing and able to support education and skills may be positive immediate relatives (including the alien on a long-term basis. The factors for purposes of evidencing self- orphans), family-preference immigrants, inability or unwillingness of the sponsor sufficiency, including the SIPP data and those employment-based to financially support the alien may be reviewed in the Education and Skills immigrants whose petitioners are viewed as a negative factor in the section, and the U.S. Census Bureau relatives or a firm in which a U.S. totality of the circumstances. DHS report that indicates that lower citizen or lawful permanent resident expects that a sponsor’s sufficient educational attainment is associated relative holds a significant ownership affidavit of support would not be an with higher public benefit program interest.545 Immigrants seeking outcome-determinative factor in most participation rates for people over the admission or adjustment of status in cases; the presence of a sufficient age of 18.550 these categories are inadmissible under affidavit of support does not eliminate In addition, the concept that a subparagraphs (C) and (D) of section the need to consider all of the person’s education and skills may be 212(a)(4) of the Act, 8 U.S.C. mandatory factors in the totality of the positive factors for purposes of 1182(a)(4)(C) and (D), unless an circumstances.547 evidencing self-sufficiency is supported appropriate sponsor has completed and by two Census Bureau studies covering L. Heavily Weighed Factors filed a sufficient affidavit of support.546 2004 to 2007 and 2009 to 2012, showing A sufficient affidavit of support does DHS proposes a number of factors or that in each of the covered years, not guarantee that the alien will not factual circumstances that it has individuals with full-time work were receive public benefits in the future and, determined would generally weigh less likely to receive means-tested therefore, DHS would only consider the heavily in determining whether an alien benefits during the year (ranging from affidavit of support as one factor in the is likely to become a public charge in 4.5 percent to 5.1 percent) than those totality of the circumstances. When the future.548 The mere presence of any with either part-time work (ranging from determining the weight to give an one enumerated circumstance would 12.6 percent to 14.2 percent) or those affidavit of support in the totality of the not, alone, be determinative. A heavily who were unemployed (ranging from circumstances, USCIS would assess the weighed factor could be outweighed by 24.8 percent to 31.2 percent).551 sponsor’s annual income, assets, countervailing evidence in the totality DHS recognizes however, that not resources, and financial status, of the circumstances. Other negative everyone authorized to work needs to relationship to applicant, the likelihood and positive factors, including factors work. Some aliens may have sufficient that the sponsor would actually provide not enumerated elsewhere in this rule, assets and resources, including a financial support to the alien, and any may also be weighed heavily in household member’s income and assets, other related considerations. individual determinations, as which may overcome any negative In order to assess the sponsor’s circumstances warrant. factor related to lack of employment. likelihood of meeting his or her 1. Heavily Weighed Negative Factors DHS would review those considerations obligation to support the alien, DHS in the totality of the circumstances. would look at how close of a DHS proposes to consider certain relationship the sponsor has to the factors listed below as heavily negative (b) Current Receipt of One or More alien, as close family members would be because these factors are particularly Public Benefits more likely to financially support the indicative of a likelihood that the alien DHS proposes that current receipt of alien if necessary. DHS would also look would become a public charge. one or more public benefits, as defined at whether the sponsor lives with this (a) Lack of Employability alien, as this could be indicative of the weighed negative factor when making public charge sponsor’s willingness to support the As long as an alien is not a full-time determinations regarding full-time students. The alien if needed. Additionally, DHS student and is authorized to work, DHS full-time student is working toward a degree, which makes the student more employable in the future, would look at whether the sponsor has proposes that the absence of current and as such, has a reasonable prospect of submitted affidavit of support with employment, employment history, or employment in the future. respect to other individuals, as this may reasonable prospect of future 550 See Shelley K. Irving & Tracy A. Loveless, U.S. be indicative of the sponsor’s employment will be a heavily weighed Census Bureau, Dynamics of Economic Well-Being: 549 Participation in Government Programs, 2009–2012: negative factor. Self-sufficiency Who Gets Assistance? 10 (May 2015), available at 543 See Randy Capps et al., How Are Immigrants https://www.census.gov/content/dam/Census/ Faring After Welfare Reform? Preliminary Evidence 547 However, the statute requires a finding of library/publications/2015/demo/p70-141.pdf. from Los Angeles and New York City iv (Mar. 4, inadmissibility on public charge grounds if the 551 See Jeongsoo Kim, Shelley K. Irving, & Tracy 2002), available at https://aspe.hhs.gov/system/ alien is required to submit an affidavit of support A. Loveless, U.S. Census Bureau, Dynamics of files/pdf/72691/report.pdf. and fails to do so. INA section 212(a)(4)(D), 8 U.S.C. Economic Well-Being: Participation in Government 544 See INA section 212(a)(4). 1182(a)(4)(D). Programs, 2004 to 2007 and 2009—Who Gets 545 See INA sections 212(a)(4)(C) and (D), 8 U.S.C. 548 See proposed 8 CFR 212.22. Assistance? 12 (July 2012), available at https:// 1182(a)(4)(C) and (D); see also 8 CFR 213a.2(a)(2). 549 See proposed 8 CFR 212.22(c)(1)(ii). While a www2.census.gov/library/publications/2012/demo/ 546 Certain immigrant categories are exempt from full-time student must still demonstrate he or she p70-130.pdf; Shelley K. Irving & Tracy A. Loveless, the affidavit of support requirements including: is not likely to become a public charge, because the U.S. Census Bureau, Dynamics of Economic Well- Qualified battered spouses and children (and their public charge determination is based on the totality Being: Participation in Government Programs, eligible family members) and qualified widow(er)s of the circumstances under the proposed 8 CFR 2009–2012: Who Gets Assistance? 10 (May 2015), of citizens, if these aliens have filed visa petitions 212.22(d) that includes consideration of the alien’s available at https://www.census.gov/content/dam/ on their own behalf. For more information on who immigration status, the lack of employment or Census/library/publications/2015/demo/p70- must file an affidavit of support, see AFM Ch. 20.5. employment history is not counted as a heavily 141.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00086 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51199

in proposed 212.21(b), would be a welfare.’’ 556 Regarding Medicaid and alien may be able to establish heavily weighed negative factor in a food stamp participation among leavers, circumstances indicating that the public charge inadmissibility the authors found ‘‘the proportion of receipt of public benefits will stop in determination.552 Current receipt of leavers who receive these benefits at the near future and he or she will have public benefits, alone, would not justify some point in the year after exit is much sufficient income to support him or a finding of inadmissibility on public higher than the proportion who receives herself. them in any given quarter, suggesting a charge grounds. However, an alien’s (c) Receipt of Public Benefits Within 36 fair amount of cycling into and out of current receipt of one or more public Months of Filing Application benefits means that the alien is these programs.’’ 557 currently a public charge as defined HHS also funds various research Similarly, DHS proposes that an under proposed 8 CFR 212.21(a), and projects on welfare. Across fifteen state alien’s past receipt of public benefits suggests that the alien may continue to and county welfare studies funded by within the 36 months immediately receive public benefits in the future and HHS, it was found that the number of preceding his or her application also be more likely to continue to be a public leavers who received food stamps carries significant weight in determining charge. within one year of exit was between 41 whether the alien is likely to become a and 88 percent.558 Furthermore, TANF public charge. The weight given to this Research indicates that the largest leavers returned to the program at a rate factor will depend on how recently the share of participants (43.0 percent) who ranging between 17 and 38 percent alien has received public benefits, and benefited from one or more means- within one year of exit.559 Twelve of whether the person has received public tested assistance programs between these studies included household benefits for an extended period of time January 2009 and December 2012 stayed surveys, with some conducting (i.e., receives public benefits for in the programs between 37 and 48 interviews less than a year post-exit, multiple years) or at multiple different months.553 DHS is also aware that a and some as much as 34 months after time periods (i.e., 3 times in the last two separate study showed that receipt of exit.560 A review of these surveys found years).562 benefits across a two-year timespan is that among those who left Medicaid, the As previously discussed, some studies likely to occur in all months, suggesting rate of re-enrollment at the time of suggest that although most people who relatively long welfare spell lengths. interview was between 33 and 81 leave welfare programs are working after Between January 2004 and December percent among adults, and between 51 they leave those programs, people may 2005, a greater share of the population and 85 percent among children. come back to receive additional public received one or more means-tested Employment rates at the time of benefits.563 In a research study funded benefits for the entire 24-month study interview ranged between 57 and 71 by HHS, A Profile of Families Cycling period (10.2 percent) than for either one percent.561 On and Off Welfare, researchers to 11 months (8.5 percent) or 12 to 23 DHS thus would view current receipt conclude that people who left welfare months (6.5 percent).554 These studies, of public benefits as a strong indicator (leavers) experienced ‘‘a fair amount of though, do not directly address the issue that an alien will continue to receive employment instability—the median of individuals who stopped receiving public benefits, and is therefore likely to proportion of people employed in all benefits later returning to these become a public charge. However, an four post-exit quarters was 37 percent. programs. Thus, job loss among welfare leavers 556 Lashawn Richburg-Hayes & Stephen may give rise to cycling back to Some studies suggest that although Freedman, A Profile of Families Cycling On and Off welfare.’’ 564 Regarding Medicaid and most people who leave welfare Welfare 4 (Apr. 2004) (citing Gregory Arcs & Pamela food stamp participation among leavers, programs are working after they leave Loprest, U.S. Dep’t of Health & Human Servs., Office of the Assistant Sec’y for Planning & the authors found ‘‘the proportion of those programs, people may come back Evaluation, Final Synthesis Report of Findings from leavers who receive these benefits at 555 to receive additional public benefits. ASPE ‘‘Leavers’’ Grants (2001)), available at https:// some point in the year after exit is much In a research study funded by HHS, A aspe.hhs.gov/system/files/pdf/73451/report.pdf. higher than the proportion who receives This study was based on the first and fourth Profile of Families Cycling On and Off them in any given quarter, suggesting a Welfare, researchers conclude that quarter. 557 Lashawn Richburg-Hayes & Stephen fair amount of cycling into and out of people who left welfare (leavers) Freedman, A Profile of Families Cycling On and Off these programs.’’ 565 experienced ‘‘a fair amount of Welfare 4 (Apr. 2004), available at https:// HHS also funds various research employment instability—the median aspe.hhs.gov/system/files/pdf/73451/report.pdf. projects on welfare. Across fifteen state proportion of people employed in all 558 See U.S. Dep’t of Health & Human Servs., Office of the Assistant Sec’y for Planning & and county welfare studies funded by four post-exit quarters was 37 percent. Evaluation, Status Report on Research on the Thus, job loss among welfare leavers Outcomes of Welfare Reform app. B (Aug. 2001), 562 This proposed policy is generally consistent may give rise to cycling back to available at https://aspe.hhs.gov/report/status- with longstanding policy affording less weight to report-research-outcomes-welfare-reform-2001. benefits that were received longer ago in the past. 559 See U.S. Dep’t of Health & Human Servs., 563 See Lashawn Richburg-Hayes & Stephen 552 See proposed 8 CFR 212.22(c)(1)(ii) and (iii). Office of the Assistant Sec’y for Planning & Freedman, A Profile of Families Cycling On and Off 553 See U.S. Census Bureau, News Release: 21.3 Evaluation, Status Report on Research on the Welfare 4 (Apr. 2004), available at https:// Percent of U.S. Population Participates in Outcomes of Welfare Reform app. B (Aug. 2001), aspe.hhs.gov/system/files/pdf/73451/report.pdf. Government Assistance Programs Each Month (May available at https://aspe.hhs.gov/report/status- 564 Lashawn Richburg-Hayes & Stephen 28, 2015), available at https://www.census.gov/ report-research-outcomes-welfare-reform-2001. Freedman, A Profile of Families Cycling On and Off newsroom/press-releases/2015/cb15-97.html. 560 See U.S. Dep’t of Health & Human Servs., Welfare 4 (Apr. 2004) (citing Gregory Arcs & Pamela 554 See Jeongsoo Kim, Shelley K. Irving, & Tracy Office of the Assistant Sec’y for Planning & Loprest, U.S. Dep’t of Health & Human Servs., A. Loveless, U.S. Census Bureau, Dynamics of Evaluation, Status Report on Research on the Office of the Assistant Sec’y for Planning & Economic Well-Being: Participation in Government Outcomes of Welfare Reform app. B (Aug. 2001), Evaluation, Final Synthesis Report of Findings from Programs, 2004 to 2007 and 2009—Who Gets available at https://aspe.hhs.gov/report/status- ASPE ‘‘Leavers’’ Grants (2001)), available at https:// Assistance? 4 fig.4 (July 2012), available at https:// report-research-outcomes-welfare-reform-2001. aspe.hhs.gov/system/files/pdf/73451/report.pdf. www2.census.gov/library/publications/2012/demo/ 561 See U.S. Dep’t of Health & Human Servs., This study was based on the first and fourth p70-130.pdf. Office of the Assistant Sec’y for Planning & quarter. 555 See Lashawn Richburg-Hayes & Stephen Evaluation, Status Report on Research on the 565 Lashawn Richburg-Hayes & Stephen Freedman, A Profile of Families Cycling On and Off Outcomes of Welfare Reform app. B (Aug. 2001), Freedman, A Profile of Families Cycling On and Off Welfare 4 (Apr. 2004), available at https:// available at https://aspe.hhs.gov/report/status- Welfare 4 (Apr. 2004), available at https:// aspe.hhs.gov/system/files/pdf/73451/report.pdf. report-research-outcomes-welfare-reform-2001. aspe.hhs.gov/system/files/pdf/73451/report.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00087 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51200 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

HHS, it was found that the number of (d) Financial Means To Pay for Medical Disease Control and Prevention (CDC) leavers who received food stamps Costs has listed the five most expensive health within one year of exit was between 41 An alien is a high risk of becoming a conditions as heart disease, cancer, and 88 percent.566 Furthermore, TANF public charge if he or she does not have trauma, mental disorders, and 574 leavers returned to the program at a rate private health insurance or the financial pulmonary conditions. These are all ranging between 17 and 38 percent resources to pay for reasonably classified as costly medical 575 within one year of exit.567 Twelve of foreseeable medical costs related to a conditions. In the United States, these studies included household medical condition that is likely to chronic diseases and conditions that surveys, with some conducting require extensive medical treatment or cause them account for most of the interviews less than a year post-exit, health care costs.576 institutionalization or that will interfere • and some as much as 34 months after with the alien’s ability to provide care From 2012 to 2013, the total annual exit.568 A review of these surveys found for him- or herself, to attend school, or direct medical costs for heart disease and strokes were $190 billion;577 that among those who left Medicaid, the to work. However, the alien may • rate of re-enrollment at the time of Cancer care cost $157 billion in provide evidence of the prospect of 578 interview was between 33 and 81 obtaining health insurance, such as 2010 dollars; and • In 2017, the total estimated direct percent among adults, and between 51 pending employment that provides medical cost for diagnosed diabetes was and 85 percent among children. employer-sponsored health insurance. $237 billion.579 Employment rates at the time of DHS proposes this factual interview ranged between 57 and 71 circumstance as a heavily weighed Health Promotion, About Chronic Diseases, Health 569 percent. negative factor in 8 CFR 212.22(c)(1)(iv). and Economic Costs of Chronic Diseases, available Certain chronic medical conditions can DHS would view past receipt of at https://www.cdc.gov/chronicdisease/about/costs/ be costly to treat.571 Certain conditions index.htm (last visited Sept. 13, 2018). public benefits within 36 months as a may adversely affect an applicant’s 574 See U.S. Dep’t of Health & Human Servs., strong indicator that an alien will ability and capacity to obtain and retain Research In Action, Issue #19: The High continue to receive public benefits, and Concentration of U.S. Health Care Expenditures gainful employment. Other conditions therefore is likely to become a public (June 2006), available at https://archive.ahrq.gov/ could result in long-term charge. However, the weight given to research/findings/factsheets/costs/expriach/ institutionalization in a health care expendria.pdf; see also Ctrs. for Disease Control & public benefits will depend on whether facility at government expense. Prevention, National Center for Chronic Disease the alien received multiple benefits, Prevention and Health Promotion, About Chronic According to the Multiple Chronic Diseases, Health and Economic Costs of Chronic how long ago the benefits were received, Conditions Chartbook 2010 Medical 570 Diseases, available at https://www.cdc.gov/ and the amounts received. For Expenditure Panel Survey Data,572 86 chronicdisease/about/costs/index.htm (last visited example, the receipt of a public benefit percent of the nation’s $2.7 trillion Sept. 13, 2018). See also generally the Ctrs. for 5 years ago would be a negative factor; annual health care expenditures were Disease Control & Prevention, Statistics on Chronic however, a public benefit received six Disease Prevention and Health Promotion, Chronic for individuals with chronic and mental Disease Data available at https://www.cdc.gov/ months before the adjustment of status health conditions.573 The Centers for chronicdisease/data/index.htm (last visited Sept. application would be considered a 13, 2018). heavily weighed negative factor. 571 See U.S. Dep’t of Health & Human Servs., 575 See U.S. Dep’t of Health & Human Servs., Research In Action, Issue #19: The High DHS welcomes public comments on Research In Action, Issue #19: The High Concentration of U.S. Health Care Expenditures Concentration of U.S. Health Care Expenditures the appropriate period of time to (June 2006), available at https://archive.ahrq.gov/ (June 2006), available at https://archive.ahrq.gov/ examine. DHS is particularly interested research/findings/factsheets/costs/expriach/ research/findings/factsheets/costs/expriach/ in data regarding how frequently expendria.pdf; see also Ctrs. for Medicare & expendria.pdf; see also Ctrs. for Disease Control & Medicaid Servs., NHE Fact Sheet, available at Prevention, National Center for Chronic Disease individuals who previously used public https://www.cms.gov/research-statistics-data-and- Prevention and Health Promotion, About Chronic benefits later do so again, and whether systems/statistics-trends-and-reports/ Diseases, Health and Economic Costs of Chronic a 24-month or 48-month timeframe nationalhealthexpenddata/nhe-fact-sheet.html (last Diseases, available at https://www.cdc.gov/ would be more appropriate. modified Sept 13, 2018) (in 2016, NHE grew to $3.3 chronicdisease/about/costs/index.htm (last visited trillion). For a discussion of expenditures, see Sept. 13, 2018). See also generally the Ctrs. for generally Ctrs. for Medicare & Medicaid Servs., Disease Control & Prevention, Statistics on Chronic 566 See U.S. Dep’t of Health & Human Servs., National Health Expenditure Data, available at Disease Prevention and Health Promotion, Chronic Office of the Assistant Sec’y for Planning & https://www.cms.gov/Research-Statistics-Data-and- Disease Data available at https://www.cdc.gov/ Evaluation, Status Report on Research on the Systems/Statistics-Trends-and-Reports/ chronicdisease/data/index.htm (last visited Sept. Outcomes of Welfare Reform app. B (Aug. 2001), NationalHealthExpendData (last modified Sept 13, 13, 2018). available at https://aspe.hhs.gov/report/status- 2018); see also Ctrs. for Disease Control & 576 See Ctrs. for Disease Control & Prevention, report-research-outcomes-welfare-reform-2001. Prevention, Chronic Disease Prevention and Health National Center for Chronic Disease Prevention and 567 See U.S. Dep’t of Health & Human Servs., Promotion, Chronic Disease Data available at Health Promotion, About Chronic Diseases, Health Office of the Assistant Sec’y for Planning & https://www.cdc.gov/chronicdisease/data/ and Economic Costs of Chronic Diseases, available Evaluation, Status Report on Research on the index.htm (last visited Sept. 13, 2018). The CDC at https://www.cdc.gov/chronicdisease/about/costs/ Outcomes of Welfare Reform app. B (Aug. 2001), collects large amounts of data on numerous major index.htm (last visited Sept. 13, 2018). chronic diseases. In addition, the CDC provides an available at https://aspe.hhs.gov/report/status- 577 overview of chronic diseases in the United States, See Ctrs. for Disease Control & Prevention, report-research-outcomes-welfare-reform-2001. including prevalence and cost. See Ctrs. for Disease National Center for Chronic Disease Prevention and 568 See U.S. Dep’t of Health & Human Servs., Control & Prevention, National Center for Chronic Health Promotion, About Chronic Diseases, Health Office of the Assistant Sec’y for Planning & Disease Prevention and Health Promotion, About and Economic Costs of Chronic Diseases, available Evaluation, Status Report on Research on the Chronic Diseases, Health and Economic Costs of at https://www.cdc.gov/chronicdisease/about/costs/ Outcomes of Welfare Reform app. B (Aug. 2001), Chronic Diseases, available at https://www.cdc.gov/ index.htm (last visited Sept. 13, 2018). available at https://aspe.hhs.gov/report/status- chronicdisease/about/costs/index.htm (last visited 578 See Nat’l Cancer Inst., Cancer Prevalence and report-research-outcomes-welfare-reform-2001. Sept. 13, 2018). Cost of Care Projections, http:// 569 See U.S. Dep’t of Health & Human Servs., 572 As cited by the CDC. See Ctrs. for Disease costprojections.cancer.gov/ (last visited Sept. 13, Office of the Assistant Sec’y for Planning & Control & Prevention, National Center for Chronic 2018). Evaluation, Status Report on Research on the Disease Prevention and Health Promotion, About 579 See American Diabetes Association, The Cost Outcomes of Welfare Reform app. B (Aug. 2001), Chronic Diseases, Health and Economic Costs of of Diabetes, available at http://www.diabetes.org/ available at https://aspe.hhs.gov/report/status- Chronic Diseases, available at https://www.cdc.gov/ advocacy/news-events/cost-of-diabetes.html (last report-research-outcomes-welfare-reform-2001. chronicdisease/about/costs/index.htm (last visited visted Sept. 13, 2018). See also Ctrs. for Disease 570 This proposed policy is generally consistent Sept. 13, 2018). Control & Prevention, National Center for Chronic with longstanding policy affording less weight to 573 See Ctrs. for Disease Control & Prevention, Disease Prevention and Health Promotion, About benefits that were received longer ago in the past. National Center for Chronic Disease Prevention and Chronic Diseases, Health and Economic Costs of

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00088 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51201

Individuals in poor to fair health are benefits because of their compromised receipt of these benefits among those more likely to access public benefits to health. About 40 percent of U.S. citizens who reported their health as excellent, treat their medical condition. Tables 25 and 50 percent of noncitizens 580 who very good, or good was similarly about and 26 show a relationship between described their health as poor received 20 percent, while among those who health and receipt of public benefits some form of cash or non-cash public reported their health as fair or poor, the irrespective of citizenship status, with benefit. Moreover, about 20 percent of rate was 30 to 50 percent. About 1 to 2 higher rates of participation in most U.S. citizens and noncitizens who percent of both U.S. citizens and programs among those who reported reported their health as excellent noncitizens who reported their health as their health as fair or poor than those participated in at least one type of cash excellent or good received at least one who reported their health as excellent, or non-cash benefit program in 2013. of SSI, TANF, or GA, which was a rate very good, or good. The rate of receipt of cash or non-cash much lower than those who reported DHS also acknowledges that the benefits was about 20 percent among their health as either good (10.0 percent health of certain individuals may have U.S. citizens who reported their health of U.S. citizens and 7.1 percent of improved because of their access to as excellent, very good, or good; and the noncitizens) or excellent (17.3 percent rate was 30 to 40 percent among U.S. of citizens and 12.8 percent of these subsidized health insurance and 581 other public benefits. In other cases, citizens who reported their health as fair noncitizens). individuals may have needed the public or poor. Among noncitizens, the rate of 581 See Amy Finkelstein et al., Nat’l Bureau of Econ. Research, Working Paper 17190, The Oregon Chronic Diseases, available at https://www.cdc.gov/ 580 The difference in rates between citizens and Health Insurance Experiment: Evidence from the chronicdisease/about/costs/index.htm (last visited noncitizens who describe their health as poor is not First Year (July 2011), available at http:// Sept. 13, 2018). statistically significant. www.nber.org/papers/w17190.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00089 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51202 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 25: Public Benefit Participation of U.S. Citizens, by Health Status, 2013 (in thousands) Excellent Very good Good

%of Total %of Total %of Total Total Population Population Population Population Population Population Population 310,867 99,975 32.2% 85,478 27.5% 66,323 21.3%

Benefit program Total Pet. S.E. Total Pet. S.E. Total Pet. S.E. Cash or non-cash 19,702 19.7% 0.4% 13,987 16.4% 0.4% 13,383 20.2% 0.4%

Cash benefits 1,659 1.7% 0.1% 1,577 1.8% 0.1% 2,468 3.7% 0.2% SSI 584 0.6% 0.1% 921 1.1% 0.1% 1,932 2.9% 0.2% TANF 927 0.9% 0.1% 542 0.6% 0.1% 460 0.7% 0.1% GA 201 0.2% 0.0% 130 0.2% 0.0% 185 0.3% 0.1%

Non-cash benefits 19,539 19.5% 0.4% 13,680 16.0% 0.4% 12,980 19.6% 0.4% Medicaid 16,520 16.5% 0.4% 10,934 12.8% 0.3% 9,700 14.6% 0.4% SNAP 9,946 9.9% 0.3% 7,405 8.7% 0.3% 7,506 11.3% 0.4% Housing vouchers 1,347 1.3% 0.1% 1,085 1.3% 0.1% 1,075 1.6% 0.1% Rent subsidy 3,122 3.1% 0.2% 2,599 3.0% 0.2% 2,658 4.0% 0.2% Fair Poor

%of Total %of Total Total Population Population Population Population Population 310,867 27,631 8.9% 11,298 3.6%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 8,795 31.8% 0.8% 4,614 40.8% 1.2%

Cash benefits 2,770 10.0% 0.5% 1,954 17.3% 1.0% SSI 2,467 8.9% 0.5% 1,749 15.5% 0.9% TANF 189 0.7% 0.1% *63 *0.6% 0.2% GA 195 0.7% 0.1% 189 1.7% 0.3%

Non-cash benefits 8,448 30.6% 0.8% 4,382 38.8% 1.2% Medicaid 6,058 21.9% 0.7% 3,231 28.6% 1.1% SNAP 5,444 19.7% 0.7% 2,784 24.6% 1.1% Housing vouchers 749 2.7% 0.3% 389 3.4% 0.5% Rent subsidy 2,067 7.5% 0.4% 1,116 9.9% 0.8% Source: USCIS analysis of Wave 1 of the 2014 Survey oflncome and Program Participation (SIPP). Medicaid coverage is associated with higher rates of self-reported health status as good, very good, or excellent, which would lead to higher rates of Medicaid emollment in those categories.581 * Estimate is considered umeliable due to a high relative standard error. -Estimate of zero.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00090 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.040 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51203

As noted in the discussion of the with the alien’s ability to provide for (e) Alien Previously Found Inadmissible health factor above, USCIS would rely him- or herself, attend school, or work; or Deportable Based on Public Charge on panel physician and civil surgeon and the alien is uninsured or has health medical examination for purposes of insurance that constitutes a public DHS is proposing to consider an alien whether an individual’s circumstances benefit under 212.21(b), or the alien has previously found inadmissible or gives rise to this heavily weighted no prospect of obtaining private health deportable based on public charge negative factor. USCIS would consider it insurance, or other non-governmental grounds to be a high risk of becoming 582 a heavily weighed negative factor if the means of paying for medical treatment. a public charge in the future. Absent panel physician or civil surgeon reports countervailing positive factors and a medical condition that is likely to evidence to show that current require extensive medical treatment or institutionalization, or that will interfere 582 See proposed 8 CFR 212.22(c)(1)(v).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00091 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.041 51204 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

circumstances outweigh the conditions participation rates in non-cash benefit FPG or living between 250 to 400 that supported the finding of programs among those living below 125 percent of the FPG, and 1.1 percent inadmissibility, the previous finding percent of the FPG was about 40 among those living above 400 percent of will carry heavy weight in determining percent, compared to about 35 percent the FPG. Because many public benefit that an alien is likely to be a public of those either between 125 and 250 programs determine eligibility based on charge again. percent of the FPG or 250 and 400 the FPG, individuals living above 250 583 2. Heavily Weighed Positive Factors percent of the FPG. Among percent of the FPG are less likely to noncitizens living above 400 percent of receive public benefits. Significant income, assets, and the FPG, the rate of receipt was 17.1 For these reasons, and based on the resources play a major role in whether percent. Among U.S. citizens, the rate of data that follows, DHS proposes to an individual is likely to become a receipt of cash benefits among those consider it a heavily weighed positive public charge. In addition, as described living below 125 percent of the FPG was factor if the alien has financial assets, above, Tables 27 and 28 show a 12.9 percent, compared to a rate of 10.3 resources, support, or annual income of relationship between the FPG and percent among those living between 125 at least 250 percent of the FPG in the welfare participation rates among both 584 and 250 percent of the FPG, 5.5 percent totality of the circumstances. U.S. citizens and noncitizens in receipt However, DHS notes that an alien with of non-cash benefits in 2013. The among those living between 250 and 400 percent of the FPG, and 1.9 percent an annual income of less than 250 percentage of people receiving these percent of FPG would not automatically public benefits generally goes down as of those living above 400 percent of the FPG. Among noncitizens, the rates of be inadmissible based on public charge. the income percentage increases. Instead, all the factors as discussed Specifically, 52.0 percent of U.S. receipt were 6.7 percent among those living below 125 percent of the FPG, above would be considered in the citizens living below 125 percent of the totality of the circumstances, which may FPG received non-cash benefits about 2 to 3 percent among those either living between 125 to 250 percent of the be favorable to be person regardless of compared to 42.4 percent of those living whether the income is below 250 between 125 and 250 percent of the percent of the FPG. FPG, 36.9 percent of those living 583 The difference in rates between noncitizens living below 125 percent of the FPG and those between 250 and 400 percent of the living either between 125 and 250 percent of the 584 Income between 125 and 250 percent of the FPG, and 13.5 percent of those above FPG, or 250 and 400 percent of the FPG, was not FPL is considered a positive factor in the public 400 percent of the FPL. Noncitizen statistically significant. charge inadmissibility analysis.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00092 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51205

Table 27. Public Benefit Participation Among U.S. Citizens by Federal Poverty Guidelines (FPG), 2013 (in thousands) 0-125%FPG >125-250% FPG %of Total %of Total Total Population Population Population Population Population 310,867 19,947 6.4% 20,790 6.7%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 10,506 52.7% 1.0% 9,006 43.3% 0.9%

Cash benefits 2,572 12.9% 0.6% 2,138 10.3% 0.6% SSI 1,909 9.6% 0.6% 1,480 7.1% 0.5% TANF 463 2.3% 0.3% 561 2.7% 0.3% GA 240 1.2% 0.2% 178 0.9% 0.2%

Non-cash benefits 10,368 52.0% 1.0% 8,819 42.4% 0.9% Medicaid 7,844 39.3% 0.9% 6,545 31.5% 0.9% SNAP 7,596 38.1% 0.9% 6,215 29.9% 0.9% Housing vouchers 1,455 7.3% 0.5% 956 4.6% 0.4% Rent subsidy 3,671 18.4% 0.7% 2,558 12.3% 0.6% >250-400% FPG >400%FPG %of Total %of Total Total Population Population Population Population Population 310,867 26,101 8.4% 223,865 72.0%

Benefit program Total Pet. S.E. Total Pet. S.E. Cash or non-cash 9,774 37.4% 0.8% 31,194 13.9% 0.2%

Cash benefits 1,439 5.5% 0.4% 4,280 1.9% 0.1% SSI 1,036 4.0% 0.3% 3,227 1.4% 0.1% TANF 313 1.2% 0.2% 844 0.4% 0.0% GA 120 0.5% 0.1% 361 0.2% 0.0%

Non-cash benefits 9,635 36.9% 0.8% 30,207 13.5% 0.2% Medicaid 7,528 28.8% 0.8% 24,525 11.0% 0.2% SNAP 6,107 23.4% 0.7% 13,167 5.9% 0.1% Housing vouchers 995 3.8% 0.3% 1,240 0.6% 0.0% Rent subsidy 2,103 8.1% 0.5% 3,229 1.4% 0.1% Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program Participation (SIPP). *Estimate is considered umeliable due to a high relative standard error. -Estimate of zero.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00093 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.042 51206 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

(f) Previously Excluded Benefits received before the effective date of the Public benefits previously considered final rule.585 under the 1999 Interim Field Guidance DHS would not consider public and received prior to the effective date benefits under the proposed 8 CFR 585 Under the 1999 Interim Field Guidance, DHS of this rule would be considered as a 212.21(b) that were previously excluded would consider the current receipt of cash benefits negative factor in the totality of the under the 1999 Interim Field Guidance for income maintenance or long-term circumstances analysis when if received before effective date of the institutionalization at government expense in the determining whether an alien is totality of the circumstances. See Field Guidance on final rule. DHS, however, would Deportability and Inadmissibility on Public Charge inadmissible as likely at any time to continue to consider cash benefits for Grounds, 64 FR 28689, 28690 (May 26, 1999) (‘‘If become a public charge. However, the income maintenance SSI, TANF and at the time of application for admission or benefits for long-term adjustment an alien is receiving a cash public totality of the circumstances. See Field Guidance on assistance for income maintenance or is Deportability and Inadmissibility on Public Charge institutionalization (i.e. those institutionalized for long-term care (as discussed in Grounds, 64 FR 28689, 28690 (May 26, 1999) previously considered under the 1999 section 6, below), that benefit should be taken into (‘‘[P]ast receipt of cash income-maintenance Interim Field Guidance) that an alien account under the totality of the circumstances test, benefits does not automatically make an alien along with the other statutory factors under section inadmissible as likely to become a public charge, 212(a)(4)(B)(i) and any [adjustment of status].’’). nor does past institutionalization for long-term care DHS would also consider past receipt of cash at government expense. Rather this history would benefits for income maintenance or long-term be one of many factors to be considered in applying institutionalization at government expense in the the totality of the circumstances test.’’).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00094 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.043 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51207

receipt of such benefits would not be Table 29 provides a summary of how would be considered under the considered as a heavily weighed benefits received prior to and after the proposed rule. negative factor. effective date of this proposed rule

Examples inadmissibility under section 212(a)(4) of the January 1, 2019, the effective date of the Act, 8 U.S.C. 1182(a)(4), goes into effect on public charge rule, would not be considered. The following examples illustrate January 1, 2019. The alien is the only However, the SNAP benefits the alien how DHS will consider benefits member of the household, has been paroled received on or after January 1, 2019 would received prior to the effective date of the into the United States pursuant to section be considered if the aggregate annual value rule for the purposes of making public 212(d)(5) of the Act for over five years, and of SNAP benefits received since the effective is seeking to adjust status based on a visa date of the rule exceeds $1,821 (fifteen charge inadmissibility determinations. category subject to public charge These examples are for illustrative inadmissibility. The alien files the percent of the FPG for the household of one purposes only and assume a closed adjustment of status application on May 1, within any period of consecutive twelve universe of facts for purposes of 2019, and the application is adjudicated on consecutive months). For the consecutive simplicity. The examples are not September 1, 2019. HHS published the new twelve-month period between January 1, intended to represent actual possible FPG in early January 2019, which contains 2019 and September 1, 2019, the date of outcomes, as each case is reviewed the same values as the 2018 FPG for purposes adjudication, the alien had only received a of this example. For a household of 1, the total of $1,620 in SNAP benefits, which is individually on its own merits. Under FPG is $12,140. Fifteen percent of the FPG less than the threshold amount. However, the proposed rule, benefits received is $1,821 in a 12-month period. The alien is because the alien is certified to receive prior to the effective date of the rule certified to receive SNAP benefits for 36 $2,160 in SNAP benefits for a consecutive would be excluded from consideration months, beginning on January 1, 2018. For twelve-month period beginning after the unless such benefits would have been the consecutive 12-month period between rule’s effective date, and such amount considered under the 1999 Interim Field January 1, 2018 and December 31, 2018, the exceeds fifteen percent of the FPG, these Guidance.588 However, benefits received alien receives $2,160 in SNAP benefits. For benefits would be considered as a heavily the consecutive twelve-month period after the effective date of the rule would weighed negative factor in the totality of the between January 1, 2019 and December 31, be considered to the extent that they are 2019, the alien receives $2,160 in SNAP circumstances, as illustrated in Table 30. In a public benefit, as defined in 8 CFR benefits. The alien received no other public this case, absent other evidence tending to 212.21(b). benefits. SNAP was previously excluded show that the alien is unlikely to receive the Example 1: Benefits Excluded Under the under the 1999 Interim Field Guidance, but benefits covered by the certification, USCIS 1999 Interim Field Guidance is included in proposed 8 CFR 212.21(b). would probably find that the alien is likely Example 1 is based on the following Under proposed 8 CFR 212.22(d), the to become a public charge and is ineligible scenario: The DHS rule on public charge SNAP benefits the alien received before for adjustment of status.589

586 SNAP benefits received after the effective date should be taken into account under the totality of of the alien’s circumstances at the time of the of the proposed rule will be valued as set forth in the circumstances test, along with the other application for admission or adjustment and make proposed 8 CFR 212.24(a). statutory factors under section 212(a)(4)(B)(i) and a forward-looking determination regarding the 587 The 1999 Interim Field Guidance suggests that any AOS .... Past receipt of cash income- likelihood that the alien will become a public any past or current receipt of the type of public maintenance benefits does not automatically make charge after admission or adjustment.’’ (emphasis an alien inadmissible as likely to become a public benefits included for consideration will be included added)). charge, nor does past institutionalization for long- 588 See proposed 8 CFR 212.21(c). in the public charge inadmissibility determination. term care at government expense. Rather this See Field Guidance on Deportability and history would be one of many factors to be 589 Pursuant to proposed 8 CFR 212.24(a), for Inadmissibility on Public Charge Grounds, 64 FR considered in applying the totality of the SNAP benefits, DHS would calculate the value of 28689, 28690 (May 26, 1999) (‘‘If at the time of circumstances test. In the case of an alien who has the benefit attributable to the alien in proportion to application for admission or adjustment an alien is received cash income-maintenance benefits in the the total number of people covered by the benefit, receiving a cash public assistance for income past or who has been institutionalized for long-term based on the amount(s) deposited as defined in maintenance or is institutionalized for long-term care at government expense, a Service officer 212.21(b) which the benefits are received in the care (as discussed in section 6, below), that benefit determining admissibility should assess the totality Electronic Benefits Transfer (EBT) card account.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00095 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.044 51208 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Example 2: Benefits Excluded Under the 12-month periods for this example .The alien of SNAP benefits received since the effective 1999 Interim Field Guidance was certified to receive SNAP for 36 months date of the rule exceeds $1,821 (fifteen Example 2 is based on the following beginning in January 2018. The alien percent of the FPG for the household of one scenario: The DHS rule on public charge received no other public benefits. For the within any period of consecutive twelve inadmissibility under section 212(a)(4) of the consecutive twelve-month period between consecutive months). For the consecutive Act, 8 U.S.C. 1182(a)(4), goes into effect on January 1, 2018 and December 31, 2018, the January 1, 2019. An alien is the only member alien received $2,160 in SNAP benefits. For twelve-month period between January 1, of the household, has been paroled pursuant the consecutive twelve-month period 2019 and December 31, 2019, the SNAP to section 212(d)(5) of the Act for over five between January 1, 2019 and December 31, benefits the alien received exceeded the years, and is seeking to adjust status based 2019, the alien received $2,160 in SNAP fifteen percent threshold, and therefore on a visa category subject to a public charge benefits. Beginning on January 1, 2020, would be considered. Because the receipt inadmissibility determination. The alien files however, the alien no longer receives any was within the 36 months immediately the adjustment of status application on May SNAP benefits. The alien provided a benefits preceding the application, it is a heavily 1, 2020, and the application is adjudicated on termination letter as evidence along with the weighed factor in the totality of the September 1, 2020. HHS publishes the alien’s adjustment application. circumstances. The termination letter calendar year 2019 FPG in early January 2019 Under proposed 8 CFR 212.22(d), the suggests, however, that the alien is unlikely and the 2020 FPG in early January 2020. For SNAP benefits the alien received before the purposes of this example, the FPG for January 1, 2019, the effective date of the to receive future public benefits. DHS would 2019 and 2020 contains the same values as public charge rule, would not be considered. weigh the termination letter along with the the FPG for 2018, which is $12,140. Fifteen However, the SNAP benefits the alien other evidence, in the totality of the percent of the FPG for 2018, 2019 and 2020 received on or after January 1, 2019 would circumstances. The preceding analysis is would be $1,821 in the relevant consecutive be considered if the aggregate annual value summarized in Table 31.590

590 Pursuant to proposed 8 CFR 212.24(a), for the total number of people covered by the benefit, 212.21(b) which the benefits are received in the SNAP benefits, DHS would calculate the value of based on the amount(s) deposited as defined in Electronic Benefits Transfer (EBT) card account. the benefit attributable to the alien in proportion to

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00096 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.045 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51209

Example 3: Benefits Previously Excluded For the consecutive twelve-month period $1,821. TANF was considered under the and Included Under the 1999 Interim Field between January 1, 2018 and December 31, 1999 Interim Field Guidance and therefore, Guidance 2018, the alien’s household of 3 receives the total value of the benefit received prior The example is based on the following $2,400 in SNAP benefits. The proportional January 1, 2019 would be considered as a scenario: The DHS rule on public charge value of the $2,4000 SNAP benefit negative factor in the totality of the inadmissibility under section 212(a)(4) of the attributable to the alien based on her circumstances.591 TANF benefits received Act, 8 U.S.C. 1182(a)(4), goes into effect on household size of 3 for this consecutive after January 1, 2019 would be considered if January 1, 2019. An alien has been paroled twelve-month period would be $800, or one the total value of the alien’s receipt of one into the United States pursuant to section third of $2,400. Similarly, for the consecutive or more public benefits exceeded $1,821 212(d)(5) of the Act for over five year and is twelve-month period between January 1, during the relevant consecutive twelve- seeking to adjust status based on a visa 2019 and December 31, 2019, the alien’s month period. At the time the alien’s category subject to the public charge household is certified to receives $1,800 in application was adjudicated on September 1, inadmissibility determination. The alien’s SNAP benefits for the a household size of 3. 2019, the alien received $600 in proportional household of three includes the alien and the The alien is also receiving TANF. For the SNAP benefits and $900 in TANF benefits alien’s two U.S. citizen children. The alien consecutive twelve-month period between during the consecutive 12-month period files an adjustment of status application on January 1, 2018 until December 31, 2018, the between January 1, 2019 and September 1, May 1, 2019, and the application is alien also receives a proportionate share of adjudicated on September 1, 2019. HHS $100 per month in TANF benefits or $1,200 2019, which, cumulatively, is less than 15 publishes the calendar year 2019 FPG in for the twelve-month period. The alien is percent of the FPG in the amount of $1,821. early January 2019. For the purposes of this certified to continue to receive TANF at this Therefore, the alien’s receipt of SNAP and example, the FPG for 2019 contains the same level through December 2019, and there is no TANF in 2019 would not be considered past values as the FPG for 2018. The relevant FPG evidence that the alien has terminated receipt of public benefits within the 36- based on a household of one in a consecutive receipt. month period immediately preceding the twelve-month period is $12,140. Fifteen Under proposed 8 CFR 212.22(d), the application. However, because the alien was percent of the average FPG for the SNAP benefits the alien received before certified to receive both SNAP and TANF for consecutive twelve-month period between January 1, 2019, the effective date of the the entire consecutive twelve-month period January 1, 2018 and FPG for December 31, public charge rule, would not be considered. between January 1, 2019 and December 31, 2018 is $1,821. Fifteen percent of the average However, the SNAP benefits the alien 2019 in a cumulative amount that exceeds FPG for the consecutive twelve-month period received on or after January 1, 2019 would the fifteen percent threshold, this would be between January 1, 2019 and FPG for be considered if the cumulative value of all a heavily weighed factor in the totality of the December 31, 2019 is also $1,821. monetizable benefits received exceeded circumstances, as illustrated in Table 32.

591 Note that considering the past receipt of longer ago an alien received such cash benefits or is likely to become a public charge. The negative previously included benefits as a negative factor in was institutionalized, the less weight these factors implication of past receipt of such benefits or past the totality of the circumstances is consistent with will have as a predictor of future receipt. Also, the institutionalization [sic], however, may be how such benefits were treated under the 1999 ‘length of time an applicant has received public overcome by positive factors in the alien’s case Interim Field Guidance, under which an ‘‘officer cash assistance is a significant factor.’ The longer demonstrating an ability to be self-supporting.’’ determining admissibility should assess the totality an alien has received cash income-maintenance Field Guidance on Deportability and Inadmissibility of the alien’s circumstances at the time of the benefits in the past and the greater the amount of on Public Charge Grounds, 64 FR 28689, 28690 application for admission or adjustment . . . The benefits, the stronger the implication that the alien (May 26, 1999).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00097 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.046 51210 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

DHS notes that the proposed would give aliens an opportunity to stop M. Summary of Review of Factors in the exclusion of certain benefits received receiving public benefits and obtain Totality of the Circumstances before the effective date may provide an other means of support before filing for An alien’s likelihood of becoming a opportunity for public benefit granting immigration benefits. public charge, as discussed above, is agencies to communicate the DHS welcomes comment on whether prospective and based on the totality of consequences of receiving public DHS should consider receipt of public the alien’s circumstances. The Form I– benefits, to the extent such agencies benefits previously considered under 944, Declaration of Self-Sufficiency, deem appropriate. In addition, the the 1999 Interim Field Guidance as would be used by DHS to assess proposed exclusion provides advance described in Table 29 at all, or if DHS whether the alien is likely to become a notice to aliens that DHS is considering should consider the benefit(s) in some public charge based on the totality of to change which public benefits it will other way than as a negative factor in the circumstances. Table 33 below, consider for purposes of public charge the totality of the circumstances. provides a brief summary of the totality inadmissibility determinations. If of the circumstances framework for finalized, this provision, coupled with public charge inadmissibility the proposed 60-day effective date, determinations. 592

592 The family status factor consideration entails of another individual’s household. Among 30 percent of noncitizens in families of 5 or more determining the alien’s household size and whether noncitizens in families with 3 or 4 people, about 20 received non-cash benefits. the alien has his or her own household or is a part percent received non-cash assistance, while about

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00098 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.047 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51211

Table 33. Totality of Circumstances Framework for Public Charge Determinations

Factor Considerations Examples of Positive Weight of Factor or Negative Findings Bv Factor Age • 18SageS61 Positive The degree to which the alien's age affects • Age> 61 • 18SageS61 otherwise makes the alien more or less likely to • Age> 18 become a public charge, such as by impacting the Negative alien's ability to work . Age > 61 unless alien can demonstrate employment or sufficient household assets and resources • Age < 18 unless alien can demonstrate employment or sufficient household assets and resources

Health • Evidence of any medical Positive The degree to which the alien's health makes the condition( s) that: • Absence of any medical alien more or less likely to become a public (1) Is likely to require conditions that is likely charge, including whether the alien has been extensive treatment or to require extensive diagnosed with a medical condition that is likely institutionalization, or medical treatment or to require extensive medical treatment or institutionalization or institutionalization or that will interfere with the (2) Will interfere with that will interfere with alien's ability to provide and care for him- or the alien's ability to care the alien's ability to care herself, to attend school, or to work upon for him- or herself, to for him- or herself, to admission or adjustment of status attend school, or to work attend school, or to work

Negative . Presence of any medical condition that is likely to require extensive medical treatment or institutionalization, or that will to interfere with the alien's ability to care for him- or herself, to attend school, or to work

Family Status • Whether alien has a Positive/ Negative592 The degree to which the alien's household size household that he or she Alien's household size in makes the alien more or less likely to become a supports relation to alien's public charge • Whether another household assets and household is supporting resources the alien Assets, Resources, • Annual gross household Positive In General and Financial Status income excluding any • Annual gross household The degree to which the alien's household's income from public income 2 125% of the income, assets, and resources make the alien more benefits most recent FPG based or less likely to become a public charge • Any additional income on the household size; or from individuals not Household assets and Heavil:~: Weighed Positive included in the alien's resources 2 5 times the . Household assets, resources, and suppmt 2 household who difference between the 250% of the FPG for the household size physically reside with the total household income alien and 125% of the FPG for • Alien is authorized to work and currently • Additional income to the the household size employed with an annual household income 2 alien by or source outside 250% of the FPG for the household size of the household on a • Alien has sufficient continuing monthly or household assets and Heavil:~: Weighed Negative yearly basis for the most resources to cover any • Alien cannot demonstrate current recent calendar year reasonably foreseeable employment, employment history, or excluding any income medical costs related to a reasonable prospect of future employment from public benefits medical condition that is

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00099 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.048 51212 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 33. Totality of Circumstances Framework for Public Charge Determinations

Factor Considerations Examples of Positive Weight of Factor or Negative Findings By Factor • Household cash assets likely to require • Alien is currently receiving one or more public and resources, including extensive medical benefits, as defined 8 CFR 212.2l(b). as reflected in checking treatment or and savings account institutionalization, or • Alien has received one or more public statements covering 12 that will interfere with benefits, as defined in 8 CFR 212.21(b), months prior to filing the the alien's ability to within 36 months immediately preceding application provide care for him- or filing his or her application for a visa, • Non-cash assets and herself, to attend school, admission, or adjustment of status resources that can be or to work converted into cash • Alien was diagnosed with a medical condition within 12 months, such • Alien has not applied for that is likely to require extensive medical as net cash value of real or received any public treatment or institutionalization or that will estate holdings minus the benefits, as defined in 8 interfere with the alien's ability to provide for sum of all loans secured CFR 212.2l(b), on or him- or herself, attend school, or work; and by a mortgage, trust deed, after effective date of the the alien is uninsured and has neither the or other lien on the home; rule prospect of obtaining private health insurance, annuities; securities; or the financial resources to pay for reasonably retirement and • Alien was not certified foreseeable medical costs related to a the educational accounts; and or approved to receive medical condition any other assets that can public benefits, as be converted into cash detlned in S CFR • Alien was previously found inadmissible or easily 212.21(b), on or after the deportable on public charge grounds • Financial liabilities effective date of the rule • Applied for or received any public benefit as • Alien has not applied for defined in 212.2l(b) on or received an or after the effective date immigration fee waiver • Been certified or on or after the effective approved to receive date public benefits, as defined in 8 CFR • Alien has good credit 212.2l(b), on or after the and a credit score effective date • Applied for or received a • Alien has private health fee waiver for an insurance or financial immigration benefit resources to pay for request on or after the reasonably foreseeable effective date medical costs related to a • Credit history and credit medical condition that is score likely to require • Private health insurance extensive medical or the financial resources treatment or to pay for reasonably institutionalization, or foreseeable medical costs that will interfere with related to a medical the alien's ability to condition that is likely to provide care for him- or require extensive medical herself, to attend school, treatment or or to work institutionalization, or that will interfere with Negative the alien's ability to • Alien's assets and provide care for him- or resources

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00100 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.049 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51213

Table 33. Totality of Circumstances Framework for Public Charge Determinations

Factor Considerations Examples of Positive Weight of Factor or Negative Findings By Factor • Alien has insufficient assets and resources to cover any reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization, or that will interfere with the alien's ability to provide care for him- or herself-care, to attend school, or to work

• Financial liabilities

• Alien has applied for or received any public benefits, as defined in 8 CFR 212.2l(b), on or after effective date of the rule

• Alien has been certified or approved to receive public benefits, as defined in 8 CFR 212.2l(b), on or after effective date of the rule

• Alien has received an immigration benefit fee waiver on or after the effective date

• Alien has bad credit and a low credit score

Alien does not have private health insurance or financial resources to pay for reasonably foreseeable medical costs related to a medical condition that is likely to require extensive medical treatment or institutionalization, or that will interfere with the alien's ability to provide care for him- or herself, to attend school, or to work

Education and Skills • Employment history Positive The degree to which the alien has adequate • High school diploma or • Alien has adequate education and skills to either obtain or maintain higher education education and skills to employment sufficient to avoid becoming a • Occupational skills, obtain or maintain public charge, if authorized for employment. certifications, or licenses employment sufficient to • Proficiency in English or avoid becoming a public in additional languages charge in the United

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00101 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.050 51214 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 33. Totality of Circumstances Framework for Public Charge Determinations

Factor Considerations Examples of Positive Weight of Factor or Negative Findings By Factor States

• Alien is sufficiently proficient in English or additional languages to enter the U.S. job market

• Alien can obtain skilled or higher paid labor

Negative • No employment history

• Lack of high school diploma or higher education

• Alien does not have adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge, if authorized for employment

• Not familiar with the English language sufficient to enter the job market

Affidavit of • Sponsor's annual Positive Disqualifying - Inadmissible Support593 income, assets, and • Assets and resources ::0 • Assets and resources < 125% of the most resources 125% of the most recent recent FPG based on household size (if required) • Sponsor's relationship to Federal Poverty the applicant Guidelines based on the • Likelihood that the sponsor's household size sponsor would actually • Likely that sponsor provide financial support would provide financial to the alien support to the alien

Negative • Unlikely that sponsor would provide financial support to the alien

Analysis • Evaluate all factors and circumstances within each factor. The mere presence of any one enumerated circumstance is not, alone, determinative 594 • Assess whether each factor is positive or negative - Any factor or circumstance that decreases the likelihood of an alien becoming a public charge is positive. Any factor or circumstance that increases the likelihood of an alien becoming a public charge is negative. • Assess the degree to which each factor is positive or negative -Other than the heavily weighed factors, the weight given to an individual factor would generally depend on the particular facts and circumstances of each case and the relationship of the factor to other factors in the analysis. • Heavily weighed factors - Certain enumerated factors will generally weigh heavily in favor of finding that an alien is likely to become a public charge or finding that an alien is not likely to become a public charge. • Other than a required but absent or insufficient sponsor's affidavit of support, no one factor alone establishes an alien's admissibility or inadmissibility.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00102 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.051 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51215

Below, DHS provides examples of outcomes, as each case is reviewed result in a favorable determination of potential public charge inadmissibility individually on its own merits. admissibility for public charge determinations. These examples are for 1. Favorable Determination of purposes. An alien would need to meet illustrative purposes only and assume a Admissibility all other admissibility and eligibility closed universe of facts for purposes of requirements of the immigration benefit simplicity. The examples are not The following is an example (Table the alien is seeking. intended to represent actual possible 34) of a set of facts that would likely

593 A sponsor must be able to demonstrate the requirements, if a sponsor is not able to have a 594 Except that the absence of a sufficient affidavit means to maintain an income of at least 125 percent sufficient affidavit of support, the alien is of support, where required, will lead to an of the Federal Poverty Guidelines for the sponsor’s inadmissible based on public charge under INA inadmissibility finding. See INA 212(a)(4)(C), (D), 8 household size. See INA section 213A, 8 U.S.C. sections 212(a)(4) and 213A, 8 U.S.C. 1182(a)(4) and U.S.C. 1182(a)(4)(C), (D). 1183a. For aliens who are subject to the sponsor 1183a.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00103 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.052 51216 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

2. Unfavorable Determination of result in an unfavorable determination Admissibility of admissibility for public charge The following is an example (Table purposes. The alien may also be subject 35) of a set of facts that would likely to other inadmissibility grounds.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00104 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.053 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51217

Table 35: Example Applicant B

Factor Considerations Positive or Weight Negative of Factor Findings By Factor Age • 68 Negative Neutral Health • Arthritis and heart disease (Class B medical conditions) Negative Neutral that affect ability to work and require extensive medical treatment, as indicated in the medical examination Family Status • Widow, adult child is providing alien with over 50% of Positive - in Neutral support. Household of 6 (alien, alien's adult child, and the comparison to adult child's spouse, and 3 children) assets and resources Assets, Resources • Alien has no earned income Negative Neutral and Financial Status • Annual household gross income is at 125 percent of the Positive Neutral FPG for household of 6 (including adult child's income)

• Alien has no pension and no additional assets or resources Negative Neutral • Currently receiving a state cash benefit for income maintenance in excess of 15 percent ofFPG consecutively Negative Heavily for over the last 12 months Weighed

• Has not received any immigration fee waivers Positive Neutral • No information on credit history or score Not applicable Neutral

The alien has been diagnosed with a medical condition that • Negative Heavily is likely to require extensive medical treatment or weighed institutionalization or that will interfere with the alien's ability to provide for herself or work; and the alien is uninsured and has neither the prospect of obtaining private healtl1 insurance, or tl1e financial resources to pay for reasonably foreseeable medical costs related to the medical condition. Education and • No history of employment Negative Neutral Skills • No high school diploma or other education or skills Affidavit of • Sufficient Affidavit of Support from adult child at 125 Positive Neutral Support percent of the FPG for household of 6 Prospective • Applying for Adjustment of Status under Family Category Neutral Neutral Immigration -Parent of a U.S. citizen (IR-0) Status and Period • LPR/Permanent period of stay of Stay Analysis in the Although the alien's family status, assets, sources, and financial status (household income is at totality of the 125 percent of the FPG), and sufficient affidavit of support are positive factors, the alien's circumstances: negative factors outweigh the alien's positive factors. The alien's health, lack of employment history, and lack of education and skills indicate that the alien is unlikely to work in the future to meet her needs. Moreover, the alien has two heavily weighed negative factors. The alien has Class B medical conditions that are likely to require extensive medical treatment, and the alien has no earned income, personal assets and resources, or prospect of private health insurance to cover the cost of medical care to treat the diagnosed Class B medical conditions.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00105 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.054 51218 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

N. Valuation of Monetizable Benefits the amount received by the number of inadmissible based on public charge DHS has consulted with the relevant eligible household members enrolled in grounds may, if otherwise admissible, Federal agencies regarding the inclusion the benefit. be admitted at the discretion of the • With respect to the Section 8 and consideration of certain Secretary upon giving a suitable and Housing Assistance under the Housing 596 monetizable public benefits, and is proper bond. Currently, the Choice Voucher Program, as proposing a benefit-specific regulatory authority for posting a public administered by HUD under 24 CFR methodology to establish a value for charge bond can be found in 8 CFR part 984; 42 U.S.C. 1437f and 1437u, 103.6 and 8 CFR 213.1. certain monetizable benefits in order to DHS would calculate the proportional determine whether the alien has value of the voucher attributable to the 1. Overview of Immigration Bonds received in excess of the 15 percent eligible alien alone, based on the Generally threshold. This methodology ensures amount of the benefit received. In Immigration bonds may generally be that for benefits which are provided on calculating the proportional value of the secured by cash or cash equivalents, or the basis of a household and not the benefit, DHS would use the same may be underwritten by a surety individual, USCIS would only take into methodology—it would divide the value company certified by the Department of consideration the portion of the benefit of the benefit by the number of people Treasury under 31 U.S.C. 9304–9308.597 that is attributable to the alien. receiving it. DHS also welcomes A bond, including a surety bond, is a However, in circumstances where the comments on a potential alternative contract between the United States (the alien is not eligible for a given benefit methodology, under which DHS would obligee) and an individual or a company but is part of a household that receives assign value to the benefit using HUD (obligor) who pledges a sum of money the benefit (such as by living in a rules at 24 CFR 5.520. to guarantee a set of conditions set by household that receives a housing • With respect to Section 8 Project- the government concerning an alien.598 benefit by virtue of other household Based Rental Assistance (including Surety bonds are bonds in which the members’ eligibility), such benefit based Moderate Rehabilitation) under 24 CFR surety company and its agents serve as on the eligibility and receipt of such parts 5, 402, 880–884 and 886, DHS co-obligors on the bond. Such company benefit(s) by his/her household would calculate the proportional value and its agents are jointly and severally members, USCIS would not consider of the rental assistance attributable to liable for the payment of the face such use for purpose of a public charge the eligible alien alone, based on the amount of the bond if the bond is inadmissibility determination. amount of the benefit received. In breached.599 In valuing the cash monetizable calculating the proportional value of the benefits, USCIS would calculate the benefit, DHS would use the same 2. Overview of Public Charge Bonds amount of the benefit attributable to the methodology as above—it would divide (a) Public Charge Bonds alien in proportion to the other the value of the benefit by the number household members. Thus, for instance, Public charge bonds are intended to of people receiving it. DHS also hold the United States and all states, a household cash benefit of $600, shared welcomes comment on a potential among three eligible individuals, would territories, counties, towns, alternative methodology, under which municipalities and districts harmless be attributed to the alien in the amount DHS would assign value to the benefit of $200. against aliens becoming a public using HUD rules at 24 CFR 5.520. charge.600 A public charge bond is In valuing the non-cash monetizable DHS seeks public comments on these benefits, DHS would use the same issued on the condition that the alien proposed approaches described above, does not become a public charge. If the methodology, as follows: including any studies or data that would • government permits the alien to submit With respect to the Supplemental support an alternative approach. Nutrition Assistance Program (SNAP, or a public charge bond, the government formerly called ‘‘Food Stamps’’), 7 O. Public Charge Bond for Adjustment 596 U.S.C. 2011 to 2036c, DHS would of Status Applicants See INA section 213, 8 U.S.C. 1183. 597 See generally 8 CFR 103.6. calculate the annual aggregate amount DHS has the broad authority to 598 See, e.g., Matter of Allied Fid. Ins. Co., 19 I&N of the benefit attributable to the alien prescribe forms of bonds as is deemed Dec. 124, 125–26 (BIA 1984) (discussing the alone, based on the amount(s) deposited necessary for carrying out the contractual nature of delivery bonds submitted monthly in the Electronic Benefits Secretary’s authority under the under 8 CFR 103.6); see Merriam-Webster Online 595 Dictionary, Definition of Bond, https:// Transfer (EBT) card account. This provisions of the Act. Additionally, www.merriam-webster.com/dictionary/bond (last calculation would be performed based an alien who DHS has determined to be updated Sept. 3, 2018). on the alien’s reporting of the monthly 599 See 8 CFR 103.6(e). amounts deposited. DHS would divide 595 See INA section 103(a)(3), 8 U.S.C. 1103(a)(3). 600 See INA section 213, 8 U.S.C. 1183.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00106 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.055 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51219

admits the alien despite having found in place to regularly accept public accordance with 8 CFR 103.6(c)(1), the the alien inadmissible as likely to charge bonds. bond could be cancelled if INS become a public charge. Prior to 1996, INS had issued public determined that there is no likelihood charge bond guidance in the Operating If an alien admitted after submitting a that the alien would become a public Instructions (OI) 103.6 and 213.1,603 and 611 public charge bond becomes a public charge. its predecessor, the Examinations charge, the bond is breached. The bond Handbook, at Part VI, VI–88 through VI– If the alien became a public charge by is breached regardless of whether a 98.604 Although these manuals do not using public assistance, the bond was demand for payment of the public appear to comprehensively address breached in the necessary amount with expense has been made otherwise, as public charge bonds, the following any remainder continued in effect.612 601 reflected below. summarizes parameters of past public According to the Examinations (b) Current and Past Public Charge Bond charge bond practices: Handbook, if the alien had received any Procedures A consular officer would advise an public funds, and the agency from immigrant visa applicant required to which the alien had obtained the funds Regulations governing public charge post a bond in writing, specifying the requested repayment, the obligor was bonds can be found at 8 CFR 103.6 and amount to be posted with INS. Without required to pay the actual expenses to 8 CFR 213.1. Agency guidance is such a letter, INS would not accept the INS within thirty days. If no payment provided in the Adjudicator’s Field posting of a bond.605 INS informed the was made, the obligor was then required Manual (AFM), Chapter 61.1. According DOS of the posting of the bond as soon to pay the total amount due plus $200 to the AFM, although DHS has the as an alien-designated obligor in the to the INS. If the payment was not 606 authority to require public charge United States posted the bond. made, the amount was then extracted bonds, the authority has rarely been According to 8 CFR 213.1, a public from the bond itself.613 charge bond had to be at least $1,000. exercised since the passage of IIRIRA in The 1999 public charge guidance did 1996, which codified the affidavit of As soon as a bond was posted, INS 607 not detail any procedures on public support requirements.602 Consequently, monitored the bond periodically. charge bonds.614 The current USCIS USCIS does not currently have a process Any interested party could request the review and cancellation of the bond at guidance in the Adjudicator’s Field any time.608 Upon receiving the request, Manual addresses the possibility of a 601 See INA section 213, 8 U.S.C. 1183; see also Matter of Viado, 19 I&N Dec. 252, 253–54 (BIA INS would notify the alien of his or her bond in certain circumstances, and 1985). opportunity to present evidence to outlines that upon termination on 602 See AFM, Chapter 61.1 (‘‘(b) Policy. Although establish that the bond was not account of the statutory reasons, the USCIS has the authority to require a public charge breached and that the alien was not sums or other security held to secure its bond, such authority is rarely exercised in light of likely to become a public charge in the the statutory changes contained in the Illegal performance, except to the extent it is Immigration Reform and Immigrant Responsibility future; receipt of public assistance was forfeited for violation of its terms, must Act of 1996 (IIRIRA) which created the enforceable ordinarily sufficient to warrant the be returned to the person who posted 609 affidavit of support (see Chapter 20.5 of this field continuation of the bond. According the bond, or to his legal manual).’’ IIRIRA section 564(f) amended INA to the OIs, if no request to cancel the section 213, 8 U.S.C. 1183. In addition to the representatives.615 regular bonding requirements, IIRIRA section 564(a) bond was made, INS would review the through (e) also established 3-year pilot programs bond every 5 years to determine Although the current bond form used in 5 district offices of INS to require aliens to post whether INS should cancel the bond. by U.S. Immigration and Customs a bond in addition to the affidavit requirements Ordinarily, and in addition to the Enforcement (ICE), Immigration Bond under INA section 213, 8 U.S.C. 1183a, and the (Form I–352), references public charge deeming requirements under section 421 of the statutory reasons for cancellation, a Personal Responsibility and Work Opportunity bond was cancelled after the initial 5- bonds, ICE does not administer public Reconciliation Act of 1996, 8 U.S.C. 1631. Congress year period (or earlier, if warranted) if charge bonds. However, Form I–352 provided that any pilot program established the review showed that the alien had does specify that the obligor shall pay pursuant to this subsection shall require an alien to post a bond in an amount sufficient to cover the not and would not likely become a to the United States or to any State, 610 cost of benefits described in INA section public charge. Additionally, and in territory, county, town, municipality or 213A(d)(2)(B), 8 U.S.C. 1183a, and for the alien and district that provided public assistance the alien’s dependents, and shall remain in effect 603 See INS Operating Instructions (Nov. 1997) any and all charges up to the total until the departure, naturalization, or death of the [hereinafter OI]. INS removed Operating alien. See IIRIRA, Public Law 104–208, div. C, Instructions in 1998 and transferred the parts amount of the bond. In the event that section 564(a), 110 Stat 3009–546, 3009–683. Suit relating to the bond to the Inspector’s Field Manual, the public authority providing on that bond was supposed to be brought under the Chapter 45. See Transmittal Memo (TM2), M–450 assistance is not authorized to accept terms and conditions of INA section 213A, 8 U.S.C. Inspector’s Field Manual, Dated March 13, 1998, 1183a. Within 180 days after the date of IIRIRA, and Transmittal Memo (TM1), M–450 Inspector’s reimbursement, the obligor agrees that which was on September 30, 1996, the Attorney Field Manual, Dated June 24, 1997. No further he or she will pay DHS. General was directed to issue regulations guidance on public charge bond processing appears establishing the pilot program, including criteria to have been issued. 611 See Examinations Handbook, Part VI, at VI–94; and procedures for certification of bonding 604 See INS Examinations Handbook, Part VI, VI– see OI 103.6(c)(1). companies, debarment of any such company that 88 through VI–98 (Oct. 1, 1988) [hereinafter 612 fails to pay a bond, and criteria for setting the Examinations Handbook]. See Examinations Handbook, Part VI, at VI–95; amount of the bond to assure that the bond is in 605 See Examinations Handbook, Part VI, at VI–89; see OIs 103.6(c)(1). an amount that is not less than the cost of providing see OI 213.1. 613 See Examinations Handbook, Part VI, at VI–95. benefits under INA section 213A(d)(2)(B) for the 606 See Examinations Handbook, Part VI, at VI–89; 614 Field Guidance on Deportability and alien and the alien’s dependents for 6 months. See see OI 213.1. Inadmissibility on Public Charge Grounds, 64 FR IIRIRA, Public Law 104–208, div. C, section 564(b), 607 28689 (May 26, 1999). 110 Stat 3009–546, 3009–683 to -684. Congress See Examinations Handbook, Part VI, at VI–91 615 furthermore imposed an annual reporting and VI–92; see OI 103.6(c)(1). See AFM Ch. 61.1, Posting, Cancellation and requirement, starting 9 months after the date of the 608 See Examinations Handbook, Part VI, at VI–94; Breaching of Public Charge Bonds. As already implementation of the program. See IIRIRA, Public see OI 103.6(c)(1). mentioned, USCIS’ bond authority is rarely Law 104–208, div. C, section 564(d), 110 Stat 3009– 609 See Examinations Handbook, Part VI, at VI–94; exercised in light of the statutory changes contained 546, 3009–684. DHS is unable to locate see OI 103.6(c)(1). in the Illegal Immigration Reform and Immigrant implementing materials relating to this pilot 610 See Examinations Handbook, Part VI, at VI–94; Responsibility Act of 1996 (IIRIRA) which created program. see OI 103.6(c)(1). the enforceable affidavit of support.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00107 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51220 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

(c) Relationship of the Public Charge about the sponsor available to an agency that Congress intended that bonds Bond to the Affidavit of Support seeking reimbursement.620 ‘‘should be required in addition to, and Under section 213 of the Act, 8 U.S.C. not in lieu of, the new sponsorship and The Affidavit of Support and the 1183, an alien may be admitted to the deeming requirements of section 213A public charge bond are distinct, but United States at the discretion of the of the Act, 8 U.S.C. 1183a.’’ 625 complementary, means to recover costs Attorney General upon the giving of a Correspondingly, Congress also retained associated with the alien’s receipt of suitable and proper bond. In contrast to in section 213 of the Act, 8 U.S.C. 1183, public benefits. As discussed above, the affidavit of support, which is a the longstanding concept that suit on certain applicants seeking immigrant contract between the government and the bond may be made irrespective of status must submit an enforceable the sponsor, a bond, including a surety the reasons for the breach and Affidavit of Support under Section bond, is a contract between the United irrespective of whether a demand for 213A of the INA (Form I–864).616 The States (the obligee) and an individual or payment of public expenses have been affidavit of support is a contract a company (obligor) who pledges a sum made.626 between the alien’s sponsor and the U.S. of money to guarantee conditions set by Government that imposes on the the government concerning an alien.621 (d) Summary of Proposed Changes sponsor a legally enforceable obligation Thus, there are distinct differences In this rule, DHS proposes to clarify to support the alien. The obligation may between the affidavit of support and the when an alien seeking adjustment of be enforced against the sponsor by the bond. For example, unlike the affidavit status will be permitted to post a public sponsored alien, the Federal of support, in which the alien as well as charge bond under DHS’s authority Government, any State or any political the government entity may have a cause outlined in sections 103 and 213 of the subdivision thereof, or by any other of action to recover expenses, only the Act, 8 U.S.C. 1103 and 1183. entity that provides any means-tested government entity being part of the Additionally, as reflected below, DHS public benefit.617 According to section bond contract may pursue recovery from proposes to establish a new minimum 213A(b) of the Act, 8 U.S.C. 1183a(b), a the obligor if the bond is breached and bond amount of $10,000 (adjusted non-governmental entity that provided only the obligor may challenge the annually for inflation), explain the such benefit(s) or the appropriate entity breach determination.622 circumstances under which a public of the Federal Government, a State, or In section 213 of the Act, 8 U.S.C. charge bond will be cancelled, as well any political subdivision of the State 1183, Congress directly addresses the as establish specific conditions under must request reimbursement by the affidavit of support and the deeming which a public charge bond will be sponsor in the amount of the requirement imposed in section 213 of breached.627 Finally, DHS proposes unreimbursed costs of the benefits or, the Act when it added a parenthetical to processing fees for the initial after non-payment, bring an action the public charge bond provision stating submission of the Public Charge Bond against the sponsor under section 213A that the alien may be admitted ‘‘(subject (Form I–945) and for the Request for of the Act, 8 U.S.C. 1183A, no later than to the affidavit of support requirement Cancellation of Public Charge Bond 10 years after the date on which the and attribution of sponsor’s income and (Form I–356); both fees would be sponsored alien last received any resources under Section 213A)’’ upon initially set at $25. USCIS plans to means-tested benefit to which the having posted a suitable bond.623 In the establish a process to accept and process affidavit of support applies.618 Section provision amending section 213 of the public charge bonds, which would be 213A of the Act, 8 U.S.C. 1183a, does Act, section 564(f) of IIRIRA, Congress available on the effective date of the not require a sponsored immigrant to emphasized that the bond was to be final rule. DHS welcomes comments on request the sponsor or joint sponsor to considered in addition to the sponsor any aspect of the public charge bond or comply with the support obligation and deeming requirements under public charge bond process, including before bringing an action to compel section 213A of the Act, 8 U.S.C. 1183A, whether the minimum public charge 624 compliance.619 Neither USCIS nor DHS and not instead of them. The Joint bond amount should be higher or lower, are directly involved in enforcing an Explanatory Statement in the House and possible ranges for that amount. Conference Report for IIRIRA confirms Affidavit of Support sponsor’s 3. Permission To Post a Public Charge obligation to reimburse an agency. 620 Bond USCIS does, however, make information See 8 CFR 213a.4(a)(3). Upon receipt of a duly issued subpoena, USCIS will provide the agency First, the proposed regulation clarifies with a certified copy of a sponsor’s Form I–864. that permitting an alien who is found 616 See INA section 213A, 8 U.S.C. 1183a. Additionally, USCIS routinely provides the 617 See INA section 213A(a)(1)(B), 8 U.S.C. sponsor’s name, address and Social Security inadmissible as a public charge but is 1183a(a)(1)(B). number to Federal, state, and local agencies otherwise admissible to submit a public 618 See INA section 213A(b), 8 U.S.C. 1183A(b). providing means-tested benefits. charge bond is within DHS’s Implementing regulations on the request for 621 See, e.g., Matter of Allied Fid. Ins. Co., 19 I&N discretion.628 Section 213 of the Act Dec. 124, 125–26 (BIA 1984). reimbursement and actions to compel gives DHS discretion to allow an alien reimbursement can be found at 8 CFR 213a.4. 622 Compare INA section 213A(b)(2), 8 U.S.C. Remedies available to enforce an affidavit of 1183a, with INA section 213, 8 U.S.C. 1183. See support under this section include any or all of the also Matter of Ins. Co. of N. Am., 17 I&N Dec. 251, 625 See H.R. Conf. Rep. No. 104–828, at 243 (1996) remedies described in 28 U.S.C. 3201 (Judgement 251 (BIA 1978) (finding that only the obligor and (Conf. Rep.). liens), 28 U.S.C. 3203 (Execution), 28 U.S.C. 3204 the obligee are party to the contract and that only 626 See INA section 213, 8 U.S.C. 1183; see also (Installment payment order), or 28 U.S.C. 3205 the obligor, but not the alien, may challenge the Matter of Viado, 19 I&N Dec. 252, 253 (BIA 1985) (Garnishment), as well as an order for specific government breach determination). (distinguishing inadmissibility under section performance and payment of legal fees and other 623 See IIRIRA, Public Law 104–208, div. C, 212(a)(4) of the Act and a public charge bond from costs of collection and include corresponding section 564(f), 110 Stat. 3009–546, 3009–684. deportability under section 237(a)(5) of the Act); remedies available under State law. See INA section 624 See IIRIRA, Public Law 104–208, div. C, Matter of B, 3 I&N Dec. 323, 326 (BIA 1948) 213A(c), 8 U.S.C. 1183a(c). A Federal agency may section 564(f), 110 Stat. 3009–546, 3009–684 (‘‘(f) (holding that before an alien could be considered seek to collect amounts owed under this section in Bonds in addition to sponsorship and deeming deportable on public charge ground, the state accordance with the provisions of subchapter II of requirements—Section 213 (8 U.S.C. 1183) is authorities must have demanded repayment of 31 U.S.C. Chapter 37 (Claims of the United States amended by inserting ‘(subject to the affidavit of charges for services rendered and the charges must Government). See INA section 213A(c), 8 U.S.C. support requirement and attribution of sponsor’s thereafter have remained unpaid.). 1183a(c). income and resources under section 213A)’ after ‘in 627 See proposed 8 CFR 213.1. 619 See 8 CFR 213a.4(a)(2). the discretion of the Attorney General.’ ’’). 628 See proposed 8 CFR 213.1.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00108 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51221

to post a ‘‘suitable and proper’’ public 212.21(b)) is good and the grant of $10,000.632 Accordingly, DHS proposes charge bond if the alien is otherwise admission upon public bond would be that $10,000 would be an amount that admissible. Therefore, DHS proposes in the interest of family unity. would provide USCIS with an that in circumstances under which appropriate starting point when 4. Bond Amount and Submission of a USCIS determines, after a finding of determining the public charge bond Public Charge Bond inadmissibility on the public charge amount that is minimally necessary to ground that a favorable exercise of DHS proposes that, in cases in which ensure that United States can recoup discretion is warranted, USCIS will USCIS has determined that offering a cost of public benefits received by the notify the alien of the possibility to public charge bond to an alien is alien. Additionally, as with determining submit a bond and USCIS will specify warranted, the public charge bond be set whether to offer an alien the option of the bond amount and bond conditions. at no less than $10,000, annually posting a public charge bond, USCIS The alien would then be permitted to adjusted for inflation based on the will consider the alien’s individual submit the appropriate form for the Consumer Price Index for All Urban circumstances when determining the public charge bond in accordance with Consumers (CPI–U),629 and rounded up exact amount of the bond the alien is the form instructions and with the to the nearest dollar. This would raise required to post. appropriate fee. DHS proposes that a the amount that is currently stated in 8 If USCIS determines that the alien public charge bond could only be CFR 213.1 from no less than $1,000 to seeking an adjustment of status may submitted on the alien’s behalf after no less than $10,000. submit a public charge bond, neither the USCIS makes this option available to Proposing a base amount sufficient for alien nor an obligor, including a surety the alien, and that USCIS would reject a public charge bond based on historical company, would be able to appeal the any unsolicited attempt to submit a public benefit data is difficult, because amount of the bond required.633 As bond. the amount of average public benefit discussed more fully in this preamble, The same factors that weighed being considered under the proposed DHS has discretion to allow an alien to positively when making the public rule depends on the public benefit the post a public charge bond ‘‘in such charge inadmissibility determinations person receives and how long the amount and containing such will generally indicate that offering the person receives the benefit. The broad conditions’’ as DHS may prescribe. option of a public charge bond to an range of public benefits available to Given the discretionary nature of DHS’s alien is warranted. Ultimately, the individuals on the Federal, State, and authority under section 213 of the Act, purpose of the public charge bond is to local level, but not necessarily to 8 U.S.C. 1183, DHS has determined that allow DHS to admit an alien who is immigrants, renders such a the bond amount would not be inadmissible as likely to become a determination even more complex. appealable administratively either to the public charge, but who warrants a As indicated above, DHS proposes to AAO or the BIA, because neither favorable exercise of discretion. DHS set the base amount of the public charge administrative body has jurisdiction believes that offering a public charge bond at $10,000. The current 8 CFR over this discretionary determination.634 bond in the adjustment of status context 213.1 refers to a bond amount of at least As indicated above, under this would generally only be warranted in $1,000. 8 CFR 213.1 was promulgated in proposed rule, USCIS would notify the 630 limited circumstances in which the July of 1964. This provision has not alien of the bond amount and alien has no heavily weighed negative been updated and inflation has never conditions, including the type of bond factors, but the presence of such factors been accounted to represent present the alien may submit. Each submission would not automatically preclude DHS dollar values. Simply adjusting the would be on the form designated and in from offering a public charge bond. As amount for inflation using CPI–U would accordance with the applicable explained above, DHS would consider bring the bond floor in June 2018 to instructions and fees prescribed in 8 631 the heavily weighed negative factors about $8,100. DHS notes that bond CFR 103.7. While the proposed rule particularly indicative of the likelihood amounts could be $1,000 or more (in 632 that an alien would become a public 1964 dollars) and once adjusted for See, e.g., Wallis v. U.S. ex rel. Mannara, 273 inflation, these amounts are equivalent F. 509, 511 (2d Cir. 1921) ($1000 public charge charge. However, as is the case with any bond posted in September 1920, which would discretionary determination, DHS may to $8,100 or more in present dollar amount to about $12,600.30 in July 2018); Matter also consider any of a range of positive values. Additionally, when examining of Viado, 19 I&N Dec. 252, 252 (BIA 1985) ($5000 and negative factors applicable to the previous public charge bonds granted by bond posted in February 1979, which would legacy immigration agencies, DHS has amount to about $$18,234.88 in July 2018); In re alien’s case when determining whether Obligor, 2007 WL 5326596, at *1 (AAO June 6, the alien should be offered the option to found that the minimum amount of 2007) (adjustment upon $10,000 bond in June 1999, post a public charge bond and be approved public charge bonds remained which would amount to about $15,162.82 in July admitted to the United States on bond. relatively stable in inflation-adjusted 2018). For purposes of these calculations, DHS used dollars and fluctuated around or above the CPI Inflation Calculator from the Bureau of For example, an officer could consider Labor Statistics at https://www.bls.gov/data/ whether allowing the alien to become a inflation_calculator.htm (last visited Aug. 20th, lawful permanent resident would offer 629 U.S. Bureau of Labor Statistics, Consumer 2018). Price Index for All Urban Consumers, https:// 633 benefits to national security, or would See proposed 8 CFR 213.1(b). data.bls.gov/cgi-bin/surveymost?cu (select ‘‘U.S. All 634 See United States ex rel. Chanin v. Williams, be justified for exceptional items, 1982–84=100—CUUR0000SA0’’) (last visited 177 F. 689, 690 (2d Cir. 1910) (‘‘The matter of humanitarian reasons. Another example Sept. 5, 2018). admission under bond of a person once found to be in which USCIS may offer an alien the 630 Miscellaneous Amendments to Chapter, 29 FR likely to become a public charge is by the statute possibility to post a bond would be if an 10579 (July 30, 1964). confided to the Secretary, and we do not see why 631 DHS uses the semi-annual average for the first his refusal to admit is not an adverse exercise of alien had a weak financial status, had half of 2018 and the annual average from 1964 from such discretion in any particular case. His reasons received public benefits 40 months prior the historical CPI–U for U.S. City Average, All for refusal may or may not seem persuasive to a to applying for immigration status, and Items. See https://www.bls.gov/cpi/tables/ court; but it is to him, not to the court, that Congress had a medical condition, but the alien’s supplemental-files/historical-cpi-u-201806.pdf. has confided the discretion.’’); see also In re Calculation: Annual average for 1st half of 2018 Obligor, 2007 WL 5326596, at *1 (AAO June 6, prospect of obtaining medical insurance (250.089)/annual average for 1964 (31) = 8.1; CPI– 2007) (sustained appeal that public charge bond (that does not meet the definition of a U adjusted present dollar amount = $1,000 * 8.1 = was not breached). The BIA does not have public benefit under proposed 8 CFR $8,100. jurisdiction. 8 CFR 1003.1(b)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00109 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51222 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

retains the options for a surety bond or requirement for purposes of the affidavit expires. The substitute bond would a cash or cash equivalent such as a of support under 8 CFR 213a.3, except need to meet all of the requirements cashier’s check or money order deposit that the obligor would also need to applicable to the bond on file with and agreement to secure a bond, due to notify USCIS of the bonded alien’s USCIS, as required by 8 CFR 103.6 and operational feasibility considerations change of address. An alien would still 8 CFR 213.1. To ensure continued bond USCIS plans to initially allow for only need to comply with the change of coverage of the alien as required under surety bonds.635 For example, surety address requirements under section 265 section 213 of the Act, the substitute bonds do not involve the actual of the Act, 8 U.S.C. 1305, and 8 CFR bond would also need to cover a bond exchange of money until the bond is 265.1 to notify USCIS of his or her breach that occurred before USCIS breached, while the undertaking of cash change of address. accepted the substitute bond, in the bonds involves additional accounting If the alien does not respond to the event USCIS does not have knowledge mechanisms, including the management notice soliciting a public charge bond, of the breach until after the expiration of interest. DHS proposes to use new or the bond submitted does not comply or cancellation of the bond on file with USCIS Form I–945, Public Charge Bond with the bond amount and conditions USCIS. If USCIS determined that the for this purpose. As discussed in greater set by USCIS, USCIS will deny the substitute bond proffered is sufficient, it detail below, DHS is proposing a $25 alien’s application. Given the would accept the bond and the bond public charge bond processing fee to be complexity of a bond process, DHS would become effective on the day the submitted with the Form I–945. plans to issue separate guidance bond currently on file expires or when addressing the specifics of public charge the new bond takes effect, if prior to the For all public charge surety bonds, an bond submission. expiration of the bond on file.639 acceptable surety company is generally 5. Public Charge Bond Substitution Additionally, the bond previously on one that appears on the current Treasury file would be cancelled, if needed.640 If Department Circular 570 as a company DHS proposes that if USCIS accepts a the substitute bond was insufficient, holding the requisite certificate of bond of limited duration, the bond on USCIS would notify the obligor of the authority to act as a surety on Federal file must be substituted with a new substitute bond so that the obligor could 636 bond 180 days before the bond on file correct the deficiency within the bonds. Treasury-certified sureties 638 have agents throughout the United with USCIS expires. A bond of timeframe stipulated in the notice. States from whom aliens could seek limited duration is a bond that expires USCIS may also send a copy of the assistance in procuring an appropriate on a date certain regardless of whether notification to the alien, the alien’s bond.637 The Department of the the statutory terms for cancellation of representative (if any), and the initial Treasury certifies companies only after such a bond have been met (i.e., obligor. If the deficiency is not corrected having evaluated a surety company’s naturalization, permanent departure, or within the timeframe stipulated in the death of the alien). A bond of unlimited qualifications to underwrite Federal notice, the substitute would be rejected. duration is a bond that does not have a bonds, including whether those sureties specific end date but ends upon USCIS 6. Public Charge Bond Cancellation meet the specified corporate and canceling the bond. Bonds of limited financial standards. Under 31 U.S.C. (a) Conditions duration are sometimes easier and 9305(b)(3), a surety (or the obligor) must A public charge bond must remain in cheaper to obtain and DHS is proposing carry out its contracts and comply with effect until the alien naturalizes or to allow for this option so long as a statutory requirements, including otherwise obtains U.S. citizenship, substitute bond is valid and effective prompt payment of demands arising permanently departs the United States, before the expiration date of the bond from an administratively final or dies, until the bond is substituted on file. Because a bond has to be with another bond, or until the bond is determination that the bond had been maintained until cancelled by USCIS, otherwise cancelled by DHS.641 During breached. substitution ensures continuous If an alien successfully posts a public this period, as a condition of the bond, indemnification of the United States charge bond in the amount and under an alien on whose behalf a public against the alien receiving public the conditions specified in the form charge bond has been accepted agrees to benefits until the conditions for the instructions and USCIS notice, USCIS not receive public benefits, as defined in cancellation of the bond have been met. will continue to adjudicate the alien’s 8 CFR 212.21(b), after the alien’s Additionally, requiring that the application for adjustment of status and adjustment of status to that of a legal substitute bond for a bond of limited will grant such application if all permanent resident and until the bond duration is submitted to DHS at least eligibility criteria are met. Additionally, is cancelled according to proposed 8 180 days before the expiration of the if the bond has been successfully CFR 212.21(g). The alien also has to bond previously submitted expires posted, USCIS must ensure that the comply with any other conditions permits USCIS to allow for some time to bond is maintained during the effective imposed as part of the bond. That means adjudicate the sufficiency of any period of the bond. To achieve this goal, that a bond is considered breached if the substitute bonds, which further ensures DHS proposes that an obligor would alien receives public benefits, as defined continuous indemnification of the need to notify DHS within 30 days of in proposed 8 CFR 212.21(b), after the United States against the alien receiving any change in the obligor’s or the alien’s public benefits. 639 physical and mailing address. Given the See proposed 8 CFR 213.1. Either the obligor, a substitute obligor, 640 contractual nature of the public charge For purposes of this type of cancellation, or the alien would be able to submit the neither the obligor nor the alien must submit Form bond, the change of address requirement substitute bond at any time and I–356. Form I–356 is submitted to assess whether imposed is similar to the one imposed regardless of the reasons. The substitute the alien has received any public benefits, as on a sponsor’s change of address defined in 8 CFR 212.21(b), or otherwise breached bond would need to be valid, properly a condition of the bond. At the time for submitted with the appropriate fee, and substitution, USCIS does not engage in a breach 635 See proposed 8 CFR 213.1(b)(1). effective on the day the previously assessment as the bond is substituted with another, 636 See 8 CFR 103.6(b); see also proposed 8 CFR not actually cancelled according to the terms of 103.6, as published in 83 FR 25951 (June 5, 2018). submitted bond on file with USCIS proposed 8 CFR 213.1(g). 637 See Dep’t of Treasury Circular 570, Listing of 641 See INA section 213, 8 U.S.C. 1183; see also Approved Sureties (July 1, 2018). 638 See proposed 8 CFR 213.1. proposed 8 CFR 213.1.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00110 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51223

alien’s adjustment of status to that of a permanent resident status either intentionally relinquish lawful lawful permanent resident and until the voluntarily or involuntary coupled with permanent resident status through his or bond is cancelled under proposed 8 CFR physically leaving the United States is her voluntary actions, such as by 213.1(g). A bond is also considered consistent with the INA’s definition for submitting a declaration of intent to breached if the alien fails to comply permanent. The proposed rule will abandon LPR status. Neither the INA with any other condition of the bond. In clarify that an alien has permanently nor DHS regulations direct how aliens these situations, USCIS cannot cancel departed for bond cancellation when he may formally inform the U.S. the bond. Public benefits, as defined in or she has (1) lost or abandoned lawful Government of their abandoning their proposed 8 CFR 212.21(b), received by permanent resident status, whether lawful permanent resident status. To an alien present in the United States in involuntary by operation of law or simplify the process, USCIS had an immigration status that is exempt voluntarily, and (2) physically left the developed, in the past, Form I–407, from the public charge ground of United States.643 An alien must Record of Abandonment of Lawful inadmissibility under section 212(a)(4) establish that both elements, as Permanent Resident Status as a means of the INA, 8 U.S.C. 1182(a)(4), and described above, have been met before by which an alien may formally record public benefits received after the alien USCIS may cancel the bond. that they have abandoned LPR status. obtained U.S. citizenship are not DHS further proposes that an alien is The purpose of the form is to create a counted towards any breach only deemed to have involuntarily lost record and to ensure that the alien acts determination, and therefore, also for lawful permanent resident status in voluntarily and willingly, and is purposes of the cancellation removal proceedings with the entry of a informed of the right to a hearing before determination.642 Additionally, final order of removal 644 or through an Immigration Judge and has consistent with the public benefits rescission of adjustment of status.645 An knowingly, willingly, and affirmatively definition proposed in this rule, DHS alien may be found to have abandoned waived that right.649 would not consider as part of a public LPR status, even if the assessment is Given that it is difficult to assess charge bond cancellation determination made outside of removal proceedings whether an alien voluntarily abandoned any public benefits received by an alien and if the alien’s actions were his or her lawful permanent resident enlisted in the U.S. armed forces under unintentional.646 If an alien loses his or status, DHS proposes that an alien may the authority of 10 U.S.C. 504(b)(1)(B) or her LPR status through operation of law, demonstrate voluntarily relinquishment 10 U.S.C. 504(b)(2), serving in active the alien would be required to provide of the lawful permanent resident status duty or in the Ready Reserve component evidence of the loss of status by for purposes of bond cancellation only of the U.S. Armed Forces, or if received submitting evidence of the official by showing proof that he or she has by such an individual’s spouse or child determination of loss of LPR status submitted Form I–407 to the U.S. as defined in section 101(b) of the Act, before USCIS will cancel the bond.647 Government.650 In addition to the 8 U.S.C. 1101(b), regardless of whether Generally, determining whether an advantages of the Form I–407 such receipt occurred prior to the alien alien has abandoned his or her status is enumerated above, requiring evidence enlisting into the U.S. Armed Forces. highly fact specific and courts consider of a Form I–407 filing would ensure factors such as the length of an alien’s (b) Definition of Permanent Departure consistent adjudication of bond absence from the United States, family cancellation requests because officers According to section 213 of the Act, and employment ties, property have the necessary information and a public charge bond must be cancelled holdings, residence, and the alien’s would not have to otherwise determine when the alien naturalizes or otherwise intent or actions.648 An alien may obtains U.S. citizenship, permanently employment abroad, to find that her absence was departs the United States, or dies. When 643 See proposed 8 CFR 213.1. not temporary in nature and that she had codifying section 213 of the Act, 644 See 8 CFR 1.2; see also Matter of Lok, 18 I&N abandoned her LPR status); Matter of Kane, 15 I&N Congress did not define ‘‘permanent’’ Dec. 101, 105–06 (BIA 1981). Dec. 258, 265 (BIA 1975) (alien who spent 11 645 and the concept of permanent departure See INA section 246, 8 U.S.C. 1256. months per year living in her native country 646 Abandonment is not directly addressed in the operating a lodging house abandoned her LPR does not exist in other areas of INA. The question typically arises in the context of status; her desire to retain her status, without more, immigration law. However, LPRs returning to the United States. INA section was not sufficient); Matter of Quijencio, 15 I&N Dec. ‘‘permanent’’ is defined in section 101(a)(20), 8 U.S.C. 1101(a)(20), defines the term 95, 97–98 (BIA 1974) (alien’s lawful permanent 101(a)(31) of the Act, 8 U.S.C. 1101(31), ‘‘lawfully admitted for permanent residence’’ as resident status considered abandoned after 12 year ‘‘the status of having been lawfully accorded the absence); Matter of Castro, 14 I&N Dec. 492, 494 as ‘‘a relationship of continuing or privilege of residing permanently in the United (BIA 1973) (alien who severed his ties to the United lasting nature, as distinguished from States as an immigrant in accordance with the States for six years, moved abroad, acquired land, temporary, but a relationship may be immigration laws, such status not having changed’’ built a house and obtained steady employment, but permanent even though it is one that (emphasis added). INA section 211(b), 8 U.S.C. made brief business trips to the United States was 1181, provides for a waiver of the documentary not a returning resident and had abandoned his may be dissolved eventually at the requirements for admission for one who can qualify status); Matter of Montero, 14 I&N Dec. 399, 400– instance either of the United States or of as a ‘‘returning resident immigrant’’ as defined in 01 (BIA 1973) (alien who returned to her native the individual, in accordance with law.’’ INA section 101(a)(27)(A), 8 U.S.C. 1101(a)(27)(A), country to join her husband, children, home, ‘‘Departing’’ or ‘‘departure’’ is not that is as ‘‘an immigrant, lawfully admitted for employment and financial resources without fixed permanent residence, who is returning from a intent to return within a fixed period had defined in the INA, but DHS believes temporary visit abroad.’’ Finally, according to INA abandoned her lawful permanent resident status); that it is reasonable to conclude that section 101(a)(13)(C)(i), 8 U.S.C. 1101(a)(13)(C)(i), cf. Khoshfahm v. Holder, 655 F.3d 1147, 1154 (9th permanent departure for the purposes of an alien lawfully admitted for permanent residence Cir. 2011) (alien child who was out of the country canceling a public charge bond means in the United States is not regarded as seeking for 6 years and prevented from returning due to the admission into the United States, unless the alien father’s heart condition and the events of September that the alien has left the United States has abandoned or relinquished that status. See also 11 did not abandon his lawful permanent resident on a lasting, non-temporary basis after INA section 223, 8 U.S.C. 1203. status). losing the lawful permanent resident 647 For example, if the alien has his or her lawful 649 See Purpose of Form I–407 and its instructions status either voluntarily or permanent resident status in removal proceedings, at www.uscis.gov/i-407. Even though an alien involuntarily, and is physically outside the alien must present a copy of the removal order. completed and submitted Form I–407, the alien 648 See, e.g., Matter of Huang, 19 I&N Dec. 749, may still challenge the declaration of abandonment the United States. Losing lawful 755–57 (BIA 1988) (considering the alien’s absence as part of removal proceedings because a from the United States because of her husband’s declaration is not dispositive. 642 See proposed 8 CFR 213.1(h). work and study abroad, as well as her own 650 See proposed 8 CFR 213.1.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00111 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51224 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

the alien’s intent in regards to the is not just consistent with the current under INA section 316, 8 U.S.C. 1427), voluntary abandonment of the lawful period of time in which an alien may DHS believes that retaining a bond for permanent resident status and the become removable for receiving public at least 5 years is a reasonable timeframe permanent departure. Requesting the benefits after entry for causes that that will ensure the ability of U.S. filing of a declaration would also be existed prior to entry,656 but is also government to recoup the costs of consistent with evidence required in the consistent with the 5-year ineligibility public benefits that may be received by BIA precedent Matter of De Los Santos, period for certain public benefits under aliens before most of them are generally in which the bond was cancelled after PRWORA.657 Finally, as noted eligible to naturalize. the alien was required, among other previously, the public charge bond Finally, DHS proposes that USCIS things, to submit a formal statement statutory provision requires DHS to would cancel the public charge bond if attesting to the desire to abandon cancel the bond upon the alien’s death, an alien subject to a public charge bond permanent resident status.651 Form I– naturalization, or permanent departure obtains an immigration status while 407 would not have a fee. from the United States.658 However, present in the United States that is DHS believes that section 213 of the Act exempt from public charge grounds of (c) Bond Cancellation for Lawful sets forth the situations when DHS must inadmissibility, as listed in 8 CFR Permanent Residents After 5 Years and cancel the public charge bond, but 212.23, following the initial grant of Cancellation If the Alien Obtains an leaves to DHS the discretion of status as a lawful permanent resident, Immigration Status Exempt From Public canceling the bond for other reasons.659 provided that the alien or the obligor Charge Ground of Inadmissibility Therefore, retaining the cancellation has filed a request for cancellation of Following the Initial Grant of Lawful provision is consistent with the public charge bond, on the form Permanent Resident Status statutory text and the purpose of this designated by DHS, in accordance with Currently, 8 CFR 103.6(c)(1) requires rule. form instructions, and provided that the that DHS cancel a public charge bond In addition, DHS is proposing to not alien has not breached the bond submitted for an alien after the fifth retain the discretion to cancel a public conditions as described in paragraphs anniversary of admission of the charge bond at any time if it (h) of proposed 8 CFR 213.1. An immigrant, provided that the alien has subsequently determines that the alien example of when this ground of filed a request to cancel the bond and is not likely to become a public cancellation may apply is if an alien provided that the alien did not become charge.660 First, for many aliens who loses or abandons his or her LPR status a public charge prior to the fifth adjust status in the United States, DHS but nonetheless qualifies for another anniversary.652 The provision was is unlikely to make a second public status not subject to public charge added in 1984 based on INS’s belief that charge determination under section inadmissibility, e.g. asylum. DHS the public would be adequately 212(a)(4) of the Act.661 Second, given believes that maintaining the bond in protected even with such a limitation on that Congress selected a 5-year this situation no longer serves the the bond liability.653 INS reasoned that timeframe in related contexts (in the intended purpose of the bond if the if an alien is self-sustaining for a five- parallel deportation statue under section population is exempt from public year period, it would not be probable 237(a)(5) of the Act, 8 U.S.C. 1227(a)(5), charge grounds of inadmissibility, as the that the alien becomes a public charge under PRWORA at 8 U.S.C. 1613, and purpose of the public charge bond is to after five years because the reason for as part of naturalization requirements ensure that the alien does not become a the becoming a public charge is based public charge.662 As discussed in the on factors in existence prior to 656 See INA section 237(a)(5), 8 U.S.C. 1227(a)(5). section on exemptions, most of these 654 admission as an immigrant. 657 See 8 U.S.C. 1611–1646. aliens are, at that time, members of a Additionally, INS explained that 658 See INA section 213, 8 U.S.C. 1183 (‘‘Such vulnerable population, and the status limiting the bond liability in this bond or undertaking shall terminate upon the provided to these aliens serves distinct manner parallels the deportation permanent departure from the United States, the policy goals separate from the general 655 naturalization, or the death of such alien, and any liability. sums or other security held to secure performance immigration system. DHS proposes to continue to cancel thereof, except to the extent forfeited for violation As with other bases for bond the public charge bond after the fifth of the terms thereof, shall be returned to the person cancellation, however, if a request for anniversary of the alien’s adjustment of by whom furnished, or to his legal representatives.’’ cancellation of a public charge bond is status to that of a lawful permanent (emphasis added)). 659 See 8 CFR 103.6(c)(1) (‘‘The district director not filed, the bond shall remain in effect resident, provided that the alien files a may cancel a public charge bond at any time if he/ until the form is filed, reviewed, and a request to cancel the bond and the alien she finds that the immigrant is not likely to become decision is rendered. Additionally, if has not received any public benefits as a public charge. A bond may also be cancelled in these aliens adjust status in the future defined in 8 CFR 212.21(b) after order to allow substitution of another bond. A public charge bond shall be cancelled by the district on a basis that is subject to section obtaining lawful permanent resident director upon review following the fifth anniversary 212(a)(4) of the Act, 8 U.S.C. 1182(a)(4), status or otherwise violated the of the admission of the immigrant, provided that they may again be subject to public conditions of the public charge bond. the alien has filed Form I–356, Request for charge grounds of inadmissibility and Retaining the possibility for this type of Cancellation of Public Charge Bond, and the district DHS may assess whether a bond is cancellation of the public charge bond director finds that the immigrant did not become a public charge prior to the fifth anniversary. If Form appropriate at that time. I–356 is not filed, the bond shall remain in effect 651 Matter of De Los Santos, 11 I&N Dec. 121, 121 until the form is filed and the district director (d) Request To Cancel the Bond, and (BIA 1965). reviews the evidence supporting the form and Adjudication of the Cancelation Request 652 See 8 CFR 103.6(c)(1). renders a decision to breach or cancel the bond.’’). DHS proposes that USCIS would 653 See Powers and Duties of Service Officers, 660 See 8 CFR 103.6(c)(1). Availability of Service Records; Public Charge 661 See INA section 101(a)(13)(C), 8 U.S.C. cancel the bond upon request by the Bonds, 49 FR 24010, 24011 (June 11, 1984). 1101(a)(13)(C), under which an LPR would be alien, following a determination that the 654 See 49 FR 24010, 24011. considered an applicant for admission only under conditions of a bond have been met and 655 See 49 FR 24010, 24011 (‘‘The Service believes specifically outlined circumstances (e.g.. if he or the bond has not been breached, as that the public will be adequately protected by she has abandoned LPR status, was absent from the limiting the duration of liability of public charge United States continuously longer than 180 days, outlined in proposed 8 CFR 213.1. bonds to a five-year period which parallels the has engaged in illegal activity after departing the deportation liability.’’) United States, etc.). 662 See INA section 213, 8 U.S.C. 1183.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00112 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51225

Return of the bond amount is ‘‘to the (e) Decision and Appeal whether the conditions of the bond have extent [the bond] has been forfeited for been breached. Additionally, consistent 663 If USCIS determines that the request violation of the terms thereof.’’ DHS warrants a cancellation of a bond, with the public benefits definition proposes to interpret this authority to USCIS would notify the obligor, and proposed in this rule, DHS would not allow DHS to impose, as a condition of return the full value of any cash or cash consider as part of a public charge bond the bond, forfeiture of the entire amount equivalent, such as a cashier’s check or breach determination any public benefits received by an alien enlisted in in the event of a breach. Once USCIS money order deposited by the obligor to the U.S. armed forces under the determines that the alien has violated secure the bond plus interest, similar to authority of 10 U.S.C. 504(b)(1)(B) or 10 the bond conditions by receiving public current practice.666 When the bond is U.S.C. 504(b)(2), serving in active duty benefits, USCIS would declare the bond cancelled, the obligor would be released or in the Ready Reserve component of breached and collect. The request to from liability.667 the U.S. Armed Forces, or if received by cancel the bond would be submitted on If USCIS denies the request to cancel such an individual’s spouse or child as the form designated by DHS, according the bond, it will notify the obligor of the defined in section 101(b) of the Act, 8 to its instructions, and with any reasons why and of the right to appeal U.S.C. 1101(b), regardless of whether mandatory fee. USCIS proposes to in accordance with the requirements of such receipt occurred prior to the alien designate Form I–356, Request for 8 CFR part 103, subpart A.668 A bond Cancellation of Public Charge Bond, to enlisting into the U.S. Armed Forces. obligor could appeal the denial to Finally, DHS would not consider public be used to request cancellation of a cancel the bond to the Administrative public charge bond. As discussed in benefits received after the alien who is Appeals Office (AAO) of USCIS by filing the subject of the public charge bond more detail below, DHS is also Notice of Appeal or Motion (Form I– proposing an initial processing fee of obtains U.S. citizenship, as U.S. citizens 290B) together with the appropriate fee are no longer subject to public charge $25 to be submitted with the Form I– and required evidence. See 8 CFR 103.1; 356. Given the obligor’s and the alien’s grounds of inadmissibility, and 103.3. For operational efficiency, DHS therefore, the term of the public charge interest in having the bond cancelled, proposes that an obligor may only file the alien, or the obligor or co-obligor, bond. a motion after an unfavorable decision A bond would be considered would be able to submit a request to by the Administrative Appeals Office cancel the public charge bond to USCIS. breached if any other condition imposed (AAO) on appeal. As part of an appeal, by USCIS as part of the public charge A request to cancel the bond is the regulations a 8 CFR 103.3(a)(2) bond is breached.671 necessary because typically, after an require the officer rendering the initial Under current 8 CFR 103.6, an alien obtains an immigration benefit decision to review the initial decision; immigration bond is considered from USCIS or enters as an immigrant, if the reviewing officer agrees that the breached when there has been a USCIS has little interaction with the decision is incorrect, he or she may treat substantial violation of the stipulated alien until he or she seeks another the appeal as a motion and may enter a conditions. The term ‘‘substantial immigration benefit. In addition, USCIS favorable decision.669 USCIS would also violation’’ is generally interpreted is typically not notified if an alien has inform the alien and the alien’s according to contractual principles.672 permanently departed or died. representative (if any) of the denial. The However, public charge bonds have Information currently collected by DHS alien would not be able to appeal a been distinguished from other is insufficient for USCIS to determine denial because the bond contract is immigration bonds in this regard, given on its own whether the alien intended between the obligor and the U.S. that the public charge bond’s condition a departure to be permanent. Therefore, government; the alien is not party to the is that the alien will not become a as part of the cancellation request, the contract.670 public charge.673 Therefore, DHS alien would need to submit evidence of proposes to not retain the phrase 7. Breach of a Public Charge Bond and naturalization or otherwise having ‘‘substantial violation’’ in the proposed Appeal obtained U.S. citizenship, permanent public charge bond provision at 8 CFR departure, or if the person is deceased, (a) Breach Conditions and Adjudication 213.1. Instead, DHS proposes to the alien’s executor would submit a A bond would be considered incorporate the substantial violation death certificate. Additionally, the alien standard via incorporating principles or the alien’s executor must also submit breached if the alien has received public benefits, as defined in proposed 8 CFR that govern the public charge and public the information requested in Form I–356 benefits definitions at proposed 8 CFR regarding receipt of public benefits as 212.21(b), after the alien’s adjustment of status to that of a lawful permanent 212.21(a) and (b) (defining public charge defined in 8 CFR 212.21(b).664 Any resident and until the public charge and public benefits). Under the information collected would be in proposed approach, the bond would be accordance with relevant privacy laws. bond is cancelled under 8 CFR 213.1(g). Consistent with other proposed The obligor and the alien would have regulatory provisions contained in this 671 See proposed 8 CFR 213.1(d) and 8 CFR 213.1(h) the burden to establish, by a NPRM, public benefits received during preponderance of the evidence, that the 672 See, e.g., Aguilar v. United States, 124 Fed. Cl. periods while an alien is present in the 9, 16 (2015) (substantial violation under 8 CFR conditions for cancellation of the public 103.6(e) of a delivery immigration bond is a matter 665 United States in a status exempt from charge bond have been met. If USCIS the public charge ground of of contract interpretation, in which courts have finds that the information included in looked to four factors: (1) The extent of the breach; inadmissibility, as listed in 8 CFR (2) whether the breach was intentional or the request is insufficient to determine 212.23, following the initial grant of whether cancellation is appropriate, accidental; (3) whether the breach was in good lawful permanent resident status, would faith; and (4) whether the obligor took steps to make USCIS may request additional not be considered when determining amends or place himself in compliance). information in accordance with 8 CFR 673 See Matter of Viado, 19 I&N Dec. 252, 253 (BIA 1985) (each of the other types of immigration part 103. 666 See 8 CFR 103.6(c) and proposed 8 CFR 213.1. bonds provided in the regulation has its own 667 See proposed 8 CFR 213.1. specific conditions; the public charge bond’s 663 See INA section 213, 8 U.S.C. 1183. 668 See proposed 8 CFR 213.1. condition is that the alien will not become a public 664 See proposed 8 CFR 213.1. 669 See 8 CFR 103.3(a)(2)(ii)–(v). charge, and the lack of knowledge or good faith of 665 See proposed 8 CFR 213.1. 670 See proposed 8 CFR 213.1. the alien did not render the breach insubstantial).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00113 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51226 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

considered breached if the alien operationally efficient; additionally, it the obligor and the U.S. government; the receives public benefits after the alien’s provides clarity as to when a breach alien is not party to the contract.681 adjustment of status to that of a lawful determination becomes administratively (c) Consequences of Breach permanent resident and until the bond final, as defined in 8 CFR 213.1(h). First, is cancelled pursuant to 8 CFR 213.1(g), as part of an appeal, pursuant to 8 CFR If USCIS determines that the bond has or if the alien breaches any other 103.3(a)(2), a USCIS officer who made been breached, DHS proposes that condition imposed as part of the the initial breach determination must USCIS would collect on the bond in bond.674 review the decision before the appeal full, meaning the total monetary amount If USCIS learns of the breach, and can be forwarded to the AAO.677 If the of the bond as liquidated damages. This declares a bond breached based on USCIS agrees with the appealing party practice appears to differ from the information that is not otherwise that favorable action may be warranted, practice described in legacy INS’ protected from the disclosure to the he or she may treat the appeal as a Operating Instructions, which obligor, USCIS would disclose such motion and then take favorable action, contemplate forfeiture only of the information to the obligor to the extent which would resolve the appeal.678 amount of public benefits received.682 permitted by law. For example, USCIS However, the official is also not The total damages to the government go may learn of an alien’s having received precluded from reopening a proceeding beyond the simple amount of the public benefits, as defined in 8 CFR or reconsidering a decision on his or her benefits received, and are difficult if not 212.21(b), if the public benefit-granting own motion under 8 CFR 103.5(a)(5)(i). impossible to calculate with precision. agency notifies USCIS that it provided If the reviewing official is not inclined Liquidated damages are an appropriate a public benefit(s) to the alien who was to take a favorable action, the reviewing remedy in such situations, and were an admitted on bond.675 Or, USCIS may official will forward the appeal to the accepted practice in prior immigration learn from the alien, as part of a bond AAO. Once the AAO issues the bond cases.683 cancellation request that he or she decision, however, an obligor may file a 8. Exhaustion of Administrative received public benefits, as defined in 8 motion of the AAO’s decision in Remedies CFR 212.21(b). accordance with 8 CFR 103.5.679 Thus, If USCIS found that it has insufficient limiting when a motion can be filed is A final determination that a bond has information to determine whether a efficient for both the obligor and USCIS. been breached would create a claim in breach occurred, USCIS would request Additionally, a breach determination favor of the United States. The claim in additional information from the benefits would be administratively final, among favor of the United States may not be granting agency, or USCIS would other instances, if the appeals period to released or discharged by an 684 request additional information from the AAO expires; filing a motion does immigration officer. alien or the obligor as outlined in 8 CFR not toll the appeals period stated in 8 Under the proposed rule, a party must part 103. USCIS would also provide the CFR 103.3, and if the obligor fails to first exhaust all administrative remedies obligor with the opportunity to respond appeal, the breach determination would and obtain a final decision from USCIS and submit rebuttal evidence, including become administratively final unless the in accordance with 8 CFR part 103, specifying a deadline for a response. motion is granted. The denial of a before being able to bring suit DHS furthermore proposes that it would motion can then be appealed to the challenging USCIS cancellation or bond send a copy of any notification to the AAO, and the AAO decision itself, if breach determination in Federal district 685 obligor or co-obligor regarding the unfavorable, may be motioned in court. breach also to the alien and the alien’s accordance with 8 CFR 103.5. Although enforcement and suits may representative (if any).676 Additionally, USCIS may reopen a be based on various causes of action, courts have determined that bond (b) Decision and Appeal breach determination at any time pursuant to 8 CFR 103.5, even if an breach determinations are always After the obligor’s response or after appeal is pending. For these reasons, it reviewed under the Administrative 686 the deadline for a response has passed, appears to be more efficient for all Procedure Act (APA) framework. USCIS would make a breach parties if the obligor simply appeals a 681 determination, and inform the obligor of breach determination in the first See proposed 8 CFR 213.1. See also, e.g., the right to appeal in accordance with Matter of Ins. Co. of N. Am., 17 I&N Dec. 251, 251 instance, if review of the initial breach (BIA 1978) (An immigration bond is a contract the requirements of 8 CFR 103, subpart determination is desired. between the Service and the obligor; the obligor and A. See proposed 8 CFR 213.1(h). A bond If the appeal is dismissed or rejected, his or her attorney-in-fact is the proper party to obligor would have the possibility to or the obligor fails to appeal, the breach appeal the service’s decision). appeal a breach determination to the 682 See OI 103.6(c) (If it is found that the alien has determination becomes the final agency become a public charge, the bond shall be breached Administrative Appeals Office (AAO) of determination, and USCIS would issue in the necessary amount with any remainder USCIS by filing a Notice of Appeal or a demand for payment, if the bond was continued in effect). Motion (Form I–290B) together with the a surety bond, pursuant to 31 CFR 683 See United States v. Goldberg, 40 F.2d 406 (2d appropriate fee and required evidence. 901.2.680 The alien may not appeal the Cir. 1930); Matta v. Tillinghast, 33 F.2d 64 (1st Cir. See 8 CFR 103.1; 103.3. Under this rule, 1929); Ill. Surety Co. v. United States, 229 F. 527 breach determination or file a motion (2d Cir. 1916); United States v. Andreano, 36 F. DHS proposes that the obligor would because the bond contract is between Supp. 821 (D.R.I. 1941); United States v. Rubin, 227 only be able to file a motion under 8 F. 938 (E.D. Pa. 1915); Matter of B¥, 1 I&N Dec. CFR 103.5 as part of the unfavorable 677 See 8 CFR 103.3(a)(2); see also Adjudicator’s 121 (BIA 1941). decision on appeal. DHS believes that Field Manual, Chapter 10.8. 684 See proposed 8 CFR 213.1. such an approach reasonable and 678 See 8 CFR 103.3(a)(2); see also Adjudicator’s 685 See proposed 8 CFR 213.1(j). Field Manual, Chapter 10.8. 686 See United States v. Gonzales & Gonzales 679 See 8 CFR 103.5; see Administrative Appeal’s Bonds & Ins. Agency, Inc., 728 F. Supp. 2d 1077, 674 See proposed 8 CFR 213.1(h). Office Practice Manual, Chapter 4, Motions to 1089–90 (N.D. Cal. 2010); Bahramizadeh v. INS, 675 See INA section 213, 8 U.S.C. 1183. Receipt Reopen and Reconsider. 717 F.2d 1170, 1173 (7th Cir. 1983) (reviewing of public benefits, however, is sufficient to cause a 680 See 8 CFR 103.6(e); see proposed 8 CFR 213.1; bond-breach determinations under the APA breach of the public charge bond, even in the see generally United States v. Gonzales & Gonzales framework); Castaneda v. Dep’t of Justice, 828 F.2d absence of a demand for repayment. See Matter of Bonds & Ins. Agency, Inc. 728 F. Supp. 2d 1077, 501, 502 (8th Cir. 1987) (immigration bond-breach Viado, 19 I&N Dec. 252, 253 (BIA 1985). 1089–91 (N.D. Cal. 2010); Safety Nat’l Cas. Corp. v. determination reviewed under the APA framework); 676 See proposed 8 CFR 213.1. DHS, 711 F. Supp. 2d 697, 703–04 (S.D. Tex. 2008). Ruiz-Rivera v. Moyer, 70 F.3d 498, 500–01 (7th Cir.

VerDate Sep<11>2014 23:29 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00114 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51227

DHS invites public comments on the for establishing a public charge bond DHS plans to conduct the two proposed public charge bond and its process, nor the number of public rulemakings concurrently. procedures, including the public charge charge bonds or cancellation requests VI. Statutory and Regulatory bond type, bond amount, duration, that it will receive during any period of Requirements substitution, cancellation and any other time because both the form and process aspects of a public charge bond. are new to USCIS, and USCIS does not A. Executive Order 12866 (Regulatory 9. Public Charge Bond Processing Fees have a reasonable proxy on which to Planning and Review), Executive Order rely for an estimate. In addition, public 13563 (Improving Regulation and DHS is proposing to charge for the charge bonds are very fact-specific; Regulatory Review), and Executive processing of public charge bonds and USCIS will make a case-by-case Order 13771 (Reducing Regulation and cancellation requests. In this rule, DHS determination on whether to offer the Controlling Regulatory Costs) proposes to charge $25 for the posting submission of a bond to an applicant. Executive Orders 12866 and 13563 of a public charge bond, $25 for the Similarly, whether a cancellation posting of a substitute public charge direct agencies to assess the costs and request is submitted will be driven by benefits of available regulatory bond, and $25 when the alien, obligor the particular circumstances of each or co-obligor requests to cancel the alternatives and, if regulation is alien by whom or on whose behalf a necessary, to select regulatory public charge bond (i.e., when the Form bond is posted, depending on whether I–356 is filed). INA section 286(m), 8 approaches that maximize net benefits conditions for cancellation have been (including potential economic, U.S.C. 1356(m), authorizes DHS to set met. Nevertheless, to recover at least fees for providing adjudication and environmental, public health and safety some of the costs of adjudicating Forms naturalization services at a level that effects, distributive impacts, and I–945 and I–356, and avoid other fee will ensure recovery of the full costs of equity). Executive Order 13563 payers having to fund the public charge providing all such services. USCIS must emphasizes the importance of bond process entirely, DHS is proposing expend resources to process public quantifying both costs and benefits, a $25 fee for the initial public charge charge bonds and bond cancellation reducing costs, harmonizing rules, and bond submission, and a $25 fee for the requests, including start-up costs to promoting flexibility. Executive Order bond cancellation request, with no operationalize a public charge bond 13771 (Reducing Regulation and option to request a fee waiver. Once process. USCIS is primarily funded by Controlling Regulatory Costs) directs USCIS implements a public charge bond immigration and naturalization benefit agencies to reduce regulation and process, it will be able to obtain data on request fees charged to applicants and control regulatory costs. the volume and burden of public charge petitioners. Fees collected from This proposed rule is designated a bonds and cancellation requests and individuals and entities filing ‘‘significant regulatory action’’ that is adjust these fees to amounts necessary immigration benefit requests are economically significant since it is to recover the relative costs of these deposited into the Immigration estimated that the proposed rule would adjudications next time that USCIS Examinations Fee Account (IEFA) and have an annual effect on the economy reviews the fees deposited into the used to fund the cost of processing of $100 million or more, under section IEFA. immigration benefit requests and 3(f)(1) of Executive Order 12866. providing related services (i.e., 10. Other Technical Changes Accordingly, OMB has reviewed this biometric collections).687 In addition, proposed regulation. DHS complies with the requirements In addition to amending 8 CFR 103.6 1. Summary and principles of the Chief Financial and 213.1 to update and establish Officers Act of 1990, 31 U.S.C. 901–03, requirements specific to public charge As previously discussed, DHS is (CFO Act), and Office of Management bonds, this proposed rule would make proposing to modify its regulations to and Budget (OMB) Circular A–25. technical changes to 8 CFR 103.6 to add new regulatory provisions for USCIS reviews the fees deposited into update references to offices and form inadmissibility determinations based on the IEFA biennially and, if necessary, names. public charge grounds under the INA. DHS is proposing to prescribe how it proposes adjustments to ensure recovery 11. Concurrent Surety Bond Rulemaking of costs necessary to meet national determines whether an alien is inadmissible because he or she is likely security, customer service, and On June 5, 2018, DHS published a at any time to become a public charge adjudicative processing goals. USCIS proposed rule that would set forth and identify the types of public benefits typically uses projected volume data procedures and standards under which that are considered in the public charge and completion rates (the average time DHS would decline surety immigration determinations. An alien applying for a for adjudication of an immigration bonds from Treasury-certified visa, admission at the port of entry, or benefit request) to set the fees for companies.688 The June 5 proposed rule adjustment of status generally must specific immigration benefit requests, would also create administrative establish that he or she is not likely at and related services. exhaustion requirements applicable to any time to become a public charge. The proposed $25 fees will not result sureties. This public charge proposed DHS proposes that certain factors may in recovery of the full cost of intake and rule is not intended to displace or be weighed positively or negatively, adjudication the proposed Forms I–945 otherwise affect the proposed changes to depending on how the factor impacts and I–356. However, at this time, DHS 8 CFR 103.6 in the June 5, 2018 the immigrant’s likelihood to become a is not able to estimate the start-up costs proposed rule, although a final public public charge. DHS is also proposing to charge rule may depart from the June 5 revise existing regulations to clarify 1995) (determining whether ‘‘INS’ decision that the rule with respect to surety bonds breach when and how it considers public bond conditions were substantially violated was determinations, as described above. plainly erroneous or inconsistent with 8 CFR charge when adjudicating change of 103.6(e)’’); Ahmed v. United States, 480 F.2d 531, status and extension of stay 534 (2d Cir. 1973) (analyzing substantial breach, as 688 See Procedures and Standards for Declining required by 8 CFR 103.6). Surety Immigration Bonds and Administrative applications. Finally, DHS is proposing 687 See U.S. Citizenship and Immigration Services Appeal Requirement for Breaches, 83 FR 25951 to revise its regulations governing the Fee Schedule, 81 FR 26904, 26940 (May 4, 2016). (June 5, 2018). Secretary’s discretion to accept a public

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00115 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51228 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

charge bond or similar undertaking $910,234,008 at a 7 percent discount estimates that the total reduction in under section 213 of the Act, 8 U.S.C. rate. transfer payments from the federal and 1183. Similar to a waiver, a public The proposed rule would impose new state governments would be charge bond permits an alien deemed costs on the population seeking approximately $2.27 billion annually inadmissible on the public charge extension of stay or change of status due to disenrollment or foregone ground to obtain adjustment of status, if using Form I–129, Form I–129CW, or enrollment in public benefits programs otherwise admissible.689 Form I–539 since, for any of these by foreign-born non-citizens who may This proposed rule would impose forms, USCIS adjudication officers be receiving public benefits. DHS new costs on the population applying to would then be able to exercise estimates that the 10-year discounted adjust status using Form I–485 that are discretion in determining whether it federal and state transfer payments subject to the public charge grounds on would be necessary to issue a RFE reduction of this proposed rule would inadmissibility who would now be whereby a Form I–129 or I–129CW be approximately $19.3 billion at a 3 required to file the new Form I–944 as beneficiary or a Form I–539 applicant percent discount rate and about $15.9 part of the public charge inadmissibility may then have to submit Form I–944. billion at a 7 percent discount rate. determination. DHS would require any DHS conducted a sensitivity analysis However, DHS notes there may be adjustment applicants subject to the estimating the potential cost of filing additional reductions in transfer public charge inadmissibility ground to Form I–129, Form I–129CW, or Form I– payments that we are unable to submit Forms I–944 with their Form I– 539 for a range of 10 to 100 percent of quantify. There may also be additional 485 to demonstrate they are not likely beneficiaries or filers, respectively, reductions in transfer payments from to become a public charge. In addition, receiving a RFE to submit Form I–944. states to individuals who may choose to Form I–129 and Form I–129CW The costs to Form I–129 beneficiaries disenroll from or forego enrollment in a beneficiaries, and Form I–539 filers may who may receive a RFE to file Form I– public benefits program. Because state also incur additional costs should they 944 range from $6,086,318 to participation in these programs may receive a RFE to file Form I–944 to $60,863,181 annually and the costs to vary depending on the type of benefit determine inadmissibility based on Form I–129CW beneficiaries who may provided, DHS was only able to estimate public charge grounds under the receive such a RFE from $114,132 to the impact of state transfers. For provisions of this proposed rule. The $1,141,315 annually. The costs to Form example, the federal government funds proposed rule would also impose I–539 applicants who may receive a RFE all SNAP food expenses, but only 50 additional costs for completing Forms I– to file Form I–944 range from percent of allowable administrative 485, I–129, I–129CW, and I–539 as the $3,164,375 to $31,643,752 annually. costs for regular operating expenses.693 associated time burden estimate for The proposed rule would also Similarly, Federal Medical Assistance completing each of these forms would potentially impose new costs on Percentages (FMAP) in some HHS increase. Moreover, the proposed rule individuals or companies (obligors) if an programs like Medicaid can vary from would impose new costs associated alien has been found to be a public between 50 percent to an enhanced rate with the proposed public charge bond charge, but has been given the of 100 percent in some cases.694 process, including new costs for opportunity to submit a public charge However, assuming that the state share completing and filing Form I–945, bond, for which USCIS intends to use of federal financial participation (FFP) Public Charge Bond, and Form I–356, the new Form I–945. DHS estimates the is 50 percent, the 10-year discounted Request for Cancellation of Public total cost to file Form I–945 would be amount of state transfer payments of Charge Bond. DHS estimates that the at minimum about $34,234 annually.690 this proposed policy would be additional total cost of the proposed Moreover, the proposed rule would approximately $9.65 billion at a 3 rule would range from approximately potentially impose new costs on aliens percent discount rate and about $7.95 $45,313,422 to $129,596,845 annually to or obligors (individuals or entities) who billion at a 7 percent discount rate. the population applying to adjust status would submit Form I–356 as part of a Finally, DHS recognizes that reductions who also would be required to file Form request to cancel the public charge in federal and state transfers under I–944, for the opportunity cost of time bond. DHS estimates the total cost to file federal benefit programs may have associated with the increased time Form I–356 would be approximately downstream and upstream impacts on burden estimates for Forms I–485, I– $825 annually.691 state and local economies, large and 129, I–129CW, and I–539, and for The proposed rule would also result small businesses, and individuals. For requesting or cancelling a public charge in a reduction in transfer payments from example, the rule might result in bond using Form I–944 and Form I–356, the federal government to individuals reduced revenues for healthcare respectively. who may choose to disenroll from or providers participating in Medicaid, Over the first 10 years of pharmacies that provide prescriptions to implementation, DHS estimates the total forego enrollment in a public benefits program. Individuals who might choose quantified new direct costs of the for which much of the data in this analysis is based proposed rule would range from about to disenroll from or forego future on. DHS generally interprets this term to mean alien $453,134,220 to $1,295,968,450 enrollment in a public benefits program in this analysis. 693 (undiscounted). In addition, DHS include foreign-born non-citizens as Per section 16(a) of the Food and Nutrition Act of 2008. See also USDA, FNS Handbook 901, p. 41 estimates that the 10-year discounted well as U.S. citizens who are members of mixed-status households.692 DHS available at: https://fns-prod.azureedge.net/sites/ total direct costs of this proposed rule default/files/apd/FNS_HB901_v2.2_Internet_ would range from about $386,532,679 to Ready_Format.pdf. 690 $1,105,487,375 at a 3 percent discount Calculation: $35.66 (cost per obligor to file 694 See Dept. of Health and Human Services, Form I–945) * 960 (estimated annual population ‘‘Federal Financial Participation in State Assistance rate and about $318,262,513 to who would file Form I–945) = $34,233.60 = $34,234 Expenditures; Federal Matching Shares for (rounded) annual total cost to file Form I–945. Medicaid, the Children’s Health Insurance Program, 689 There is no mention of ‘‘waiver’’ or ‘‘waive’’ 691 Calculation: $33.00 (cost per obligor to file and Aid to Needy Aged, Blind, or Disabled Persons in INA section 213, 8 U.S.C. 1183. However, the Form I–356) * 25 (estimated annual population who for October 1, 2016 through September 30, 2017.’’ BIA has viewed that provision as functioning as a would file Form I–356) = $825.00 annual total cost ASPE FMAP 2017 Report. Dec. 29, 2015. Available waiver of the public charge ground of to file Form I–356. at https://aspe.hhs.gov/basic-report/fy2017-federal- inadmissibility. See Matter of Ulloa, 22 I&N Dec. 692 DHS uses the term ‘‘foreign-born non-citizens’’ medical-assistance-percentages. Accessed Sept. 13, 725, 726 (BIA 1999). because it is the term used by the Census Bureau 2018.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00116 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51229

participants in the Medicare Part D low- costs. For example, immigration financial resources of the family, income subsidy (LIS) program, lawyers, immigration advocacy groups, sponsors, and private organizations.695 companies that manufacture medical health care providers of all types, non- DHS also anticipates that the proposed supplies or pharmaceuticals, grocery profit organizations, non-governmental rule would produce some benefits from retailers participating in SNAP, organizations, and religious the elimination of Form I–864W. The agricultural producers who grow foods organizations, among others, may need elimination of this form would that are eligible for purchase using or want to become familiar with the potentially reduce the number of forms SNAP benefits, or landlords provisions of this proposed rule. DHS USCIS would have to process. DHS participating in federally funded believes such non-profit organizations estimates the amount of cost savings housing programs. and other advocacy groups might that would accrue from eliminating Additionally, the proposed rule choose to read the rule in order to Form I–864W would be $35.78 per would add new direct and indirect provide information to those foreign- petitioner.696 However, DHS notes that impacts on various entities and born non-citizens that might be affected we are unable to determine the annual individuals associated with regulatory by a reduction in federal and state number of filings of Form I–864W and, familiarization with the provisions of transfer payments. Familiarization costs therefore, we are currently unable to the rule. Familiarization costs involve incurred by those not directly regulated estimate the total annual cost savings of the time spent reading the details of a are indirect costs. this change. Additionally, a public rule to understand its changes. A DHS estimates the time that would be charge bond process would also provide foreign-born non-citizen (such as those necessary to read this proposed rule benefits to applicants as they potentially contemplating disenrollment or would be approximately 8 to 10 hours would be given the opportunity to be foregoing enrollment in a public per person, resulting in opportunity adjusted if otherwise admissible, at the benefits program) might review the rule costs of time. An entity, such as a non- discretion of DHS, after a determination to determine whether they are subject to profit or advocacy group, may have that he or she is likely to become a the provisions of the proposed rule and more than one person that reads the public charge. may incur familiarization costs. To the rule. extent that an individual or entity The primary benefit of the proposed Table 36 provides a more detailed directly regulated by the rule incurs rule would be to help ensure that aliens summary of the proposed provisions familiarization costs, those who are admitted to the United States, and their impacts. familiarization costs are a direct cost of seek extension of stay or change of BILLING CODE 4410–10–P the rule. In addition to those individuals status, or apply for adjustment of status or entities the rule directly regulates, a are not likely to receive public benefits 695 8 U.S.C. 1601(2). 696 Calculation of savings from opportunity cost wide variety of other entities would and will be self-sufficient, i.e., of time for no longer having to complete and submit likely choose to read the rule and, individuals will rely on their own Form I–864W: ($35.78 per hour * 1.0 hours) = therefore, would incur familiarization financial resources, as well as the $35.78.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00117 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51230 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 36 Summary of Major Provisions and Economic Impacts of the Proposed Rule

Provisions Purpose Expected Impact of Proposed Rule

Adding 8 CFR 212.20. To define the categories of aliens that are Quantitative: Purpose and subject to the public charge Benefits applicability of public determination. Cost savings of $35.78 per petitioner charge inadmissibility. • from no longer having to complete and file Form I-864W.

Costs Adding 8 CFR 212.21. To establish key definitions, including • DHS anticipates a likely increase in the Definitions. public charge, public benefit, likely to number of denials for adjustment of become a public charge, and household. status applicants based on public charge inadmissibility determinations due to formalizing and standardizing the Adding 8 CFR 212.22. Clarifies that evaluating public charge is criteria and process for public charge Public charge a prospective determination based on the determinations. determination. totality of the circumstances. Outlines minimum and additional factors considered when evaluating whether an Qualitative: alien immigrant is inadmissible based on Benefits the public charge ground. Positive and negative factors are weighed to • Better ensure that aliens who are determine an individual's likelihood of admitted to the United States or apply for becoming a public charge at any time in adjustment of status are self-sufficient the future. through an improved review process of the mandatory statutory factors.

Adding 8 CFR 212.23. Outlines exemptions and waivers for Exemptions and inadmissibility based on public charge waivers for public grounds. charge ground of inadmissibility.

Adding 212.24. Provides the methodology for calculating Valuation of the annual aggregate amount of the monetizable benefits. portion attributable to the alien for the monetizable non-cash benefits and considered in the public charge inadmissibility determination.

Adding 8 CFR To provide, with limited exceptions, that Quantitative: 214.l(a)(3)(iv) and an application for extension of stay or Costs amending 8 CFR change of nonimmigrant status will be 214.l(c)(4). Potential annual costs for those Form I- denied unless the applicant demonstrates • Nonimmigrant general 129 beneficiaries range from $6.09 that he or she has not received, is not requirements; and million to $60.9 million depending on currently receiving, nor is likely to

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00118 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.056 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51231

amending 8 CFR receive, public benefits as defined in how many beneficiaries are sent a RFE 248.l(a) and adding 8 proposed 8 CFR 212.2l(b). by USCIS to complete Form I-944. CFR 248.l(c)(4). • Potential annual costs for those Form I- Change of 129CW beneficiaries range from $0.11 nonimmigrant million to $1.14 million depending on classification eligibility. how many beneficiaries are sent a RFE by USCIS to complete Form I-944. • Potential annual costs for those Form I- 539 applicants range from $3.16 million to $31.6 million depending on how many applicants are sent a RFE by USCIS to complete Form I-944.

Qualitative: Benefits • Better assurance that aliens who are 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 stay. • Reduce the likelihood that an alien will receive a covered public benefit at any time in the future. Amending 8 CFR 245. To outline requirements that aliens Quantitative: Direct Costs Adjustment of status to submit a declaration of self-sufficiency that of a person on the form designated by DHS and any • Total annual direct costs of the proposed admitted for permanent rule would range from about $45.3 to other evidence requested by DHS in the residence. $129.6 million, including: public charge inadmissibility • $26.0 million to applicants who must determination. file Form I-944; • $0.69 million to applicants applying to adjust status using Form I-485 with an increased time burden; • $12.1 to $66.9 million for an increased time burden for completing and filing Form I-129 and potential RFE to complete Form I-944; • $0.23 to $1.25 million for an increased time burden for completing and filing Form I -129CW and potential RFE to complete Form I- 944; • $6.29 to $34.8 million for an increased time burden for completing and filing Form I-539 and potential RFE to complete Form I-944; • $0.34 million to obligors for filing Form I-945; and • $825 to filers for filing Form I-356 .

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00119 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.057 51232 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

• Total costs over a 10-year period would range from: • $453 .l million to $1.30 billion for undiscounted costs; • $386.5 million to $1.11 billion at a 3 percent discount rate; and • $318.3 to $910.2 million at a 7 percent discount rate.

Transfer Payments • Total annual transfer payments of the proposed rule would be about $2.27 billion from foreign-born non-citizens and their households who disemoll from or forego emollment in public benefits programs. The federal-level share of annual transfer payments would be about $1.51 billion and the state-level share of annual transfer payments would be about $756 million. • Total transfer payments over a 10-year period, including the combined federal- and state-level shares, would be: • $22.7 billion for undiscounted costs; • $19.3 billion at a 3 percent discount rate; and • $15.9 billion at a 7 percent discount rate.

Qualitative: Benefits • Potential to improve the efficiency for USC IS in the review process for public charge inadmissibility.

Costs • DHS anticipates a likely increase in the number of denials 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 proposed rule. Costs would include the opportunity cost of time to read the proposed rule and

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00120 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.058 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51233

subsequently determine applicability of the proposed rule's provisions. DHS estimates that the time to read this proposed rule in its entirety would be 8 to 10 hours per individual.

Public Charge Bond Provisions

Amending 8 CFR To set forth the Secretary's discretion to Quantitative: 103.6. Public charge approve bonds, cancellation, bond Costs bonds. schedules, and breach of bond, and to move principles governing public charge • $0.34 million annually to obligors for bonds to proposed 8 CFR 213 .1. submitting Public Charge Bond (Form 1- 945);and • $825 to annually filers for submitting Request for Cancellation of Public Charge Bond (Form 1-356). • Fees paid to surety bond companies to secure public charge bond. Fees could range from 1- 15 percent of the public charge bond amount based on an Amending 8 CFR To add fees for new Form 1-945, Public individual's credit score. 103.7. Fees. Charge Bond, and Form 1-356, Request for Cancellation of Public Charge Bond. Qualitative: Benefits • Potentially enable an alien who was found inadmissible on public charge grounds to be admitted by posting a public charge bond withDHS.

Amending 8 CFR In 8 CFR 213.1, to add specifics to the 213 .1. Admission or public charge bond provision for aliens adjustment of status of who are seeking adjustment of status, aliens on giving of a including the discretionary availability public charge bond. and the minimum amount required for a public charge bond.

Source: USCIS analysis.

In addition to the impacts OMB Circular A–4, Table 37 presents showing the costs associated with this summarized above and as required by the prepared accounting statement proposed regulation.697

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

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00121 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.059 51234 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 37. OMB A-4 Accounting Statement ($, 2018)

Category Primary Estimate Minimum Estimate Maximum Estimate Source Citation

BENEFITS Monetized Benefits Form 1-485 applicants would no longer have to file Form I-864W. Applicants would save approximately $35.78 per petition based on the opportunity cost of time. Preamble Annualized quantified, but un-monetized, benefits 0 0 0 Preamble Unquantified Benefits The primary benefit of the proposed rule would be to ensure that aliens who are admitted to the United States or apply for adjustment of status would not use or receive one or more public benefits which they are entitled to receive, and instead, would rely on their financial resources, and those of family members, sponsors, and private organizations.

Potential to improve the efficiency for USCIS in the review process for public charge inadmissibility. Preamble

COSTS Annualized monetized (3%) costs (discount rate in parenthesis) $82,772,721 $45,313,422 $129,596,845 Preamble (7%)

$82,772,721 $45,313,422 $129,596,845 Preamble Annualized quantified, NIA but un-monetized, costs Preamble Qualitative DHS anticipates a likely increase in the number of denials for (unquantified) costs 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 rule. Costs would include the opportunity cost of time to read the proposed rule and subsequently determine applicability of the proposed rule's provisions. DHS assumes that the time to read this proposed rule in its entirety would be 8 to 10 hours per individual.

Fees paid by aliens to obligors to secure public charge bond.

Other qualitative, unquantified effects of the proposed rule could include: • Potential lost productivity, Preamble

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00122 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.060 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51235

BILLING CODE 4410–10–C including the alien’s age, health, and will be found inadmissible as likely to 2. Background and Purpose of the Rule family status; assets, resources, and become a public charge.701 financial status; and education and However, in general, there is a lack of As discussed in the preamble, DHS skills.699 Additionally, DHS may academic literature and economic seeks to ensure appropriate application consider any affidavit of support research examining the link between of the public charge ground of submitted under section 213A of the immigration and public benefits (i.e., inadmissibility. Under the INA, an alien Act, 8 U.S.C. 1183a, on behalf of the welfare), and the strength of that who, at the time of application for a applicant when determining whether connection.702 It is also difficult to visa, admission, or adjustment of status, the applicant may become a public determine whether immigrants are net is deemed likely at any time to become charge.700 For most family-based and contributors or net users of government- a public charge is inadmissible to the some employment-based immigrant supported public assistance programs United States.698 visas or adjustment of status since much of the answer depends on While the INA does not define public applications, applicants must have a the data source, how the data are used, charge, Congress has specified that sufficient affidavit of support or they and what assumptions are made for when determining if an alien is likely at any time to become a public charge, 699 See INA section 212(a)(4)(B)(i); 8 U.S.C. 701 See INA section 212(a)(4)(C) and (D), 8 U.S.C. consular and immigration officers must, 1182(a)(4)(B)(i). 1182(a)(4)(C) and (D). at a minimum, consider certain factors 700 See INA section 212(a)(4)(B)(ii). When 702 See Borjas, G.J. (2016) We wanted workers: required, the applicant must submit Form I-864, Unraveling the immigration narrative. Chapter 9, Affidavit of Support Under Section 213A of the pp. 175–176, 190–191. W.W. Norton & Company, 698 See INA section 212(a)(4); 8 U.S.C. 1182(a)(4). INA. New York.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00123 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.061 51236 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

analysis.703 Moreover, DHS also was not years of age, and parents of U.S. citizens status may also meet the affidavit of able to estimate potential lost 21 years of age and older); (2) family- support requirement by obtaining a joint productivity, health effects, additional based preference immigrants (unmarried sponsor who is willing to accept joint medical expenses due to delayed health sons and daughters of U.S. citizens, and several liability with the petitioning care treatment, or increased disability spouses and unmarried sons and sponsor as to the obligation to provide insurance claims as a result of this daughters of lawful permanent support to the sponsored alien. The proposed rule. residents, married sons and daughters of joint sponsor must demonstrate income Currently, the public charge U.S. citizens, and brothers and sisters of or assets that independently meet the inadmissibility ground does not apply U.S. citizens 21 years of age and older); requirements to support the sponsored to all applicants seeking a visa, and (3) employment-based preference immigrant(s) as required under section admission, or adjustment of status. immigrants in cases only when a U.S. 213A(f)(2) and (f)(5)(A) of the Act, 8 Several immigrant and nonimmigrant citizen, lawful permanent resident, or U.S.C. 1883a(f)(2) and (f)(5)(A). The categories, by law or regulation, are U.S. national relative filed the joint sponsor’s income and assets may exempt from the public charge ground immigrant visa petition or such relative not be combined with the income/assets of inadmissibility grounds.704 has a significant ownership interest (5 of the petitioning sponsor or the The costs and benefits for this percent or more) in the entity that filed sponsored immigrant. Both the proposed rule focus on individuals the petition. However, immigrants petitioning sponsor and the joint applying for adjustment of status using seeking certain visa classifications are sponsor must each complete a Form I– Form I–485. Such individuals would be exempt from the requirement to submit 864. applying from within the United States, a Form I–864 as are intending Certain classes of immigrants rather than applying for a visa from immigrants who have earned or can currently are exempt from the outside the United States at a DOS receive credit for 40 qualifying quarters requirement to file Form I–864 or Form consulate abroad. In addition, the (credits) of work in the United States. I–864EZ and therefore must file Form I– impact of this proposed rule on Additionally, some sponsors for 864W. DHS proposes to eliminate Form nonimmigrants who are seeking an intending immigrants may be able to file I–864W and instead individuals would extension of stay or a change of status an Affidavit of Support Under Section now be required to provide the are also examined in this analysis. 213A of the INA (Form I–864EZ). Form information previously requested on the The new process DHS is proposing for I–864EZ is a shorter version of Form I– Form I–864W using Form I–485. Based making a determination of 864 and is designed for cases that meet on the information provided in the inadmissibility based on public charge certain criteria. A sponsor may file Form Form I–485, an officer can verify incorporates a new form—Form I–944— I–864EZ only if: (1) The sponsor is the whether an alien is statutorily required in the current process to apply for person who filed or is filing a Petition to file an affidavit of support. adjustment of status. Currently, as part for Alien Relative (Form I–130) for a Some applicants seeking adjustment of the requirements for filing Form I– relative being sponsored; (2) the relative of status may be eligible for a fee waiver 485, applicants submit biometrics being sponsored is the only person when filing Form I–485. An applicant collection for fingerprints and signature, listed on Form I–130; and (3) the who is unable to pay the filing fees or and also file Form I–693 which is to be income the sponsor is using for biometric services fees for an completed by a designated civil qualification is based entirely on salary application or petition may obtain a fee surgeon. Form I–693 is used to report or pension and is shown on one or more waiver by filing a Request for Fee results of a medical examination to Internal Revenue Service (IRS) Form W– Waiver (Form I–912). If an applicant’s USCIS. 2s provided by employers or former Form I–912 is approved, the agency will Form I–864 (Affidavit of Support employers. waive both the filing fee and biometric Under Section 213A of the INA) is also Form I–864 includes attachment, services fee. Therefore, DHS assumes for filed to satisfy the requirements of Contract Between Sponsor and the purposes of this economic analysis section 213A of the Act for most family- Household Member (Form I–864A), that the filing fees and biometric based immigrants and some which may be filed when a sponsor’s services fees required for Form I–485 are employment-based immigrants to show income and assets do not meet the waived if an approved Form I–912 that they have adequate means of income requirements of Form I–864 and accompanies the application. financial support and are not likely to the qualifying household member When filing Form I–485, a fee waiver become a public charge. When a chooses to combine his or her resources is only available if the applicant is sponsor completes and signs Form I– with the income and/or assets of a applying for adjustment of status based sponsor to meet those requirements. A 864 in support of an intending on: sponsor must file a separate Form I– • Special Immigrant Status based on immigrant, the sponsor agrees to use his 864A for each household member an approved Form I–360 as an Afghan or her resources, financial or otherwise, whose income and/or assets the sponsor or Iraqi Interpreter, or Afghan or Iraqi to support the intending immigrant is using to meet the affidavit of support national employed by or on behalf of the named in the affidavit, if it becomes income requirements. The Form I–864A U.S. Government; or necessary. contract must be submitted with Form • An adjustment provision that is Immigrants required to submit Form I–864. The Form I–864A serves as a exempt from the public charge grounds I–864 completed by a sponsor to obtain contractual agreement between the of inadmissibility under section an immigrant visa overseas or to adjust sponsor and household member that, 212(a)(4) of the INA, including but not status to that of lawful permanent along with the sponsor, the household limited to the Cuban Adjustment Act, resident in the United States, include (1) member is responsible for providing the Haitian Refugee Immigration immediate relatives of U.S. citizens financial and material support to the Fairness Act (HRIFA), and the (spouses, unmarried children under 21 sponsored immigrant. Nicaraguan Adjustment and Central In cases where the petitioning sponsor American Relief Act (NACARA), or 703 See Borjas, G.J. (2016) We wanted workers: Unraveling the immigration narrative. Chapter 9, p. cannot meet the income requirements similar provisions; continuous 175. W.W. Norton & Company, New York. by him or herself, an individual seeking residence in the United States since 704 See proposed 8 CFR 212.23(a). an immigrant visa or adjustment of before January 1, 1972, ‘‘Registry,’’

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00124 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51237

Asylum Status under section 209(b) of process for such aliens. DHS currently because these individuals would have to the INA, Special Immigrant Juvenile does not have a specific process or demonstrate that they have not received, Status, and Lautenberg parolees. procedure in place to accept public are not currently receiving, and are not Additionally, the following charge bonds, though it has the likely to receive public benefits in the individuals seeking adjustment of status authority to do so. The proposed public future, as defined in the proposed rule. may apply for a fee waiver for Form I– charge bond process would include This analysis estimates the populations 485: DHS acceptance of a public charge bond from each of these groups that would be • Battered spouses of A, G, E–3, or H posted on an adjustment of status subject to review for receipt of public nonimmigrants; applicant’s behalf if the adjustment of benefits. DHS notes that the population • Battered spouses or children of a status applicant was deemed estimates are based on aliens present in lawful permanent resident or U.S. inadmissible based on public charge. the United States who are applying for citizen under INA section 240A(b)(2); • The process would also include the adjustment of status or extension of stay T nonimmigrants; possibility to substitute an existing or change of status, rather than • U nonimmigrants; or • VAWA self–petitioners. bond, the requirement to substitute a individuals outside the United States DHS is proposing to facilitate the bond before the bond on file with DHS who must apply for an immigrant visa current Form I–485 application process expires, the DHS determination of through consular processing at a DOS by creating a new form—Form I–944— breach of a public charge bond, the consulate abroad. possibility to file an appeal upon a which would collect information to the (a) Population Seeking Adjustment of breach determination, cancellation of a extent allowed by relevant laws based Status on factors such as age; health; family public charge bond, and the possibility status; assets, resources, and financial to submit an appeal upon denial of the With this proposed rule, DHS intends status; education and skills; and any cancellation request. to ensure that aliens who apply for additional financial support through an 3. Population adjustment of status are self-sufficient affidavit of support, so that DHS could and will rely on their own financial determine whether an applicant This proposed rule would affect resources, as well of those of their applying for adjustment of status who is individuals who are present in the families, sponsors, and private subject to public charge review would United States who are seeking an organizations. Therefore, DHS estimates be inadmissible to the United States adjustment of status to that of a lawful the population of individuals who are based on public charge grounds. For the permanent resident. According to applying for adjustment of status using analysis of this proposed rule, DHS statute, an individual who is seeking Form I–485.706 Under the proposed rule, assumes that all individuals who apply adjustment of status and is at any time these individuals would undergo review for an adjustment of status using Form likely to become a public charge is for determination of inadmissibility I–485 are required to submit Form I– ineligible for such adjustment.705 The based on public charge grounds, unless 944, unless he or she is in a class of grounds of inadmissibility set forth in an individual is in a class of admission applicants that is exempt from review section 212 of the Act also apply when that is exempt from review for public for determination of inadmissibility certain aliens seek admission to the charge determination. United States, whether for a temporary based on public charge at the time of Table 38 shows the total population adjustment of status according to statute purpose or permanently. However, the grounds of public charge inadmissibility in fiscal years 2012 to 2016 that applied or regulation. for adjustment of status. In general, the In addition to those applying for an (including ineligibility for adjustment of status) do not apply to all applicants annual population of individuals who adjustment of status, any alien applying applied to adjust status was consistent. for an extension of stay or change of since there are various classes of admission that Congress expressly Over the 5-year period, the population status as a nonimmigrant in the United of individuals applying for adjustment States would now be required to exempted from the public charge inadmissibility ground. Within USCIS, of status ranged from a low of 530,802 demonstrate that he or she is neither in fiscal year 2013 to a high of 565,427 using nor receiving, nor likely to this proposed rule would affect individuals who apply for adjustment of in fiscal year 2016. In addition, the receive, public benefits as defined in average population of individuals over 5 this proposed rule unless the applicant status since these individuals would be required to be reviewed for a fiscal years who applied for adjustment is in a class of admission or is seeking of status over this period was 544,246. to change to a class of admission that is determination of inadmissibility based exempt from inadmissibility on public on public charge grounds as long as the individual is not in a class of admission 706 Data on the population of individuals who are charge grounds. applying for adjustment of status and the class of For applicants seeking adjustment of that is exempt from review for public admission come from U.S. Department of Homeland status or an immigrant visa who are charge. In addition, the proposed rule Security, Yearbook of Immigration Statistics for likely to become a public charge after would affect individuals applying for an years 2012 to 2016. See U.S. Department of extension of stay or change of status Homeland Security. Yearbook of Immigration the review for determination of Statistics. Office of Immigration Statistics. Available inadmissibility based on public charge, at https://www.dhs.gov/immigration-statistics/ DHS is proposing to establish a bond 705 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4). yearbook/ (accessed Jan. 24, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00125 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51238 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

DHS welcomes any public comments inadmissibility based on public charge inadmissibility based on public charge on our estimates of the total number of grounds. grounds. Table 39 shows the classes of individuals applying for adjustment of i. Exemptions From Determination of applicants for admission, adjustment of status in the United States as the Inadmissibility Based on Public Charge status, or registry according to statute or primary basis for developing population Grounds regulation that are exempt from estimates of those who would be subject inadmissibility based on public charge to review for determination of There are exemptions and waivers for grounds. certain classes of admission that are not BILLING CODE 4410–10–P subject to review for determination of

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00126 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.062 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51239

Table 39. Classes of Applicants for Admission, Adjustment of Status, or Registry Exempt from Inadmissibility Based on Public Charge Accordinr To Statute or Regulation. • Refugees and asylees as follows: at the • Amerasian immigrants at the time of time admission under section 207 of the application for admission as described in Act (refugees) or grant under section 208 sections 584 of the Foreign Operations, of the Act (asy lees adjustment of status to Export Financing, and Related Programs lawful permanent resident under sections Appropriations Act of 1988, Public Law 207(c)(3) and 209(c) of the Act; 100-202, 101 Stat. 1329-183, section lOl(e) (Dec. 22, 1987), as amended, 8 U.S.C. llOl note;

• Afghan and Iraqi Interpreter, or Afghan or • Cuban and Haitian entrants applying for Iraqi national employed by or on behalf of adjustment of status under in section 202 the U.S. Govermnent as described in of the Immigration Reform and Control section 1059(a)(2) of the National Defense Act of 1986 (IRCA), Public Law 99-603, Authorization Act for Fiscal Year 2006 100 Stat. 3359 (Nov. 6, 1986), as Public Law 109-163 (Jan. 6, 2006), as amended, 8 U.S.C. 1255a note; amended, section 602(b) of the Afghan Allies Protection Act of 2009, Public Law ll1-8, title VI (Mar. ll, 2009), as amended, 8 U.S.C. ll01 note, and section 1244(g) of the National Defense Authorization Act for Fiscal Year 2008, as amended Public Law ll0-181 (Jan. 28, 2008);

• Aliens applying for adjustment of status • Nicaraguans and other Central Americans under the Cuban Adjustment Act, Public applying for adjustment of status under Law 89-732 (Nov. 2, 1966), as amended, 8 sections 202(a) and section 203 of the U.S.C. 1255 note; Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, ll1 Stat. 2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255 note;

• Haitians applying for adjustment of status • Lautenberg parolees as described in under section 902 of the Haitian Refugee section 599E of the Foreign Operations, Immigration Fairness Act of 1998, Public Export Financing, and Related Programs Law 105-277, ll2 Stat. 2681 (Oct. 21, Appropriations Act of 1990, Public Law 1998), as amended, 8 U.S. C. 1255 note; 101-167, 103 Stat. ll95, title V (Nov. 21, 1989), as amended, 8 U.S.C. 1255 note;

• Special immigrant juveniles as described • Aliens who entered the United States prior in section 245(h) of the Act; to January 1, 1972 and who meet the other conditions for being granted lawful permanent residence under section 249 of the Act and 8 CFR part 249 (Registry);

• Aliens applying for or re-registering for • A nonimmigrant classified under section Temporary Protected Status as described in 101(a)(15)(T) ofthe Act, in accordance section 244 of the Act in accordance witl1 with section 212(d)(l3)(A) of the Act; section 244(c)(2)(A)(ii) of the Act and 8 CFR 244.3(a);

• An applicant for, or individual who is • Nonimmigrants classified under section granted, nonimmigrant status under section 101(a)(15)(U) of the Act applying for 101(a)(15)(U) of the Act in accordance adjustment of status under section 245(m)

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00127 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.063 51240 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

BILLING CODE 4410–10–C as shown in table 39, leaving the total review.707 In fiscal year 2016, for To estimate the annual total population that would be subject to example, the total number of persons population of individuals seeking to such review. Further discussion of these who applied for an adjustment of status adjust status who would be subject to exempt classes of admission can be across various classes of admission was review for inadmissibility based on found in the preamble. 565,427 (see table 38). After removing public charge grounds, DHS examined Table 40 shows the total estimated individuals from this population whose the annual total population of population of individuals seeking to classes of admission are exempt from individuals who applied for adjustment adjust status under a class of admission examination for public charge, DHS of status for fiscal years 2012 to 2016. that is exempt from review for estimates the total population of For each fiscal year, DHS removed inadmissibility based on public charge adjustment applicants in fiscal year individuals from the population whose grounds for fiscal years 2012 to 2016 as 2016 that would be subject to public classes of admission are exempt from well as the total estimated population charge review for inadmissibility is public charge review for inadmissibility, that would be subject to public charge 382,769.708

707 Calculation of total estimated population that Status that is Exempt from Public Charge Review 708 Calculation of total population subject to would be subject to public charge review: (Total for Inadmissibility) = Total Population Subject to public charge review for inadmissibility for fiscal Population Applying for Adjustment of Public Charge Review for Inadmissibility. year 2016: 565,427¥182,658 = 382,769. Status)¥(Total Population Seeking Adjustment of

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00128 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.064 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51241

DHS estimates the projected annual immigrants outside the United States from the requirement to submit an average total population of adjustment who must apply for an immigrant visa affidavit of support from a sponsor over applicants that would be subject to through consular processing at DOS the period fiscal year 2012 to fiscal year public charge review for inadmissibility consulate abroad. 2016.709 The table also shows the total by DHS is 382,264. This estimate is ii. Exemptions From the Requirement estimated population that was required based on the 5-year average of the To Submit an Affidavit of Support to submit an affidavit of support annual estimated total population showing evidence of having adequate subject to public charge review for In addition to the exemptions from means of financial support so that an inadmissibility from fiscal year 2012 to inadmissibility based on public charge, applicant would not be found fiscal year 2016. Over this 5-year period, certain classes of admission are exempt inadmissible as likely to become a from the requirement to submit an the estimated population of individuals public charge for failure to submit a affidavit of support for applicants for applying for adjustment of status subject sufficient affidavit of support. Further to public charge review ranged from a admission, adjustment of status, or discussion of these exempt classes of low of 366,125 in fiscal year 2015 to a registry. Certain applicants applying for admission can be found in the high of 397,988 in fiscal year 2013. adjustment of status are required to DHS welcomes any public comments submit an affidavit of support from a preamble. The estimated annual average on our estimates of the total population sponsor or otherwise be found population of individuals seeking to of individuals seeking to adjust status inadmissible as likely to become a adjust status who were required to under a class of admission that is public charge. When an affidavit of submit a public charge affidavit of exempt from review for inadmissibility support is submitted, a contract is support from a sponsor over the 5-year based on public charge grounds as well established between the sponsor and the period was 257,610. Over this 5-year as the total population that would be U.S. Government to establish a legally period, the estimated population of subject to public charge review. DHS enforceable obligation to support the individuals required to submit a public notes that the population estimates are applicant financially. charge affidavit of support from a based on immigrants present in the Table 41 shows the estimated total sponsor ranged from a low of 247,011 in United States who are applying for population of individuals seeking fiscal year 2015 to a high of 272,451 in adjustment of status, rather than adjustment of status who were exempt fiscal year 2016.

709 Data on the population of individuals who are Security, Yearbook of Immigration Statistics for Statistics. Office of Immigration Statistics. Available applying for adjustment of status and the class of years 2012 to 2016. See U.S. Department of at https://www.dhs.gov/immigration-statistics/ admission come from U.S. Department of Homeland Homeland Security. Yearbook of Immigration yearbook/ (accessed Jan. 24, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00129 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.065 51242 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

DHS estimates the projected annual (b) Population Seeking Extension of of stay or change of status to determine average total population that would be Stay or Change of Status whether the applicant has demonstrated subject to the requirement to submit an that he or she has not received, is not Nonimmigrants in the United States affidavit of support from a sponsor is receiving, nor is likely to receive, public may apply for an extension of stay or 257,610. This estimate is based on the benefits, as defined in the proposed change of status by having Form I–129 5-year average of the annual estimated rule.710 However, DHS proposes that filed by an employer on his or her total population of applicants applying such determinations would not require behalf. An employer uses Form I–129 to for adjustment of status that would be applicants seeking extension of stay or petition USCIS for a beneficiary to enter subject to the requirement to submit an the United States temporarily as a change of status to file Form I–944. affidavit of support from a sponsor from nonimmigrant to perform services or Instead, USCIS officers would be able to fiscal year 2012 to fiscal year 2016. Over labor, or to receive training. The Form exercise discretion regarding whether it this 5-year period, the estimated I–129 can also be used to request an would be necessary to issue a RFE population of such individuals applying extension or change in status. In whereby an applicant would then have for adjustment of status ranged from a addition, an employer may use Form I– to submit Form I–944. low of 247,011 in fiscal year 2015 to a 129CW to petition USCIS for a foreign Table 42 shows the total estimated high of 272,451 in fiscal year 2016. national who is ineligible for another population of beneficiaries seeking DHS welcomes any public comments employment-based nonimmigrant extension of stay or change of status on our estimates of the total population classification to work as a nonimmigrant through an employer petition using of individuals seeking adjustment of in the Commonwealth of the Northern Form I–129 for fiscal years 2012 to 2016. status who were exempt from the Mariana Islands (CNMI) temporarily as DHS estimated this population based on requirement to submit an affidavit of a CW–1, CNMI-Only Transitional receipts of Form I–129 in each fiscal support as well as the total population Worker. Moreover, an employer may year. Over this 5-year period, the that was required to submit an affidavit also use Form I–129CW to request an estimated population of individuals of support showing evidence of having extension of stay or change of status for who would be subject to a adequate means of financial support so a CNMI-Only Transitional Worker. determination of inadmissibility on that an applicant would not be found A nonimmigrant may file Form I–539 public charge grounds ranged from a inadmissible as likely become a public so long as the nonimmigrant is currently low of 282,225 in fiscal year 2013 to a charge for failure to submit a sufficient in an eligible nonimmigrant category. A high of 377,221 in fiscal year 2012. The affidavit of support. DHS notes that the nonimmigrant generally must submit an estimated average population of population estimates are based on application for extension of stay or individuals seeking extension of stay or immigrants present in the United States change of status before his or her change of status over the five-year who are applying for adjustment of current authorized stay expires. In period fiscal year 2012 to 2016 was status, rather than immigrants outside addition to determining inadmissibility 336,335. DHS estimates that 336,335 is the United States who must apply for an based on public charge for individuals the average annual projected population immigrant visa through consular seeking adjustment of status, DHS is of beneficiaries seeking extension of processing at a U.S. Department of State proposing to conduct reviews of stay or change of status through an consulate abroad. nonimmigrants who apply for extension employer petition using Form I–129 and

710 Past or current receipt of public benefits, alone, would not justify a finding of inadmissibility on public charge grounds.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00130 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.066 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51243

therefore subject to the discretionary RFEs for public charge determination.

Table 43 shows the total estimated who would be subject to a 2012 to 2016 was 6,307. DHS estimates population of beneficiaries seeking determination of inadmissibility on that 6,307 is the average annual extension of stay or change of status public charge grounds ranged from a projected population of beneficiaries through an employer petition using low of 5,249 in fiscal year 2013 to a high seeking extension of stay or change of Form I–129CW for fiscal years 2012 to of 8,273 in fiscal year 2016. The status through an employer petition 2016. DHS estimated this population estimated average population of using Form I–129CW and therefore based on receipts of Form I–129CW in individuals seeking extension of stay or subject to discretionary RFEs for public each fiscal year. Over this 5-year period, change of status through Form I–129CW charge determination. the estimated population of individuals over the five-year period fiscal year

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00131 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.067 EP10OC18.068 51244 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 44 shows the total estimated who would be subject to a from fiscal year 2012 to 2016 was population of individuals seeking determination of inadmissibility on 174,866. DHS estimates that 174,866 is extension of stay or change of status public charge grounds ranged from a the average annual projected population using Form I–539 for fiscal years 2012 low of 149,583 in fiscal year 2013 to a of individuals who would seek an to 2016. DHS estimated this population high of 203,695 in fiscal year 2016. The extension of stay and change of status based on receipts of Form I–539 in each estimated average population of using Form I–539 and therefore would fiscal year. Over this 5-year period, the individuals seeking extension of stay or be subject to the discretionary RFEs for estimated population of individuals change of status over the 5-year period public charge determination.

DHS welcomes any public comments hour ($7.25 federal minimum wage base many of these applicants hold positions on our estimates of the total population plus $3.41 weighted average benefits) as in occupations that are likely to pay of employers filing on behalf of a reasonable proxy of time valuation to around the federal minimum wage. individuals seeking extension of stay or estimate the opportunity costs of time The federal minimum wage of $7.25 change of status using Form I–129 or for individuals who are applying for is an unweighted hourly wage that does Form I–129CW as well as the total of adjustment of status and must be not account for worker benefits. DHS individuals seeking extension of stay or reviewed for determination of accounts for worker benefits when change of status using Form I–539, inadmissibility based on public charge estimating the opportunity cost of time where DHS proposes that the total grounds.711 DHS also uses $10.66 per by calculating a benefits-to-wage population using each of these forms hour to estimate the opportunity cost of multiplier using the most recent would be subject to review on a time for individuals who cannot or Department of Labor, BLS report discretionary basis for determination of choose not to participate in the labor detailing the average employer costs for inadmissibility based on public charge market as these individuals incur employee compensation for all civilian grounds. DHS notes that the population opportunity costs and/or assign workers in major occupational groups estimates are based on nonimmigrants valuation in deciding how to allocate and industries. DHS estimates that the present in the United States who are their time. This analysis uses the federal benefits-to-wage multiplier is 1.47 and, applying for extension of stay or a minimum wage rate since therefore, is able to estimate the full change of status, rather than individuals approximately 80 percent of the total opportunity cost per applicant, outside the United States who must number of individuals who obtained including employee wages and salaries apply for a nonimmigrant visa through lawful permanent resident status were and the full cost of benefits such as paid consular processing at a DOS consulate in a class of admission under family- leave, insurance, and retirement.713 abroad. sponsored preferences and other non- 4. Cost-Benefit Analysis employment-based classifications such Statistics, 2017. Available at https://www.dhs.gov/ as diversity, refugees and asylees, and immigration-statistics/yearbook/2016 (accessed Jan. 24, 2018). DHS expects this proposed rule to parolees.712 Therefore, DHS assumes produce costs and benefits associated 713 The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per with the procedures for examining 711 See 29 U.S.C. 206—Minimum wage, available hour)/(Wages and Salaries per hour) = $36.32/ individuals seeking entry into the at https://www.gpo.gov/fdsys/pkg/USCODE-2011- $24.77 = 1.466 = 1.47 (rounded). See Economic United States for inadmissibility based title29/html/USCODE-2011-title29-chap8- News Release, Employer Cost for Employee on public charge. sec206.htm (accessed Jan. 24, 2018). Compensation (March 2018), U.S. Dept. of Labor, 712 See United States Department of Homeland BLS, Table 1. Employer costs per hour worked for For this proposed rule, DHS generally Security. Yearbook of Immigration Statistics: 2016, employee compensation and costs as a percent of uses the federal minimum wage plus Table 7. Washington, DC, U.S. Department of total compensation: Civilian workers, by major weighted average benefits of $10.66 per Homeland Security, Office of Immigration occupational and industry group. June 8, 2018,

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00132 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.069 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51245

DHS notes that there is no requirement hour worked and average benefits are appropriate basis for evaluating the that an individual be employed in order $11.46 per hour.715 716 provisions of the proposed rule. DHS to file Form I–485 and many applicants DHS welcomes public comments on notes that costs detailed as part of the may not be employed. Therefore, in this its use of $10.66 per hour as the baseline include all current costs proposed rule, DHS calculates the total opportunity cost of time for most associated with completing and filing rate of compensation for individuals populations of this analysis (individuals Form I–485, including required applying for adjustment of status as in a class of admission under family- biometrics collection and medical $10.66 per hour in this proposed rule sponsored preferences and other non- examination (Form I–693) as well as any using the benefits-to-wage multiplier, employment-based preferences) and affidavits of support (Forms I–864, I– where the mean hourly wage is $7.25 $35.78 per hour as the opportunity cost 864A, I–864EZ, and I–864W) or per hour worked and average benefits of time for other populations, such as requested fee waivers (Form I–912). As are $3.41 per hour.714 those submitting an affidavit of support noted previously in the background However, DHS uses the unweighted for an immigrant seeking to adjust section, the source of additional costs mean hourly wage of $24.34 per hour status. imposed by this proposed rule would for all occupations to estimate the come from the proposed requirements to (a) Baseline Estimate of Current Costs opportunity cost of time for some submit Form I–944 detailing populations in this economic analysis, The baseline estimate of current costs information about an applicant such as those submitting an affidavit of is the best assessment of costs and regarding factors such as age, health, support for an immigrant seeking to benefits absent the proposed action. For family status, finances, and education adjust status and those requesting this proposed rule, DHS estimates the and skills. These costs are analyzed later extension of stay or change of status. For baseline according to current operations in this economic analysis. populations such as this, DHS assumes and requirements and to that compares Table 45 shows the estimated that individuals are dispersed the estimated costs and benefits of the population and annual costs of filing for throughout the various occupational provisions set forth in the proposed adjustment of status and requesting an groups and industry sectors of the U.S. rule. Therefore, DHS defines the extension of stay or change of status for economy. For the population submitting baseline by assuming ‘‘no change’’ to the proposed rule. These costs primarily an affidavit of support, therefore, DHS DHS regulations to establish an result from the process of applying for calculates the average total rate of adjustment of status, including filing compensation as $35.78 per hour, where 715 The national mean hourly wage across all Form I–485 and Form I–693 as well as, the mean hourly wage is $24.34 per occupations is reported to be $24.34. See if necessary, an affidavit of support and/ Occupational Employment and Wage Estimates or Form I–912. The costs are derived available at https://www.bls.gov/news.release/ United States. May 2017. Department of Labor, BLS, archives/ecec_06082018.pdf (viewed June 20, Occupational Employment Statistics program; from the process of applying for 2018). available at https://www.bls.gov/oes/2017/may/oes_ extension of stay or change of status, 714 The calculation of the weighted federal nat.htm. including filing Form I–129, Form I– 716 minimum hourly wage for applicants: $7.25 per The calculation of the weighted mean hourly 129CW, or Form I–539. hour * 1.47 benefits-to-wage multiplier = $10.658 wage for applicants: $24.34 per hour * 1.47 = = $10.66 (rounded) per hour. $35.779 = $35.78 (rounded) per hour. BILLING CODE 4410–10–P

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00133 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51246 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 45. Total Average Annual Baseline (Current) Costs.

. ·~~~~~ .. ~~·~;t,.·.. ~/'.·< r·c.~• s ••i'.f.\: ' t,i'~ "'1t"') • (.• z~~1~[~:,~;];~~ r02'~~~~;J ~;~;~,c~~J,~\:Y,~t~~~~~~\~;'\: ,~\;,~~: l :. If .••••.;•:'>\• .. ·•. ~ . ,~i~I:~;J:~ .. , 1-485, Application to Register Permanent Residence or Adjust Status 382,264 $519,114,512 Filing Fee $435,780,960 Opportunity Cost of Time (OCT) $25,470,250 Biometrics Services Fee $32,492,440 Biometrics Services OCT $14,954,168 Biometrics Services Travel Costs $10,416,694 1-693, Report of Medical Examination and Vaccination Record 382,264 $198,930,186 Medical Exam Cost $187,309,360 Opportunity Cost of Time (OCT) $10,187,336 Postage Costs $1,433,490

1-912, Request for Fee Waiver 58,558 $949,811 Opportunity Cost of Time (OCT) $730,218 Postage Costs $219,593 Affidavit of Support Forms (1-864, 1- 864A, I-864EZ, I-864W) 257,610 $55,303,715 Opportunity Cost of Time (OCT) $55,303,715 1-129, Petition for a Nonimmigrant Worker 336,335 $184,136,686 Filing Fee $154,714,100 Opportunity Cost of Time (OCT) $28,161,330 Postage Costs $1,261,256

I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker 6,307 $5,154,963 Filing Fee $4,477,970 Opportunity Cost of Time (OCT) $676,993

1-539, Application to Extend/Change Nonimmigrant Status 174,866 $76,463,656 Filing Fee $64,700,420 Opportunity Cost of Time (OCT) $11,763,236 Total Baseline Costs $1,040,053,529 Source: USCIS analysis.

BILLING CODE 4410–10–C

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00134 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.070 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51247

i. Determination of Inadmissibility by attending a biometrics services incur travel costs related to biometrics Based on Public Charge Grounds appointment at a designated USCIS collection. The cost of travel related to a. Form I–485, Application To Register Application Support Center (ASC). The biometrics collection would equal Permanent Residence or Adjust Status biometrics services processing fee is $27.25 per trip, based on the 50-mile $85.00 per applicant. Therefore, DHS roundtrip distance to an ASC and the The basis of the quantitative costs estimates that the annual cost associated General Services Administration’s estimated for this proposed rule is the with biometrics services processing for (GSA) travel rate of $0.545 per mile.726 cost of filing for adjustment of status the estimated average annual population DHS assumes that each applicant would using Form I–485, the opportunity cost of 382,264 individuals applying for travel independently to an ASC to of time for completing this form, any adjustment of status is approximately submit his or her biometrics, meaning other required forms, and any other $32,492,440.721 that this rule would impose a travel cost incidental costs (e.g., travel costs) an In addition to the biometrics services on each of these applicants. Therefore, individual must bear that are required fee, the applicant would incur the costs DHS estimates that the total annual cost in the filing process. DHS reiterates that to comply with the biometrics associated with travel related to costs examined in this section are not submission requirement as well as the biometrics collection for the estimated additional costs that would be imposed opportunity cost of time for traveling to average annual population of 382,264 by the proposed rule, but costs that an ASC, the mileage cost of traveling to individuals applying for adjustment of applicants currently incur as part of the an ASC, and the opportunity cost of status is approximately $10,416,694.727 application process to adjust status. The time for submitting his or her In sum, DHS estimates the total current filing fee for Form I–485 is biometrics. While travel times and current annual cost for filing Form I– $1,140. The fee is set at a level to distances vary, DHS estimates that an 485 is $519,114,512. The total current recover the processing costs to DHS. As applicant’s average roundtrip distance annual costs include Form I–485 filing previously discussed in the population to an ASC is 50 miles and takes 2.5 fees, biometrics services fees, section, the estimated average annual hours on average to complete the trip.722 opportunity cost of time for completing population of individuals who apply for Furthermore, DHS estimates that an Form I–485 and submitting biometrics adjustment of status using Form I–485 is applicant waits an average of 1.17 hours information, and travel cost associated 382,264. Therefore, DHS estimates that for service and to have his or her with biometrics collection.728 DHS the annual filing cost associated for biometrics collected at an ASC, adding notes that a medical examination is Form I–485 is approximately up to a total biometrics-related time generally required as part of the 717 $435,780,960. burden of 3.67 hours.723 Using the total application process to adjust status. DHS estimates the time burden of rate of compensation of minimum wage Costs associated with the medical completing Form I–485 is 6.25 hours per of $10.66 per hour, DHS estimates the examination are detailed in the next response, including the time for opportunity cost of time for completing section. Moreover, costs associated with reviewing instructions, gathering the the biometrics collection requirements submitting an affidavit of support and required documentation and for Form I–485 is $39.12 per requesting a fee waiver are also detailed information, completing the application, applicant.724 Therefore, using the total in subsequent sections since such costs preparing statements, attaching population estimate of 382,264 annual are not required for every individual necessary documentation, and filings for Form I–485, DHS estimates applying for an adjustment of status. submitting the application.718 Using the the total opportunity cost of time total rate of compensation for minimum associated with completing the b. Form I–693, Report of Medical wage of $10.66 per hour, DHS estimates biometrics collection requirements for Examination and Vaccination Record the opportunity cost of time for Form I–485 is approximately USCIS requires most applicants who completing and submitting Form I–485 $14,954,168 annually.725 file Form I–485 seeking adjustment of would be $66.63 per applicant.719 In addition to the opportunity cost of status to submit Form I–693 completed Therefore, using the total population providing biometrics, applicants would by a designated civil surgeon. Form I– estimate of 382,264 annual filings for 693 is used to report results of a medical Form I–485, DHS estimates the total 721 Calculation: Biometrics services processing fee examination to USCIS. For this analysis, opportunity cost of time associated with ($85) * Estimated annual population filing Form I– 485 (382,264) = $32,492,440 annual cost for DHS assumes that all individuals who completing Form I–485 is associated with Form I–485 biometrics services apply for adjustment of status using approximately $25,470,250 annually.720 processing. Form I–485 are required to submit Form USCIS requires applicants who file 722 See ‘‘Employment Authorization for Certain I–693. DHS reiterates that costs Form I–485 to submit biometric H–4 Dependent Spouses; Final rule,’’ 80 FR 10284 examined in this section are not information (fingerprints and signature) (25 Feb. 2015); and ‘‘Provisional and Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives; Final Rule,’’ 78 FR 536, 572 726 See U.S. General Services Administration 717 Calculation: Form I–485 filing fee ($1,140) * (3 Jan. 2013). website for Privately Owned Vehicle (POV) Mileage Estimated annual population filing Form I–485 723 Source for biometric time burden estimate: Reimbursement Rates, https://www.gsa.gov/travel/ (382,264) = $435,780,960 annual cost for filing Paperwork Reduction Act (PRA) Supporting plan-book/transportation-airfare-rates-pov-rates- Form I–485. Statement for Form I–485 (OMB control number etc/privately-owned-vehicle-pov-mileage- 718 Source: Paperwork Reduction Act (PRA) 1615–0023). The PRA Supporting Statement can be reimbursement-rates (accessed January 7, 2018). Supporting Statement for Form I–485 (OMB control found at Question 12 on Reginfo.gov at https:// 727 Calculation: (Biometrics collection travel number 1615–0023). The PRA Supporting www.reginfo.gov/public/do/ costs) * (Estimated annual population filing Form Statement can be found at Question 12 on PRAViewDocument?ref_nbr=201706-1615-001. I–485) = $27.25 * 382,264 = $10,416,694 annual Reginfo.gov at https://www.reginfo.gov/public/do/ 724 Calculation for opportunity cost of time to travel costs related to biometrics collection for Form PRAViewDocument?ref_nbr=201706-1615-001. comply with biometrics submission for Form I–485: I–485. 719 Calculation for opportunity cost of time for ($10.66 per hour * 3.67 hours) = $39.12 (rounded) 728 Calculation: $435,780,960 (Annual filing fees filing Form I–485: ($10.66 per hour * 6.25 hours) per applicant. for Form I–485) + $25,470,250 (Opportunity cost of = $66.625 = $66.63 (rounded) per applicant. 725 Calculation: Estimated opportunity cost of time for filing Form I–485) + $32,492,440 720 Calculation: Form I–485 estimated time to comply with biometrics submission for (Biometrics services fees) + $14,954,168 opportunity cost of time ($66.63) * Estimated Form I–485 ($39.12) * Estimated annual population (Opportunity cost of time for biometrics collection annual population filing Form I–485 (382,264) = filing Form I–485 (382,264) = $14,954,167.68 = requirements) + $10,416,694 (Travel costs for $25,470,250.13 = $25,470,250 (rounded) annual $14,954,168 (rounded) annual opportunity cost of biometrics collection) = $519,114,512 total current opportunity cost of time for filing Form I–485. time for filing Form I–485. annual cost for filing Form I–485.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00135 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51248 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

additional costs that would be imposed understanding and completing the form, a fee waiver when filing Form I–485. An by the proposed rule, but costs that setting an appointment with a civil applicant who is unable to pay the filing applicants currently incur as part of the surgeon for a medical exam, sitting for fees or biometric services fees for an application process to adjust status. The the medical exam, learning about and application or petition may be eligible medical examination is required to understanding the results of medical for a fee waiver by filing Form I–912. If establish that an applicant is not tests, allowing the civil surgeon to an applicant’s Form I–912 is approved, inadmissible to the United States on report the results of the medical exam USCIS, as a component of DHS, will health-related grounds. While there is on the form, and submitting the medical waive both the filing fee and biometric no filing fee associated with Form I– exam report to USCIS.732 DHS estimates services fee. Therefore, DHS assumes for 693, the applicant is responsible for the opportunity cost of time for the purposes of this economic analysis paying all costs of the medical completing and submitting Form I–693 that the filing fees and biometric examination, including the cost of any is $26.65 per applicant based on the services fees required for Form I–485 are follow-up tests or treatment that is total rate of compensation of minimum waived if an approved Form I–912 required, and must make payments wage of $10.66 per hour.733 Therefore, accompanies the application. Filing directly to the civil surgeon or other using the total population estimate of Form I–912 is not required for health care provider. In addition, 382,264 annual filings for Form I–485, applications and petitions that do not applicants bear the opportunity cost of DHS estimates the total opportunity cost have a filing fee. DHS also notes that time for completing the medical exam of time associated with completing and costs examined in this section are not form as well as sitting for the medical submitting Form I–693 is approximately additional costs that would be imposed exam and the time waiting to be $10,187,336 annually.734 by the proposed rule, but costs that examined. In addition to the cost of a medical applicants currently could incur as part USCIS does not regulate the fees exam and the opportunity cost of time of the application process to adjust charged by civil surgeons for the associated with completing and status. completion of a medical examination. In submitted Form I–693, applicants must Table 46 shows the estimated addition, medical examination fees vary bear the cost of postage for sending the population of individuals that requested by physician. DHS notes that the cost of Form I–693 package to USCIS. DHS a fee waiver (Form I–912), based on the medical examinations may vary estimates that each applicant will incur receipts, when applying for adjustment widely, from as little as $20 to as much an estimated average cost of $3.75 in of status in fiscal years 2012 to 2016, as as $1,000 per respondent (including postage to submit the completed well as the number of requests that were vaccinations to additional medical package to USCIS.735 DHS estimates the approved or denied each fiscal year. evaluations and testing that may be total annual cost in postage based on the During this period, the number of required based on the medical total population estimate of 382,264 individuals who requested a fee waiver conditions of the applicant).729 DHS annual filings for Form I–693 is when applying for adjustment of status estimates that the average cost for these $1,433,490.736 ranged from a low of 42,126 in fiscal activities is $490 and that all applicants In sum, DHS estimates the total year 2012 to a high of 76,616 in fiscal would incur this cost.730 Since DHS current annual cost for filing Form I– year 2016. In addition, the estimated assumes that all applicants who apply 693 is $198,930,186. The total current average population of individuals for adjustment of status using Form I– annual costs include medical exam applying to adjust status who requested 485 must also submit Form I–693, DHS costs, the opportunity cost of time for a fee waiver for Form I–485 over the 5- estimates that based on the estimated completing Form I–693, and cost of year period fiscal year 2012 to 2016 was average annual population of 382,264 postage to mail the Form I–693 package 58,558. DHS estimates that 58,558 is the the annual cost associated with filing to USCIS.737 average annual projected population of Form I–693 is $187,309,360.731 individuals who would request a fee DHS estimates the time burden c. Form I–912, Request for Fee Waiver waiver using Form I–912 when filing associated with filing Form I–693 is 2.5 Some applicants seeking an Form I–485 to apply for an adjustment hours per applicant, which includes adjustment of status may be eligible for of status.738

729 Source for medical exam cost range: Medical Examination and Vaccination Record www.reginfo.gov/public/do/ Paperwork Reduction Act (PRA) Report of Medical (Form I–693) (OMB control number 1615–0033). PRAViewDocument?ref_nbr=201609-1615-004. Examination and Vaccination Record (Form I–693) The PRA Supporting Statement can be found at 736 Calculation: (Form I–693 estimated cost of (OMB control number 1615–0033). The PRA Question 12 on Reginfo.gov at https:// postage) * (Estimated annual population filing Form Supporting Statement can be found at Question 13 www.reginfo.gov/public/do/PRAViewDocument? on Reginfo.gov at https://www.reginfo.gov/public/ ref_nbr=201609-1615-004. I–693) = $3.75 * 382,264 = $1,433,490 annual cost do/PRAViewDocument?ref_nbr=201609-1615-004. 733 Calculation for medical exam opportunity cost in postage for filing Form I–693. 730 Source for medical exam cost estimate: of time: ($10.66 per hour * 2.5 hours) = $26.65 per 737 Calculation: $187,309,360 (Medical exam Paperwork Reduction Act (PRA) Report of Medical applicant. costs) + $10,187,336 (Opportunity cost of time for Examination and Vaccination Record (Form I–693) 734 Calculation: (Estimated medical exam Form I–693) + $1,433,490 (Postage costs for (OMB control number 1615–0033). The PRA opportunity cost of time for Form I–693) * biometrics collection) = $198,930,186 total current Supporting Statement can be found at Question 13 (Estimated annual population filing Form I–485) = annual cost for filing Form I–693. on Reginfo.gov at https://www.reginfo.gov/public/ $26.65 * 382,264 = $10,187,335.60 = $10,187,336 738 DHS notes that the estimated population of do/PRAViewDocument?ref_nbr=201609-1615-004. (rounded) annual opportunity cost of time for filing individuals who would request a fee waiver for 731 Calculation: (Estimated medical exam cost for Form I–485. filing Form I–485 includes all visa classifications Form I–693) * (Estimated annual population filing 735 Source for medical exam form package postage Form I–485) = $490 * 382,264 = $187,309,360 cost estimate: Paperwork Reduction Act (PRA) for those applying for adjustment of status. We are annual estimated medical exam costs for Form I– Report of Medical Examination and Vaccination unable to determine the number of fee waiver 693. Record (Form I–693) (OMB control number 1615– requests for filing Form I–485 that are associated 732 Source for medical exam time burden 0033). The PRA Supporting Statement can be found with specific visa classifications that are subject to estimate: Paperwork Reduction Act (PRA) Report of at Question 13 on Reginfo.gov at https:// public charge review.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00136 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51249

To provide a reasonable proxy of time 58,558 requests for a fee waiver for d. Affidavit of Support Forms valuation for applicants, as described Form I–485, DHS estimates the total As previously discussed, submitting previously, DHS assumes that opportunity cost of time associated with an affidavit of support using Form I–864 applicants requesting a fee waiver for completing and submitting Form I–912 is required for most family-based Form I–485 earn the total rate of 741 is approximately $730,218 annually. immigrants and some employment- compensation for individuals applying In addition to the opportunity cost of based immigrants to show that they for adjustment of status as $10.66 per time associated with completing and have adequate means of financial hour, where the value of $10.66 per support and are not likely to become a hour represents the federal minimum submitting Form I–912, applicants must public charge. Additionally, Form I–864 wage with an upward adjustment for bear the cost of postage for sending the includes attachment Form I–864A benefits. The analysis uses this wage Form I–912 package to USCIS. DHS which may be filed when a sponsor’s rate because DHS expects that estimates that each applicant will incur income and assets do not meet the applicants who request a fee waiver are an estimated average cost of $3.75 in income requirements of Form I–864 and asserting that they are unable to afford postage to submit the completed the qualifying household member to pay the USCIS filing fee. As a result, package to USCIS.742 DHS estimates the chooses to combine his or her resources DHS expects such applicants to hold annual cost in postage based on the total with the income and/or assets of a positions in occupations that have a population estimate of 58,558 annual sponsor to meet those requirements. wage below the mean hourly wage approved requests for a fee waiver for Some sponsors for intending immigrants across all occupations. DHS also notes Form I–485 is $219,593.743 may be able to file an affidavit of that this proposed rule may reduce the In sum, DHS estimates the total support using Form I–864EZ, provided number of fee waiver requests received, current annual cost for filing a fee certain criteria are met. Moreover, but, at this time, we cannot determine waiver request (Form I–912) for Form I– certain classes of immigrants currently the extent to which this will occur. 485 is $949,811. The total current are exempt from the requirement to file DHS estimates the time burden annual costs include the opportunity Form I–864 or Form I–864EZ and associated with filing Form I–912 is 1 cost of time for completing Form I–912 therefore must file Form I–864W, hour and 10 minutes per applicant (1.17 and cost of postage to mail the Form I– Request for Exemption for Intending hours), including the time for reviewing 912 package to USCIS.744 Immigrant’s Affidavit of Support. instructions, gathering the required However, DHS proposes to eliminate documentation and information, 741 Calculation: (Estimated opportunity cost of Form I–864W, and instead individuals completing the request, preparing time for Form I–912) * (Estimated annual would be required to provide the statements, attaching necessary population of approved Form I–912) = $12.47 * information previously requested on the documentation, and submitting the 58,558 = $730,218.26 = $730,218 (rounded) annual Form I–864W using Form I–485. Based request.739 Therefore, using $10.66 per opportunity cost of time for filing Form I–944 that are approved. on the information provided in the hour as the total rate of compensation, 742 Source for fee waiver postage cost estimate: Form I–485, an officer can verify DHS estimates the opportunity cost of Paperwork Reduction Act (PRA) Request for Fee whether an immigrant is statutorily time for completing and submitting Waiver (Form I–912) (OMB control number 1615– required to file an affidavit of support. 740 0116). The PRA Supporting Statement can be found Form I–912 is $12.47 per applicant. There is no filing fee associated with Using the total population estimate of at Question 13 on Reginfo.gov at https:// www.reginfo.gov/public/do/ filing Form I–864 with USCIS. However, PRAViewDocument?ref_nbr=201506-1615-006. DHS estimates the time burden 739 Source for fee waiver time burden estimate: 743 Calculation: (Form I–912 estimated cost of associated with a sponsor filing Form I– Paperwork Reduction Act (PRA) Request for Fee postage) * (Estimated annual population of Waiver (Form I–912) (OMB control number 1615– approved Form I–912) = $3.75 * 58,558 = 864 is 6 hours per petitioner, including 0116). The PRA Supporting Statement can be found $219,592.50 = $219,593 (rounded) annual cost in the time for reviewing instructions, at Question 12 on Reginfo.gov at https:// postage for filing Form I–912 that is approved. gathering the required documentation www.reginfo.gov/public/do/ 744 Calculation: $730,218 (Opportunity cost of and information, completing the PRAViewDocument?ref_nbr=201506-1615-006. time for Form I–912) + $219,593 (Postage costs for 740 Calculation for fee waiver opportunity cost of biometrics collection) = $949,811 total current affidavit, preparing statements, time: ($10.66 per hour * 1.17 hours) = $12.47. annual cost for filing Form I–912. attaching necessary documentation, and

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00137 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.071 51250 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

submitting the affidavit.745 Therefore, DHS assumes the average total rate of cost of time for completing and using the average total rate of compensation used for calculating the submitting Form I–864EZ will be $35.78 compensation of $35.78 per hour, DHS opportunity cost of time for Form I–864 per petitioner.753 However, DHS notes estimates the opportunity cost of time since both the sponsor and another that we are unable to determine the for completing and submitting Form I– household member agree to provide number filings of Form I–864W and, 864 would be $214.68 per petitioner.746 financial support to an immigrant therefore, rely on the annual cost DHS assumes that the average rate of seeking to adjust status. However, the estimate developed for Form I–864. total compensation used to calculate the household member also may be the Moreover, the proposed rule would opportunity cost of time for Form I–864 intending immigrant. While Form I– eliminate Form I–864W as a form for is appropriate since the sponsor of an 864A must be filed with Form I–864, use in filing an affidavit of support. immigrant, who is agreeing to provide DHS notes that we are unable to Filers who would have been required to financial and material support, is determine the number filings of Form I– file Form I–864W instead would be instructed to complete and submit the 864A since not all individuals filing I– instructed to provide the information form. Using the estimated annual total 864 need to file Form I–864A with a previously requested on the Form I– population of 257,610 individuals household member. 864W using Form I–485, as amended by seeking to adjust status who are As with Form I–864, there is no filing this proposed rule. Based on the required to submit an affidavit of fee associated with filing Form I–864EZ information provided in the Form I–485, support using Form I–864, DHS with USCIS. However, DHS estimates an officer could verify whether an estimates the opportunity cost of time the time burden associated with filing immigrant is statutorily required to file associated with completing and Form I–864EZ is 2 hours and 30 an affidavit of support. submitting Form I–864 is $55,303,715 minutes (2.5 hours) per petitioner, DHS is also proposing to amend the annually.747 DHS estimates this amount including the time for reviewing HHS Poverty Guidelines for Affidavit of as the total current annual cost for filing instructions, gathering the required Support (Form I–864P), by removing Form I–864, as required when applying documentation and information, certain language describing means- to adjust status. completing the affidavit, preparing tested public benefits. Form I–864P is There is also no filing fee associated statements, attaching necessary used to determine the minimum level of with filing Form I–864A with USCIS. documentation, and submitting the income required to sponsor most family- However, DHS estimates the time affidavit.750 Therefore, using the average based immigrants and some burden associated with filing Form I– total rate of compensation of $35.78 per employment-based immigrants. These 864A is 1 hour and 45 minutes (1.75 hour, DHS estimates the opportunity income requirements are to show that a hours) per petitioner, including the time cost of time for completing and sponsor has adequate means of financial for reviewing instructions, gathering the submitting Form I–864EZ will be $89.45 support and is not likely to rely on the required documentation and per petitioner.751 However, DHS notes government for financial support. Form information, completing the contract, that we are unable to determine the I–864P is for informational purposes preparing statements, attaching number filings of Form I–864EZ and, and used for completing Form I–864. necessary documentation, and therefore, rely on the annual cost DHS does not anticipate additional costs submitting the contract.748 Therefore, estimate developed for Form I–864. or benefits as a result of any proposed using the average total rate of There is also no filing fee associated changes to Form I–864P. compensation of $35.78 per hour, DHS with filing Form I–864W with USCIS. ii. Consideration of Receipt, or estimates the opportunity cost of time However, DHS estimates the time Likelihood of Receipt of Public Benefits for completing and submitting Form I– burden associated with filing this form Defined in Proposed 212.21(b) for 864A will be $62.62 per petitioner.749 is 60 minutes (1 hour) per petitioner, Applicants Requesting Extension of Stay including the time for reviewing or Change of Status 745 Source for I–864 time burden estimate: instructions, gathering the required Paperwork Reduction Act (PRA) Affidavit of documentation and information, Nonimmigrants in the United States Support Under Section 213A of the INA (Forms I– may apply for extension of stay or 864, I–864A, I–864EZ, I–864W) (OMB control completing the request, preparing number 1615–0075). The PRA Supporting statements, attaching necessary change of status by either having an Statement can be found at Question 12 on documentation, and submitting the employer file Form I–129 or Form I– Reginfo.gov at https://www.reginfo.gov/public/do/ 752 129CW, as applicable, on his or her _ request. Therefore, using the average PRAViewDocument?ref nbr=201705-1615-004. total rate of compensation of $35.78 per behalf, or by filing Form I–539, so long 746 Calculation opportunity cost of time for as the nonimmigrant is currently in an completing and submitting Form I–864, Affidavit of hour, DHS estimates the opportunity Support Under Section 213A of the INA: ($35.78 eligible nonimmigrant category. This per hour * 6.0 hours) = $214.68 per applicant. 750 Source for I–864EZ time burden estimate: proposed rule seeks to require 747 Calculation: (Form I–864 estimated Paperwork Reduction Act (PRA) Affidavit of nonimmigrants who are seeking opportunity cost of time) * (Estimated annual Support Under Section 213A of the INA (Forms I– extension of stay or change of status to population filing Form I–864) = $214.68 * 257,610 864, I–864A, I–864EZ, I–864W) (OMB control = $55,303,714.80 = $55,303,715 (rounded) total number 1615–0075). The PRA Supporting demonstrate that they have not annual opportunity cost of time for filing Form I– Statement can be found at Question 12 on previously received, are not currently 864. Reginfo.gov at https://www.reginfo.gov/public/do/ receiving, nor are likely to receive 748 Source for I–864A time burden estimate: PRAViewDocument?ref_nbr=201705-1615-004. public benefits in the future, as defined Paperwork Reduction Act (PRA) Affidavit of 751 Calculation opportunity cost of time for in this rule in 8 CFR 212.21(b. DHS also Support Under Section 213A of the INA (Forms I– completing and submitting Form I–864EZ, Affidavit 864, I–864A, I–864EZ, I–864W) (OMB control of Support Under Section 213A of the INA: ($35.78 notes that costs examined in this section number 1615–0075). The PRA Supporting per hour * 2.5 hours) = $89.45. are not additional costs that would be Statement can be found at Question 12 on 752 Source for I–864W time burden estimate: imposed by the proposed rule, but costs Reginfo.gov at https://www.reginfo.gov/public/do/ Paperwork Reduction Act (PRA) Affidavit of that petitioners and applicants currently PRAViewDocument?ref_nbr=201705-1615-004. Support Under Section 213A of the INA (Forms I– 749 Calculation opportunity cost of time for 864, I–864A, I–864EZ, I–864W) (OMB control would incur as part of the application completing and submitting Form I–864A, Contract number 1615–0075). The PRA Supporting Between Sponsor and Household Member: ($35.78 Statement can be found at Question 12 on 753 Calculation opportunity cost of time for per hour * 1.75 hours) = $62.615 = $62.62 Reginfo.gov at https://www.reginfo.gov/public/do/ completing and submitting Form I–864W: ($35.78 (rounded) per petitioner. PRAViewDocument?ref_nbr=201705-1615-004. per hour * 1.0 hours) = $35.78.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00138 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51251

process to request an extension of stay annual cost in postage based on the total average total rate of compensation of or change of status. population estimate of 336,335 annual $35.78 per hour, DHS estimates the filings for Form I–129 is approximately opportunity cost of time for completing a. Form I–129, Petition for a $1,261,256.759 and submitting Form I–129CW will be Nonimmigrant Worker In sum, DHS estimates the total $107.34 per petitioner.764 Therefore, The current filing fee for Form I–129 current annual cost for filing Form I– using the total population estimate of is $460.00. The fee is set at a level to 129 is $184,136,686. The total current 6,307 annual filings for Form I–129CW, recover the processing costs to DHS. As annual costs include Form I–129 filing DHS estimates the total opportunity cost previously discussed, the estimated fees, opportunity cost of time for of time associated with completing and average annual population of employers completing Form I–129, and cost of submitting Form I–129CW is filing on behalf of nonimmigrant postage to mail the Form I–129 package approximately $676,993 annually.765 workers seeking EOS/COS using Form to USCIS.760 In sum, DHS estimates the total I–129 is 336,335. Therefore, DHS b. Form I–129CW, Petition for a CNMI- current annual cost for filing Form I– estimates that the annual cost associated Only Nonimmigrant Transitional 129CW is $5,154,963. The total current with filing Form I–129 is approximately Worker annual costs include Form I–129CW $154,714,100.754 filing fees and opportunity cost of time DHS estimates the time burden for The current filing fee for Form I– for completing Form I–129.766 completing Form I–129 is 2 hours and 129CW is $460.00. The fee is set at a 20 minutes (2.34 hours), including the level to recover the processing costs to c. Form I–539, Application To Extend/ time for reviewing instructions, DHS. In addition, an employer filing Change Nonimmigrant Status gathering the required documentation Form I–129CW for a CNMI-Only and information, completing the Nonimmigrant Transitional Worker The current filing fee for Form I–539 request, preparing statements, attaching must submit an additional $200 for a is $370 per application.767 The fee is set necessary documentation, and supplemental CNMI education fee per at a level to recover the processing costs submitting the request.755 Using the beneficiary, per year and a $50 fee for to DHS. As previously discussed, the average total rate of compensation of fraud prevention and detection with estimated average annual population $35.78 per hour, DHS estimates the each petition. Thus, the total fees seeking EOS/COS using Form I–539 is associated with filing Form I–129CW is 174,866. Therefore, DHS estimates that opportunity cost of time for completing 761 and submitting Form I–129 will be $710 per beneficiary. As previously the annual cost associated with filing $83.73 per petitioner.756 Therefore, discussed, the estimated average annual Form I–539 is approximately using the total population estimate of population of employers filing on behalf $64,700,420.768 336,335 annual filings for Form I–129, of nonimmigrant workers seeking EOS/ COS using Form I–129CW is 6,307. DHS estimates the time burden for DHS estimates the total opportunity cost Therefore, DHS estimates that the completing Form I–539 is 1 hour and 53 of time associated with completing and annual cost associated with filing Form minutes (1.88 hours), including the time submitting Form I–129 is approximately 762 necessary to read all instructions for the 757 I–129 is approximately $4,477,970. $28,161,330 annually. DHS estimates the time burden for form, gather all documents required to In addition to the filing fee and the completing Form I–129CW is 3 hours complete the collection of information, opportunity cost of time associated with (3.0 hours), including the time for obtain translated documents if completing and submitting Form I–129, reviewing instructions, gathering the necessary, obtain the services of a applicants must bear the cost of postage required documentation and preparer if necessary, and complete the for sending the Form I–129 package to information, completing the petition, USCIS. DHS estimates that each preparing statements, attaching Statement can be found at Question 12 on applicant will incur an estimated necessary documentation, and Reginfo.gov at https://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201803-1615-006. average cost of $3.75 in postage to submitting the request.763 Using the submit the completed package to 764 Calculation for estimated opportunity cost of 758 time for completing Form I–129: ($35.78 per hour USCIS. DHS estimates the total 0009). The PRA Supporting Statement can be found * 3.0 hours) = $107.34 per petitioner. at Question 12 on Reginfo.gov at https:// 765 Calculation: (Form I–129CW estimated 754 Calculation: (Form I–129 filing fee) * www.reginfo.gov/public/do/PRAViewDocument? opportunity cost of time) * (Estimated annual (Estimated annual population filing Form I–129) = ref_nbr=201610-1615-001. population filing Form I–129CW) = $107.34 * 6,307 $460 * 336,335 = $154,714,100 annual estimated 759 Calculation: (Form I–129 estimated cost of = $676,993.38 = $676,993 (rounded) annual cost for filing Form I–129 seeking an extension of postage) * (Estimated annual population filing Form estimated opportunity cost of time for filing Form stay or change of status. I–129) = $3.75 * 336,335 = $1,261,256.25 = I–129CW. 755 Source for petition for nonimmigrant workers $1,261,256 (rounded) annual cost in postage for 766 Calculation: $4,477,970 (Filing fees for Form time burden estimate: Paperwork Reduction Act filing Form I–129. I–129CW) + $676,993 (Opportunity cost of time for (PRA) Petition for Nonimmigrant Worker (Form I– 760 Calculation: $154,714,100 (Filing fees for Form I–129CW) = $5,154,963 total current 129) (OMB control number 1615–0009). The PRA Form I–129) + $28,161,330 (Opportunity cost of estimated annual cost for filing Form I–129CW. Supporting Statement can be found at Question 12 time for Form I–129) + $1,261,256 (Postage costs for 767 Source for petition for nonimmigrant workers on Reginfo.gov at https://www.reginfo.gov/public/ Form I–129) = $184,136,686 total current estimated time burden estimate: Paperwork Reduction Act _ do/PRAViewDocument?ref nbr=201610-1615-001. annual cost for filing Form I–129. (PRA) Application to Extend/Change Nonimmigrant 756 Calculation for estimated opportunity cost of 761 This economic analysis assumes that each Status (Form I–539) (OMB control number 1615– time for completing Form I–129: ($35.78 per hour Form I–129CW filed will also be required to include 0003). The PRA Supporting Statement can be found * 2.34 hours) = $83.725 = $83.73 (rounded) per the additional $200 supplemental CNMI education at Question 13 on Reginfo.gov at https:// applicant. fee and the $50 fraud prevention and detection fee. www.reginfo.gov/public/do/PRAViewDocument? 757 Calculation: (Form I–129 estimated 762 Calculation: (Form I–129CW filing fee) * ref_nbr=201610-1615-006. DHS notes that certain A opportunity cost of time) * (Estimated annual (Estimated annual population filing Form I–129CW) and G nonimmigrants are not required to pay a population filing Form I–129) = $83.73 * 336,335 = $710 * 6,307 = $4,477,970 annual estimated cost filing fee for Form I–539. In addition, a biometrics = $28,161,329.55 = $28,161,330 (rounded) annual for filing Form I–129 seeking an extension of stay services fee of $85 is required for V nonimmigrants estimated opportunity cost of time for filing Form or change of status. and for certain applicants in the CNMI applying for I–129. 763 Source for petition for nonimmigrant workers an initial grant of nonimmigrant status. 758 Source for petition for nonimmigrant workers time burden estimate: Paperwork Reduction Act 768 Calculation: (Form I–539 filing fee) * form package postage cost estimate: Paperwork (PRA) Petition for CNMI-Only Nonimmigrant (Estimated annual population filing Form I–539) = Reduction Act (PRA) Petition for Nonimmigrant Transition Worker (Form I–129CW) (OMB control $370 * 176,866 = $64,700,420 annual cost for filing Worker (Form I–129) (OMB control number 1615– number 1615–0111). The PRA Supporting Form I–539.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00139 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51252 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

form.769 Using the average total rate of would be inadmissible to the United Administrative Appeals Office (AAO) compensation of $35.78 per hour, DHS States based on public charge grounds. using Form I–290B, Notice of Appeal or estimates the opportunity cost of time The proposed rule would require Motion.773 In addition, upon learning of for completing and submitting Form I– individuals who are applying for a breach of public charge bond, DHS 539 will be $67.27 per applicant.770 adjustment of status to complete and would notify the obligor that the bond Therefore, using the total population submit the form to establish that they has been declared breached and inform estimate of 174,866 annual filings for are not likely to become a public charge. the obligor of the possibility to appeal Form I–539, DHS estimates the total At the agency’s discretion, Form I–129 the determination to the USCIS opportunity cost of time associate with and Form I–129CW beneficiaries, and Administrative Appeals Office (AAO) completing and submitting Form I–539 Form I–539 applicants seeking an using Form I–290B, Notice of Appeal or is approximately $11,763,236 extension of stay or change of status Motion.774 annually.771 may be required to submit Form I–944 The following costs are new costs that In sum, DHS estimates the total to be reviewed for public charge would be imposed on the population current annual cost for filing Form I– determination. applying to adjust status using Form I– 539 is $76,463,656. The total current The proposed rule would also add 485 or on the population that would be annual costs include Form I–539 filing costs from an additional 10-minute seeking extension of stay or change of fees and the opportunity cost of time for increase in the time burden estimate to status using Forms I–129, I–129CW, or completing Form I–539.772 complete Form I–485. Additionally, the I–539. However, individuals seeking (b) Costs of Proposed Regulatory proposed rule would add costs from an extension of stay or change of status Changes additional time burden increase of 30 would only be required to submit Form minutes for completing and filing Form I–944 at the discretion of adjudication The primary source of quantified new I–129, Form I–129CW, and Form I–539. officers. Table 47 shows the estimated costs for the proposed rule would be The proposed rule would also impose annual costs that the proposed rule from the creation of Form I–944. This new costs by establishing a public would impose on individuals seeking to form would be used to collect charge bond process. At the agency’s adjust status using Form I–485 who also information based on factors such as discretion, certain aliens who are found would be required to file Form I–944. age; health; family status; assets, likely to become a public charge may be The table also presents the estimated resources and financial status; and provided the opportunity to post a new costs the proposed rule would education and skills, so that USCIS public charge bond. As part of the impose associated with a 10-minute could determine whether an applicant proposed public charge bond process, increase in the time burden estimate for an individual would have an obligor completing Form I–485, from additional 769 Source for petition for nonimmigrant workers submit a public charge bond using a time burden increases of 30 minutes time burden estimate: Paperwork Reduction Act (PRA) Application to Extend/Change Nonimmigrant new Form I–945, Public Charge Bond, each for completing and filing Form I– Status (Form I–539) (OMB control number 1615– on the alien’s behalf, and the alien or an 129, Form I–129CW, and Form I–539. 0003). The PRA Supporting Statement can be found acceptable surety (individual or a The table also shows the range of costs at Question 12 on Reginfo.gov at https:// company) would use Form I–356, that Form I–129 and Form I–129CW www.reginfo.gov/public/do/PRAViewDocument? ref_nbr=201610-1615-006. Request for Cancellation of Public beneficiaries, and Form I–539 filers 770 Calculation for the opportunity cost of time for Charge Bond, as part of a request to would incur should they receive a RFE completing Form I–539: ($35.78 per hour * 1.88 cancel a public charge bond. DHS notes to file Form I–944 to determine hours) = $67.266 = $67.27 (rounded) per applicant. that if the alien permanently departed inadmissibility based on public charge 771 Calculation: (Form I–539 estimated the United States, as defined in grounds under the provisions of this opportunity cost of time) * (Estimated annual population filing Form I–539) = $67.27 * 174,866 proposed 8 CFR 213.1, and the loss of proposed rule. Finally, the table = $11,763,235.82 = $11,763,236 (rounded) annual LPR status was voluntarily, we would includes the estimated new cost estimated opportunity cost of time for filing Form also require a Form I–407 submission. If associated with the proposed public I–539. the request for cancellation is denied, charge bond process. 772 Calculation: $64,700,420 (Filing fees for Form I–539) + $11,763,236 (Opportunity cost of time for DHS would notify the obligor and Form I–539) = $76,463,656 total current annual cost inform the obligor of the possibility to 773 See proposed 8 CFR 213.1(g). for filing Form I–539. appeal the determination to the USCIS 774 See proposed 8 CFR 213.1(h).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00140 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51253

Table 47. Total New Quantified Direct Costs of the Proposed Rule.

Form 1-944, Declaration of Self- Sufficienc 382,264 $25,963,371 $18,337,204 $7,626,167 Form 1-485, Application to Register Permanent Residence or Ad ·ust Status 382,264 $691,898 OCT - Additional to Baseline (Current) Costs $691,898 Form 1-129, Petition for a Nonimmigrant Worker- To Request Extension of Sta /Chan e of Status 336,335 $12,103,351 to $66,880,214 OCT - Additional to Baseline (Current) Costs $6,017,033 Costs to beneficiaries who receive a RFE to complete and submit Form 1- 944, including OCT and credit re ort/credit score costs. $6,086,318 to $60,863,181 Form I-129CW, Petition for a CNMI- Only Nonimmigrant Transitional Worker- To Request Extension of Sta /Chan e of Status 6,307 $227,015 to $1,254,198 OCT - Additional to Baseline (Current) Costs $112,883 Costs to beneficiaries who receive a RFE to complete and submit Form 1- 944, including OCT and credit re ort/credit score costs. $114,132 to $1,141,315 Form 1-539, Application to Extend/Chan e Nonimmi rant Status 174,866 $6,292,728 to $34,772,105 OCT - Additional to Baseline (Current) Costs $3,128,353 Costs to beneficiaries who receive a RFE to complete and submit Form 1- 944, including OCT and credit report/credit score costs. $3,164,375 to $31,643,752 Form 1-945, Public Char e Bond 960 $34,234 Filin Fee $24,000 OCT $10,234 Form 1-356, Request for Cancellation of Public Char e Bond 25 $825 $625 OCT $200

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00141 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.072 51254 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

i. Form I–944, Declaration of Self- DHS estimates the total opportunity cost this is the amount that two of the three Sufficiency and Form I–485, of time associated with completing and major credit bureaus charge.780 DHS Application To Register Permanent submitting Form I–944 is approximately notes that it would be required that all Residence or Adjust Status $18,337,204 annually.776 applicants who apply for adjustment of In this proposed rule, DHS is In addition to the opportunity cost of status using Form I–485 must also proposing to create a new form for time associated with completing and submit Form I–944 and comply with its collecting information from those filing Form I–944, applicants must bear requirements. Therefore, DHS estimates applying for immigration benefits with the cost of obtaining a credit report and that based on the estimated average USCIS, such as adjustment of status or credit score from any one of the three annual population of 382,264 the total extension of stay or change in status, to major credit bureaus in the United annual cost associated with obtaining a States to be submitted with the credit report and credit score as part of demonstrate that the applicant is not 777 likely to become a public charge under application. Consumers may obtain a the requirements for filing Form I–944 781 section 212(a)(4) of the Act. Form I–944 free credit report once a year from each would be $7,626,167. would collect information based on of the three major consumer reporting In sum, DHS estimates that the total agencies (i.e., credit bureaus) under the cost to complete and file Form I–944 factors such as age; health; family status; 778 assets, resources, and financial status; Fair Credit Reporting Act (FCRA). would be $25,963,371. The total and education and skills, so that USCIS However, consumers are not necessarily estimated annual costs include the could determine whether an applicant entitled to a free credit score, for which opportunity cost of time to complete the consumer reporting agencies may charge form and the cost to obtain a credit would be inadmissible to the United 779 States based on public charge grounds. a fair and reasonable fee. DHS does report and credit score as required for not assume that all applicants are able the total population estimate of 382,264 For the analysis of this proposed rule, 782 DHS assumes that all individuals who to obtain a free credit report under annual filings for Form I–485. The proposed rule would include apply for adjustment of status using FCRA specifically for fulfilling the additional instructions for filing Form I– Form I–485 are required to submit Form requirements of filing Form I–944 and I–944, unless the individual is in a class acknowledges that obtaining a credit 485 and, as a result, applicants would of applicants that is exempt from review score would be an additional cost. spend additional time reading the for determination of inadmissibility Therefore, DHS assumes that each instructions increasing the estimated based on public charge at the time of applicant would bear the cost of time to complete the form. The current adjustment of status according to statute obtaining a credit report and credit estimated time to complete Form I–485 or regulation. score from at least one of the three major is 6 hours and 15 minutes (6.25 hours). There is currently no filing fee credit bureaus. DHS estimates the cost For the proposed rule, DHS estimates associated with Form I–944. However, of obtaining a credit report and credit that the time burden for completing DHS estimates the time burden score would be $19.95 per applicant, as associated with filing Form I–944 is 4 780 Each of the three major credit charge the 776 following prices for a credit report, including a hours and 30 minutes (4.5 hours) per Calculation: (Estimated opportunity cost of time for Form I–944) * (Estimated annual credit score: applicant, including the time for population filing Form I–485) = $47.97 * 382,264 Experian—$19.95, available at https:// reviewing instructions, gathering the = $18,337,204.08 = $18,337,204 (rounded) annual www.experian.com/consumer-products/compare- required documentation and opportunity cost of time for filing Form I–944. credit-report-and-score-products.html (accessed Jan. information, completing the declaration, 777 The three major credit bureaus are Equifax, 26, 2018); Experian, and TransUnion. Each of these bureaus is Equifax—$19.95, available at https:// preparing statements, attaching a publicly-traded, for-profit company that is not www.equifax.com/personal/products/credit/report- necessary documentation, and owned by the Federal Government. DHS notes that and-score (accessed Jan. 26, 2018); and submitting the declaration. Therefore, there may be differences in the information TransUnion—$11.50, available at https:// using the total rate of compensation of contained in the credit reports from each of the disclosure.transunion.com/dc/disclosure/ minimum wage of $10.66 per hour, DHS three major credit bureaus since one credit bureau disclosure.jsp (accessed Jan. 26, 2018). may have unique information on a consumer that 781 Calculation: (Estimated cost for credit score estimates the opportunity cost of time is not captured by the other credit bureaus. and credit report) * (Estimated annual population for completing and submitting Form I– 778 See FCRA, Section 612, Charges for Certain filing Form I–485) = $19.95 * 382,264 = 944 would be $47.97 per applicant.775 Disclosures. 15 U.S.C. 1681j. Available at https:// $7,626,166.80 = $7,626,167 (rounded) annual Using the total population estimate of www.consumer.ftc.gov/articles/pdf-0111-fair-credit- estimated costs for obtaining a credit report and reporting-act.pdf (accessed Jan. 26, 2018). credit score as part of the requirements for filing 382,264 annual filings for Form I–485, 779 See FCRA, Section 609(f), Disclosures to Form I–944. Consumers, Disclosure of Credit Scores. 15 U.S.C. 782 Calculation: $18,337,204 (Opportunity cost of 775 Calculation for declaration of self-sufficiency 1681g. Available at https://www.consumer.ftc.gov/ time to complete Form I–944) + $7,626,167 (Cost of opportunity cost of time: ($10.66 per hour * 4.5 articles/pdf-0111-fair-credit-reporting-act.pdf credit report and credit score) = $25,963,371 total hours) = $47.97 per applicant. (accessed Jan. 26, 2018). estimated cost to complete Form I–944.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00142 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.073 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51255

Form I–485 would increase by 10 additional new costs in the amount of completing and filing Form I–129 would minutes. Therefore, in the proposed $691,898 to Form I–485 applicants.788 be $101.62 per petitioner based on the 30-minute increase in the time burden rule, the time burden to complete Form ii. Extension of Stay/Change of Status estimate.792 Therefore, using the total I–485 would be 6 hours and 25 minutes Using Form I–129, Petition for a population estimate of 336,335 annual (6.42 hours). Nonimmigrant Worker; Form I–129CW, The time burden includes the time for Petition for a CNMI-Only Nonimmigrant filings for Form I–129, DHS estimates the proposed total opportunity cost of reviewing instructions, gathering the Transitional Worker; or Form I–539, time associated with completing and required documentation and Application To Extend/Change filing Form I–129 is approximately information, completing the application, Nonimmigrant Status $34,178,363 annually.793 preparing statements, attaching The proposed rule would require The new costs imposed by this necessary documentation, and petitioners to read additional proposed rule would be the difference 783 submitting the application. Using the instructions and provide additional between the current estimated total rate of compensation for minimum information on Form I–129, which opportunity cost of time to complete wage of $10.66 per hour, DHS currently would increase the estimated time to Form I–129 and the proposed estimated estimates the opportunity cost of time complete the form. The current opportunity cost of time to complete the for completing and filing Form I–485 estimated time to complete Form I–129 form due to the increased time burden would be $66.63 per applicant.784 is 2 hours and 20 minutes (2.34 hours). estimate. As a result, DHS estimates that Therefore, using the total population For the proposed rule, DHS estimates the proposed rule would impose estimate of 382,264 annual filings for that the time burden for completing additional new costs of $6,017,033 to Form I–485, DHS estimates the current Form I–129 would increase by 30 Form I–129 applicants.794 total opportunity cost of time associated minutes to account for the additional The proposed rule would require with completing Form I–485 is time petitioners would spend reading petitioners to read additional approximately $25,470,250 annually.785 the form and providing additional instructions and provide additional information. Therefore, DHS proposes For the proposed rule, DHS estimates information on Form I–129CW, which the time burden to complete Form I–129 would increase the estimated time to that the time burden for completing to petitioners would be 2 hours and 50 Form I–485 is 6.42 hours per response. complete the form. The current minutes (2.84 hours). estimated time to complete Form I– Using the total rate of compensation for The time burden for Form I–129 minimum wage of $10.66 per hour, DHS 129CW is 3 hours (3.0 hours). For the includes the time for reviewing proposed rule, DHS estimates that the estimates the opportunity cost of time instructions, gathering the required for completing and filing Form I–485 time burden for completing Form I– documentation and information, 129CW would increase by 30 minutes to would be $68.44 per applicant.786 completing the request, preparing account for the additional time Therefore, using the total population statements, attaching necessary petitioners would spend reading the estimate of 382,264 annual filings for documentation, and submitting the form and providing additional Form I–485, DHS estimates the 789 request. Using the average total rate information. Therefore, DHS proposes proposed total opportunity cost of time of compensation of $35.78 per hour, the time burden to complete Form I– associated with completing Form I–485 DHS estimates the current opportunity 129CW to petitioners would be 3 hours is approximately $26,162,148 cost of time for completing and filing 787 and 30 minutes (3.5 hours). annually. Form I–129 is currently $83.73 per The time burden for Form I–129CW 790 The new costs imposed by this petitioner. Therefore, using the total includes the time for reviewing proposed rule would be the difference population estimate of 336,335 annual instructions, gathering the required between the current estimated filings for Form I–129, DHS estimates documentation and information, opportunity cost of time to complete the current total opportunity cost of completing the request, preparing Form I–485 and the proposed estimated time associated with completing and statements, attaching necessary filing Form I–129 is approximately documentation, and submitting the opportunity cost of time due to the 791 increased Form I–485 time burden $28,161,330 annually. request.795 Using the average total rate For the proposed rule, DHS estimates estimate. As a result, DHS estimates that that the opportunity cost of time for the proposed rule would impose 792 Calculation of proposed opportunity cost of time for completing Form I–129: ($35.78 per hour 788 Calculation of estimated new costs for * 2.84 hours) = $101.615 = $101.62 (rounded) per 783 Source: Paperwork Reduction Act (PRA) completing Form I–485: Proposed estimate of applicant. Supporting Statement for Form I–485 (OMB control opportunity cost of time to complete Form I–485 793 Calculation: (Proposed Form I–129 estimated number 1615–0023). The PRA Supporting ($26,162,148)¥Current estimate of opportunity cost opportunity cost of time) * (Estimated annual Statement can be found at Question 12 on of time to complete Form I–485 ($25,470,250) = population filing Form I–129) = $101.62 * 336,335 Reginfo.gov at https://www.reginfo.gov/public/do/ $691,898 estimated new costs of the proposed rule. = $34,178,362.70 = $34,178,363 (rounded) proposed _ PRAViewDocument?ref nbr=201706-1615-001. 789 Source for petition for nonimmigrant workers annual estimated opportunity cost of time for filing 784 Calculation for opportunity cost of time for time burden estimate: Paperwork Reduction Act Form I–129. filing Form I–485: ($10.66 per hour * 6.25 hours) (PRA) Petition for Nonimmigrant Worker (Form I– 794 Calculation of estimated new costs for = $66.625 = $66.63 (rounded) per applicant. 129) (OMB control number 1615–0009). The PRA completing Form I–129: Proposed estimate of 785 Calculation: Form I–485 estimated Supporting Statement can be found at Question 12 opportunity cost of time to complete Form I–129 opportunity cost of time ($66.63) * Estimated on Reginfo.gov at https://www.reginfo.gov/public/ ($34,178,363)¥Current estimate of opportunity cost annual population filing Form I–485 (382,264) = do/PRAViewDocument?ref_nbr=201610-1615-001. of time to complete Form I–129 ($28,161,330) = $25,470,250.32 = $25,470,250 (rounded) annual 790 Calculation of estimated opportunity cost of $6,017,033 estimated new costs of the proposed opportunity cost of time for filing Form I–485. time for completing Form I–129: ($35.78 per hour rule. 786 Calculation for opportunity cost of time for * 2.34 hours) = $83.725 = $83.73 (rounded) per 795 Source for petition for nonimmigrant workers filing Form I–485: ($10.66 per hour * 6.42 hours) applicant. time burden estimate: Paperwork Reduction Act = $68.437 = $68.44 (rounded) per applicant. 791 Calculation: (Form I–129 estimated (PRA) Petition for CNMI-Only Nonimmigrant 787 Calculation: Form I–485 estimated opportunity cost of time) * (Estimated annual Transition Worker (Form I–129CW) (OMB control opportunity cost of time ($68.44) * Estimated population filing Form I–129) = $83.73 * 336,335 number 1615–0111). The PRA Supporting annual population filing Form I–485 (382,264) = = $28,161,329.55 = $28,161,330 (rounded) annual Statement can be found at Question 12 on $26,162,148.16 = $26,162,148 (rounded) annual estimated opportunity cost of time for completing Reginfo.gov at https://www.reginfo.gov/public/do/ opportunity cost of time for filing Form I–485. Form I–129. PRAViewDocument?ref_nbr=201803-1615-006.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00143 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51256 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

of compensation of $35.78 per hour, proposed rule, DHS estimates that the estimate. As a result, DHS estimates that DHS estimates the current opportunity time burden for completing Form I–539 the proposed rule would impose cost of time for completing and filing would increase by 30 minutes. additional new costs in the amount of Form I–129CW is currently $107.34 per Therefore, in the proposed rule, DHS $3,128,353 to Form I–539 applicants.807 petitioner.796 Therefore, using the total proposes the time burden for While individuals seeking adjustment population estimate of 6,307 annual completing Form I–539 would be 2 of status would be reviewed to filings for Form I–129CW, DHS hours and 23 minutes (2.38 hours). determine inadmissibility based on estimates the current total opportunity The time burden for Form I–539 public charge grounds under the cost of time associated with completing includes the time necessary to read all provisions of this proposed rule, DHS and filing Form I–129CW is instructions for the form, gather all proposes to conduct reviews of approximately $676,993 annually.797 documents required to complete the nonimmigrants who apply for extension For the proposed rule, DHS estimates collection of information, obtain of stay or change of status to determine that the opportunity cost of time for translated documents if necessary, whether they have demonstrated that completing and filing Form I–129CW obtain the services of a preparer if they have not received, are not would be $125.23 per petitioner based necessary, and complete the form.802 receiving, or likely to receive public on the 30-minute increase in the time Using the average total rate of benefits. Not all nonimmigrants who burden estimate.798 Therefore, using the compensation of $35.78 per hour, DHS apply for extension of stay or change of total population estimate of 6,307 estimates the opportunity cost of time status would be required to file Form I– annual filings for Form I–129CW, DHS for completing and submitting Form I– 944 to detail their financial, health, and estimates the proposed total opportunity 539 is currently $67.27 per applicant.803 education status. Instead, USCIS officers cost of time associated with completing Therefore, using the total population would be able to exercise discretion and filing Form I–129CW is estimate of 174,866 annual filings for regarding whether it would be necessary approximately $789,826 annually.799 Form I–539, DHS estimates the current to issue a RFE for the submission of The new costs imposed by this total opportunity cost of time associated Form I–944. proposed rule would be the difference with completing and filing Form I–539 As previously noted, there is between the current estimated is approximately $11,763,236 currently no fee associated with filing opportunity cost of time to complete annually.804 Form I–944, but DHS estimates the costs Form I–129CW and the proposed For the proposed rule, DHS estimates for filing Form I–944 would include the estimated opportunity cost of time to that the opportunity cost of time for opportunity cost of time (4.5 hours) and complete the form due to the increased completing and filing Form I–539 would the cost to obtain credit report and time burden estimate. As a result, DHS be $85.16 per applicant based on the 30- credit score ($19.95 per beneficiary). In estimates that the proposed rule would minute increase in the time burden addition, DHS estimated that the impose additional new costs of 805 estimate. Therefore, using the total average annual population that would $112,883 to Form I–129CW population estimate of 174,866 annual 800 request EOS/COS by filing Form I–129 applicants. filings for Form I–539, DHS estimates The proposed rule would also include is 336,335, Form I–129CW is 6,307, and the proposed total opportunity cost of Form I–539 is 174,866. additional instructions and collection of time associated with completing and information for filing Form I–539, For Form I–129 petitioners who filing Form I–539 is approximately receive a RFE for a beneficiary to which would increase the estimated $14,891,589.806 time to complete the form. Applicants, complete and submit Form I–944, DHS The new costs imposed by this estimates the opportunity cost of time therefore, would spend additional time proposed rule would be the difference reading the form instructions and for completing Form I–129 would be between the current estimated $161.01 per beneficiary using the providing additional information about opportunity cost of time to complete the request, use, or receipt of public average total rate of compensation of Form I–539 and the proposed estimated 808 benefits. The current estimated time to $35.78 per hour. In addition, DHS opportunity cost of time to complete the estimates the cost to obtain a credit completing Form I–539 is 1 hour and 53 form due to the increased time burden minutes (1.88 hours).801 For the report and credit score is $19.95 per beneficiary. DHS assumes that while a (PRA) Application to Extend/Change Nonimmigrant 796 petitioner would receive the RFE to file Calculation for estimated opportunity cost of Status (Form I–539) (OMB control number 1615– time for completing Form I–129: ($35.78 per hour 0003). The PRA Supporting Statement can be found Form I–944, the beneficiary would be * 3.0 hours) = $107.34 per petitioner. at Question 12 on Reginfo.gov at https:// the individual to complete the form and 797 Calculation: (Form I–129CW estimated www.reginfo.gov/public/do/PRAViewDocument? provide all required information. opportunity cost of time) * (Estimated annual ref_nbr=201610-1615-006. population filing Form I–129CW) = $107.34 * 6,307 Therefore, based on the total population 802 See id. = $676,993.38 = $676,993 (rounded) annual 803 estimate of 336,335 annual filings for estimated opportunity cost of time for completing Calculation of opportunity cost of time for completing Form I–539: ($35.78 per hour * 1.88 Form I–129, DHS estimates the total Form I–129. annual opportunity cost of time 798 Calculation of proposed opportunity cost of hours) = $67.266 = $67.27 (rounded) per applicant. time for completing Form I–129: ($35.78 per hour 804 Calculation: (Form I–539 estimated associated with completing Form I–944 * 3.5 hours) = $125.23 per applicant. opportunity cost of time) * (Estimated annual would be approximately $54,153,298 799 Calculation: (Proposed Form I–129 estimated population filing Form I–539) = $67.27 * 174,866 = $11,763,235.82 = $11,763,236 (rounded) annual annually and the total cost to obtain a opportunity cost of time) * (Estimated annual credit report and credit score would be population filing Form I–129) = $125.23 * 6,307 = estimated opportunity cost of time for filing Form $789,825.61 = $789,826 (rounded) proposed annual I–539. estimated opportunity cost of time for filing Form 805 Calculation of proposed opportunity cost of 807 Calculation of estimated new costs for I–129. time for completing Form I–539: ($35.78 per hour completing Form I–539: Proposed estimate of 800 Calculation of estimated new costs for * 2.38 hours) = $85.156 = $85.16 (rounded) per opportunity cost of time to complete Form I–539 completing Form I–129CW: Proposed estimate of applicant. ($14,891,589)¥Current estimate of opportunity cost opportunity cost of time to complete Form I–129CW 806 Calculation: (Proposed Form I–539 estimated of time to complete Form I–539 ($11,763,236) = ($789,826)¥Current estimate of opportunity cost of opportunity cost of time per applicant) * (Estimated $3,128,353 estimated new costs of the proposed time to complete Form I–129CW ($676,993) = annual population filing Form I–539) = $85.16 * rule. $112,883 estimated new costs of the proposed rule. 174,866 = $14,891,588.56 = $14,891,589 (rounded) 808 Calculation for Form I–129 petition 801 Source for petition for nonimmigrant workers proposed annual estimated opportunity cost of time opportunity cost of time to complete Form I–944: time burden estimate: Paperwork Reduction Act for filing Form I–539. ($35.78 per hour * 4.5 hours) = $161.01.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00144 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51257

about $6,709,883.809 In sum, DHS would be about $125,825.812 In sum, that total cost for Form I–539 applicants estimates that total cost for Form I–129 DHS estimates that total cost for Form who receive a RFE to complete and beneficiaries who receive a RFE to I–129CW beneficiaries who receive a submit Form I–944 would be complete and submit Form I–944 would RFE to complete and submit Form I–944 approximately $31,643,752 annually.815 be approximately $60,863,181 would be approximately $1,141,315 DHS is unable to estimate the actual annually.810 annually.813 Similarly, for Form I–129CW For filers of form I–539 who are number of RFEs that adjudication petitioners who receive a RFE for a required to complete and submit Form officers may issue to Form I–129 beneficiary to complete and submit I–944, DHS estimates the opportunity beneficiaries, Form I–129CW Form I–944, DHS estimates the cost of time for completing Form I–539 beneficiaries, and Form I–539 filers to opportunity cost of time for completing would also be $161.01 per filer using submit Form I–944 since such RFEs Form I–129CW would be $161.01 per the average total rate of compensation of would be issued on a discretionary beneficiary using the average total rate $35.78 per hour. In addition, DHS basis. However, we are able to present of compensation of $35.78 per hour.811 estimates the cost to obtain a credit a range of RFEs that could be issued In addition, DHS estimates the cost to report and credit score is $19.95 per based on total population estimates and obtain a credit report and credit score is applicant. DHS estimates the total the estimated annual cost associated $19.95 per beneficiary. DHS assumes opportunity cost of time associated with with such RFE. Table 48 presents a that while a petitioner would receive completing Form I–944 would be range of potential annual costs related to the RFE to file Form I–944, the approximately $28,155,175 annually submission of Form I–944 based on the beneficiary would be the individual to based on the total population estimate percentage of the maximum number of complete the form and provide all of 174,866 annual filings for Form I–539 Form I–129 beneficiaries, Form I– required information. Therefore, based and the total cost to obtain a credit 129CW beneficiaries, and Form I–539 on the total population estimate of 6,307 report and credit score would be about applicants who could be issued a RFE. annual filings for Form I–129CW, DHS $3,488,577.814 In sum, DHS estimates DHS estimates the annual cost if all estimates the total annual opportunity beneficiaries were issued a RFE for 100 cost of time associated with completing 812 Calculation: (Form I–944 estimated opportunity cost of time) * (Estimated annual percent of the total population estimate Form I–944 would be approximately population filing Form I–129CW) = $161.01 * 6,307 of 336,335 annual filings for Form I–129 $1,015,490 annually and the total cost to = $1,015,490.07 = $1,015,490 (rounded) annual would be about $60.1 million. For the obtain a credit report and credit score opportunity cost of time for filing Form I–944. Calculation: (Cost to obtain a credit report and total population estimate of 6,307 credit score) * (Estimated annual population filing annual filings for Form I–129CW, DHS 809 Calculation: (Form I–944 estimated Form I–129CW) = $19.95 * 6,307 = $125,824.65 = estimates the annual cost would be opportunity cost of time) * (Estimated annual $125,825 (rounded) annual cost to obtain a credit population filing Form I–129) = $161.01 * 336,335 report and credit score. approximately $1.1 million if all = $54,153,298.35 = $54,153,298 (rounded) annual 813 Calculation: (Annual opportunity cost of time beneficiaries were issued a RFE. opportunity cost of time for filing Form I–944. for filing Form I–944) + (Annual cost to obtain a Moreover, DHS estimates the annual Calculation: (Cost to obtain a credit report and credit report and credit score for Form I–944) = cost if all applicants were issued a RFE credit score) * (Estimated annual population filing $1,015,490 + $125,825 = $1,141,315 annual total Form I–129) = $19.95 * 336,335 = $6,709,883.25 = cost for Form I–129CW beneficiaries who must file for 100 percent of the total population $6,709,883 (rounded) annual cost to obtain a credit Form I–944. estimate of 336,335 annual filings for report and credit score. 814 Calculation: (Form I–944 estimated Form I–539 would be about $31.6 810 Calculation: (Annual opportunity cost of time opportunity cost of time) * (Estimated annual million. for filing Form I–944) + (Annual cost to obtain a population filing Form I–539) = $161.01 * 174,866 credit report and credit score for Form I–944) = = $28,155,174.66 = $28,155,175 (rounded) annual $54,153,298 + $6,709,883 = $60,863,181 annual opportunity cost of time for filing Form I–944. 815 Calculation: (Annual opportunity cost of time total cost for Form I–129 beneficiaries who must file Calculation: (Cost to obtain a credit report and for filing Form I–944) + (Annual cost to obtain a Form I–944. credit score) * (Estimated annual population filing credit report and credit score for Form I–944) = 811 Calculation for Form I–129CW petition Form I–539) = $19.95 * 174,866 = $3,488,576.70 = $28,155,175 + $3,488,577 = $31,643,752 annual opportunity cost of time to complete Form I–944: $3,488,577 (rounded) annual cost to obtain a credit total cost for Form I–539 applicants who must file ($35.78 per hour * 4.5 hours) = $161.01. report and credit score. Form I–944.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00145 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51258 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

iii. Public Charge Bond been breached would be based on public benefits, as defined in proposed whether the alien has received public 8 CFR 212.21(b), after the alien’s DHS does not currently have a benefits as defined in the proposed rule adjustment of status to that of a lawful process or procedure in place to accept or whether the alien has breached any permanent resident, DHS would declare public charge bonds, though it has the other condition imposed as part of the the bond breached. A bond may also be authority to do so. DHS is proposing to public charge bond. breached if the conditions that are amend its regulations and establish a As discussed elsewhere in the otherwise imposed as part of the public bond process for those seeking preamble, DHS has the broad authority charge bond are breached.819 adjustment of status to that of a to prescribe forms of bonds as is deemed DHS is proposing that public charge permanent resident who have been necessary for carrying out the bonds would be issued at the Secretary’s deemed likely to become a public Secretary’s authority under the discretion when an alien seeking charge. A public charge bond may provisions of the Act.817 Additionally, adjustment of status has been found to generally be secured by cash or cash an alien whom DHS has determined to be inadmissible based on public charge equivalents such as cashier’s checks or be inadmissible based on public charge grounds. DHS may require an alien to money orders in the full amount of the grounds may, if otherwise admissible, submit a surety bond or cash or cash bond, or may be underwritten by a be admitted at the discretion of the equivalent, such as a cashier’s check or surety company certified by the Secretary upon giving a suitable and money order, to secure a bond.820 DHS Department of Treasury under 31 U.S.C. proper bond.818 The purpose of issuing would notify the alien if he or she is 9304–9308.816 DHS approval of the a public charge bond is to better ensure permitted to post a public charge bond public charge bond and DHS that the alien will not become a public and of the type of bond that may be determination of whether the bond has charge in the future. If an alien receives submitted. If DHS accepts a surety bond

816 See generally 8 CFR 103.6. However, USCIS 817 See INA section 103(a)(3), 8 U.S.C. 1103(a)(3). 819 See 8 CFR 213.1(h). plans to initially allow for only surety bonds only. 818 See INA section 213, 8 U.S.C. 1183. 820 USCIS plans to initially allow surety bonds.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00146 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.074 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51259

as a public charge bond, DHS would has been declared breached and inform amount for a surety company to post a accept only a bond underwritten by the obligor of the possibility to appeal bond.828 The percentage that an surety companies certified by the the determination to the USCIS individual must pay may be dependent Department of the Treasury, as outlined Administrative Appeals Office on the individual’s credit score where in proposed 8 CFR 103.6(b).821 DHS (AAO).823 Notice of Appeal or Motion those with higher credit scores would be proposes that the amount of a public (Form I–290B) is used to file an appeal required to pay a lower percentage of charge bond cannot be less than $10,000 or motion to reopen or reconsider the bond to be posted. DHS notes that annually adjusted for inflation and certain decisions. an individual as another possible option rounded up to the nearest dollar, but the Finally, a public charge bond must be for securing a public charge bond may amount of the bond required would canceled when an alien with a bond be allowed to submit cash or cash otherwise be determined at the dies, departs the United States equivalent, such as a cashier’s check or discretion of the adjudication officer. permanently, or is naturalized or money order and agreement. After reviewing an alien’s circumstances otherwise obtains U.S. citizenship, With the creation of Form I–945, DHS and finding of inadmissibility based on provided the individual has not proposes to charge a filing fee of $25.00 public charge grounds, an adjudication received public benefits, as defined in to submit a public charge surety bond, officer would notify the alien through proposed 8 CFR 212.21(c) prior to death, which would cover administrative costs the issuance of a RFE or a Notice of departure, or naturalization (or of processing the form. DHS estimates Intent to Deny (NOID) that a surety bond otherwise obtaining U.S. citizenship), the time burden associated with filing may be submitted to USCIS. and a request for cancellation has been Form I–945 is 60 minutes (1.0 hour) per An individual or entity would submit filed.824 DHS must also cancel the bond obligor, including the time for reviewing a public charge bond on behalf of the following the fifth anniversary of the instructions, gathering the required alien by using the new Public Charge admission of the lawful permanent documentation and information, Bond form (Form I–945), and related resident provided that he or she files a completing the form, preparing forms. DHS proposes that it would use request for cancellation of the public statements, attaching necessary Form I–356, Request for Cancellation of charge bond and provided that the alien documentation, and submitting the Public Charge Bond, as part of a request has not received any public benefits, as form.829 Therefore, using the total rate to cancel a public charge bond. defined in 8 CFR 212.21, after the of compensation of minimum wage of The proposed rule would require that alien’s adjustment of status to that of a $10.66 per hour, DHS estimates the an alien must complete and submit lawful permanent resident. opportunity cost of time for completing Form I–407 when the alien or obligor/ Additionally, the public charge bond and submitting Form I–945 would be co-obligor seeks to cancel the public must be cancelled if the alien obtains an $10.66 per applicant.830 charge bond on account of the alien’s immigration status that is exempt from In addition to the opportunity cost of permanent departure from the United public charge inadmissibility after the time associated with completing Form States. Form I–407 records an alien’s initial grant of lawful permanent I–945, aliens who may be permitted to abandonment of status as a LPR. When resident status, provided that a request have a public charge bond posted on filing Form I–407, an alien abandoning for cancellation of the public charge their behalf, must secure a surety bond their LPR status is informed of the right bond has been filed and provided that through a surety bond company that is to a hearing before an immigration judge the alien did not breach the bond certified by the Department of Treasury, who would decide whether the alien conditions.825 To have the public charge Bureau of Fiscal Service. DHS notes that lost his or her lawful permanent bond cancelled, an obligor (individual the public charge bond amount required resident status due to abandonment and or entity) would request the cancellation would be determined at the discretion that the alien has knowingly, willingly, of the public charge and as part of the of an adjudication officer, so long as it and affirmatively waived that right. request, submit Form I–356. If DHS is over the minimum amount. However, Form I–407 is used by lawful permanent determines that the bond cannot be DHS estimates the cost per obligor resident aliens who are outside the cancelled, the bond remains in place; would be $35.66 per obligor at United States or at a Port of Entry who the obligor may appeal the denial to the minimum, including $25.00 to file Form want to abandon LPR status. AAO by filing Form I–290B.826 I–945 and $10.66 per obligor for the A public charge bond would be Additionally, a public charge bond may opportunity cost of time for completing considered breached if the alien be cancelled by DHS after a suitable the form. In addition, each alien posting receives any public benefits, as defined substitute has been submitted for an a public charge bond through a surety in proposed 8 CFR 212.21, after DHS unlimited bond or a bond of limited company would be required to pay any accepts a public charge bond submitted duration that bears an expiration date. fees required by the surety company to on that alien’s behalf. The bond would For this type of cancellation, no request secure a public charge bond. While the also be breached if the alien does not to cancel the bond must be filed to proposed public charge bond process comply with the conditions that are allow substitution of another bond, as would be new and historical data are otherwise imposed with the public outlined in proposed 8 CFR 213.827 charge bond.822 Upon learning of a When posting a surety bond, an 828 For example, see https:// breach of public charge bond, DHS individual generally pays between 1 suretybondauthority.com/frequently-asked- percent to 15 percent of the bond questions/ and https://suretybondauthority.com/ would notify the obligor that the bond learn-more/. DHS notes that the company cited is for informational purposes only. 823 821 See 31 U.S.C. 9304–9308. See also Bureau of See proposed 8 CFR 213.1(h). 829 Source for immigration bond time burden the Fiscal Service, U.S. Department of Treasury, 824 See INA section 213, 8 U.S.C. 1183; see 8 CFR estimate: Supporting Statement, Immigration Bond, available at https://www.fiscal.treasury.gov/ 103.6(c). ICE Form I–352, (OMB control number 1653–0022). fsreports/ref/suretyBnd/surety_home.htm. See also 825 See proposed 8 CFR 213.1(d)[Conditions of the The PRA Supporting Statement can be found at proposed 8 CFR 103.6(b)(1) as proposed by ICE, bond] and proposed 8 CFR 213.1(h)[Breach]. Question 12 on Reginfo.gov at https:// Procedures and Standards for Declining Surety 826 See proposed 8 CFR 213.1(g). www.reginfo.gov/public/do/ Immigration Bonds and Administrative Appeal 827 See proposed 8 CFR 213.1(f)[Substitution]. PRAViewDocument?ref_nbr=201705-1653-001. Requirement for Breaches, 83 FR 25951 (June 5, Because USCIS does not examine whether the bond 830 Calculation for public charge surety bond 2018). could be breached, the substitution does not have opportunity cost of time: ($10.66 per hour * 1.0 822 See proposed 8 CFR 213.1(h). to be accompanied with a filing of Form I–356. hour) = $10.66 per applicant.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00147 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51260 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

not available, DHS estimates that for reviewing instructions, gathering the changes. These indirect impacts are approximately 960 aliens would be required documentation and borne by entities that are not eligible to file for a public charge bond information, completing the form, specifically regulated by this rule, but annually. Therefore, in sum, DHS preparing statements, attaching may incur costs due to changes in estimates the total cost to file Form I– necessary documentation, and behavior caused by this rule. The 945 would be at minimum about submitting the form.835 Therefore, using primary sources of the reduction in $34,234 annually.831 the total rate of compensation of transfer payments from the federal As noted previously, an obligor minimum wage of $10.66 per hour, DHS government of this proposed rule would (individual or a company) or the alien estimates the opportunity cost of time be the disenrollment or foregone would file Form I–356 as part of a for completing Form I–290B would be enrollment of individuals in public request to cancel a public charge bond. $15.99 per obligor.836 benefits programs. The primary sources With the creation of Form I–356, DHS In addition to the filing fee and the of the consequences and indirect proposes to charge a filing fee of $25.00 opportunity cost of time associated with impacts of the proposed rule would be to request cancellation of a public completing Form I–290B, obligors must costs to various entities that the rule charge bond, which would cover bear the cost of postage for sending the does not directly regulate, such as administrative costs of processing the Form I–290B package to USCIS. DHS hospital systems, state agencies, and form. DHS estimates the time burden estimates that each obligor will incur an other organizations that provide public associated with filing Form I–356 is 45 estimated average cost of $3.75 in assistance to aliens and their minutes (0.75 hours) per obligor or alien postage to submit the completed households. Indirect costs associated requesting cancellation of a public package to USCIS.837 with this rule include familiarization charge bond, including the time for Additionally, the proposed public with the rule for those entities that are reviewing instructions, searching charge bond process would be new and not directly regulated but still want to existing data sources, gathering and historical data are not available to understand the changes in federal and maintaining data needed, and predict future estimates. Therefore, DHS state transfer payments due to this rule. completing and reviewing the required also is not able to estimate the total Moreover, this rule, if finalized, could information. Using the total rate of annual cost of the proposed public lead to an additional reduction in compensation of minimum wage of charge bond process. However, DHS transfer payments because some aliens $10.66 per hour, DHS estimates the estimates the total cost per applicant outside the United States who are likely opportunity cost of time for completing submitting a bond would be $693.74 for to become a public charge in the United and submitting Form I–356 would be completing and filing Form I–290B, States would not be admitted and $8.00 per filer.832 Therefore, DHS excluding the cost of obtaining a therefore would not receive public estimates the cost per filer would be bond.838 benefits in the United States. For $33.00, including $25.00 to file Form I– Finally, the new DHS requirement in example, CBP could find that an alien 356 and $8.00 per obligor or alien for this proposed rule that an alien must arriving at a port of entry seeking the opportunity cost of time for complete and submit Form I–407 when admission, either pursuant to a completing the form. While the seeking to cancel the public charge bond previously issued visa or as a traveler proposed public charge bond process upon permanent departure from the for whom visa requirements have been would be new and historical data are United States. However, this proposed waived, is likely to become a public not available, DHS estimates that rule would not impose additional new charge if he or she is admitted. approximately 25 aliens would request costs to Form I–407 filers. However, DHS is not able to quantify to cancel a public charge bond annually. the number of aliens who would Therefore, in sum, DHS estimates the (c) Transfer Payments and Indirect possibly be denied admission based on total cost to file Form I–356 would be Impacts of Proposed Regulatory Changes a public charge determination pursuant approximately $825 annually.833 DHS estimates the direct costs of the to this proposed rule, but is The filing fee for Form I–290B is $675 proposed rule, but also estimates the qualitatively acknowledging this per obligor wishing to file an appeal to reduction in transfer payments from the potential impact. challenge the denial of a request to federal and state government to certain Under the proposed rule, DHS would cancel the public charge bond or the individuals who receive public benefits consider past or current receipt of breach determination. The fee is set at and also discusses certain indirect public benefits, defined in 212.21(b), as a level to recover the processing costs to impacts that would likely occur as a identified a heavily weighed factor for DHS. However, the fee for Form I–290B result of the proposed regulatory purposes of public charge may be waived using Form I–912 if the determination. Earlier in the preamble, party appealing the adverse decision 835 Source for notice for appeal or motion time DHS provides a list and description of can provide evidence of an inability to burden estimate: Supporting Statement for Notice of public benefits programs the proposed pay.834 In addition, DHS estimates the Appeal or Motion (Form I–290B) (OMB control rule identifies for consideration of time burden associated with filing Form number 1615–0095). The PRA Supporting public charge inadmissibility. Should Statement can be found at Question 12 on I–290B is 1 hour and 30 minutes (1.5 Reginfo.gov at https://www.reginfo.gov/public/do/ an individual be found to have received hours) per obligor, including the time PRAViewDocument?ref_nbr=201609-1615-002. or is currently receiving certain public 836 Calculation for appeal or motion opportunity benefits identified in the proposed rule, 831 Calculation: $35.66 (cost per obligor to file cost of time: ($10.66 per hour * 1.5 hours) = $15.99 he or she may be found likely to become Form I–945) * 960 (estimated annual population per applicant. a public charge. Individuals who might 837 who would file Form I–945) = $34,233.60 = $34,234 Source for notice for appeal or motion time choose to disenroll from or forego future (rounded) annual total cost to file Form I–945. burden estimate: Supporting Statement for Notice of 832 Calculation for opportunity cost of time for Appeal or Motion (Form I–290B) (OMB control enrollment in a public benefits program completing Form I–356: ($10.66 per hour * 0.75 number 1615–0095). The PRA Supporting include foreign-born non-citizens as hours) = $7.995 = $8.00 (rounded) per applicant. Statement can be found at Question 13 on well as U.S. citizens who are members 833 Calculation: $33.00 (cost per obligor to file Reginfo.gov at https://www.reginfo.gov/public/do/ of mixed-status households. Form I–356) * 25 (estimated annual population who PRAViewDocument?ref_nbr=201609-1615-002. would file Form I–356) = $825.00 annual total cost 838 Calculation: $674 filing fee + $15.99 Table 49 shows the estimated to file Form I–356. opportunity cost of time + $3.75 postage cost = population of public benefits recipients 834 See 8 CFR 103.7(c). $693.74 per applicant. who are members of households that

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00148 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51261

include foreign-born non-citizens. The households with foreign-born non- household size for foreign-born table also shows estimates of the citizen family members, DHS estimated households.841 842 number of households with at least 1 the number of public benefits recipients foreign-born non-citizen family member who are members of households that 841 See U.S. Census Bureau American FactFinder that may have received public Database. ‘‘S0501: Selected Characteristics of the include foreign-born non-citizens that Native and Foreign-born Populations 2012–2016 839,840 benefits. Based on the number of may have received benefits using the American Community Survey (ACS) 5-year U.S. Census Bureau’s estimated average Estimates.’’ Available at https:// 839 See U.S. Census Bureau. American factfinder.census.gov/. Accessed June 16, 2018. The Community Survey 2016 Subject Definitions. average foreign-born household size is reported as 3.35 persons. DHS multiplied this figure by the Available at https://www2.census.gov/programs- and unauthorized migrants (i.e. people illegally surveys/acs/tech_docs/subject_definitions/2016_ estimated number of households with at least 1 present in the United States. ACSSubjectDefinitions.pdf. Accessed June 18, 2018. foreign-born non-citizen receiving benefits to 840 The foreign-born population includes anyone who To estimate the number of households with at estimate the population of foreign-born non-citizen was not a U.S. citizen or a U.S. national at birth, least 1 foreign-born non-citizen family member that receiving benefits. which includes respondents who indicated they have received public benefits, DHS calculated the 842 In this analysis, DHS uses the American were a U.S. citizen by naturalization or not a U.S. overall percentage of total U.S. households that are Community Survey (ACS) to develop population citizen. The ACS questionnaires do not ask about foreign-born non-citizen as 6.97 percent. estimates along with beneficiary data from each of immigration status, but uses responses to determine Calculation: [22,214,947 (Foreign-born non- the benefits program. DHS recognizes that in other the U.S. citizen and non-U.S. citizen populations as citizens)/318,558,162 (Total U.S. population)] * 100 places in this preamble, the SIPP data is used rather well as to determine the native and foreign-born = 6.97 percent. See U.S. Census Bureau American than the ACS data, which may cause differences in populations. The population surveyed includes all estimates. DHS notes that the ACS data was used FactFinder Database. ‘‘S0501: Selected people who indicated that the United States was for the purposes of this analysis because it provided their usual place of residence on the survey date. Characteristics of the Native and Foreign-born a cross-sectional survey based on a random sample The foreign-born population includes naturalized Populations 2012–2016 American Community of the population each year including current U.S. citizens, lawful permanent residents (i.e. Survey (ACS) 5-year Estimates.’’ Available at immigration classifications. Both surveys reflect immigrants), temporary migrants (e.g., foreign https://factfinder.census.gov/. Accessed June 16, substantial reliance by aliens on the public benefits students), humanitarian migrants (e.g., refugees), 2018. included in the proposed rule.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00149 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51262 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Medicaid5 64,281,954 24,349,225 1,697,141 5,685,422 Low Income Subsidy (LIS) for Medicare PartD

12,100,000 4,583,333 319,458 1,070,185

Assistance Program (SNAPf 45,294,831 22,195,369 1,547,017 5,182,508 Temporary Assistance for Needy Families (TANF)8 3,449,124 1,306,486 91,062 305,058 Supplemental Security Income (SSI)9 8,302,356 3,144,832 219,195 734,303 Federal Rental Assistance10 NIA 5,051,000 352,055 NIA Sources and Notes: USCIS analysis of data provided by the federal agencies that administer each of the listed public benefits program or research organizations. 1 Figures for the average annual total number of recipients are based on 5-year averages, whenever possible, for the most recent 5-year period for which data are available. For more information, please see the document "Economic Analysis Supplemental Information for Analysis of Public Benefits Programs" in the online docket for the proposed rule. 2 DHS estimated the number of households by dividing the number of people that received public benefits by the U.S. Census Bureau's estimated average household size of 2.64 for the U.S. total population. See U.S. Census Bureau American FactFinder Database. "S0501: Selected Characteristics of the Native and Foreign-born Populations 2012- 2016 American Community Survey (ACS) 5-year Estimates." Available at https://factfinder.census.gov/. Accessed June 16,2018. Note that HUD Rental Assistance and HUD Housing Choice Vouchers programs report data on the household level. Therefore, DHS did not use this calculation to estimate the average household size and instead used the data as reported. 3 To estimate the number of households with at least 1 foreign-born non-citizen receiving benefits, DHS multiplied the estimated number of households receiving benefits in the United States by 6.97 percent, the foreign-born non-citizen population as a percentage of the U.S. total population using U.S. Census Bureau population estimates. See Ibid. 4 To estimate the population of public benefits recipients who are members of households that include foreign-born non-citizens, DHS multiplied the estimated number of households with at least 1 foreign-born non-citizen receiving benefits by the average household size of 3.35 for those who are foreign-born using the U.S. Census Bureau's estimate. See Ibid. 5 Medicaid- See U.S. Department of Health and Human Services (HHS), Centers for Medicare & Medicaid (CMS). Monthly Medicaid & CHIP Application, Eligibility Determination, and Enrollment Reports & Data. Available at https://www.medicaid.gov/medicaid/program-informationlmedicaid-and-chip-emollment-data!monthly-reports/index.html. Accessed May 31,2018. Note that each annual total was calculated by averaging the monthly emolhnent population over each year. The numbers that were used for the average can be found in Table 1A: Medicaid and CHIP for each month, using the number listed as the "Total Across All States." Also, note that per emollee Medicaid costs vary by eligibility group and State. 6 LIS- See U.S. Department of Health and Human Services (HHS), Centers for Medicare & Medicaid (CMS). 2018 Annual

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00150 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.075 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51263

Consistent data are not available on receiving benefits was estimated based estimate because the percentage of the number of individuals receiving on the average household size of households with at least one foreign- public benefits who are members of households with at least one foreign- born non-citizen may be greater or less households that include foreign-born born individual. than the percentage of foreign-born non- non-citizens. In order to estimate the For each of the public benefits citizens in the population. However, if economic impact of the proposed rule, programs analyzed, DHS estimated the foreign-born non-citizens tend to be it is necessary to estimate the size of this number of households by dividing the grouped together in households, then an population. To arrive at the population number of people that received public overestimation of households that estimates as shown in table 49, DHS benefits by the U.S. Census Bureau’s include at least one FBNC is more first calculated the average annual estimated average household size of likely. DHS then estimated the number number of people who received benefits 2.64 for the U.S. total population.844 of foreign-born non-citizens who over a 5-year period whenever possible According to the U.S. Census Bureau received benefits by multiplying the as reported by the benefits granting population estimates, the foreign-born estimated number of households with at 843 agencies. However, data for public non-citizen population is 6.97 percent least one foreign-born non-citizen who benefits programs do not identify the of the U.S. total population.845 While receives public benefits by the U.S. nativity status of benefits recipients, i.e., there may be some variation in the Census Bureau’s estimated average foreign-born or U.S. native. Therefore, percentage of foreign-born non-citizens household size of 3.35 for those who are DHS estimated the foreign-born non- who receive public benefits, including foreign-born.846 citizen population by converting the depending on which public benefits In this analysis, DHS uses the average annual number of benefits program one considers, DHS assumes in American Community Survey (ACS) to recipients using the U.S. Census this economic analysis that the develop population estimates along Bureau’s American Community Survey percentage holds across the populations with beneficiary data from each of the (ACS) estimates. First, DHS estimated of the various public benefits programs. benefits program. DHS recognizes that the number of households receiving Therefore, to estimate the number of in other places in this preamble, the benefits. Then, DHS estimated the households with at least one foreign- SIPP data is used rather than the ACS number of households with at least one born non-citizen who receives public data, which may cause differences in foreign-born non-citizen receiving benefits, DHS multiplied the estimated estimates. DHS notes that the ACS data benefits based on the percentage of number of households for each public was used for the purposes of this foreign-born non-citizens compared to benefits program by 6.97 percent. This analysis because it provided a cross- the total U.S. population. Finally, the step may introduce uncertainty into the sectional survey based on a random number of public benefits recipients sample of the population each year who are members of households that including current immigration 844 U.S. Census Bureau American FactFinder include foreign-born non-citizens Database. ‘‘S0501: Selected Characteristics of the classifications. Both surveys reflect Native and Foreign-born Populations 2012–2016 843 DHS estimated the annual average number of American Community Survey (ACS) 5-year 846 U.S. Census Bureau American FactFinder people who receive public benefits based on 5-year Estimates.’’ Available at https:// Database. ‘‘S0501: Selected Characteristics of the averages generally over the period fiscal year 2013– factfinder.census.gov/. Accessed June 16, 2018. Native and Foreign-born Populations 2012–2016 2017, including LIS, SNAP, and SSI. DHS 845 Ibid. Calculation: [22,214,947 (Foreign-born American Community Survey (ACS) 5-year calculated 5-year averages over the period fiscal non-citizens)/318,558,162 (Total U.S. population)] * Estimates.’’ Available at https:// year 2012–2016 for Medicaid and TANF. 100 = 6.97 percent. factfinder.census.gov/. Accessed June 16, 2018.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00151 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.076 51264 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

substantial reliance by aliens on the overestimation. DHS welcomes public benefits program included in this public benefits included in the comment, especially concerning data or economic analysis. Therefore, DHS proposed rule. DHS welcomes other evidence, that would allow for estimated the average annual benefit comments on the use of data from the refinement of the estimate of the received per person for each public American Community Survey (ACS) to percentage of household members who benefit program in table 50. The average develop our estimates, and comments would be dissuaded from public benefit per person is calculated for each on whether other data sources would be benefits participation. public benefit program by dividing the useful in these calculations. DHS anticipates that a number of average annual program payments for In the following analysis, the individuals would be likely to disenroll on public benefits by the average annual population estimate will be adjusted to or forego enrollment in a public benefits total number of recipients.847 To the reflect the percentage of aliens program as a result of the proposed rule, intending to apply for adjustment of which would result in a reduction of extent that data are available, these status, but not to reflect the possibility transfer payments from the federal estimates are based on 5-year averages. that less than 100 percent of their government to such individuals. household members will be sufficiently However, to estimate the economic concerned about potential consequences impact of disenrollment or foregone 847 DHS notes that the amounts presented may of the policies proposed in this rule to enrollment from public benefits not account for overhead costs associated with administering each of these public benefits disenroll or forgo enrollment in public programs, it is necessary to estimate the programs. The costs presented are based on benefits. The resulting transfer estimates average annual amount of public amounts recipients have received in benefits as will therefore have a tendency toward benefits a person receives for each reported by benefits-granting agencies.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00152 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51265

Table 50. Estimated Average Annual Benefit per Person, by Public Benefit

Medicaid2 64,281,954 $477,395,691,240 $7,426.59 Low Income Subsidy (LIS) for Medicare Part D Prescription Dru Covera e3 12,100,000 $25,400,000,000 $2,099.17

45,294,831 $69,192,042,274 $1,527.59

3,449,124 $4,389,219,525 $1,272.56 Supplemental Security Income (SSI)6 8,302,356 $54,743,370,400 $6,593.72

Federal Rental Assistance7 5,051,000 $41,020,000,000 $8,121.16 Sources and notes: USCIS analysis of data provided by the federal agencies that administer each of the listed public benefits program or research organizations. Note that figures for the average annual total number of recipients and the annual total public benefits payments are based on 5-year averages, whenever possible, for the most recent 5-year period for which data are available. For more information, please see the document "Economic Analysis Supplemental Information for Analysis of Public Benefits Programs" in the online docket for the proposed rule. 1 Calculation: Average Annual Benefit per Person = (Average Annual Public Benefits Payments) I (Average Annual Total Number of Recipients). Note: Calculations may not be exact due to rounding. 2 Medicaid- Data on annual program expenditure on public benefits: See U.S. Department of Health and Human Services (HHS), Centers for Medicare & Medicaid (CMS). Expenditure Reports From MBESICBES. Available at https: I /www.medicaid.gov/medicaid/finance/ state-expenditure-reporting/expenditure­ reports/index.html. Accessed Aug. 2, 2018. Note that per enrollee Medicaid costs vary by eligibility group and State. 3 LIS- Data on annual program expenditure on public benefits: See Ibid. Table IV.B 10-Aggregate Part D Reimbursement Amounts on an Incurred Basis, p.145. Available at https://www.cms.gov/Research­ Statistics-Data-and-Systems/Statistics-Trends-and-Reports/ReportsT rustFunds/Downloads/TR20 18. pdf. Accessed July 31, 2018. Note that spending on LIS beneficiaries varies by individual. 4 SNAP- Data on the annual program expenditure on public benefits: See U.S. Department of Agriculture, Food and Nutrition Service, Supplemental Nutrition Assistance Program. "Persons, Households, Benefits, and Average Monthly Benefit per Person & Household." Available at https://www.fns. usda.gov/pd/supplemental-nutrition-assistance-program-snap. Accessed May 31, 2018. 5 TANF- Data on annual program expenditure on public benefits: See U.S. HHS, Office of Family Assistance. "TANF Financial Data- FY 2016." See Table A.l.: Federal TANF and State MOE Expenditures Sunnnary by ACF-196 Spending Category, Federal Funds for Basic Assistance. Available at !.!±!.l;L2.'-'.!...!.!...!.!.~~~~~~~~~~~~~~~~~~w:..===.:o!..~· Accessed June 11,2018. Note that the link shows fiscal year 2016 TANF financial data, but links to financial data for other fiscal years can also be accessed. 6 SSI- Data on the annual program expenditure on public benefits: See U.S. Social Security Administration, Office of Research, Statistics, & Policy Analysis. Annual Report ofthe Supplemental Security Income Program, 2017. Table IV.B9-SSI Recipients with Federally Administered Payments in Current-Payment

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00153 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.077 51266 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Research shows that when eligibility study found that welfare enrollment in as a percentage of the foreign-born non- rules change for public benefits households headed by foreign-born citizen population in the United States, programs there is evidence of a ‘‘chilling individuals fell by about 21 percent. under the assumption that the effect’’ that discourages immigrants To estimate the total transfer population likely to disenroll from or from using public benefits programs for payments, DHS calculated the number forego enrollment in public benefits which they are still eligible. For of individuals who are likely to programs would be individuals example, the U.S. Department of disenroll from or forego enrollment in a intending to apply for adjustment of Agriculture (USDA) published a study public benefit program equal to 2.5 status or individuals who have adjusted shortly after the Personal Responsibility percent of the number of foreign-born status within the past five years. DHS and Work Opportunity Act of 1996 non-citizens previously estimated. notes that this is likely an overestimate (PRWORA) took effect and found that While previous studies examining the since it is unknown how many foreign- the number of people receiving food effect of PRWORA in 1996 showed a born non-citizens adjusting status are stamps fell by over 5.9 million between reduction in enrollment from 21 to 54 actually using public benefits. For the 5- percent, it is unclear how many summer 1994 and summer 1997.848 The fiscal year period 2012–2016, the individuals would actually disenroll study notes that enrollment in the food foreign-born non-citizen population was from or forego enrollment in public stamps program was falling during this estimated to be 22,214,947.850 During benefits programs due to the proposed period, possibly due to strong economic rule. The previous studies had the the same 5-fiscal year period, 544,246 growth, but the decline in enrollment benefit of retrospectively analyzing the immigrants adjusted status annually in 851 852 was steepest among legal immigrants. chilling effect of PRWORA using actual the United States on average. Under PRWORA, legal immigrants were enrollment data, instead of being Therefore, DHS assumes a 2.5 percent facing significantly stronger restrictions limited to prospectively estimating the rate of disenrollment or foregone through which most would become number of individuals who may enrollment across each of the public ineligible to receive food stamps. The disenroll or forego enrollment in the benefits programs since the individuals study also found that enrollment of legal affected public benefits programs. This intending to adjust status are most likely immigrants in the food stamps program economic analysis must rely on the to disenroll from or forego enrollment in fell by 54 percent. Moreover, another latter. Moreover, PRWORA was directly public benefits programs in order to study found evidence of a ‘‘chilling changing eligibility requirements, preserve their chances of adjusting effect’’ due to enactment of PRWORA whereas this proposed rule, if finalized, status.853 Table 51 shows the estimated where non-citizen enrollment in public would change enrollment incentives. population that would be likely to benefits programs declined more steeply Therefore, DHS estimates this annual disenroll or forego enrollment in a than U.S. citizen enrollment over the rate based on the number of foreign- public benefits program as a result of period 1994 to 1997.849 Overall, the born immigrants seeking to adjust status this proposed rule.

848 See Genser, J. (1999). Who is leaving the Food noncitizens-and-citizens-use-public-benefits- immigration-statistics/yearbook/2016 (accessed Jan. Stamps Program: An analysis of Caseload Changes following-welfare-reform. (Accessed June 17, 2018). 24, 2018). from 1994 to 1997. Washington, DC: U.S. 850 U.S. Census Bureau American FactFinder 852 Note that the population seeking extension of Department of Agriculture, Food and Nutrition Database. ‘‘S0501: Selected Characteristics of the stay or change of status were not included in the Service, Office of Analysis, Nutrition, and Native and Foreign-born Populations 2012–2016 calculation due to the nature of the populations Evaluation. Available at https://www.fns.usda.gov/ American Community Survey (ACS) 5-year involved, namely people employed in jobs and their snap/who-leaving-food-stamp-program-analysis- dependents. DHS assumes that these individuals Estimates. Available at https:// caseload-changes-1994-1997. (Accessed June 17, generally do not receive public benefits and have 2018). factfinder.census.gov/. Accessed June 16, 2018. means of supporting themselves and their 851 849 See Fix, M.E., and Passel, J.S. (1999). Trends See United States Department of Homeland dependents. in Noncitizens’ and Citizens’ Use of Public Benefits Security. Yearbook of Immigration Statistics: 2016, 853 Calculation, based on 5-year averages over the Following Welfare Reform: 1994–1997. Washington, Table 7. Washington, DC, U.S. Department of period fiscal year 2012–2016: (544,246 adjustments DC: The Urban Institute. Available at https:// Homeland Security, Office of Immigration of status/22,214,947 estimated foreign-born non- www.urban.org/research/publication/trends- Statistics, 2017. Available at https://www.dhs.gov/ citizen population) * 100 = 2.45 = 2.5% (rounded).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00154 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.078 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51267

Table 52 shows the estimated programs.854 This proposed rule would annual reduction in transfer payments population that would be likely to result in a reduction of transfer paid by the federal government to disenroll from or forego enrollment in payments from the federal government individuals who may choose to public benefits programs due to the to those foreign-born non-citizens and disenroll from or forego enrollment in provisions of the proposed rule and the associated household members who public benefits programs is total reduction in transfer payments choose to disenroll from or forego future approximately $1.51 billion for an paid by the federal government to this enrollment in a public benefits program. estimated 324,438 individuals and population. The table also presents the Transfer payments are payments from 14,532 households across the public previously estimated average annual one group to another that do not directly benefits programs examined. benefit per person who received benefits affect total resources available to for each of the public benefits society.855 DHS estimates the total

854 As previously noted, the average annual recipients have received in benefits as reported by 855 See Office of Management and Budget (OMB). benefits per person amounts presented may not benefits-granting agencies. Therefore, the costs Circular A–4. September 17, 2003. Available at account for overhead costs associated with presented may underestimate the total amount of https://www.whitehouse.gov/sites/whitehouse.gov/ administering each of these public benefits transfer payments to the federal government. files/omb/circulars/A4/a-4.pdf. programs since they are based on amounts

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00155 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.079 51268 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Based on the rate of disenrollment or there may also be additional reductions between 50 percent to an enhanced rate foregone enrollment calculated, DHS in transfer payments from states to of 100 percent in some cases. However, estimated the annual reduction in the individuals who may choose to assuming that the state share of federal amount of transfer payments paid by the disenroll from or forego enrollment in a financial participation (FFP) is 50 federal government to foreign-born non- public benefits program. Because state percent, then the 10-year discounted citizens and members of their participation in these programs may amount of state transfer payments of households by multiplying the average vary depending on the type of benefit this proposed policy would be annual benefits per person by the provided, DHS was unable to quantify approximately $9.95 billion at a 3 population of foreign-born non-citizens the impact of state transfers. For percent discount rate and about $8.2 who are likely to disenroll from or example, the federal government funds billion at a 7 percent discount rate. forego enrollment in a public benefit all SNAP food expenses, but only 50 856 Finally, DHS recognizes that reductions program. percent of allowable administrative in federal and state transfers under However, DHS notes there may be costs for regular operating expenses.857 federal benefit programs may have additional reductions in transfer Similarly, Federal Medical Assistance downstream and upstream impacts on payments that we are unable to Percentages (FMAP) in some HHS state and local economies, large and quantify. As these estimates reflect only programs like Medicaid can vary from federal financial participation in small businesses, and individuals. For programs where states may share costs, example, the rule might result in 857 Per section 16(a) of the Food and Nutrition Act reduced revenues for healthcare of 2008. See also USDA, FNS Handbook 901, p. 41 providers participating in Medicaid, 856 DHS analyzes federal funds only as we are not available at: https://fns-prod.azureedge.net/sites/ readily able to track down and identify the state default/files/apd/FNS_HB901_v2.2_internet_ pharmacies that provide prescriptions to funds. Ready_Format.pdf. participants in the Medicare Part D low-

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00156 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.080 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51269

income subsidy (LIS) program, for such non-adjustment-related sensitivity analysis based on this issue companies that manufacture medical purposes as well. of the proximity of time to a review of supplies or pharmaceuticals, grocery On the other hand, the 2.5 percent public charge inadmissibility. In such retailers participating in SNAP, rate of disenrollment or foregone cases, DHS would consider past receipt agricultural producers who grow foods enrollment estimate may result in an of public benefits within at least 36 that are eligible for purchase using overestimate, insofar as it does not months (3 years) as a heavily weighed SNAP benefits, or landlords correct for those categories of aliens negative factor under the proposed rule participating in federally funded (such as asylees and refugees) that are and that a prospective adjustment housing programs. exempt from the public charge ground applicant may choose to disenroll or of inadmissibility and assumes 100% forego enrollment for at least 36 months However, the rate of disenrollment or are using public benefits which may not in advance of such application. Table 53 foregone enrollment may result in an be true. DHS expects that the rule’s presents the potential range of the underestimate, to the extent that effects on public benefit program population who may disenroll from or covered aliens may choose to disenroll enrollment and disenrollment by such forego enrollment in public benefits from or forego enrollment in public categories of aliens and their programs as well as the potential total benefits programs sooner than in the households would be less pronounced. reduction in transfer payments paid by same year that the alien applies for Additionally, some prospective the federal government to this adjustment of status. For instance, adjustment applicants and associated population. DHS estimates that the because DHS would consider past household members may not choose to population range of foreign-born non- receipt of public benefits within at least disenroll or forego public benefits citizens who may disenroll from or 36 months as a heavily weighed factor because they may have other factors that forego enrollment in public benefits under the proposed rule, prospective counterbalance acceptance of public programs would range from adjustment applicants may choose to benefits when looked at in the totality approximately 333,239 to 999,717. In disenroll or forego enrollment at least 36 of circumstances. DHS welcomes addition, the estimated reduction in months in advance of such application. comments on the appropriate transfer payments paid by the federal Some aliens and members of their methodology for estimating the rate of government to this population ranges households may adjust their behavior in disenrollment or foregone enrollment, from about $1.51 billion to $4.53 billion. anticipation of eventually applying for including ways to improve upon the For this economic analysis, the primary adjustment of status, but not know DHS methodology. DHS welcomes estimate upon which DHS bases its exactly when they will submit such public comments on the estimation of analysis is the 1-year estimate, as shown applications. In addition, because the the disenrollment or foregone below in the table. However, DHS proposed rule also affects enrollment rate used in this analysis. welcomes the public to comment on inadmissibility determinations in However, in order to examine the DHS’s use of the 1-year estimate as its contexts aside from adjustment of impact if prospective adjustment primary estimate as well as whether status, some percentage of the alien applicants chose to disenroll or forego using the 3-years estimate is a more population is likely to disenroll from or enrollment in public benefits at least 36 appropriate estimate to use as the forego enrollment in covered programs, months in advance, DHS conducted a primary estimate.

DHS presents this range since it is DHS plans to heavily weigh the receipt annual reduction in transfer payments possible that the number of people who of public benefits within the past 36 could range between the three estimates may disenroll from or forego enrollment months as a negative factor, individuals presented in table 53. in public benefits programs in one year may begin to disenroll or forego Another source of impacts of the could be as many as the combined enrollment in public benefits programs proposed rule would be costs to various three-year total of people who may as early as three years prior to applying individuals and other entities associated disenroll or forego enrollment. Because for adjustment of status. As a result, the with familiarization with the provisions

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00157 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.081 51270 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

of the rule. Familiarization costs involve advocacy group, may have more than among members of the U.S. citizen the time spent reading the details of a one person who reads the rule. population who are not vaccinated; rule to understand its changes. A In addition, the proposed rule may • Increases in uncompensated care in foreign-born non-citizen (such as those impose costs that DHS is unable to which a treatment or service is not paid contemplating disenrollment or quantify. Many federal agencies, such as for by an insurer or patient; and foregoing enrollment in a public USDA in administering the SNAP • Increased rates of poverty and benefits program) might review the rule program, may need to update and re- housing instability; and to determine whether they are subject to write guidance documents or would • the provisions of the proposed rule. To need to update forms used. Moreover, Reduced productivity and the extent an individual or entity that is there may be additional unquantified educational attainment. directly regulated by the rule incurs costs that state and local government DHS notes that the proposed rule is familiarization costs, those may incur associated with similar likely to produce various other familiarization costs are a direct cost of activities. At each level of government, unanticipated consequences and the rule. In addition to those being it will also be necessary to prepare indirect costs. For example, community directly regulated by the rule, a wide training materials and retrain staff. Such based organizations, including small variety of other entities would likely changes will require staff time and have organizations, may provide charitable choose to read the rule and also incur associated costs. assistance, such as food or housing There are a number of consequences familiarization costs. For example, assistance, for individuals who forego that could occur because of follow-on immigration lawyers, immigration enrollment in public benefit programs. effects of the reduction in transfer advocacy groups, health care providers DHS requests comments on other payments identified in the proposed possible consequences of the rule and of all types, non-profit organizations, rule. DHS is providing a listing of the appropriate methodologies for non-governmental organizations, and primary non-monetized potential quantifying these non-monetized religious organizations, among others, consequences of the proposed rule potential impacts. may want to become familiar with the below. Disenrollment or foregoing provisions of this proposed rule. DHS enrollment in public benefits program (d) Discounted Direct Costs and believes such non-profit organizations by aliens otherwise eligible for these Reduced Transfer Payments and other advocacy groups might programs could lead to: choose to read the rule in order to • Worse health outcomes, including To compare costs over time, DHS provide information to those foreign- increased prevalence of obesity and applied a 3 percent and a 7 percent born non-citizens and associated malnutrition, especially for pregnant or discount rate to the total estimated costs households that might be impacted by a breastfeeding women, infants, or associated with the proposed rule. Table reduction in federal transfer payments. children, and reduced prescription 54 presents a summary of the quantified Familiarization costs incurred by those adherence; direct costs and reduced transfer not directly regulated are indirect costs. • Increased use of emergency rooms payments from the federal government DHS estimates the time that would be and emergent care as a method of included in the proposed rule. The necessary to read the rule would be primary health care due to delayed summary table presents costs in approximately 8 to 10 hours per person, treatment; undiscounted dollars as well as dollars resulting in opportunity costs of time. • Increased prevalence of discounted at 3 percent and 7 percent An entity, such as a non-profit or communicable diseases, including rates over a 10-year period.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00158 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.082 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51271

i. Discounted Direct Costs inadmissibility based on public charge I–485, I–129, I–129CW, and I–539. See when applying for adjustment of status table 55. The total estimated costs are DHS presents the total estimated costs and the opportunity cost of time presented in undiscounted dollars, at a for filing Form I–944 as part of the associated with the increased time 3 percent discount rate, and at a 7 review for determination of burden estimate for completing Forms percent discount rate.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00159 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51272 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 55. Total Estimated Direct Costs of the Proposed Rule with Total Estimated Direct Costs Discounted at 3 Percent and 7 Percent.

Form 1-944, Declaration Opportunity cost of of Self-Sufficiency time (OCT) for completing form $25,963,371 $259,633,710 Form 1-485, Application OCT associated with to Register Permanent the increased time Residence or Adjust burden for Status completing form $691,898 $6,918,980 Form 1-129, Petition for OCT associated with a Nonimmigrant Worker the increased time burden for completing form

Costs to beneficiaries who receive a RFE to complete and submit Form 1-944, including OCT and credit report/credit score $12,103,351 to $121,033,510 to costs. $66,880,214 $668,802,140 Form I-129CW, Petition OCT associated with for a CNMI-Only the increased time Nonimmigrant burden for Transitional Worker completing form

Costs to beneficiaries who receive a RFE to complete and submit Form 1-944, including OCT and credit report/credit score $227,015 to $2,270,150 to costs. $1,254,198 $12,541,980 Form 1-539, Application OCT associated with To Extend/Change the increased time Nonimmigrant Status burden for completing form

Costs to beneficiaries who receive a RFE to complete and submit Form 1-944, including OCT and credit report/credit score $6,292,728 to $62,927,280 to costs. $34,772,105 $347,721,050 Form 1-945, Public Filing fee Charge Bond OCT for completing form $34,234 $342,340

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00160 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.083 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51273

Over the first 10 years of applying to adjust status subject to However, previously in this economic implementation, DHS estimates the review for public charge determination analysis, DHS presented a more detailed quantified direct costs of the proposed and the opportunity cost of time range of RFEs that could be issued based rule would range from about associated with the increased time on total population estimates and the $453,134,220 to $1,295,968,450 burden estimates for completing Forms estimated annual cost associated with (undiscounted). In addition, DHS I–485, I–129, I–129CW, and I–539. The such RFEs. DHS welcomes any public estimates that the 10-year discounted economic analysis also presents the comments on the discounted costs cost of this proposed rule to individuals quantified costs associated with the presented in this proposed rule. applying to adjust status who would be proposed public charge bond process, ii. Discounted Reduction in Transfer required to undergo review for including costs associated with Payments determination of inadmissibility based completing and filing Forms I–945 and on public charge would range from I–356. DHS reiterates we are unable to DHS presents the total estimated about $386,532,679 to $1,105,487,375 at estimate the actual number of Form I– quantified reduction in transfer a 3 percent discount rate and about 129 or Form I–129CW petitioners and payments from the federal government $318,262,513 to $910,234,008 at a 7 Form I–539 filers that adjudication of the proposed rule in table 56. The percent discount rate. officers would require through a RFE to total estimated costs are presented in This economic analysis presents the submit Form I–944 since such RFE undiscounted dollars, at a 3 percent quantified costs of this proposed rule would be issued on a discretionary basis discount rate, and at a 7 percent based on the estimated population as outlined in the proposed rule. discount rate.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00161 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.084 EP10OC18.085 51274 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Over the first 10 years of the fee for the adjudication of Form I– Therefore, using the average total rate of implementation, DHS estimates the total 485, Application to Register Permanent compensation of $35.78 per hour, DHS quantified reduction in transfer Residence or Adjust Status; Form I–129, estimates the amount of benefits that payments from the federal government Petition for a Nonimmigrant Worker; would accrue from eliminating Form I– to foreign-born non-citizens and their Form I–129CW, Petition for a CNMI- 864W would be $35.78 per petitioner, households would be about $22.7 Only Nonimmigrant Transitional which equals the opportunity cost of billion (undiscounted). In addition, DHS Worker; and Form I–539, Application to time for completing Form I–864W.859 estimates that the 10-year discounted Extend/Change Nonimmigrant Status in However, DHS notes that we are unable costs of this proposed rule would be accordance with this requirement. Other to determine the annual number filings approximately $19.3 billion at a 3 forms affected by this proposed rule do of Form I–864W since we do not percent discount rate and about $15.9 not currently charge a filing fee, currently have information of how many billion at a 7 percent discount rate due including Form I–693, Medical of these filings are based on public to disenrollment or foregone enrollment Examination and Vaccination Record; charge determinations. in various federal public benefits Affidavit of Support forms (Form I–864, In addition, a benefit of establishing programs. In addition, DHS assumes Form I–864A, Form I–864EZ, and I– and modifying the public charge bond that the state share of federal financial 864W); Form I–912, Request for Fee process, despite the costs associated participation (FFP) is 50 percent and Waiver, and Form I–407, Record of with this process, would potentially therefore the 10-year discounted amount Abandonment of Lawful Permanent allow an immigrant the opportunity to of the state-level share of transfer Resident Status. DHS notes that the time be admitted although he or she was payments of this proposed rule would necessary for USCIS to review the deemed likely to become a public be approximately $9.65 billion at a 3 information submitted with each of charge. DHS welcomes any public percent discount rate and about $7.95 these forms includes the time to comments on the benefits of this billion at a 7 percent discount rate. adjudicate the underlying benefit proposed rule. Disenrollment or foregone enrollment in request. While each of these forms does public benefits programs could occur not charge a fee, the cost to USCIS is B. Regulatory Flexibility Act whether or not such immigrants are captured in the fee for the underlying The Regulatory Flexibility Act of 1980 directly affected by the provisions of the benefit request form. DHS welcomes (RFA), 5 U.S.C. 601–612, as amended by proposed rule, however, USCIS was public comments on costs to the the Small Business Regulatory unable to determine the exact government from this proposed rule. Enforcement Fairness Act of 1996, percentage of individuals who would Public Law 104–121 (March 29, 1996), disenroll or forego enrollment. DHS (f) Benefits of Proposed Regulatory Changes requires Federal agencies to consider notes that there may be a number of the potential impact of regulations on additional sources of transfer payments The primary benefit of the proposed small businesses, small governmental that could result from the proposed rule rule would be to better ensure that jurisdictions, and small organizations that DHS is not able to estimate and aliens who are admitted to the United during the development of their rules. quantify at this time. Therefore, DHS States or apply for adjustment of status The term ‘‘small entities’’ comprises welcomes public comments on would not receive one or more public small businesses, not-for-profit additional sources of transfer payments benefits as defined in the proposed organizations that are independently that could result from the proposed rule. 212.21(b) and instead, will rely on their owned and operated and are not (e) Costs to the Federal Government financial resource, and those of family dominant in their fields, or members, sponsors, and private The INA provides for the collection of governmental jurisdictions with organizations. As a result, DHS is 860 fees at a level that will ensure recovery populations of less than 50,000. This establishing a more formal review proposed rule would require an of the full costs of providing process and improving the current adjudication and naturalization individual applying for a visa, seeking review process to standardize the admission at the port of entry, or services, including administrative costs determination of inadmissibility based and services provided without charge to adjusting status to establish that he or on public charge grounds. The proposed she is not likely at any time to become certain applicants and petitioners. See process would also help clarify to INA section 286(m), 8 U.S.C. 1356(m). a public charge. Most of this rule’s applicants the specific criteria that proposed changes do not fall under the DHS notes that USCIS establishes its would be considered as inadmissible fees by assigning costs to an RFA because they directly regulate under public charge determinations. individuals who are not, for purposes of adjudication based on its relative DHS anticipates that the proposed adjudication burden and use of USCIS the RFA, within the definition of small rule would produce some benefits from entities established by 5 U.S.C. 601(6). resources. Fees are established at an the elimination of Form I–864W for use amount that is necessary to recover However, DHS recognizes that there in filing an affidavit of support. The may be some provisions of this these assigned costs such as clerical, information previously requested on the officers, and managerial salaries and proposed rule that would directly Form I–864W would now be captured regulate small entities, and, therefore, benefits, plus an amount to recover using Form I–485. Applicants, therefore, unassigned overhead (e.g., facility rent, would not be required to file a form IT equipment and systems among other 864, I–864A, I–864EZ, I–864W) (OMB control separate from the Form I–485. As noted expenses) and immigration benefits number 1615–0075). The PRA Supporting previously, there is no filing fee provided without a fee charge. Statement can be found at Question 12 on associated with filing Form I–864W, but Reginfo.gov at https://www.reginfo.gov/public/do/ Consequently, since USCIS immigration _ DHS estimates the time burden PRAViewDocument?ref nbr=201705-1615-004. fees are based on resource expenditures 859 associated with filing this form is 60 Calculation opportunity cost of time for related to the benefit in question, USCIS completing and submitting Form I–864W: ($35.78 minutes (1 hour) per petitioner.858 uses the fee associated with an per hour * 1.0 hours) = $35.78. 860 A small business is defined as any information collection as a reasonable 858 Source for I–864W time burden estimate: independently owned and operated business not measure of the collection’s costs to Paperwork Reduction Act (PRA) Affidavit of dominant in its field that qualifies as a small USCIS. Therefore, DHS has established Support Under Section 213A of the INA (Forms I– business per the Small Business Act, 15 U.S.C. 632.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00162 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51275

DHS has examined the impact of this the alien’s sponsor and any other factors per request and a fee to DHS of $25.00. proposed rule on small entities. relevant to the likelihood of the alien It is not known the number of surety This proposed rule would increase becoming a public charge. bond companies that might complete the time burden by an additional 30 2. A succinct statement of the and file Forms I–945 and I–356 due to minutes on petitioners who file Form I– objectives of, and legal basis for, the a lack of historical data and uncertainty 129 or Form I–129CW on behalf of a proposed rule. in the number individuals that may be beneficiary requesting an extension of DHS objectives and legal authority for granted the opportunity to post for stay or change of status, which would this proposed rule are discussed in the public charge bond. However, DHS impose direct costs on these petitioners. preamble of the proposed rule. estimates that the filing volume for Additionally, the proposed provisions 3. A description and, where feasible, Form I–945 might be about 960 and the to establish a public charge bond an estimate of the number of small filing volume for Form I–356 might be process included in this proposed rule entities to which the proposed changes approximately 25. While DHS cannot would allow for either an alien or an would apply. predict the exact number of surety obligor (individual or an entity) to This proposed rule would increase companies that might be impacted by request a cancellation of a public bond. the time burden by an additional 30 this proposed rule, nine out of 273 As a result, this proposed rule could minutes on petitioners who file Form I– Treasury-certified surety companies in have direct impacts on small entities 129 or Form I–129CW on behalf of a fiscal year 2015 posted new immigration that are obligors. DHS also recognizes beneficiary requesting an extension of bonds with DHS ICE.863 DHS found that that a Form I–129 or Form I–129CW stay or change of status, which would of the nine surety companies, four beneficiary, for whom a Form I–129 or impose direct costs on these petitioners entities were considered ‘‘small’’ based 862 Form I–129CW petitioner (i.e., the and entities. As previously discussed on the number of employees or revenue employer) sought either an extension of in the E.O. 12866 section of this NPRM, being less than their respective Small stay or a change of status, may have to DHS estimates an annual population of Business Administration size leave the U.S. if the employer’s request 336,335 beneficiaries seeking extension standard.864 Assuming these nine surety was denied. In these cases, the of stay or change of status through a companies post public charge bonds petitioner may lose the beneficiary as an petitioning employer using Form I–129. with USCIS, we can assume that four employee and may incur labor turnover In addition, DHS estimates an annual surety companies may be considered as population of 6,307 beneficiaries costs. DHS presents this Initial small entities. However, USCIS cannot seeking extension of stay or change of Regulatory Flexibility Analysis (IRFA) predict the exact impact to these small status through a petitioning employer to examine these impacts. entities at this time. We expect that using Form I–129CW. DHS estimates obligors would be able to pass along the Initial Regulatory Flexibility Analysis that the 30-minute increase in the costs of this rulemaking to the aliens. The small entities that could be estimated time burden for these DHS welcomes any public comments or impacted by this proposed rule are populations would increase the data on the number of small entities that petitioners who file Form I–129 or Form opportunity cost of time for completing would be surety companies likely to I–129CW on behalf of beneficiaries and filing Form I–129 and Form I– post public charge bonds and any direct requesting an extension of stay or 129CW and would result in about $184 impacts on those small surety change of status as well as obligors that million and about $5 million in costs, respectively. For this population, DHS companies. would request a cancellation of a public 4. A description of the projected is unable to estimate the actual number bond. reporting, recordkeeping, and other 1. A description of the reasons why of requests for evidence (RFEs) that compliance requirements of the the action by the agency is being adjudication officers may issue to Form proposed rule, including an estimate of considered. I–129 beneficiaries to complete Form I– the classes of small entities that will be DHS seeks to better ensure that 944 to provide evidence that they are subject to the requirement and the types applicants for admission to the United not likely to become a public charge of professional skills necessary for States and applicants for adjustment of when they are extending stay or status to lawful permanent resident who preparation of the report or record. changing status. Therefore, DHS cannot In addition to time burden costs are subject to the public charge ground determine the number of small entities discussed in Section C of this IFRA, of inadmissibility are self-sufficient, i.e., that might be impacted by potential DHS recognizes that a Form I–129 or they will rely on their own financial requests to complete the Form I–944 as Form I–129CW beneficiary, for whom a resources as well as the financial part of an RFE. Form I–129 or Form I–129CW petitioner resources of their family, sponsors, and The proposed provisions on the bond (i.e., the employer) sought either an private organizations as necessary.861 process included in this rule would extension of stay or a change of status, Under section 212(a)(4) of the Act, 8 allow a surety company to become an may have to leave the U.S. if the U.S.C. 1182(a)(4), an alien is obligor on a public charge bond employer’s request was denied. In these inadmissible if, at the time of an (proposed Form I–945) and, later, to cases, the petitioner may lose the application for a visa, admission, or request a cancellation of such a bond beneficiary as an employee and may adjustment of status, he or she is likely (proposed Form I–356). Therefore, this incur labor turnover costs. A 2012 at any time to become a public charge. proposed rule could have some impacts report published by the Center for The statute requires DHS to consider the to surety companies, some of which are American Progress surveyed several following minimum factors that reflect small entities. A request for cancellation the likelihood that an alien will become of a public bond using Form I–356 863 See DHS, Procedures and Standards for a public charge: The alien’s age; health; includes a time burden of 15 minutes Declining Surety Immigration Bonds and family status; assets, resources, and Administrative Appeal Requirement for Breaches financial status; and education and 862 In the context of Form I–129, a petitioner is NPRM, 83 FR 25951, 25962–25965 (June 5, 2018). skills. In addition, DHS may consider typically an employer or the representative of an 864 U.S. Small Business Administration, Table of employer who files on behalf of a nonimmigrant Small Business Size Standards Matched to North any affidavit of support submitted by worker (or beneficiary) to come to the United States American Industry Classification System (NAICS) temporarily to perform services or labor, or to Codes, February 26, 2016. https://www.sba.gov/ 861 See 8 U.S.C. 1601(2). receive training. See https://www.uscis.gov/i-129. sites/default/files/files/Size_Standards_Table.pdf.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00163 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51276 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

dozen studies that considered both costs are accounted for the in the E.O. 121, 110 Stat. 847, 868 et seq. direct and indirect costs and determined 12866 sections. Accordingly, this rule, if enacted as a that turnover costs per employee ranged 5. An identification of all relevant final rule, would be effective at least 60 from 10 to 30 percent of the salary for Federal rules, to the extent practical, days after the date on which Congress most salaried workers.865 An employer that may duplicate, overlap, or conflict receives a report submitted by DHS paid an average of about 20 percent of with the proposed rule. under the Congressional Review Act, or the worker’s salary in total labor DHS is unaware of any duplicative, 60 days after the final rule’s publication, turnover costs. Specifically, for workers overlapping, or conflicting Federal whichever is later. rules, but invites any public comment earning $50,000 or less, and for workers D. Unfunded Mandates Reform Act earning $75,000 or less, the average and information regarding any such turnover cost was about 20 percent for rules. Elsewhere in the preamble to the The Unfunded Mandates Reform Act both earning levels. According to the proposed rule, DHS addresses the of 1995 (UMRA) is intended, among study, these earning levels relationship between this proposed rule other things, to curb the practice of corresponded to the 75th and 90th and the standards governing alien imposing unfunded Federal mandates percentiles of typical earnings, eligibility for public benefits, as on State, local, and tribal governments. respectively. Assuming Form I–129 and outlined in PRWORA. Title II of UMRA requires each Federal Form I–129CW beneficiaries are 6. Description of any significant agency to prepare a written statement employed, DHS believes it is reasonable alternatives to the proposed rule that assessing the effects of any Federal to assume an annual mean wage of accomplish the stated objectives of mandate in a proposed or final agency $50,620 across all occupations.866 applicable statutes and that minimize rule that may directly result in a $100 Assuming an average labor turnover cost any significant economic impact of the million or more expenditure (adjusted of 20 percent of $50,620, on average, an proposed rule on small entities. annually for inflation) in any one year DHS considered a range of potential employer could incur costs of by State, local, and tribal governments, alternatives to the proposed rule. First, approximately $10,124 per beneficiary in the aggregate, or by the private sector. under a ‘‘no action’’ alternative, DHS that would be separated from The inflation-adjusted value of $100 would continue administering the employment as a result of a denied million in 1995 is approximately $161 public charge ground of inadmissibility request for an extension of stay or million in 2017 based on the Consumer under the 1999 Guidance. For reasons 867 change of status. However, DHS does Price Index for All Urban Consumers. explained more fully elsewhere in the This proposed rule does not contain not know the number of small entities preamble to the proposed rule, DHS within this population of petitioners such a mandate. The requirements of determined that this alternative would Title II of UMRA, therefore, do not that might incur labor turnover costs. not adequately ensure the self- Additionally, DHS also recognizes apply, and DHS has not prepared a sufficiency of aliens subject to the statement under UMRA. that a Form I–129 or Form I–129CW public charge ground of inadmissibility. beneficiary, for whom a Form I–129 or Second, DHS considered including a E. Executive Order 13132 (Federalism) Form I–129CW petitioner (i.e., the more expansive definition of ‘‘public This rule will not have substantial employer) sought either an extension of benefit,’’ potentially to include a range direct effects on the States, on the stay or a change of status and the of non-cash benefit programs falling in relationship between the National request was denied, may still be able to specific categories (such as programs Government and the States, or on the get a visa and return to the U.S., that provide assistance for basic food distribution of power and including pursuant to other means. DHS and nutrition, housing, and medical responsibilities among the various welcomes any public comments or data care). For reasons explained more fully levels of government. DHS does not on the impact to the petitioners or elsewhere in the preamble to the expect that this proposed rule would employers of Form I–129 or Form I– proposed rule, DHS chose the approach impose substantial direct compliance 129CW beneficiaries who are denied an contained in this proposed rule—a more costs on State and local governments, or extension of stay or change of status due limited list of high-expenditure non- preempt State law. Therefore, in to public charge inadmissibility. cash benefits. DHS expects that, as accordance with section 6 of Executive DHS does not believe that it would be compared to the broader alternative, the Order 13132, it is determined that this necessary for Form I–129 or Form I– proposed approach may reduce the rule does not have sufficient federalism 129CW petitioners, or for surety bond overall effect of the rule on transfers, but implications to warrant the preparation companies (obligors) to acquire enhance its administrability and of a federalism summary impact additional types of professional skills as predictability. Employers filing Form I– statement. a result of this proposed rule. These 129 and surety companies would have F. Executive Order 12988 (Civil Justice petitioners and obligors should already a better understanding of the types of Reform) possess the expertise to fill out the non-cash benefits that may be covered associated forms for this proposed rule. under this proposed rule than they This rule meets the applicable Additionally, these petitioners and would under the broader alternative, standards set forth in sections 3(a) and obligors would be familiar with the and may realize cost savings as a result. 3(b)(2) of Executive Order 12988. proposed rule and such familiarization In addition, certain indirect effects of G. Executive Order 13175 Consultation the rule may be different as a result of and Coordination With Indian Tribal 865 See ‘‘There Are Significant Business Costs to the decision to reject this alternative. Replacing Employees,’’ by Heather Boushey and Governments Sarah Jane Glynn (2012), Center for American C. Congressional Review Act This proposed rule does not have Progress, available: https:// www.americanprogress.org/issues/economy/ This proposed rule is a major rule as tribal implications under Executive reports/2012/11/16/44464/there-are-significant- defined by 5 U.S.C. 804, also known as business-costs-to-replacing-employees/. the ‘‘Congressional Review Act,’’ as 867 U.S. Bureau of Labor Statistics, Historical 866 Bureau of Labor Statistics, May 2017 National Consumer Price Index for All Urban Consumers Occupational Employment and Wage Estimates, All enacted in section 251 of the Small (CPI–U): U.S. City Average, All Items, available at Occupations, https://www.bls.gov/oes/2017/may/ Business Regulatory Enforcement https://www.bls.gov/cpi/tables/historical-cpi-u- oes_nat.htm. Fairness Act of 1996, Public Law 104– 201712.pdf (last visited Jan. 31, 2018).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00164 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51277

Order 13175, Consultation and (‘‘categorical exclusions’’) which enhanced evidentiary requirements for Coordination with Indian Tribal experience has shown do not public charge inadmissibility Governments, because it would not have individually or cumulatively have a determinations by USCIS. Finally, the a substantial direct effect on one or significant effect on the human rule proposes to revise the public charge more Indian tribes, on the relationship environment and, therefore, do not bond process. Overall, the proposed between the Federal Government and require an Environmental Assessment regulatory changes, if finalized, would Indian tribes, or on the distribution of (EA) or Environmental Impact require a more in-depth adjudication of power and responsibilities between the Statement (EIS). 40 CFR public charge issues and have the Federal Government and Indian tribes. 1507.3(b)(1)(iii), 1508.4. DHS potential to result in more findings of H. Family Assessment Instruction 023–01–001 Rev. 01 inadmissibility, ineligibility for establishes such Categorical Exclusions adjustment of status, or denials of DHS has reviewed this proposed rule that DHS has found to have no such requests for extension of stay or change in line with the requirements of section effect. Inst. 023–01–001 Rev. 01 of status, on public charge grounds. 654 of the Treasury General Appendix A Table 1. For an action to be Historically, there is a high demand Appropriations Act, 1999, Public Law categorically excluded, DHS Inst. 023– for both immigrant and nonimmigrant 105–277. With respect to the criteria 01–001 Rev. 01 requires the action to visas. Even if larger numbers of aliens specified in section 654(c)(1), DHS has satisfy each of the following three were now found to be inadmissible on determined that the proposed rule may conditions: (1) The entire action clearly public charge grounds as a result of this decrease disposable income and fits within one or more of the rule, there may be some replacement increase the poverty of certain families Categorical Exclusions; (2) the action is effect from others who would, in turn, and children, including U.S. citizen not a piece of a larger action; and (3) no be considered for the existing visas. children. For the reasons stated extraordinary circumstances exist that Therefore, DHS cannot estimate with elsewhere in this preamble, however, create the potential for a significant any degree of certainty to what extent DHS has determined that the benefits of environmental effect. Inst. 023–01–001 the potential for increased findings of the action justify the financial impact on Rev. 01 section V.B(1)–(3). inadmissibility on public charge the family. Further, the proposed action DHS analyzed this action and has grounds would result in fewer would expand the list of public benefits individuals being admitted to the that DHS may consider for purposes of concluded that NEPA does not apply United States. DHS is also unable to inadmissibility under section 212(a)(4) due to the excessively speculative of the Act. As a result, the proposed nature of any effort to conduct an estimate with any degree of certainty regulatory action, if finalized, may impact analysis. Nevertheless, if NEPA whether the proposed rule would result increase the number of aliens found did apply to this action, the action in increased denial of applications for inadmissible under section 212(a)(4) of clearly would come within our extension of stay or change of status. the Act. As described under the categorical exclusion A.3(d) as set forth DHS does not, however, anticipate that SUPPLEMENTARY INFORMATION section of in DHS Inst. 023–01–001 Rev. 01, this proposed rule will cause an this rule, DHS has compelling legal and Appendix A, Table 1. increase in the number of individuals policy reasons for the proposed This proposed rule applies to found to be admissible, or eligible for an regulatory action, including, but not applicants for admission or adjustment extension of stay, or adjustment or limited to, better ensuring the self- of status, as long as the individual is change of status. Even if DHS could sufficiency of aliens admitted or applying for an immigration status that estimate these numerical effects, any immigrating to the United States, and is subject to the public charge ground of assessment of derivative environmental minimizing the financial burden of inadmissibility. In addition, the effect at the national level would remain aliens on the U.S. social safety net. proposed rule would potentially affect unduly speculative. individuals applying for an extension of This rule is not part of a larger action I. National Environmental Policy Act stay or change of status because these and presents no extraordinary DHS analyzes actions to determine individuals would have to demonstrate circumstances creating the potential for whether NEPA applies to them and if so that they are neither receiving, nor significant environmental effects. what degree of analysis is required. DHS likely to receive, public benefits as Therefore, if NEPA were determined to Directive (Dir) 023–01 Rev. 01 and defined in the proposed rule. As apply, this rule would be categorically Instruction (Inst.) 023–01–001 rev. 01 discussed in detail above, this rule excluded from further NEPA review. establish the procedures that DHS and proposes to establish a definition of J. Paperwork Reduction Act its components use to comply with public charge and expand the types of NEPA and the Council on public benefits that DHS would Under the Paperwork Reduction Act Environmental Quality (CEQ) consider as part of its public charge of 1995, Public Law 104–13, agencies regulations for implementing NEPA, 40 inadmissibility determinations. The rule are required to submit to OMB, for CFR parts 1500 through 1508. The CEQ also proposes to establish a regulatory review and approval, any reporting regulations allow federal agencies to framework based on the statutory factors requirements inherent in a rule. Table establish, with CEQ review and that must be considered in public 57 shows the summary of forms that are concurrence, categories of actions charge determinations, including part of this rulemaking.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00165 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51278 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 57. Summary of Forms Form Form New or Updated General Purpose of General Categories Filing Applicability Name Form Form to Public Charge

1-129 Petition Update -adds This form is used by an E-2 CNMI -- treaty investor Non-receipt of for questions and employer to petition exclusively in the public benefits Nonim instructions about USCIS for an alien Commonwealth of the and being migrant receipt of public beneficiary to come N orthem Mariana Islands unlikely to Worker benefits temporarily to the (CNMI). receive public United States as a H -lB -- specialty occupation benefits in the nonimmigrant to worker; an alien coming to future is a perform services or perform services of an condition of labor, or to receive exceptional nature that relate US CIS, at its training. This form is to a U.S. Department of discretion may also used by certain Defense-administered request the nonimmigrants to apply project; or a fashion model of applicant to for EOS or COS. distinguished merit and file a Form 1- ability. 944 to H-2A --temporary determine agricultural worker. likelihood of H-2B --temporary receipt of nonagricultural worker. public benefits H-3 --trainee. in the future. L-1 -- intracompany transferee. 0-1 -- alien of extraordinary ability in arts, science, education, business, or athletics. 0-2 -- accompanying alien who is coming to the United States to assist in the artistic or athletic performance of an 0-1 artist or athlete. P-1 -- major league sports. P-1 -- internationally recognized athlete/entertainment group. P-1 S -- 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 culturally unique. P-3S --essential support personnel for a P-3.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00166 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.086 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51279

Table 57. Summary of Forms Form Form New or Updated General Purpose of General Categories Filing Applicability Name Form Form to Public Charge

Q-1 -- alien coming temporarily to participate in an international cultural exchange program. Extension of Status E-1 -- treaty trader. E-2 -- treaty investor (not including E-2 CNMI treaty investors). E-3 --Free Trade Agreement professionals from Australia. Free Trade Nonimmigrants -- H -lB 1 specialty occupation workers from Chile or Singapore and TN professionals from Canada or Mexico. R -1 -- religious worker.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00167 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.087 51280 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 57. Summary of Forms Form Form New or Updated General Purpose of General Categories Filing Applicability Name Form Form to Public Charge

1- Petition Update- adds This form is used by an Non-receipt of 129C for a questions and employer to request an public benefits w CNMI- instructions about extension of stay or change and being Only receipt of public of status for a unlikely to Nonim benefits Commonwealth of the receive public migrant N orthem Mariana Islands benefits in the Transiti (CNMI) temporarily to future is a onal perform services or labor condition of Worker as a CW-1, CNMI-Only EOS/COS. Transitional Worker. EOS/COS applicants will be required to US CIS, at its discretion may request the applicant to file a Form 1- 944 to determine likelihood of receipt of public benefits in the future.

1-356 Request Update- Previous This form is used to An obligor who had posted After an for ly discontinued request cancellation of an 1-945 of the alien's behalf obligor has Cancell the bond that was or an alien has had a Form 1- posted an 1- ation of submitted on Form 1- 945 posted on his or her 945 on behalf a Public 945, Public Charge behalf. and who seeks to of the alien, or Charge Bond, on behalf of an cancel the bond (Form 1-945) an alien on Bond alien. because the alien has either whose behalf has permanently departed the the 1-945 was United States, naturalized, or posted, may died, or the obligor or the request that a alien seeks cancellation of bond to be the bond following the cancelled alien's fifth anniversary of because the admission to the United alien either has States as a lawful permanent permanently resident, or the alien, departed the following the initial grant of United States, lawful permanent resident naturalized or status, obtains an died, or the immigration status that it obligor or the exempt from the public alien request charge ground of cancellation inadmissibility. following the fifth anniversary of the alien's

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00168 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.088 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51281

Table 57. Summary of Forms Form Form New or Updated General Purpose of General Categories Filing Applicability Name Form Form to Public Charge

admission as a lawful permanent resident in the United States.; or or the alien, following the initial grant of lawful permanent resident status, obtains an immigration status that it exempt from the public charge ground of inadmissibility.

I-407 I-407, No Changes This form is used to A lawful permanent resident If a bond has Record record an alien's who voluntarily abandons his been posted on of abandonment of status lawful permanent resident the alien's Abando as a lawful permanent status in the United States. behalf, the nment resident in of the United obligor or the of States. alien may Lawful request that the Perman bond be ent cancelled Residen because the t Status alien permanently departed the United States. The alien shows this by filing Form I- 407 and physically departing. I-485 Applica Update- clarifies Foreign nationals o Immediate relatives Adjustment of tion to what categories present in the United (spouses, children and status Register need to file Form States to obtain LPR parents of U.S. citizens) applicants Perman I-944 and Form I- status o Family-based immigrants generally must ent 864 (principal beneficiaries and be admissible, Residen their dependents) including with ce or o Employment -based regard to the Adjust immigrants (principal public charge mentof beneficiaries and their inadmissibility Status dependents) ground

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00169 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.089 51282 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Table 57. Summary of Forms Form Form New or Updated General Purpose of General Categories Filing Ap1>licability Name Form Form to Public Charge

o Those who entered as Ks (Fiance(e)s or certain spouses of U.S. citizens, and their children) who are seeking LPR status based on the primary beneficiary's marriage to the U.S. citizen petitioner. I-539 Applica Update- adds This form is used by • CNMI residents applying Non-receipt of tion To questions and certain nonimmigrants for an initial grant of status; public benefits Extend/ instructions about to apply for an • Student (F) and vocational and being Change receipt of public extension of stay or students (M) applying for unlikely to Nonim benefits change of status. In reinstatement; and receive public migrant certain circumstances • Persons seeking V benefits in the Status this form may be used nonimmigrant status or an future is a as an initial extension of stay as a V condition of nonimmigrant status, or nonimmigrant (spouse or EOS/COS. reinstatement ofFl or child of an LPR who filed a US CIS, at its Ml status (students). petition on or before discretion may December 21, 2000) request the applicant to file a Form I- 944 to determine likelihood of receipt of public benefits in the future. I-693 Report No Changes Form I-693 is used to Generally, adjustment of The I-693 is of report results of a status applicants are required used as part of Medical medical examination to to submit an I-693. the Health Examin USCIS. N onimmigrants seeking a Factor to ation change or extension of status identify and are generally not required to medical Vaccina submit an I-693, conditions. tion N onimmigrants seeking a Record change of status to spouse of a legal permanent resident (V) status. See table in https://www.uscis.gov/policy manual!HTML/Policy Manual -VolumeS-PartE- Chapter3. html I-864 Affidavi Update- Statement/ contract Generally most family-based The Affidavit t of reference to Form provided by a sponsor immigrants and some of Support Support I-864W, which is to show that the employment -based when required Under being sponsor has adequate immigrants. See additional is a factor in Section discontinued, was financial resources to tables for full list. the public 213A of removed support the alien. charge the INA determination.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00170 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.090 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51283

Table 57. Summary of Forms Form Form New or Updated General Purpose of General Categories Filing Applicability Name Form Form to Public Charge

I- Affidavi Update- Statement/ contract 1. The sponsor is the person The Affidavit 864E t of reference for provided by a sponsor who filed or is filing Form I- of Support z Support Form I-864W, to show that the 130, Petition for Alien when required Under which is being sponsor has adequate Relative, for a relative being is a factor in Section discontinued, was financial resources to sponsored; the public 213A of removed support the alien. This 2. The relative the sponsor is charge the Act is a simpler version of sponsoring is the only person determination. Form I-864. listedonFormi-130; and 3. The income the sponsor is using to qualify is based entirely on your salary or pension and is shown on one or more Internal Revenue Service (IRS) Form W -2s provided by your employers or former employers. I- Request Discontinued - Certain classes of Aliens who have earned 40 Although some 864W for information immigrants are exempt quarters of SSA coverage. people may be Exempti incorporated into from the Form I-864 or Children who will become exempt from on for Formi-485 Form I-864EZ U.S. citizens upon entry or the affidavit of Intendin requirement and adjustment into the United support g therefore must States under INA 320. requirement, Immigr file Form I-864W Self-Petitioning Widow(er) the person may ant's instead. Form I-360, Petition for still be subject Affidavi Amerasian, Widow( er) or to public t of Special Immigrant; Self- charge. Support Petitioning battered spouse or child. I-912 Request Update -provides This form may be filed Adjustment of Status (1-485) Request of a s for warning that a with any USCIS - may be filed for eligible Fee Waiver is Fee request for a fee immigrant benefit form applicants, generally for a factor in the Waiver waiver may be a in order to request a fee those not subject to public determination factor in the waiver. charge and humanitarian of Public public charge programs. Charge. determination. Petition for Nonimmigrant Worker (1-129) may be filed for an applicant for E-2 CNMI investor nonimmigrant status under 8 CFR 214.2(e)(23) is eligible to request. Application for Extension/Change of Status (1-539) INA section 245(1)(7) or an applicant for E-2 Commonwealth of the Northern Mariana Islands is eligible for a fee waiver.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00171 Fmt 4701 Sfmt 4725 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.091 51284 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

USCIS Form I–944 validity of the methodology and charge ground of inadmissibility to file DHS invites comment on the impact assumptions used; Form I–944. On a case by case basis, 3. Enhance the quality, utility, and to the proposed collection of USCIS may request that a nonimmigrant clarity of the information to be information. In accordance with the seeking to extend stay or change status collected; and (Form I–539 or Form I–129) and persons PRA, the information collection notice 4. Minimize the burden of the is published in the Federal Register to filing USCIS Form I–129CW to file Form collection of information on those who I–944. The data collected on these forms obtain comments regarding the are to respond, including through the proposed edits to the information will be used by USCIS to determine the use of appropriate automated, likelihood of a declarant becoming a collection instrument. electronic, mechanical, or other Comments are encouraged and will be public charge based on the factors technological collection techniques or regarding health; family status; assets, accepted for 60 days from the other forms of information technology, publication date of the proposed rule. resource, and financial status; and e.g., permitting electronic submission of education and skills. The forms serve All submissions received must include responses. the OMB Control Number 1615–NEW in the purpose of standardizing public Overview of information collection: charge evaluation metrics and ensure the body of the letter and the agency 1. Type of Information Collection: name. To avoid duplicate submissions, that declarants provide all essential New Collection. information required for USCIS to assess please use only one of the methods 2. Title of the Form/Collection: self-sufficiency and adjudicate the under the ADDRESSES and I. Public Declaration of Self-Sufficiency and declaration. If USCIS determines that a Participation section of this rule to Public Benefits Worksheet. submit comments. Comments on this 3. Agency form number, if any, and declarant is likely to become a public information collection should address the applicable component of the DHS charge, the declarant may need to one or more of the following four points: sponsoring the collection: Form I–944; provide additional resources or 1. Evaluate whether the collection of USCIS. evidence to overcome this information is necessary for the proper 4. Affected public who will be asked determination. performance of the functions of the or required to respond, as well as a brief 5. An estimate of the total number of agency, including whether the abstract: Primary: Individuals or respondents and the amount of time information will have practical utility; households. USCIS will require an estimated for an average respondent to 2. Evaluate the accuracy of the individual applying to adjust status to respond: The estimated total number of agency’s estimate of the burden of the lawful permanent residence (Form I– respondents for the information collection of information, including the 485) and who is subject to the public collection Form I–944 is 382,264 and

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00172 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 EP10OC18.092 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51285

the estimated hour burden per response 2. Title of the Form/Collection: the OMB Control Number 1615–0075 in is 4 hours. Application to Register Permanent the body of the letter and the agency 6. An estimate of the total public Residence or Adjust Status. name. To avoid duplicate submissions, burden (in hours) associated with the 3. Agency form number, if any, and please use only one of the methods collection: The total estimated annual the applicable component of the DHS under the ADDRESSES and I. Public hour burden associated with this sponsoring the collection: Form I–485 Participation section of this rule to collection is 1,720,188 hours. and Supplements A and J; USCIS. submit comments. Comments on this 4. Affected public who will be asked 7. An estimate of the total public information collection should address or required to respond, as well as a brief burden (in cost) associated with the one or more of the following four points: abstract: Primary: Individuals or collection: The estimated total annual 1. Evaluate whether the collection of households. The information collected cost burden associated with this information is necessary for the proper is used to determine eligibility to adjust collection of information is $59,931,350. performance of the functions of the status under section 245 of the agency, including whether the USCIS Form I–485 Immigration and Nationality Act. information will have practical utility; 5. An estimate of the total number of 2. Evaluate the accuracy of the Under the Paperwork Reduction Act respondents and the amount of time agency’s estimate of the burden of the of 1995, Public Law 104–13, all agencies estimated for an average respondent to collection of information, including the are required to submit to OMB, for respond: The estimated total number of validity of the methodology and review and approval, any reporting respondents for the information assumptions used; requirements inherent in a rule. collection Form I–485 is 382,264 and 3. Enhance the quality, utility, and DHS invites comment on the impact the estimated hour burden per response clarity of the information to be to the proposed collection of is 6.42 hours; the estimated total collected; and information. In accordance with the number of respondents for information 4. Minimize the burden of the PRA, the information collection notice collection Supplement A is 36,000 collection of information on those who is published in the Federal Register to respondents and the estimated hour are to respond, including through the obtain comments regarding the burden per response is 1.25 hours; the use of appropriate automated, proposed edits to the information estimated total number of respondents electronic, mechanical, or other collection instrument. for information collection Supplement J technological collection techniques or Comments are encouraged and will be is 28,309 respondents and the estimated other forms of information technology, accepted for 60 days from the hour burden per response is 1 hour; the e.g., permitting electronic submission of publication date of the proposed rule. estimated total number of respondents responses. All submissions received must include for information collection biometrics Overview of Information Collection the OMB Control Number 1615–0023 in processing is 305,811 respondents and the body of the letter and the agency estimated hour burden is 1.17 hours. 1. Type of Information Collection: name. To avoid duplicate submissions, 6. An estimate of the total public Revision of a Currently Approved please use only one of the methods burden (in hours) associated with the Collection. under the ADDRESSES and I. Public collection: The total estimated annual 2. Title of the Form/Collection: Participation section of this rule to hour burden associated with this Affidavit of Support Under Section submit comments. Comments on this collection is 2,885,242 hours. 213A of the INA; Contract Between information collection should address 7. An estimate of the total public Sponsor and Household Member; one or more of the following four points: burden (in cost) associated with the Affidavit of Support under Section 213 1. Evaluate whether the collection of collection: The estimated total annual of the Act. information is necessary for the proper cost burden associated with this 3. Agency form number, if any, and performance of the functions of the collection of information is the applicable component of the DHS agency, including whether the $131,116,650. sponsoring the collection: I–864; I– information will have practical utility; 864A; I–864EZ; USCIS. USCIS Forms I–864; I–864A; I–864EZ 4. Affected public who will be asked 2. Evaluate the accuracy of the Under the Paperwork Reduction Act or required to respond, as well as a brief agency’s estimate of the burden of the of 1995, Public Law 104–13, all agencies abstract: Primary: Individuals or collection of information, including the are required to submit to OMB, for households. Form I–864: USCIS uses the validity of the methodology and review and approval, any reporting data collected on Form I–864 to assumptions used; requirements inherent in a rule. determine whether the sponsor has the 3. Enhance the quality, utility, and DHS invites comment on the impact ability to support the sponsored alien clarity of the information to be to the proposed collection of under section 213A of the Immigration collected; and information. In accordance with the and Nationality Act. This form 4. Minimize the burden of the PRA, the information collection notice standardizes evaluation of a sponsor’s collection of information on those who is published in the Federal Register to ability to support the sponsored alien are to respond, including through the obtain comments regarding the and ensures that basic information use of appropriate automated, proposed discontinuation of the USCIS required to assess eligibility is provided electronic, mechanical, or other Form I–864W information collection by petitioners. technological collection techniques or instrument. The instructions for Form I– Form I–864A: Form I–864A is a other forms of information technology, 864 and I–864EZ were modified to contract between the sponsor and the e.g., permitting electronic submission of remove references to Form I–864W. sponsor’s household members. It is only responses. There are no changes to the Form I– required if the sponsor used income of his or her household members to reach Overview of Information Collection 864A. Comments are encouraged and will be the required 125 percent of the FPG. 1. Type of Information Collection: accepted for 60 days from the The contract holds these household Revision of a Currently Approved publication date of the proposed rule. members jointly and severally liable for Collection. All submissions received must include the support of the sponsored immigrant.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00173 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51286 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

The information collection required on USCIS Form I–945 charge as defined in proposed 8 CFR Form I–864A is necessary for public Under the Paperwork Reduction Act 212.21(a) because he or she will not benefit agencies to enforce the Affidavit of 1995, Public Law 104–13, all agencies receive public benefits, as defined in 8 of Support in the event the sponsor used are required to submit to OMB, for CFR 213.21(b) after the alien’s income of his or her household review and approval, any reporting adjustment of status to that of a lawful members to reach the required income requirements inherent in a rule. permanent resident. An acceptable level and the public benefit agencies are DHS and USCIS invite the general surety is generally any company listed requesting reimbursement from the public and other Federal agencies to on the Department of the Treasury’s sponsor. comment on the impact to the proposed Listing of Approved Sureties Form I–864EZ: USCIS uses Form I– collection of information. In accordance (Department Circular 570) in effect on 864EZ in exactly the same way as Form with the PRA, the information the date the bond is requested or an I–864; however, USCIS collects less collection notice is published in the individual or an entity that deposits information from the sponsors as less Federal Register to obtain comments cash or a cash equivalent, such as a information is needed from those who regarding the proposed edits to the cashier’s check or money order for the 868 qualify in order to make a thorough information collection instrument. full value of the bond. adjudication. Comments are encouraged and will be 5. An estimate of the total number of respondents and the amount of time 5. An estimate of the total number of accepted for 60 days from the estimated for an average respondent to respondents and the amount of time publication date of the proposed rule. respond: The estimated total number of estimated for an average respondent to All submissions received must include respondents for the information respond: The estimated total number of the OMB Control Number 1615–NEW in collection (Enter form number) is 960 respondents for the information the body of the letter and the agency and the estimated hour burden per collection I–864 is 453,345 and the name. To avoid duplicate submissions, response is 1 hour. estimated hour burden per response is please use only one of the methods 6 hours; the estimated total number of under the ADDRESSES and I. Public 6. An estimate of the total public respondents for the information Participation section of this rule to burden (in hours) associated with the collection I–864A is 215,800 and the submit comments. Comments on this collection: The total estimated annual estimated hour burden per response is information collection should address hour burden associated with this 1.75 hours; the estimated total number one or more of the following four points: collection is 960 hours. (Multiply the of respondents for the information 1. Evaluate whether the collection of burden for each submission by the collection I–864EZ is 100,000 and the information is necessary for the proper number of respondents.) estimated hour burden per response is performance of the functions of the 7. An estimate of the total public 2.5 hours. agency, including whether the burden (in cost) associated with the collection: The estimated total annual 6. An estimate of the total public information will have practical utility; 2. Evaluate the accuracy of the cost burden associated with this burden (in hours) associated with the collection of information is $0 as the collection: The total estimated annual agency’s estimate of the burden of the collection of information, including the company performing the bond service hour burden associated with this receives a fee. collection is 3,347,720 hours. validity of the methodology and assumptions used; USCIS Form I–356 7. An estimate of the total public 3. Enhance the quality, utility, and burden (in cost) associated with the clarity of the information to be Under the Paperwork Reduction Act collection: The estimated total annual collected; and of 1995, Public Law 104–13, all agencies cost burden associated with this 4. Minimize the burden of the are required to submit to OMB, for collection of information is collection of information on those who review and approval, any reporting $135,569,525. are to respond, including through the requirements inherent in a rule. DHS and USCIS invite the general USCIS Form I–912 use of appropriate automated, electronic, mechanical, or other public and other Federal agencies to Under the Paperwork Reduction Act technological collection techniques or comment on the impact to the proposed of 1995, Public Law 104–13, all agencies other forms of information technology, collection of information. In accordance are required to submit to OMB, for e.g., permitting electronic submission of with the PRA, the information review and approval, any reporting responses. collection notice is published in the requirements inherent in a rule. Federal Register to obtain comments Although this rule does not impose any Overview of Information Collection regarding the proposed edits to the new reporting or recordkeeping 1. Type of Information Collection: information collection instrument. requirements under the PRA, this rule New Collection; Revision of a Currently Comments are encouraged and will be will require non-substantive edits to Approved Collection. accepted for 60 days from the USCIS Form I–912, Request for Fee 2. Title of the Form/Collection: Public publication date of the proposed rule. Waiver. These edits make clear to those Charge Bond. All submissions received must include who request fee waivers that an 3. Agency form number, if any, and the OMB Control Number 1615–NEW in approved fee waiver can negatively the applicable component of the DHS the body of the letter and the agency impact eligibility for an immigration sponsoring the collection: I–945; USCIS. name. To avoid duplicate submissions, benefit that is subject to the public 4. Affected public who will be asked please use only one of the methods charge inadmissibility determination. or required to respond, as well as a brief under the ADDRESSES and I. Public Accordingly, USCIS has submitted a abstract: Primary: Business or other for- Participation section of this rule to Paperwork Reduction Act Change profit. In certain instances, a bond can submit comments. Comments on this Worksheet, Form OMB 83–C, and be posted on behalf of the alien to information collection should address amended information collection guarantee a set of conditions set by the one or more of the following four points: instruments to OMB for review and government concerning an alien, i.e. approval in accordance with the PRA. that the alien will not become a public 868 See 8 CFR 103.6(b).

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00174 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51287

1. Evaluate whether the collection of USCIS Form I–129 agent, where applicable) uses this form information is necessary for the proper Under the Paperwork Reduction Act to petition USCIS for an alien to performance of the functions of the of 1995, Public Law 104–13, all agencies temporarily enter as a nonimmigrant. agency, including whether the are required to submit to OMB, for An employer (or agent, where information will have practical utility; review and approval, any reporting applicable) also uses this form to 2. Evaluate the accuracy of the requirements inherent in a rule. request an extension of stay or change agency’s estimate of the burden of the DHS and USCIS invite the general of status on behalf of the alien worker. collection of information, including the public and other Federal agencies to The form serves the purpose of validity of the methodology and comment on the impact to the proposed standardizing requests for assumptions used; collection of information. In accordance nonimmigrant workers, and ensuring 3. Enhance the quality, utility, and with the PRA, the information that basic information required for clarity of the information to be collection notice is published in the assessing eligibility is provided by the collected; and Federal Register to obtain comments petitioner while requesting that 4. Minimize the burden of the regarding the proposed edits to the beneficiaries be classified under certain collection of information on those who information collection instrument. nonimmigrant employment categories. It are to respond, including through the Comments are encouraged and will be also assists USCIS in compiling use of appropriate automated, accepted for 60 days from the information required by Congress electronic, mechanical, or other publication date of the proposed rule. annually to assess effectiveness and technological collection techniques or All submissions received must include utilization of certain nonimmigrant other forms of information technology, the OMB Control Number 1615–0009 in classifications. e.g., permitting electronic submission of the body of the letter and the agency 5. An estimate of the total number of responses. name. To avoid duplicate submissions, respondents and the amount of time please use only one of the methods estimated for an average respondent to Overview of Information Collection under the ADDRESSES and I. Public respond: The estimated total number of 1. Type of Information Collection: Participation section of this rule to respondents for the information New Collection. submit comments. Comments on this collection Form I–129 is 552,000 and information collection should address the estimated hour burden per response 2. Title of the Form/Collection: one or more of the following four points: Request for Cancellation of Public is 2.84 hours; the estimated total 1. Evaluate whether the collection of number of respondents for the Charge Bond. information is necessary for the proper information collection E–1/E–2 3. Agency form number, if any, and performance of the functions of the Classification Supplement to Form I– the applicable component of the DHS agency, including whether the 129 is 4,760 and the estimated hour sponsoring the collection: I–356; USCIS. information will have practical utility; burden per response is 0.67; the 2. Evaluate the accuracy of the 4. Affected public who will be asked estimated total number of respondents agency’s estimate of the burden of the or required to respond, as well as a brief for the information collection Trade collection of information, including the abstract: Primary: Aliens (on whose Agreement Supplement to Form I–129 is validity of the methodology and behalf a public charge bond has been 3,057 and the estimated hour burden assumptions used; posted) or the obligor (surety) (who is per response is 0.67; the estimated total the obligor who posted a bond on the 3. Enhance the quality, utility, and clarity of the information to be number of respondents for the alien’s behalf). The form is used to information collection H Classification request cancellation of the public charge collected; and 4. Minimize the burden of the Supplement to Form I–129 is 255,872 bond because of the alien’s and the estimated hour burden per naturalization, permanent departure, or collection of information on those who are to respond, including through the response is 2; the estimated total death. The form is also used by the alien number of respondents for the or the obligor to request cancellation of use of appropriate automated, information collection H–1B and H–1B1 the public charge bond upon the fifth electronic, mechanical, or other Data Collection and Filing Fee anniversary of the alien’s admission to technological collection techniques or Exemption Supplement is 243,965 and the United States as a lawful permanent other forms of information technology, the estimated hour burden per response resident. e.g., permitting electronic submission of responses. is 1; the estimated total number of 5. An estimate of the total number of respondents for the information respondents and the amount of time Overview of Information Collection collection L Classification Supplement estimated for an average respondent to 1. Type of Information Collection: to Form I–129 is 37,831 and the respond: The estimated total number of Revision of a Currently Approved estimated hour burden per response is respondents for the information Collection. 1.34; the estimated total number of collection (Enter form number) is 25 and 2. Title of the Form/Collection: respondents for the information the estimated hour burden per response Petition for Nonimmigrant Worker. collection O and P Classifications is .75 hours. 3. Agency form number, if any, and Supplement to Form I–129 is 22,710 6. An estimate of the total public the applicable component of the DHS and the estimated hour burden per burden (in hours) associated with the sponsoring the collection: I–129; USCIS. response is 1; the estimated total collection: The total estimated annual 4. Affected public who will be asked number of respondents for the hour burden associated with this or required to respond, as well as a brief information collection Q–1 collection is 18.75 hours. abstract: Primary: Business or other for- Classification Supplement to Form I– 7. An estimate of the total public profit. USCIS uses the data collected on 129 is 155 and the estimated hour burden (in cost) associated with the this form to determine eligibility for the burden per response is 0.34; the collection: The estimated total annual requested nonimmigrant petition and/or estimated total number of respondents cost burden associated with this requests to extend or change for the information collection R–1 collection of information is $6,250. nonimmigrant status. An employer (or Classification Supplement to Form I–

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00175 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51288 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

129 is 6,635 and the estimated hour 2. Title of the Form/Collection: Form All submissions received must include burden per response is 2.34. I–129CW, Petition for a CNMI-Only the OMB Control Number 1615–0003 in (6) An estimate of the total public Nonimmigrant Transitional Worker. the body of the letter and the agency burden (in hours) associated with the 3. Agency form number, if any, and name. To avoid duplicate submissions, collection: The total estimated annual the applicable component of the DHS please use only one of the methods hour burden associated with this sponsoring the collection: I–129CW; under the ADDRESSES and I. Public collection is 2,417,609 hours. USCIS. Participation section of this rule to (7) An estimate of the total public 4. Affected public who will be asked submit comments. Comments on this burden (in cost) associated with the or required to respond, as well as a brief information collection should address collection: The estimated total annual abstract: Primary: Business or other for- one or more of the following four points: cost burden associated with this profit. USCIS uses the data collected on 1. Evaluate whether the collection of collection of information is this form to determine eligibility for the information is necessary for the proper $132,368,220. requested immigration benefits. An performance of the functions of the employer uses this form to petition USCIS Form I–129CW agency, including whether the USCIS for an alien to temporarily enter information will have practical utility; Under the Paperwork Reduction Act as a nonimmigrant into the CNMI to 2. Evaluate the accuracy of the of 1995, Public Law 104–13, all agencies perform services or labor as a CNMI- agency’s estimate of the burden of the are required to submit to OMB, for Only Transitional Worker (CW–1). An collection of information, including the review and approval, any reporting employer also uses this form to request validity of the methodology and requirements inherent in a rule. an extension of stay or change of status assumptions used; DHS and USCIS invite the general on behalf of the alien worker. The form 3. Enhance the quality, utility, and public and other Federal agencies to serves the purpose of standardizing clarity of the information to be comment on the impact to the proposed requests for these benefits, and ensuring collected; and collection of information. In accordance that the basic information required to 4. Minimize the burden of the with the PRA, the information determine eligibility, is provided by the collection of information on those who collection notice is published in the petitioners. are to respond, including through the Federal Register to obtain comments USCIS collects biometrics from aliens use of appropriate automated, regarding the proposed edits to the present in the CNMI at the time of electronic, mechanical, or other information collection instrument. requesting initial grant of CW–1 status. Comments are encouraged and will be technological collection techniques or The information is used to verify the other forms of information technology, accepted for 60 days from the alien’s identity, background information publication date of the proposed rule. e.g., permitting electronic submission of and ultimately adjudicate their request responses. All submissions received must include for CW–1 status. the OMB Control Number 1615–0009 in 5. An estimate of the total number of Overview of Information Collection the body of the letter and the agency respondents and the amount of time 1. Type of Information Collection: name. To avoid duplicate submissions, estimated for an average respondent to Revision of a Currently Approved please use only one of the methods respond: The estimated total number of Collection. under the ADDRESSES and I. Public respondents for the information 2. Title of the Form/Collection: Participation section of this rule to collection Form I–129CW is 3,749 and Application to Extend/Change submit comments. Comments on this the estimated hour burden per response Nonimmigrant Status. information collection should address is 3.5 hours. 3. Agency form number, if any, and one or more of the following four points: 6. An estimate of the total public the applicable component of the DHS 1. Evaluate whether the collection of burden (in hours) associated with the sponsoring the collection: Form I–539 information is necessary for the proper collection: The total estimated annual and Supplement A; USCIS. performance of the functions of the hour burden associated with this agency, including whether the collection is 13,121.5 hours. 4. Affected public who will be asked information will have practical utility; 7. An estimate of the total public or required to respond, as well as a brief 2. Evaluate the accuracy of the burden (in cost) associated with the abstract: Primary: Individuals or agency’s estimate of the burden of the collection: The estimated total annual households. This form will be used for collection of information, including the cost burden associated with this nonimmigrants to apply for an validity of the methodology and collection of information is $459,253. extension of stay, for a change to assumptions used; another nonimmigrant classification, or 3. Enhance the quality, utility, and USCIS Form I–539 for obtaining V nonimmigrant clarity of the information to be Under the Paperwork Reduction Act classification. collected; and of 1995, Public Law 104–13, all agencies 5. An estimate of the total number of 4. Minimize the burden of the are required to submit to OMB, for respondents and the amount of time collection of information on those who review and approval, any reporting estimated for an average respondent to are to respond, including through the requirements inherent in a rule. respond: The estimated total number of use of appropriate automated, DHS invites comment on the impact respondents for the information electronic, mechanical, or other to the proposed collection of collection Form I–539 is 248,985 and technological collection techniques or information. In accordance with the the estimated hour burden per response other forms of information technology, PRA, the information collection notice is 2.38 hours; the estimated total e.g., permitting electronic submission of is published in the Federal Register to number of respondents for the responses. obtain comments regarding the information collection Supplement A is proposed edits to the information 54,375 respondents and the estimated Overview of Information Collection collection instrument. hour burden per response is .50 hours; 1. Type of Information Collection: Comments are encouraged and will be the estimated total number of Revision of a Currently Approved accepted for 60 days from the respondents for the information Collection. publication date of the proposed rule. collection biometrics processing is

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00176 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51289

373,477 and the estimated hour burden PART 103—IMMIGRATION BENEFITS; bond has been breached creates a claim is 1.17 hours. BIOMETRIC REQUIREMENTS; in favor of the United States which may 6. An estimate of the total public AVAILABILITY OF RECORDS not be released by the officer. DHS will burden (in hours) associated with the determine whether a bond has been ■ collection: The total estimated annual 1. The authority citation for part 103 breached. If DHS determines that a bond hour burden associated with this continues to read as follows: has been breached, it will notify the collection is 1,056,740 hours. Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C. obligor of the decision, the reasons 7. An estimate of the total public 1101, 1103, 1304, 1356, 1365b; 31 U.S.C. therefor, and inform the obligor of the burden (in cost) associated with the 9701; Public Law 107–296, 116 Stat. 2135 (6 right to appeal the decision in U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, collection: The estimated total annual accordance with the provisions of this 15557, 3 CFR, 1982 Comp., p.166; 8 CFR part part. cost burden associated with this 2; Pub. L. 112–54. collection of information is $42,701,050. * * * * * ■ 2. Section 103.6 is amended by: ■ 3. Section 103.7 is amended by adding USCIS Form I–407 ■ a. Revising paragraphs (a)(1), (a)(2)(i), paragraphs (b)(1)(i)(LLL) and (MMM) to and (c)(1); Under the Paperwork Reduction Act read as follows: ■ b. Adding paragraph (d)(3); and of 1995, Public Law 104–13, all agencies ■ c. Revising paragraph (e) § 103.7 Fees. are required to submit to OMB, for The revisions and additions read as * * * * * review and approval, any reporting follows: (b) * * * requirements inherent in a rule. This (1) * * * rule requires the use of USCIS Form I– § 103.6 Surety bonds. (i) * * * 407 but does not require any changes to (a) * * * (LLL) Public Charge Bond, Form I– the form or instructions and does not (1) Extension agreements; consent of 945. $25. impact the number of respondents, time surety; collateral security. All surety (MMM) Request for Cancellation of or cost burden. This form has previously bonds posted in immigration cases must Public Charge Bond, Form I–356. $25. been approved by OMB under the be executed on the forms designated by Paperwork Reduction Act. The OMB DHS, a copy of which, and any rider PART 212—DOCUMENTARY control number(s) for this information attached thereto, must be furnished to REQUIREMENTS: NONIMMIGRANTS; collection is 1615–0130. the obligor. DHS is authorized to WAIVERS; ADMISSION OF CERTAIN List of Subjects and Regulatory approve a bond, a formal agreement for INADMISSIBLE ALIENS; PAROLE the extension of liability of surety, a Amendments ■ request for delivery of collateral security 4. The authority citation for part 212 8 CFR Part 103 to a duly appointed and undischarged continues to read as follows: Authority: 6 U.S.C. 111, 202(4) and 271; 8 Administrative practice and administrator or executor of the estate of a deceased depositor, and a power of U.S.C. 1101 and note, 1102, 1103, 1182 and procedure, Authority delegations note, 1184, 1185 note (section 7209 of Pub. (Government agencies), Freedom of attorney executed on the form designated by DHS, if any. All other L. 108–458), 1187, 1223, 1225, 1226, 1227, information, Immigration, Privacy, 1255, 1359; 8 CFR part 2. Reporting and recordkeeping matters relating to bonds, including a ■ 5. Add §§ 212.20 through 212.24 to requirements, Surety bonds. power of attorney not executed on the form designated by DHS and a request read as follows: 8 CFR Part 212 for delivery of collateral security to § 212.20 Applicability of public charge other than the depositor or his or her Administrative practice and inadmissibility. approved attorney in fact, will be procedure, Aliens, Immigration, forwarded to the appropriate office for 8 CFR 212.20 through 212.24 address Passports and visas, Reporting and approval. the public charge ground of recordkeeping requirements. (2) Bond riders—(i) General. A bond inadmissibility under section 212(a)(4) 8 CFR Part 213 rider must be prepared on the form(s) of the Act. Unless the alien requesting designated by DHS, and submitted with the immigration benefit or classification Immigration, Surety bonds. the bond. If a condition to be included has been exempted from section 212(a)(4) of the Act as listed in 8 CFR 8 CFR Part 214 in a bond is not on the original bond, a rider containing the condition must be 212.23(a), the provisions of §§ 212.20 Administrative practice and executed. through 212.24 of this part apply to an procedure, Aliens, Cultural exchange applicant for admission or adjustment of * * * * * programs, Employment, Foreign status to lawful permanent resident. (c) * * * officials, Health professions, Reporting (1) Public charge bonds. Special rules § 212.21 Definitions for public charge. and recordkeeping requirements, for the cancellation of public charge Students. For the purposes of 8 CFR 212.20 bonds are described in 8 CFR 213.1. through 212.24, the following 8 CFR Part 245 * * * * * definitions apply: (d) * * * (a) Public Charge. Public charge Aliens, Immigration, Reporting and (3) Public charge bonds. The means an alien who receives one or recordkeeping requirements. threshold bond amount for public more public benefit, as defined in 8 CFR Part 248 charge bonds is set forth in 8 CFR 213.1. paragraph (b) of this section. (e) Breach of bond. Breach of public (b) Public benefit. Public benefit Aliens, Reporting and recordkeeping charge bonds is governed by 8 CFR means: requirements. 213.1. For other immigration bonds, a (1) Any of the following monetizable Accordingly, DHS proposes to amend bond is breached when there has been benefits, where the cumulative value of chapter I of title 8 of the Code of Federal a substantial violation of the stipulated one or more of the listed benefits Regulations as follows: conditions. A final determination that a exceeds 15 percent of the Federal

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00177 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51290 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

Poverty Guidelines (FPG) for a eligibility criteria as required by the (ii) The alien’s spouse, if physically household of one within any period of Child Citizenship Act of 2000, Public residing with the alien; 12 consecutive months, based on the Law 106–395 (section 320(a)–(b) of the (iii) The alien’s children, as defined in per-month FPG for the months during Act, 8 U.S.C. 1431(a)–(b)), in accordance 101(b)(1) of the Act, physically residing which the benefits are received. with 8 CFR part 320; with the alien; (i) Any Federal, State, local, or tribal (E) Medicaid benefits received by the (iv) The alien’s other children, as cash assistance for income maintenance, children of U.S. citizens who are defined in section 101(b)(1) of the Act, including: entering the United States for the not physically residing with the alien (A) Supplemental Security Income primary purpose of attending an for whom the alien provides or is (SSI), 42 U.S.C. 1381 et seq.; interview under the Child Citizenship required to provide at least 50 percent (B) Temporary Assistance for Needy Act of 2000, Public Law 106–395 of the children’s financial support, as Families (TANF), 42 U.S.C. 601 et seq.; (section 322 of the Act, 8 U.S.C. 1433), evidenced by a child support order or or in accordance with 8 CFR part 322. agreement a custody order or agreement, (C) Federal, State or local cash benefit (ii) Any benefit provided for or any other order or agreement programs for income maintenance (often institutionalization for long-term care at specifying the amount of financial called ‘‘General Assistance’’ in the State government expense; support to be provided by the alien; context, but which may exist under (iii) Premium and Cost Sharing (v) Any other individuals (including a other names); and Subsidies for Medicare Part D, 42 U.S.C. spouse not physically residing with the (ii) Non-cash benefits, monetized as 1395w–114; alien) to whom the alien provides, or is set forth in 8 CFR 212.24: (iv) Subsidized Housing under the required to provide, at least 50 percent (A) Supplemental Nutrition Housing Act of 1937, 42 U.S.C. 1437 et of the individual’s financial support or Assistance Program (SNAP, formerly seq. who are listed as dependents on the called ‘‘Food Stamps’’), 7 U.S.C. 2011 to (3) The receipt of a combination of alien’s federal income tax return; and 2036c; monetizable benefits under paragraph (vi) Any individual who provides to (B) Section 8 Housing Assistance (b)(1) of this section where the the alien at least 50 percent of the under the Housing Choice Voucher cumulative value of such benefits is alien’s financial support, or who lists Program, as administered by HUD under equal to or less than 15 percent of the the alien as a dependent on his or her 24 CFR part 984; 42 U.S.C. 1437f and Federal Poverty Guidelines for a federal income tax return. 1437u; household size of one within any period (2) If the alien is a child as defined in (C) Section 8 Project-Based Rental of 12 consecutive based on the per- section 101(b)(1) of the Act, the alien’s Assistance (including Moderate month FPG for the months during household includes the following Rehabilitation) under 24 CFR parts 5, which the benefits are received, together individuals: 402, 880 through 884 and 886; and with one or more non-monetizable (i) The alien; (2) Any of one or more of the benefits under paragraph (b)(2) of this (ii) The alien’s children as defined in following non-monetizable benefits if section if such non-monetizable benefits section 101(b)(1) of the Act physically received for more than 12 months in the are received for more than 9 months in residing with the alien; aggregate within a 36 month period the aggregate within a 36 month period (iii) The alien’s other children as (such that, for instance, receipt of two (such that, for instance, receipt of two defined in section 101(b)(1) of the Act non-monetizable benefits in one month non-monetizable benefits in one month not physically residing with the alien counts as two months): counts as two months); for whom the alien provides or is (i) Medicaid, 42 U.S.C. 1396 et seq., (4) DHS will not consider any required to provide at least 50 percent except for: benefits, as defined in paragraphs (b)(1) of the children’s financial support, as (A) Benefits paid for an emergency through (b)(3) of this section, received evidenced by a child support order or medical condition as described in by an alien who, at the time of receipt, agreement, a custody order or section 1903(v) of Title XIX of the Social filing, or adjudication, is enlisted in the agreement, or any other order or Security Act, 42 U.S.C. 1396b(v), 42 U.S. armed forces under the authority of agreement specifying the amount of CFR 440.255(c); 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. financial support to be provided by the (B) Services or benefits funded by 504(b)(2), serving in active duty or in alien; Medicaid but provided under the the Ready Reserve component of the (iv) The alien’s parents, legal Individuals with Disabilities Education U.S. Armed Forces, or if received by guardians, or any other individual Act (IDEA) 20 U.S.C. 1400 et seq.; such an individual’s spouse or child as providing or required to provide at least (C) School-based benefits provided to defined in section 101(b) of the Act, in 50 percent of the alien’s financial children who are at or below the oldest the public charge inadmissibility support to the alien as evidenced by a age of children eligible for secondary determination. child support order or agreement, a education as determined under State (c) Likely at any time to become a custody order or agreement, or any other law; public charge. Likely at any time to order or agreement specifying the (D) Medicaid benefits received by become a public charge means likely at amount of financial support to be children of U.S. citizens whose lawful any time in the future to receive one or provided to the alien; admission for permanent residence and more public benefit as defined in (v) The parents’ or legal guardians’ subsequent residence in the legal and paragraph (b) of this section based on other children as defined in section physical custody of their U.S. citizen the totality of the alien’s circumstances. 101(b)(1) of the Act physically residing parent will result automatically in the (d) Alien’s household. For purposes of with the alien; child’s acquisition of citizenship or public charge inadmissibility (vi) The alien’s parents’ or legal whose lawful admission for permanent determinations under section 212(a)(4) guardians’ other children as defined in residence will result automatically in of the Act: section 101(b)(1) of the Act, not the child’s acquisition of citizenship (1) If the alien is 21 years of age or physically residing with the alien for upon finalization of adoption in the older, or under the age of 21 and whom the parent or legal guardian United States by the U.S. citizen married, the alien’s household includes: provides or is required to provide at parent(s) or, once meeting other (i) The alien; least 50 percent of the other children’s

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00178 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51291

financial support, as evidenced by a medical treatment or institutionalization (D) The household’s cash assets and child support order or agreement, a after arrival or that will interfere with resources, including as reflected in custody order or agreement, or any other the alien’s ability to provide and care for checking and savings account order or agreement specifying the him or herself, to attend school, or to statements covering 12 months prior to amount of financial support to be work upon admission or adjustment of filing the application; provided by the parents or legal status. (E) The household’s non-cash assets guardians; and (3) The alien’s family status—(i) and resources that can be converted into (vii) Any other individuals to whom Standard. When considering an alien’s cash within 12 months, such as net cash the alien’s parents or legal guardians family status, DHS will consider the value of real estate holdings minus the provide, or are required to provide at alien’s household size, as defined in 8 sum of all loans secured by a mortgage, least 50 percent of the individuals’ CFR 212.21(d), and whether the alien’s trust deed, or other lien on the home; financial support or who are listed as a household size makes the alien more or annuities; securities; retirement and dependent on the parent’s or legal less likely to become a public charge. educational accounts; and any other guardian’s federal income tax return. (ii) [Reserved] assets that can easily be converted into (4) The alien’s assets, resources and cash; § 212.22 Public Charge inadmissibility (F) Whether the alien has: determination. financial status—(i) Standard. When considering an alien’s assets, resources, (1) Applied for or received any public This section relates to the public and financial status, DHS will consider benefit, as defined in 8 CFR 212.21(b), charge ground of inadmissibility under whether: on or after [DATE 60 DAYS FROM section 212(a)(4) of the Act. (A) The alien’s household’s annual DATE OF PUBLICATION OF THE (a) Prospective determination based gross income is at least 125 percent of FINAL RULE]; or on the totality of circumstances. The the most recent Federal Poverty (2) Been certified or approved to determination of an alien’s likelihood of Guidelines based on the alien’s receive public benefits, as defined in 8 becoming a public charge must be based household size as defined by CFR 212.21(b), on or after [DATE 60 on the totality of the alien’s § 212.21(d), or if the alien’s household’s DAYS FROM DATE OF PUBLICATION circumstances by weighing all factors annual gross income is under 125 OF THE FINAL RULE]; that make the alien more or less likely percent of the recent Federal Poverty (G) Whether the alien has applied for at any time in the future to become a Guidelines, whether the total value of or has received a fee waiver for an public charge, as outlined in this the alien’s household assets and immigration benefit request on or after section. [DATE 60 DAYS FROM DATE OF (b) Minimum factors to consider. A resources is at least 5 times the difference between the alien’s PUBLICATION OF THE FINAL RULE]; public charge inadmissibility (H) The alien’s credit history and household’s gross annual income and determination must entail consideration credit score; and the Federal Poverty Guideline for the of the alien’s age; health; family status; (I) Whether the alien has private alien’s household size; education and skills; and assets, health insurance or the financial (B) The alien has sufficient household resources, and financial status, as resources to pay for reasonably assets and resources to cover any follows: foreseeable medical costs related to a reasonably foreseeable medical costs (1) The alien’s age—(i) Standard. medical condition that is likely to related to a medical condition that is When considering an alien’s age, DHS require extensive medical treatment or likely to require extensive medical will consider whether the alien is institutionalization or that will interfere treatment or institutionalization or that between the age of 18 and the minimum with the alien’s ability to provide care will interfere with the alien’s ability to ‘‘early retirement age’’ for Social for him- or herself, to attend school, or provide care for him- or herself, to Security set forth in 42 U.S.C. 416(l)(2), to work; and whether the alien’s age otherwise attend school, or to work; and (5) The alien’s education and skills. makes the alien more or less likely to (C) The alien has any financial (i) Standard. When considering an become a public charge, such as by liabilities or past receipt of public alien’s education and skills, DHS will impacting the alien’s ability to work. benefits as defined in 8 CFR 212.21(b) consider whether the alien has adequate (ii) [Reserved] that make the alien more or less likely education and skills to either obtain or (2) The alien’s health—(i) Standard. to become a public charge. maintain employment sufficient to DHS will consider whether the alien’s (ii) Evidence. USCIS’ consideration avoid becoming a public charge, if health makes the alien more or less includes but is not limited to the authorized for employment. likely to become a public charge, following: (ii) Evidence. USCIS’ consideration including whether the alien has been (A) The alien’s annual gross includes but is not limited to the diagnosed with a medical condition that household income excluding any following: is likely to require extensive medical income from public benefits as defined (A) The alien’s history of treatment or institutionalization or that in 8 CFR 212.21(b); employment; will interfere with the alien’s ability to (B) Any additional income from (B) Whether the alien has a high provide and care for him- or herself, to individuals not included in the alien’s school degree (or its equivalent) or attend school, or to work upon household who physically reside with higher education; admission or adjustment of status. the alien and whose income will be (C) Whether the alien has any (ii) Evidence. USCIS’ consideration relied on by the alien to meet the occupational skills, certifications, or includes but is not limited to the standard at 8 CFR 212.22(b)(4)(i); licenses; and following: (C) Any additional income provided (D) Whether the alien is proficient in (A) A report of an immigration to the alien by another person or source English or proficient in other languages medical examination performed by a not included in the alien’s household on in addition to English. civil surgeon or panel physician where a continuing monthly or yearly basis for (6) The alien’s prospective such examination is required; or the most recent calendar year excluding immigration status and expected period (B) Evidence of a medical condition any income from public benefits as of admission. (i) Standard. The that is likely to require extensive defined in 8 CFR 212.21(b); immigration status that the alien seeks

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00179 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51292 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

and the expected period of admission as provide for him- or herself, attend (3) Amerasian immigrants at the time it relates to the alien’s ability to school, or work; and of application for admission as financially support for himself or herself (B) The alien is uninsured and has described in sections 584 of the Foreign during the duration of their stay, neither the prospect of obtaining private Operations, Export Financing, and including: health insurance, or the financial Related Programs Appropriations Act of (A) Whether the alien is applying for resources to pay for reasonably 1988, Public Law 100–202, 101 Stat. adjustment of status or admission in a foreseeable medical costs related to a 1329–183, section 101(e) (Dec. 22, nonimmigrant or immigrant the medical condition; or 1987), as amended, 8 U.S.C. 1101 note; classification; and (v) The alien had previously been (4) Afghan and Iraqi Interpreter, or (B) If the alien is seeking admission as found inadmissible or deportable on Afghan or Iraqi national employed by or a nonimmigrant, the nonimmigrant public charge grounds. on behalf of the U.S. Government as classification and the anticipated period (2) Heavily weighed positive factors. described in section 1059(a)(2) of the of temporary stay. The following factors will generally National Defense Authorization Act for (ii) [Reserved]; weigh heavily in favor of a finding that Fiscal Year 2006 Public Law 109–163 (7) An affidavit of support, when an alien is not likely to become a public (Jan. 6, 2006), as amended, and section required under section 212(a)(4) of the charge: 602(b) of the Afghan Allies Protection Act, that meets the requirements of (i) The alien’s household has financial Act of 2009, Public Law 111–8, title VI section 213A of the Act and 8 CFR assets, resources, and support of at least (Mar. 11, 2009), as amended, 8 U.S.C. 213a—(i) Standard. A sufficient 250 percent of the Federal Poverty 1101 note, and section 1244(g) of the affidavit of support must meet the Guidelines for a household of the alien’s National Defense Authorization Act for sponsorship and income requirements household size; or Fiscal Year 2008, as amended Public of section 213A of the Act and comply (ii) The alien is authorized to work Law 110–181 (Jan. 28, 2008); with 8 CFR 213a. and is currently employed with an (5) Cuban and Haitian entrants (A) Evidence. USCIS’ consideration annual income of at least 250 percent of applying for adjustment of status under includes but is not limited to the the Federal Poverty Guidelines for a in section 202 of the Immigration following: household of the alien’s household size. Reform and Control Act of 1986 (IRCA), (d) Benefits received before [DATE 60 (1) The sponsor’s annual income, Public Law 99–603, 100 Stat. 3359 (Nov. DAYS FROM DATE OF PUBLICATION assets, and resources; 6, 1986), as amended, 8 U.S.C. 1255a OF THE FINAL RULE]. For purposes of (2) The sponsor’s relationship to the note; this regulation, DHS will consider as a applicant; and (6) Aliens applying for adjustment of negative factor any amount of cash (3) The likelihood that the sponsor status under the Cuban Adjustment Act, assistance for income maintenance, would actually provide the statutorily- Public Law 89–732 (Nov. 2, 1966), as including Supplemental Security required amount of financial support to amended, 8 U.S.C. 1255 note; Income (SSI), Temporary Assistance for (7) Nicaraguans and other Central the alien, and any other related Needy Families (TANF), State and local Americans applying for adjustment of considerations. cash assistance programs that provide status under sections 202(a) and section (c) Heavily weighed factors. The benefits for income maintenance (often 203 of the Nicaraguan Adjustment and factors below will generally weigh called ‘‘General Assistance’’ programs), Central American Relief Act (NACARA), heavily in a public charge and programs (including Medicaid) Public Law 105–100, 111 Stat. 2193 inadmissibility determination. The mere supporting aliens who are (Nov. 19, 1997), as amended, 8 U.S.C. presence of any one enumerated institutionalized for long-term care, 1255 note; circumstance is not, alone, received, or certified for receipt, before (8) Haitians applying for adjustment determinative. [DATE 60 DAYS FROM DATE OF of status under section 902 of the (1) Heavily weighed negative factors. PUBLICATION OF THE FINAL RULE], Haitian Refugee Immigration Fairness The following factors will generally as provided under the 1999 Interim Act of 1998, Public Law 105–277, 112 weigh heavily in favor of a finding that Field Guidance, also known as the 1999 Stat. 2681 (Oct. 21, 1998), as amended, an alien is likely to become a public Field Guidance on Deportability and 8 U.S.C. 1255 note; charge: Inadmissibility on Public Charge (9) Lautenberg parolees as described (i) The alien is not a full-time student Grounds. DHS does not consider any in section 599E of the Foreign and is authorized to work, but is unable other public benefits received, or Operations, Export Financing, and to demonstrate current employment, certified for receipt, before such date. Related Programs Appropriations Act of recent employment history or no 1990, Public Law 101–167, 103 Stat. reasonable prospect of future § 212.23 Exemptions and waivers for 1195, title V (Nov. 21, 1989), as employment; public charge ground of inadmissibility. amended, 8 U.S.C. 1255 note; (ii) The alien is currently receiving or (a) Exemptions. The public charge (10) Special immigrant juveniles as is currently certified or approved to ground of inadmissibility does not described in section 245(h) of the Act; receive one or more public benefit, as apply, based on statutory or regulatory (11) Aliens who entered the United defined in 212.21(b); authority, to the following categories of States prior to January 1, 1972 and who (iii) The alien has received one or aliens: meet the other conditions for being more public benefit, as defined in (1) Refugees at the time of admission granted lawful permanent residence 212.21(b), within the 36 months under section 207 of the Act and at the under section 249 of the Act and 8 CFR immediately preceding the alien’s time of adjustment of status to lawful part 249 (Registry); application for a visa, admission, or permanent resident under section 209 of (12) Aliens applying for or re- adjustment of status; the Act; registering for Temporary Protected (iv)(A) The alien has been diagnosed (2) Asylees at the time of grant under Status as described in section 244 of the with a medical condition that is likely section 208 of the Act and at the time Act under section 244(c)(2)(A)(ii) of the to require extensive medical treatment of adjustment of status to lawful Act and 8 CFR 244.3(a); or institutionalization or that will permanent resident under section 209 of (13) A nonimmigrant described in interfere with the alien’s ability to the Act; section 101(a)(15)(A)(i) and (A)(ii) of the

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00180 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51293

Act (Ambassador, Public Minister, Subtitle D (Sept. 30, 1996), 8 U.S.C. amount(s) received within the Career Diplomat or Consular Officer, or 1255 note; and applicable period of 12 consecutive Immediate Family or Other Foreign (27) Any other categories of aliens months in which the benefits are Government Official or Employee, or exempt under any other law from the received; and Immediate Family), pursuant to section public charge ground of inadmissibility (d) With respect to any cash benefit 102 of the Act, and 22 CFR 41.21(d); provisions under section 212(a)(4) of the received by the alien on a household (14) A nonimmigrant classifiable as Act. (rather than individual) basis, DHS will C–2 (alien in transit to U.N. (b) Waiver. A waiver for the public calculate the value of the benefit Headquarters) or C–3 (foreign charge ground of inadmissibility may be attributable to the alien in proportion to government official), 22 CFR 41.21(d); authorized based on statutory or the total number of people covered by (15) A nonimmigrant described in regulatory authority, for the following the benefit, based on the amount(s) section 101(a)(15)(G)(i), (G)(ii), (G)(iii), categories of aliens: received within the applicable period of and (G)(iv), of the Act (Principal (1) Nonimmigrants who were 12 consecutive months in which the Resident Representative of Recognized admitted under section 101(a)(15)(T) of benefit is received. Foreign Government to International the Act applying for adjustment of Organization, and related categories), status under section 245(l)(2)(A) of the PART 213—PUBLIC CHARGE BONDS pursuant to section 102 of the Act Act; pursuant to 22 CFR 41.21(d); (2) Applicants for admission as ■ 6. The authority citation for part 213 (16) A nonimmigrant classifiable as nonimmigrants under 101(a)(15)(S) of is revised to read as follows: NATO–1, NATO–2, NATO–3, NATO–4 the Act; Authority: 8 U.S.C. 1103; 1183; 8 CFR part (NATO representatives), and NATO–6 (3) Nonimmigrants admitted under 2. section 101(a)(15)(S) of the Act applying pursuant to 22 CFR 41.21(d); ■ 7. Revise the part heading to read as (17) A nonimmigrant classified under for adjustment of status under section set forth above. 245(j) of the Act (witnesses or section 101(a)(15)(T) of the Act, in ■ accordance with section 212(d)(13)(A) informants); and 8. Revise § 213.1 to read as follows: of the Act; (4) Any waiver of public charge § 213.1 Adjustment of status of aliens on (18) An applicant for, or individual inadmissibility that is authorized under submission of a public charge bond. who is granted, nonimmigrant status law or regulation. (a) Inadmissible aliens. In accordance under section 101(a)(15)(U) of the Act in § 212.24 Valuation of monetizable benefits. with section 213 of the Act, after an accordance with section 212(a)(4)(E)(ii) alien seeking adjustment of status has of the Act; In determining the cumulative value of one or more monetizable benefits been found inadmissible as likely to (19) Nonimmigrants classified under become a public charge under section section 101(a)(15)(U) of the Act listed in 8 CFR 212.21(b)(1)(ii) for purposes of a public charge 212(a)(4) of the Act, DHS may allow the applying for adjustment of status under alien to submit a public charge bond, if section 245(m) of the Act and 8 CFR inadmissibility determination under 8 CFR 212.22, DHS will rely on benefit- the alien is otherwise admissible, in 245.24; accordance with the requirements of 8 (20) An alien who is a VAWA self- specific methodology as follows: CFR 103.6 and this section. The public petitioner under section 212(a)(4)(E)(i) (a) With respect to the Supplemental charge bond submitted on the alien’s of the Act; Nutrition Assistance Program (SNAP, (21) A qualified alien described in formerly called ‘‘Food Stamps’’), 7 behalf must meet the conditions set section 431(c) of the Personal U.S.C. 2011 to 2036c, DHS will forth in 8 CFR 103.6 and this section. Responsibility and Work Opportunity calculate the value of the benefit (b) Discretion. The decision to allow Reconciliation Act of 1996, 8 U.S.C. attributable to the alien in proportion to an alien inadmissible under section 1641(c), under section 212(a)(4)(E)(iii) of the total number of people covered by 212(a)(4) of the Act to submit a public the Act; the benefit, based on the amount(s) charge bond is in DHS’s discretion. If an (22) Applicants adjusting status who deposited within the applicable period alien has one or more heavily weighed qualify for a benefit under section 1703 of 12 consecutive months in which the negative factors as defined in 8 CFR of the National Defense Authorization benefits are received in the Electronic 212.22 present in his or her case, DHS Act, Public Law 108–136, 117 Stat. 1392 Benefits Transfer (EBT) card account; generally will not favorably exercise (Nov. 24, 2003), 8 U.S.C. 1151 note (b) With respect to the Section 8 discretion to allow submission of a (posthumous benefits to surviving Housing Assistance under the Housing public charge bond. spouses, children, and parents); Choice Voucher Program, as (c) Public Charge Bonds. (1) Types. (23) American Indians born in Canada administered by HUD under 24 CFR DHS may require an alien to submit a determined to fall under section 289 of part 984; 42 U.S.C. 1437f and 1437u, surety bond, or cash or any cash the Act; DHS will calculate value of the voucher equivalent, as listed in 8 CFR 103.6, and (24) Texas Band of Kickapoo Indians attributable to the alien in proportion to agreement, to secure a bond. DHS will of the Kickapoo Tribe of Oklahoma, the total number of people covered by notify the alien of the type of bond that Public Law 97–429 (Jan. 8, 1983); the benefit, based on the amount(s) may be submitted. All bonds, and (25) Nationals of Vietnam, Cambodia, within the applicable period of 12 agreements covering cash or cash and Laos applying for adjustment of consecutive months in which the equivalents, as listed in 8 CFR 103.6, to status under section 586 of Public Law benefits are received; secure a bond, must be executed on a 106–429 under 8 CFR 245.21; (c) With respect to Section 8 Project- form designated by DHS and in (26) Polish and Hungarian Parolees Based Rental Assistance (including accordance with form instructions. who were paroled into the United States Moderate Rehabilitation) under 24 CFR When a surety bond is accepted, the from November 1, 1989 to December 31, parts 5, 402, 880–884 and 886, DHS will bond must comply with requirements 1991 under section 646(b) of the Illegal calculate the value of the rental applicable to surety bonds in 8 CFR Immigration Reform and Immigrant assistance attributable to the alien in 103.6 and this section. If cash or a cash Responsibility Act of 1996 (IIRIRA), proportion to the total number of people equivalent, as listed in 8 CFR 103.6, is Public Law 104–208, Div. C, Title VI, covered by the benefit, based on the being provided to secure a bond, DHS

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00181 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51294 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

must issue a receipt on a form behalf. If the bond previously submitted law or voluntarily, and physically designated by DHS. to DHS is a limited duration bond departed the United States. An alien is (2) Amount. Any public charge bond, because it expires on a date certain, the only deemed to have voluntarily lost or agreements to secure a public charge substitute bond must be submitted no lawful permanent resident status when bond on cash or cash equivalents, as later than 180 days before the bond the alien has submitted a record of listed in 8 CFR 103.6, must be in an previously submitted to USCIS expires abandonment of lawful permanent amount decided by DHS, not less than and the substitute bond must be valid resident status, on the form prescribed $10,000, annually adjusted for inflation and effective on or before the day the by DHS, in accordance with the form’s based on the Consumer Price Index for bond previously submitted to DHS instructions. All Urban Consumers (CPI–U), and expires. If the bond previously (3) Cancellation Request. An alien rounded up to the nearest dollar. The submitted to DHS is a bond of unlimited must request that a public charge bond bond amount may not be appealed by duration because it does not bear a be cancelled by submitting a form the alien or the obligor. specific end date, the substitute bond designated by DHS, in accordance with (d) Conditions of the bond. A public must specify an effective date. The that form’s instructions and the fee charge bond must remain in effect until substitute bond must meet all of the prescribed in 8 CFR 103.7(b). If a the alien naturalizes or otherwise requirements applicable to the initial request for cancellation of a public obtains U.S. citizenship, permanently bond as required by this section and 8 charge bond is not filed, the bond shall departs the United States, or dies, the CFR 103.6, and if the obligor is different remain in effect until the form is filed, alien requests cancellation after 5 years from the original obligor, the new reviewed, and a decision is rendered. of being a lawful permanent resident, obligor must assume all liabilities of the (4) Adjudication and Burden of Proof. the alien changes immigration status to initial obligor. The substitute bond must The alien and the obligor have the one not subject to public charge ground also cover any breach of the bond burden to establish, by a preponderance of inadmissibility, and the bond is conditions which occurred before DHS of the evidence, that one of the cancelled in accordance with paragraph accepted the substitute bond, in the conditions for cancellation of the public (g) of this section. An alien on whose event DHS did not learn of the breach charge bond listed in paragraph (g)(1) of behalf a public charge bond has been until after the expiration or cancellation this section has been met. If DHS submitted may not receive any public of the bond previously submitted to determines that the information benefits, as defined in 8 CFR 212.21(b), DHS. included in the cancellation request is after the alien’s adjustment of status to (2) Acceptance. Upon submission of insufficient to determine whether that of a lawful permanent resident, the substitute bond, DHS will review cancellation is appropriate, DHS may until the bond is cancelled in the substitute bond for sufficiency. If the request additional information as accordance with paragraph (g) of this bond on file has not yet expired, DHS outlined in 8 CFR 103.2(b)(8). DHS must section. An alien must also comply with will cancel the bond previously cancel a public charge bond if DHS any other conditions imposed as part of submitted to DHS, and replace it with determines that the conditions of the the bond. the substitute bond, provided the bond have been met, and that the bond (e) Submission. A public charge bond substitute bond is sufficient. If the was not breached, in accordance with may be submitted on the alien’s behalf substitute bond was submitted before paragraph (h) of this section. For only after DHS notifies the alien and the the previously submitted bond expired, cancellations under paragraph (g)(1)(iv) alien’s representative, if any, that a bond but is insufficient, DHS will notify the of this section, the alien or the obligor may be submitted. The bond must be obligor of the substitute bond to correct must establish that the public charge submitted to DHS in accordance with the deficiency within the timeframe bond has not been breached during the the instructions of the form designated specified in the notice. If the deficiency 5-year period preceding the alien’s fifth by DHS for this purpose, with the fee is not corrected within the timeframe anniversary of becoming a lawful prescribed in 8 CFR 103.7(b), and any specified, and the previously submitted permanent resident. procedures contained in the DHS bond has not yet expired, the previously (5) Decision. DHS will notify the notification to the alien. DHS will submitted bond will remain in effect. obligor, the alien, and the alien’s specify the bond amount and duration, (g) Cancellation of the Public Charge representative, if any, of its decision as well as any other conditions, as Bond. (1) An alien or obligor may regarding the request to cancel the appropriate for the alien and the request that DHS cancel a public charge public charge bond. When the public immigration benefit being sought. bond if the alien: charge bond is cancelled, the obligor is USCIS will notify the alien and the (i) Naturalized or otherwise obtained released from liability. If the public alien’s representative, if any, that the United States citizenship; charge bond has been secured by a cash bond has been accepted, and will (ii) Permanently departed the United deposit or a cash equivalent, DHS will provide a copy to the alien and the States; refund the cash deposit to the obligor. alien’s representative, if any, of any (iii) Died; If DHS denies the request to cancel the communication between the obligor and (iv) Reached his or her 5-year bond, DHS will notify the obligor and the U.S. government. An obligor must anniversary since becoming a lawful the alien, and the alien’s representative, notify DHS within 30 days of any permanent resident; or if any, of the reasons why, and of the change in the obligor’s or the alien’s (v) Obtained a different immigration right of the obligor to appeal in physical and mailing address. status not subject to public charge accordance with the requirements of 8 (f) Substitution. A bond not eligible inadmissibility, as listed in 8 CFR CFR part 103, subpart A. An obligor for cancellation under paragraph (g) of 212.23, following the grant of lawful may file a motion pursuant to 8 CFR this section must be substituted prior to permanent resident status associated 103.5 after an unfavorable decision on the expiration of the validity of the bond with the public charge bond. appeal. Neither the alien nor the alien’s previously submitted to DHS. (2) Permanent Departure Defined. For representative may appeal a denial to (1) Substitution Process. Either the purposes of this section, permanent cancel the public charge bond or file a obligor of the bond previously departure means that the alien lost or motion. submitted to DHS or a new obligor may abandoned his or her lawful permanent (h) Breach—(1) Breach and Claim in submit a substitute bond on the alien’s resident status, whether by operation of Favor of the United States. An

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00182 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules 51295

administratively final determination a copy of this notification to the alien section has been waived, as a condition that a bond has been breached creates a and the alien’s representative, if any. for approval of extension of status, the claim in favor of the United States. Such After the obligor’s response, or after the alien must demonstrate that he or she claim may not be released or discharged specified deadline has passed, DHS will has not received since obtaining the by an immigration officer. A breach make a breach determination. nonimmigrant status he or she seeks to determination is administratively final (4) Decision. DHS will notify the extend, is not receiving, nor is likely to when the time to file an appeal with the obligor and the alien, and the alien’s receive, a public benefit as defined in 8 Administrative Appeals Office (AAO) representative, if any, of the breach CFR 212.21(b). For the purposes of this pursuant to 8 CFR part 103, subpart A, determination. If DHS determines that a determination, DHS will consider such has expired or when the appeal is bond has been breached, DHS will public benefits received on or after dismissed or rejected. inform the obligor of the right to appeal [DATE 60 DAYS FROM DATE OF (2) Breach of Bond Conditions. (i) The in accordance with the requirements of PUBLICATION OF THE FINAL RULE]. conditions of the bond are breached if 8 CFR part 103, subpart A. The obligor In assessing whether the alien has met the alien has received public benefits, as may only file a motion in accordance his or her burden, DHS will consider the defined in 8 CFR 212.21(b), after the with 8 CFR 103.5 of an unfavorable nonimmigrant classification the alien is alien’s adjustment of status to that of a decision on appeal. The alien or the seeking to extend, the reasons for lawful permanent resident and before alien’s representative, if any, may not seeking the extension of stay and the the bond is cancelled under paragraph appeal the breach determination or file expected period of stay. For purposes of (g) of this section. Public benefits, as a motion. this determination, DHS may require the defined in 8 CFR 212.21(b), received (5) Demand for Payment. Demands for submission of a declaration of self- during periods while an alien is present amounts due under the terms of the sufficiency on a form designated by in the United States in a category that bond will be sent to the obligor or any DHS, in accordance with form is exempt from the public charge ground agent/co-obligor after a declaration of instructions. of inadmissibility, as set forth in 8 CFR breach becomes administratively final. * * * * * 212.23, following the initial grant of (6) Amount of Bond Breach and Effect (c) * * * status as a lawful permanent resident, on Bond. The bond must be considered (4) * * * and public benefits received after the breached in the full amount of the bond. (iv) As set forth in 8 CFR alien obtained U.S. citizenship, may not (i) Exhaustion of administrative 214.1(a)(3)(iv), except where the alien’s be considered when determining remedies. Unless administrative appeal nonimmigrant classification is whether the conditions of the bond have is precluded by regulation, a party has exempted by law from section 212(a)(4) been breached. DHS will not consider not exhausted the administrative of the Act, the alien has not received any benefits, as defined in 8 CFR 212.21 remedies available with respect to a since obtaining the nonimmigrant status (b)(1) through (b)(3), received by an public charge bond under this section for which he or she seeks to extend, is alien who, at the time of receipt filing, until the party has obtained a final not currently receiving, nor is likely to adjudication or bond breach or decision in an administrative appeal receive, public benefits as described in cancellation determination, is enlisted under 8 CFR part 103, subpart A. in 8 CFR 212.21(b). For the purposes of in the U.S. armed forces under the (ii) [Reserved] this determination, DHS will consider authority of 10 U.S.C. 504(b)(1)(B) or 10 public benefits received on or after U.S.C. 504(b)(2), serving in active duty PART 214—NONIMMIGRANT CLASSES [DATE 60 DAYS FROM DATE OF or in the Ready Reserve component of ■ PUBLICATION OF THE FINAL RULE]; the U.S. Armed Forces, or if received by 9. The authority citation for part 214 and such an individual’s spouse or child as continues to read as follows: defined in section 101(b) of the Act.; or Authority: 6 U.S.C. 202, 236; 8 U.S.C. * * * * * (ii) The conditions of the bond 1101, 1102, 1103, 1182, 1184, 1186a, 1187, otherwise imposed by DHS as part of 1221, 1281, 1282, 1301–1305 and 1372; sec. PART 245—ADJUSTMENT OF STATUS the public charge bond are breached. 643, Pub. L. 104–208, 110 Stat. 3009–708; TO THAT OF A PERSON ADMITTED (3) Adjudication. DHS will determine Public Law 106–386, 114 Stat. 1477–1480; FOR PERMANENT RESIDENCE section 141 of the Compacts of Free whether the conditions of the bond have ■ 11. The authority citation for part 245 been breached. If DHS determines that Association with the Federated States of Micronesia and the Republic of the Marshall continues to read as follows: it has insufficient information from the Islands, and with the Government of Palau, benefit granting agency to determine Authority: 8 U.S.C. 1101, 1103, 1182, 1255; 48 U.S.C. 1901 note, and 1931 note, Pub. L. 105–100, section 202, 111 Stat. 2160, whether a breach occurred, DHS may respectively; 48 U.S.C. 1806; 8 CFR part 2. 2193; Pub. L. 105–277, section 902, 112 Stat. request additional information from the ■ 2681; Pub. L. 110–229, tit. VII, 122 Stat. 754; benefit granting agency. If DHS 10. Section 214.1 is amended by: ■ a. Adding paragraph (a)(3)(iv), 8 CFR part 2. determines that it has insufficient ■ ■ b. Removing the term, ‘‘and’’ in 12. Section 245.4 is amended by information from the alien or the paragraph (c)(4)(iii); redesignating the undesignated text as obligor, it may request additional ■ c. Redesignating paragraph (c)(4)(iv) paragraph (a) and adding paragraph (b) information as outlined in 8 CFR part as paragraph (c)(4)(v); and to read as follows: 103 before making a breach ■ d. Adding a new paragraph (c)(4)(iv). § 245.4 Documentary requirements. determination. If DHS intends to declare The additions read as follows: a bond breached based on information * * * * * that is not otherwise protected from § 214.1 Requirements for admission, (b) For purposes of public charge disclosure to the obligor, DHS will extension, and maintenance of status. determinations under section 212(a)(4) disclose such information to the obligor (a) * * * of the Act and 8 CFR 212.22, an alien to the extent permitted by law, and (3) * * * who is seeking adjustment of status provide the obligor with an opportunity (iv) Except where the nonimmigrant under this part must submit a to respond and submit rebuttal classification for which the alien declaration of self-sufficiency on a form evidence, including specifying a applies, or seeks to extend, is exempt designated by DHS, in accordance with deadline for a response. DHS will send from section 212(a)(4) of the Act or that form instructions.

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00183 Fmt 4701 Sfmt 4702 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3 51296 Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules

PART 248—CHANGE OF 1101(a)(15)(K), or as an alien in transit (c) * * * NONIMMIGRANT CLASSIFICATION under section 101(a)(15)(C) of the Act, 8 (4) As a condition for approval, an U.S.C. 1101(a)(15)(C). Except where the ■ alien seeking to change nonimmigrant 13. The authority citation for part 248 nonimmigrant classification to which continues to read as follows: classification must demonstrate that he the alien seeks to change is exempted by or she has not received since obtaining Authority: 8 U.S.C. 1101, 1103, 1184, law from section 212(a)(4) of the Act, as the nonimmigrant status from which he 1258; 8 CFR part 2. a condition for approval of a change of or she seeks to change, is not receiving, ■ 14. Section 248.1 is amended by: nonimmigrant status, the alien must nor is likely to receive, a public benefit ■ a. Revising paragraph (a); demonstrate that he or she has not as defined in 8 CFR 212.21(b). For ■ b. Redesignating paragraphs (b) received since obtaining the purposes of this determination, DHS through (e) as paragraphs (c) through (f), nonimmigrant status from which he or will consider such benefits received on respectively; and she seeks to change, is not currently or after [DATE 60 DAYS FROM DATE ■ c. Adding a new paragraph (b); and receiving, nor is likely to receive, public OF PUBLICATION OF THE FINAL ■ d. Revising newly redesignated benefits as described in 8 CFR 212.21(b). RULE]. In assessing whether the alien paragraph (c)(4). DHS will consider public benefits has met his or her burden, DHS will The revisions and additions read as received on or after [DATE 60 DAYS follows: consider the prospective nonimmigrant FROM DATE OF PUBLICATION OF classification, the reasons for seeking § 248.1 Eligibility. THE FINAL RULE]. An alien defined by the change of status, and the expected (a) General. Except for those classes section 101(a)(15)(V), or 101(a)(15)(U) of period of stay. DHS may require the enumerated in § 248.2 of this part, any the Act, 8 U.S.C. 1101(a)(15)(V) or 8 submission of a declaration of self- alien lawfully admitted to the United U.S.C. 1101(a)(15)(U), may be accorded sufficiency on a form designated by States as a nonimmigrant, including an nonimmigrant status in the United DHS, in accordance with form alien who acquired such status in States by following the procedures set instructions. This provision does not accordance with section 247 of the Act, forth in 8 CFR 214.15(f) and 214.14, apply to classes of nonimmigrants who 8 U.S.C. 1257, who is continuing to respectively. are explicitly exempt by law from maintain his or her nonimmigrant (b) Decision in change of status section 212(a)(4) of the Act. status, may apply to have his or her proceedings. Where an applicant or * * * * * nonimmigrant classification changed to petitioner demonstrates eligibility for a any nonimmigrant classification other requested change of status, it may be Kirstjen M. Nielsen, than that of a spouse or fiance(e), or the granted at the discretion of DHS. There Secretary. child of such alien, under section is no appeal from the denial of an [FR Doc. 2018–21106 Filed 10–5–18; 8:45 am] 101(a)(15)(K) of the Act, 8 U.S.C. application for change of status. BILLING CODE 4410–10–P

VerDate Sep<11>2014 22:48 Oct 09, 2018 Jkt 247001 PO 00000 Frm 00184 Fmt 4701 Sfmt 9990 E:\FR\FM\10OCP3.SGM 10OCP3 daltland on DSKBBV9HB2PROD with PROPOSALS3