[NOTE – I summarized the public charge proposed rule that was released in October 2018 and I’m adapting that article to show changes from the proposed to the final rule. I’ve left much of that earlier article in because it provided useful background information even though the article may not flow as well as I’d like. But given the sheer length of the final rule and the need for information to be distributed quickly, I’ve decided to release this overview tonight, the same day the final rule was announced. So please forgive a little sloppiness.]
Public Charge Rule Section by Section Summary
On August 13, 2019, the Trump Administration released the text of a long-anticipated, controversial rule that will significantly expand the government’s use of a provision of the Immigration and Nationality Act that bars the admission of immigrants who are deemed likely to become a “public charge.” The rule would cover all immigrants and non-immigrants seeking admission to the US, adjustment of status, and extensions and changes of status for non-immigrants and is set to take effect 60 days after it is published (likely a date in mid-October). The rule follows the release of a proposed rule in October 2018 and has been expected for the last few months.
As soon as the rule was released, the National Immigration Law Center announced it would be challenging the rule and further lawsuits may follow.
The 837-page rule defines “public charge” as used in Section 214(a)(4) of the Immigration and Nationality Act, defines the types of public benefits to be considered in public charge inadmissibility determinations, and the various factors to be considered by the government in making public charge determinations. The rule also sets out the procedure for people to pay “public charge bonds” in adjustment of status cases. Finally, the agency is making revisions to existing USCIS information collections and new information collection instruments to accompany the regulatory changes.
The rule also comes with the withdrawal of a 1999 proposed rule on public charge criteria that never was finalized.
- Executive Summary – DHS states that the purpose of the rule is to ensure aliens subject to the public charge inadmissibility ground “are self-sufficient, i.e., do not depend on public resources to meet their needs, but rather rely on their own capabilities, as well as the resources of family members, sponsors, and private organizations.”
The rule redefines “public charge” to mean an alien who receives one or more designated public benefits for more than 12 months in the aggregate within any 36-month period (such that receipt of two benefits in one month counts as two months). “Public benefit” includes cash benefits for income maintenance, SNAP (food stamps), most forms of Medicaid, various Section 8 Housing Assistance programs, and other forms of subsidized housing.
DHS officers will use a “totality of the circumstances” analysis to ultimately decide if someone is inadmissible and the rule goes into considerable detail in providing officers’ guidelines to make that determination.
USCIS will be creating a new Form I-944 Declaration of Self-Sufficiency to be submitted as part of an adjustment of status case.
Finally, DHS will begin accepting public charge bonds.
- Major Provisions of the Regulatory Action
- Amending 8 CFR 103.6, Surety bonds used to address public charge concerns.
- Amending 8 CFR 103.7 adding fees for a new Form I-945, Public Charge Bond and Form I-356, Request for Cancellation of Public Charge Bond.
- Adding 8 CFR 212.20 which identifies categories of aliens subject to public charge inadmissibility determinations.
- Adding 8 CFR 212.21 which includes definitions regarding the public charge requirement.
- Adding 8 CFR 212.22 which sets out the standard for determining the likelihood of becoming a public charge.
- Adding 8 CFR 212.23 which sets out an exemption and waiver process.
- Adding 8 CFR 212.24 which provides a methodology for calculating the annual aggregate amount of the portion attributable to the alien for certain benefits.
- Amending 8 CFR 213.1 to add public charge bond procedures for adjustment of status applications.
- Amending 8 CFR 214.1 mandating the denial of requests for admission, extension, and maintenance of status for non-immigrants who have received public benefits described in 8 CFR 212.21(b).
- Amending 8 CFR 245.4 to require a new Form I-944, Declaration of Self-Sufficiency, for adjustment of status applicants.
- Purpose of the Rule
- Self-Sufficiency – people “do not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their family, sponsor and private organizations.”
DHS will consider the following minimum factors that reflect the likelihood an alien will become a public charge:
- The alien’s age
- Family status
- Financial status
- Education and skills
- An affidavit of support submitted by the alien’s sponsor
- Any other factor relevant to the likelihood of becoming a public charge
Decisions will be based on determining that an alien is “incapable of earning a livelihood,” “does not have sufficient funds in the US for support,” and “who has no person in the US willing and able to assure the alien will not need public support.”
- Public Charge Inadmissibility Determinations
USCIS notes that the statute lays out the broad factors to be used to determine is one is a public charge, but neither the statute nor the proposed 1999 rule outline the mandatory factors or explained how to weigh factors in the public charge inadmissibility determination. Also, the 1999 proposed rule only spoke to cash benefits, but this rule removes the “artificial distinction” between cash and non-cash benefits.”
- Discussion of Rule
According to DHS, the rule does the following:
- Defines public charge and public benefit and “receipt” of public benefits
- Establishes a framework under which DHS will evaluate those factors to determine whether or not an alien is likely at any time in the future to become a public charge
- Clarify the role of a sponsor’s affidavit of support
- Sets certain factual circumstances that would weigh heavily in favor of determining an alien is not likely to become a public charge
- For applications for adjustment of status, the alien would be required to submit a form I-944
- Establish a public charge bond process in the adjustment of status context
- Clarifies DHS’s authority to set conditions for nonimmigrant extension of stay and change of status applications
- Interprets the public charge inadmissibility and deportability ground
- Applicability, Exemptions, and Waivers
The processes and evidentiary requirements in this rule vary depending on the type of benefit and status an alien is seeking.
- Applicants for Admission
For nonimmigrant visas, the type of nonimmigrant status and the duration of the nonimmigrant’s stay in the US would be considered in assessing whether the applicant has met his or her burden of demonstrating that he or she is likely to become a public charge.
DHS notes that the process for people consular processing immigrant visas at consulates would not change under the rule.
Lawful permanent residents aren’t considered to be applicants for admission upon their return from a trip abroad. Exceptions are when an LPR has abandoned his or her status, is outside the US for 180+ days, has engaged in illegal activity after departing the US, LPRs who have departed the US while in removal proceedings, LPRs who have committed certain offenses and LPRs attempting to enter the US without inspection.
- Extension of Stay and Change of Status Applicants
DHS is proposing to require an applicant for an extension of stay or change of nonimmigrant status to attest that he or she has neither received since obtaining the nonimmigrant status nor is likely to receive at any time in the future one or more public benefits under the rule.
DHS admits that 212(a)(4) applies to applicants for visas, admission, and adjustment of status, but that it is asserting the government’s interest in ensuring alien’s do not depend on public benefits to meet their needs. Aliens must remain self-sufficient for the entire period of their stay. DHS will now consider an alien’s financial status in determining if the alien has maintained their current nonimmigrant status. Questions will be added to the I-129 and I-539 regarding this. Employers will have to ask their workers about this in order to complete the forms.
The rule has a list of non-immigrant categories and whether they are subject to the public charge rule (dependent visas follow the rule for the principle):
A-1, A-2 – No
A-3 – Yes
B-1/B-2 – Yes
C-1/C-1D/C-2/C-3 – No
CW-1 – Yes
D – Yes
E-1/E-2/E-2-CNMI – Yes
E-3 – Yes
F-1 – Yes
G-1/G-2/G-3/G-4 – No
H-1B/H-1B1 – Yes
H-1C – Yes
H-2A – Yes
H-2B – Yes
H-3 – Yes
I – Yes
J-1 – Yes
K-1 – Not applicable
K-3 – Yes
L-1 – Yes
M-1 – Yes
N-8 – Yes
NATO-1-7 – No
O-1 – Yes
P-1 – Yes
Q-1 – Yes
R-1 – Yes
S-5/6/7 – Yes
T-1 – No
TN – Yes
U-1 – No
V-1 – Yes
W-B – Not applicable
- Adjustment of Status Applicants
DHS has a chart showing the applicability of the public charge to various types of adjustment cases and whether an I-864 Affidavit of Support is required:
Immediate Relatives of US citizens – subject/required
Family 1st – subject/required
Family 2nd – subject/required
Family 3rd – subject/required
Family 4th – subject/required
Fiance (admitted as K-1/K-2) – subject/required
Amerasians born between 12/31/1950 and 10/22/1982 – subject/exempt
Amerasians born in Vietnam between 1/1/62 and 1/1/76 – Not subject/exempt
IW-6 Spouses, widows, widowers – subject/exempt
Immediate Relative VAWA applicant – subject/exempt
First Preference VAWA – Not subject/exempt
Second Preference VAWA – Not subject/exempt
Third Preference VAWA – Not subject/exempt
EB-1 – Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140
EB-2 – Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140
EB-3 – Subject/exempt, unless qualifying relative or entity in which such relative has a significant ownership (5% or more) in filed Form I-140
EB-5 – Subject/Not applicable
Special immigrant categories
Special Immigrant EB-4 Religious Workers – Subject/Not applicable
Special Immigrant EB-4 International employees of US government abroad – Subject/Not applicable
Special Immigrant EB-4 Employees of Panama Canal – Subject/Not applicable
Special Immigrant EB-4 – Foreign Medical School Graduates – Subject/Not applicable
Special Immigrant EB-4 – Retired employees of International Organizations – Subject/Not applicable
Special Immigrant EB-4 – SL-6 Juvenile Court dependents – Not subject/Not applicable
Special Immigrant EB-4 US Armed Forces Personnel – Subject/Not applicable
Special Immigrant EB-4 – International Broadcasters – Subject/Not applicable
Special Immigrant EB-4 – Iraqi/Afghan interpreters – Not subject/exempt
Refugee, Asylee, and Parolee categories
Asylees – Not subject/exempt
Indochinese Parolees – Not subject/Exempt
Polish and Hungarian Parolees – Not subject/Exempt
Refugees – Not subject/Exempt
Cuban-Haitian Entrants under IRCA – Not subject/Exempt
HRIFA – Not subject/exempt
Diplomats Section 13 – Subject/Exempt
Individuals born in the US under diplomatic status – Subject/exempt
Diversity Visa – Subject/Exempt
W-16/W-26 legalization – Subject/exempt
T-1 Victims – Subject/exempt
American Indian – Not subject/exempt
Texas Band of Kickapoo Indians – Not subject/exempt
S visas – Subject (but waiver available)/exempt
Private Immigration Bill – Depends on bill text/depends on bill text
NACARA – Not subject/exempt
Lautenberg – Not subject/exempt
Registry – Not subject/exempt
U Victims – Not subject/exempt
TPS – Not subject/Exempt
Lists again the categories above that are outside the public charge framework.
The rule at 212.23(b) lists categories Congress has authorized to apply for waivers of the public charge inadmissibility ground:
- T nonimmigrants
- S nonimmigrants
- Applicants for adjustment of status under Section 245(j) (alien witness or informant)
- Other waivers of the public charge ground in Section 214(a)(4)
- Definitions of Public Charge and Related Terms
- Public Charge
Not defined in the statute. DHS defines it to be an alien “who receives one or more public benefits, as defined in 8 CFR 212.21(b).” Aliens subject to the ground should “not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations.” DHS simplified the rules for determining a public charge from the proposed rule and states that a “public charge” is an alien who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two public benefits in one month counts as two months).
- Public Benefit
DHS is defining “public benefit” to include a specific list of cash aid and noncash medical care, housing and food benefit programs where either 1) the cumulative value of one or more such benefits where DHS can determine the cash value of the benefit exceeds 15% of the Federal Poverty Guidelines for a household of one
The rule will consider the following public benefits:
- Cash benefits
- Any Federal, State, local or tribal cash assistance for income maintenance including SSI, TANF, and Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the state context)
- Benefits that can be monetized under new 8 CFR 212.24
- Supplemental Nutrition Assistance Program (SNAP, previously known as Food Stamps)
- Section 8 public housing
- Non-cash benefits
- Medicaid (except for emergency medical conditions and benefits provided under the Individuals with Disabilities Education Act (IDEA) and benefits provided to foreign-born children of US citizen parents)
- Premium and Cost Sharing Subsidies for Medicare Part D (the Medicare prescription drug benefit) and benefits provided for institutionalization for long-term care at government expense
- Subsidized Housing under the Housing Act of 1937
(a) Types of Public Benefits
“Food, shelter and necessary medical treatment are basic necessities of life. A person who needs the public’s assistance to provide for these basic necessities is not self-sufficient.”
DHS is including all cash assistance programs as part of the public benefits definition. Regarding non-cash benefits, the universe of such benefits is very large, but DHS is proposing to incorporate only a limited list of non-cash benefits (see the list above).
DHS includes a table showing the average annual benefit per person for the various programs included on the list: Medicaid – $7426; SNAP – $1527; SSI – $6593; Federal Rental Assistance – $8121; Medicare Part D Low Income Subsidy – $2099; Children’s Health Insurance Program – $2324; TANF – $1272. DHS believes the data shows that these programs are accessed by a great number of people subject to the public charge requirement (20% of foreign-born receive non-cash benefits and 2-4% receive cash benefits – though the agency admits it cannot distinguish asylees and refugees in that number).
(b) Consideration of Public Benefits
In the proposed rule, “DHS notes…that for admissibility and adjustment of status purposes, the receipt of such benefits would be determined on a prospective basis, i.e. likely at any time to receive benefits above the proposed threshold(s).” For extension of stay and change of status applicants, the determination is based on whether an alien has received since obtaining nonimmigrant status or is likely at any time to receive benefits above the proposed threshold.” In the final rule, “likely to receive” will not be considered in nonimmigrant cases and only past receipt of benefits will be factored into a public charge determination.
Query – What does “likely” mean?
- “Primarily Dependent” Standard and Its Limitations
15% of Federal Poverty Guidelines (“FPG”) is different than 1999 standard of being “primarily dependent” on public benefits (a person for whom the benefits are more than half of their income and support). DHS believes that 50% is too generous and a lot of people who are not self-sufficient are below that threshold. “DHS believes that receipt of such benefits even in a relatively small amount or for a relatively short duration would in many cases be sufficient to render a person a public charge.” DHS doesn’t believe the plain text of 212(a)(4) requires a 50% threshold.
- 15% of Federal Poverty Guidelines Standard for Monetizable Benefits
Under the formula for an individual, 15% means up to $1821 worth of monetizable benefits can be excluded in a 12-month period. DHS defends 15% as the right amount to distinguish between self-sufficient and not (though they just assert this is true without offering any evidence to support). DHS is requesting comments on whether 15% is the right number and also whether receiving lesser amounts should weigh in a totality of the circumstances test.
iii. 12 Month Standard for Non-Monetizable Benefits
“In DHS’s view, individuals who receive the non-monetizable public benefits covered by this rule for more than 12 months are unable to meet their basic needs without government help.” Benefits are stacked. So, for example, if a person got Medicaid for 9 months and public housing for 6 months, if both occurred within the same 36-month period, it would amount to 15 months of non-monetizable benefits regardless of overlap. DHS seeks comment on this approach as well as alternatives.
DHS believes reducing the 12-month timeframe by 3 months is “reasonable” and “easily administered.”
Public Benefits – This section lists and describes the covered benefits
- Supplemental Security Income (SSI)
- Temporary Assistance for Needy Families (TANF)
iii. General Assistance Cash Benefits
- Supplemental Nutrition Assistance Program (SNAP)
- Housing Programs
- Section 8 Housing Choice Voucher Program
- Section 7 Project-Based Rental Assistance
- Description of Program
- Exception for Certain Medicaid Services (see above) – notes that “emergency medical conditions” excluded including for emergency labor and delivery; states decide what is “emergency”
- Exception for Receipt of Medicaid B Foreign-Born Children of US Citizens – applies often in adoption cases
- Institutionalization for Long-Term Care
DHS has removed what is seen by many as a particularly cruel provision. Under the proposed rule, institutionalization for the following would be considered receiving public benefits:
Hospital services, Intermediate Care Facilities for People with Intellectual Disability, Nursing Facilities, Preadmission Screening & Resident Review, Inpatient Psychiatric Services for Individuals Under Age 21 and Services for Individuals Age 65 or Older in an Institution for Mental Diseases.
DHS removed this provision from the final rule because such benefits to be “already part of the public benefit definition, i.e., Temporary Assistance for Needy Families (TANF), Supplementary Security Income (SSI) and Medicaid).
iii. Premium and Cost Sharing Subsidies under Medicare Part D
- Subsidized Public Housing
(e) Receipt of Public Benefits by Active Duty and Reserve Servicemembers and Their Families
DHS is proposing to exclude this population.
(f) Unenumerated Benefits
Only non-cash benefits listed in the rule count. Social Security retirement benefits, general Medicare and a wide range of Veteran’s benefits would not be included. Also doesn’t include worker’s compensation and non-cash benefits that provide education, child development and employment and training.
(g) Request for Comment Regarding the Children’s Health Insurance Program (CHIP) – DHS is considering adding to the list of included benefits. CHIP being considered and DHS is seeking comment.
(h) Request for Comment Regarding Public Benefit Receipt by Certain Alien Children
Basically, a child receiving public benefits is not necessarily a good indicator of future self-sufficiency. DHS wants comments on how to consider age.
(i) Request for Comment Regarding Potential Modifications by Public Benefit Granting Agencies
Agencies may choose to modify enrollment processes to warn immigrants about the consequences of accepting the benefits. DHS may decide on effective date depending on how long this process would take.
- Likely at Any Time to Become a Public Charge
DHS defines to mean likely to receive public benefits in the future. DHS notes that receiving benefits by itself doesn’t mean an alien is likely to become a public charge. Depends on likelihood of future events. DHS altered the proposed rule to state that one must be “more likely than not at any time in the future to become a public charge” as determined based on the totality of the alien’s circumstances.
“DHS notes that while the number of children, including US citizen children, may count toward an alien’s household size for purposes of determining inadmissibility on the public charge ground, the direct receipt of public benefits by those children would not factor into the public charge inadmissibility determination.”
(a) Definition of Household in Public Charge Inadmissibility Context
If the alien is 21 or older, or under 21 and married, the household would include
- The alien
- The alien’s spouse, if physically residing with them
- The alien’s children physically residing with them
- The alien’s other children not physically residing with them if the alien is required to provide at least 50% of financial support
- Any other individuals to whom the alien provides or is required to provide at least 50% of the individual’s financial support; and
- Any individual who provides to the alien at least 50% of the alien’s financial support or who lists the alien as a dependent on his or her tax return
If the alien is a child, the alien’s household includes
- The alien
- The alien’s children physically residing with the alien
- The alien’s other children who are receiving child support
- The alien’s parents, legal guardians or others providing at least 50% of financial support to the alien
- The parents’ or legal guardians’ other children physically residing with the alien
- The parents’ or legal other children who are getting child support
- Any other individuals to whom the alien’s parents or legal guardians provide or are required to provide at least 50% financial support or who are listed as dependents on the parents’ or guardians’ tax return.
(b) Definitions of “Household” and Similar Concepts in other Public Benefits Contexts
DHS says its definition tracks HUD’s definition from 1937 Housing Act. Broader than IRS dependent definition.
(c) Definitions of Household and Similar Concepts in other Immigration Contexts
Uses same approach as affidavit of support. DHS is proposing to consider the affidavit of support in the totality of the circumstances when determining whether an alien is likely to become a public charge. But household in this rule doesn’t include or exclude the sponsor and the sponsor’s household.
- Public Charge Inadmissibility Determination
DHS – The public charge inadmissibility determination is a prospective determination based on the totality of an alien’s circumstances at the time of adjudication. An affidavit of support may be deemed insufficient and the alien will be found inadmissible regardless of any other evidence submitted.
- Absence of a Required Affidavit of Support
If it’s missing and it’s required, it’s an automatic denial.
- Prospective Determination Based on Totality of Circumstances
DHS looks to whether the alien is likely to become a public charge and not whether the alien is currently a public charge. The past or current receipt of public benefits, alone, is insufficient to to sustain a finding that an alien is likely to become a public charge in the future.
Query – Can a determination of becoming a future public charge be made if a person has never received public benefits? Whoa if true.
Totality of the circumstances includes an alien’s age; health; family status, assets, resources and financial status; and education and skills. The affidavit of support is also to be factored.
The statute requires more than a showing of a possibility that the alien will require public support. Some specific circumstance, such as mental or physical disability, advanced age, or other fact tending to show that the burden of supporting the alien is likely to be cast on on the public, must be present.
Note – This seems to confirm that regardless of whether public benefits have previously been received or whether the person has an affidavit of support, DHS can look at the person and deem them to be a high risk and deny them the immigration benefit.
DHS will consider age primarily in relation to employment or employability and secondarily to other factors as relevant to determining whether someone is likely to become a public charge. Being between 18 and 61 is a positive factor and being under 18 or over 61 is a negative factor.
An alien’s health is a factor that will be considered by DHS. The mere presence of a medical condition would not render an alien inadmissible. Rather, it will be evaluated in light of the effect that condition is likely to have on the alien’s ability to attend school or work. Having private health insurance or the financial resources to pay the costs would be considered. “Long-term care health care expenses to treat such a medical condition could decrease an individual’s available financial resources.”
- USCIS Evidentiary Requirements
- Any required Report of Medical Examination (I-693) or applicable DOS medical exam form; or
- Evidence of a medical condition that is likely to require extensive medical treatment
Consulates and CBP may require medical exams to determine medical inadmissibility of nonimmigrants.
DHS would also consider other medical records such as a licensed doctor’s attestation of prognosis and treatment of medical condition.
- Potential Effects for Aliens with a Disability, Depending on Individual Circumstances
DHS will consider accepting an I-693 in any case.
DHS says this rule doesn’t violate the ADA by discriminating against people with disabilities. Seems like a problem, however, as it is definitely a factor in a public charge determination.
- Family Status
Does the alien have a household to support? Does the size make the alien more or less likely to become a public charge?
- Assets, Resources, and Financial Status
The 1999 guidance looked to the affidavit of support. But DHS argues that that’s a separate requirement and they’ll look at more than that for this factor. The alien will need to present independent evidence of assets and resources. Alien’s own assets an resources are factored in and not just the affidavit of support sponsor. DHS will use the 125% of FPG to be the line to determine if household income is a positive or negative factor.
An alien’s financial status would also include the alien’s liabilities as evidenced by the alien’s credit report and score, as well as whether the alien has in the past, or is currently, receiving public benefits, among other considerations. [Undoubtedly controversial]
- Evidence of Assets and Resources
- Alien’s gross household income, excluding income from public benefits
- Any additional income from individuals not included in the alien’s household who physically reside with the alien and whose income will be relied on
- Any additional income to the alien from another person or source
- The household’s cash assets and resources, including as reflected in checking and savings account statement in the last 12 months;
- The household’s non-cash assets and resources that can be converted to cash within 12 months
- Evidence of Financial Status
DHS will review whether the alien has any financial liabilities or past reliance on public benefits and will look at the following evidence –
- If the alien has applied for or received any public benefit on or after the effective date of the final rule
- If the person has been certified or approved to receive public benefits on or after the effective date of the final rule
- If the alien has applied for or received a fee waiver for immigration benefits after the effective date of the final rule (i.e. that benefit becomes a trap)
- Credit histories and credit scores
- Whether the alien has private health insurance or the financial resources to pay for medical costs associated with a medical condition described in 212.22(b)(2).
(a) Public Benefits
Current or past application for public benefits is a negative factor. So it appears to look backwards and not just from the effective date of the rule. However, being certified or approved to receive public benefits on or after the effective date is to be considered and not being certified or approved in the past. [Not sure what the point of the distinction is]. In the final rule, disenrollment is to be considered and proof of denial of a benefit because the person had too high income will also be a factor.
(b) Fee Waivers for Immigration Benefits
USCIS would consider past receipt of a fee waiver as part of the financial status factor. Fee exemptions are not a factor, however.
(c) Credit Report and Score
DHS considers the information in credit reports to be useful in determining whether a person’s financial status is weak. Because many immigrants do not have credit reports or scores, USCIS will not view negatively the lack of one.
(d) Financial Means to Pay for Medical Costs
Lacking private health insurance is a negative factor. Obamacare was no longer in the proposed rule so having health insurance obtained on the exchange and receiving subsidies is apparently a non-factor.
- Education and Skills
“An applicant’s education and skills are mandatory statutory factors that must be considered when determining whether an alien is likely to become a public charge in the future.” DHS presents a number of charts to show people with less education more likely to accept public benefits. English language skills a factor as well as being proficient in additional languages.
- USCIS Evidentiary Requirements
- Alien’s recent history of employment
- Alien’s academic degree or certifications including a high school degree (or equivalent) or higher
- Alien’s occupational skills, certifications, or licenses; and
- The alien’s proficiency in English or proficiencies in additional languages
- Prospective Immigration Status and Expected Period of Admission
The length of the trip to the US and the type of visa category would be a factor considered.
DHS will consider that an applicant for a green card may be eligible for benefits FIVE years after arrival and visa that as a factor. People coming as visitors wouldn’t have as much of a burden.
- Affidavit of Support
Failure to provide a required affidavit of support is an automatic ground to deny. But it is only to be included in a determination of the totality of the circumstances and is not alone evidence on public charge.
- General Consideration of Sponsorship and Affidavits of Support
DHS would consider a facially valid affidavit of support a positive factor. “DHS has concerns about relying on sponsors to ensure that aliens will not become a public charge.”
- Proposal to Consider Required Affidavits of Support
“When determining the weigh to give an affidavit of support in the totality of the circumstances, USCIS would assess the sponsor’s annual income, assets, resources, and financial status, relationship to applicants, the likelihood that the sponsor would actually provide financial support to the alien and any other considerations.” DHS will also look at whether the sponsor has submitted affidavits of support for other individuals.
USCIS may interview sponsors of affidavits of support if they have concerns.
- Heavily Weighed Factors
- Heavily Weighed Negative Factors
(a) Lack of employability
As long as an alien is not a full-time student and is authorized to work, DHS proposes that the absence of current employment, employment history, or reasonable prospect of future employment will be a heavily weighed negative factor. DHS recognizes that not everyone authorized needs to work and will look at other factors including a household member’s income. DHS also changed language from the proposed rule and notes in the final rule that the agency will take into consideration with an alien is a primary caregiver of another in the alien’s household (for example, a child or elderly relative).
(b) Current Receipt of Public Benefits
The alien has received or has been certified or approved to receive one or more public benefits for more than 12 months within any 36-month period, beginning no earlier than 36 months prior to the alien’s application for admission or adjustment of status.
(c) Financial Means to Pay for Medical Costs
Lacking private health insurance or lots of money is a heavily weighted negative factor. Note that prior language barring accessing the Obamacare exchanges/subsidies was removed from the proposed rule.
(e) Alien Previously Found Inadmissible or Deportable Based on Public Charge
- Heavily Weighed Positive Factors
- Generally, includes significant income, assets and resources
- In the final rule, having private unsubsidized health insurance appropriate for the expected period of admission is a heavily weighted positive fact
(f) Previously Excluded Benefits
DHS won’t consider public benefits that were previously excluded under the 1999 guidance if received before the effective date of the final rule. But cash benefits previously received that were covered by the 1999 guidance will be considered a negative factor in the totality of the circumstances analysis but not a heavily weighed negative factor.
- Summary of Review of Factors in the Totality of the Circumstances
USCIS includes a chart that resembles a point system outlining the various factors and considerations.
- Valuation of Monetizable Benefits
For benefits provided on the basis of a household and not an individual, USCIS will only take into consideration the portion of the benefit that is attributable to the alien. Where the alien is not eligible for the benefit but is part of a household that receives the benefit (because another member of the household is eligible), USCIS would not consider such use for purpose of a public charge inadmissibility determination.
- Public Charge Bond for Adjustment of Status Applicants
DHS has broad authority to prescribe forms of bonds and may allow them for people who are deemed inadmissible on public charge grounds.
- Overview of Immigration Bonds Generally
Immigration bonds may be secured by cash or cash equivalents or may be underwritten by a surety company certified by the Department of Treasury.
- Overview of Public Charge Bonds
(a) Public Charge Bonds
They are intended to hold the US harmless against an alien becoming a public charge. If an alien admitted after submitting a public charge bond becomes a public charge, the bond is breached regardless of whether a demand for payment of the public expense has been made.
(b) Current and Past Public Charge Bond Procedures
DHS notes that the regulations already provide for public charge bonds. But DHS has rarely used them since the passage of IIRIRA in 1996 when affidavits of support came in to use. USCIS has no current process in place to accept public charge bonds. Under the previous system, INS would set an amount and would normally cancel the bond after five years. If someone breached, the obligor was required to pay the actual expenses to the INS within 30 days. Late payments would be required after that.
(c) Relationship of the Public Charge Bond to the Affidavit of Support
The two are distinct, but complementary. One is a contract between the US and the sponsor and the other is a contract between the US and the individual or company who pledges a sum of money to guarantee conditions set by the government concerning the alien.
(d) Summary of Proposed Changes
The proposed rule clarifies when an alien seeking adjustment of status will be permitted to post a public charge bond. The minimum bond amount will be $10,000 and adjusted annually for inflation. DHS will explain the circumstances under which the bond will be cancelled and how it is breached. DHS will also set processing fees for a new Form I-945 to submit a bond and Form I-356 to request cancellation of a bond. The fees for both will initially be $25. The process to accept and process public charge bonds will be provided on the effective date of the final rule [not sure that is compliant with the APA].
- Permission to Post a Public Charge Bond
When USCIS determines that an alien is inadmissible on public charge grounds, it may notify the alien of the possibility to submit a bond and USCIS will specify the bond amount and bond conditions. Applicants can only submit bonds if USCIS has approved first. Bonds are not generally warranted when an alien has heavily weighed negative factors, but may still be offered by a DHS officer.
- Bond Amount and submission of a Public Charge Bond
$10,000 is the minimum (adjusted annually for inflation). DHS will consider the alien’s individual circumstances when determining the exact amount of the bond the alien is required to post.
There is no appeal of the amount of the bond required by an officer. USCIS will only initially allow for surety bonds. Only Treasury-certified sureties can issue bonds. These sureties have agents throughout the US from whom aliens can seek assistance in procuring an appropriate bond. Only companies meeting specified corporate and financial standards can be certified by Treasury.
If the alien posts the required bond, USCIS will continue to adjudicate the adjustment of status application and will grant the application if all criteria are met. USCIS must ensure that the bond is maintained during the effective period of the bond. An obligor would need to notify DHS within 30 days of the change in the obligor’s or the alien’s physical and mailing address. If the bond request isn’t met or the bond doesn’t meet the amount and conditions set by USCIS, the application will be denied. DHS will issue a separate guidance addressing the submission of public charge bonds.
- Public Charge Bond Substitution
If USCIS accepts a bond of limited duration, then a new bond must be substituted within 180 days before it expires. The substitute bond would need to meet all of the requirements applicable to the bond on file with USCIS.
- Public Charge Bond Cancellation
A public charge bon must remain in effect until the alien naturalizes or otherwise obtains US citizenship, permanently departs the US, or dies, until the bond is submitted with another bon, or until the bond is otherwise cancelled by DHS. The alien may not accept public benefits while the bond is in effect and comply with any other conditions DHS sets.
(b) Definition of Permanent Departure
Means the alien has left the US on a lasting, non-temporary basis after losing lawful permanent resident status either voluntarily or involuntarily and is physically outside the US. For someone in removal, only once the person has a final order of removal is the person considered to have lost permanent residence and would be entitled to cancellation of the bond. The final rule clarified that an alien is only considered to have voluntary lost permanent residency status for bond purposes when the alien has submitted a record of abandonment of lawful permanent resident status.
(c) Bond Cancellation for Lawful Permanent Resident After 5 Years and Cancellation if the Alien Obtains an Immigration Status Exempt From Public Charge Ground of Inadmissibility Following the Initial Grant of Lawful Permanent Resident Status
DHS will cancel bonds after the 5th anniversary of adjustment of status provided the alien files a request to cancel the bond and the alien has not received any public benefits covered by the rule or otherwise violated the conditions of the bond. DHS will cancel the bond if a person obtains LPR in a category exempt from public charge grounds of inadmissibility (such as when a person loses or abandons permanent residence and regains it in a new category). The final rule noted that DHS has the right to cancel a bond even if DHS determines that an alien otherwise meets the applicable eligibility requirements.
(d) Request to Cancel the Bond, and Adjudication of the Cancellation Request
An alien may request a bond be canceled and USCIS may cancel if the conditions of the bond have been met and the bond has not been breached. If it has, the returned amount will be reduced to the extent of the breach. Form I-356 will be used.
(e) Decision and Appeal
A bond obligor can appeal the denial to cancel the bond to the AAO.
- Breach of a Public Charge Bond and Appeal
(a) Breach Conditions and Adjudication
A breach happens if the alien receives public benefits after the alien’s adjustment of status and until the bond is canceled. USCIS can request additional information from the obligor. The final rule noted that this only includes using public benefits for 12 months in an aggregate 36 month period.
(b) Decision and Appeal
After the obligor responds or the deadline has passed, USCIS will make a breach determination, inform the obligor of the right to appeal.
(c) Consequences of Breach
If USCIS determines the bond has been breached, USCIS would collect on the bond in full.
- Exhaustion of Administrative Remedies – outlines appeal process
- Public Charge Bond Processing Fees
The fee for the bond processing is $25, $25 to transfer and $25 to request canceling the bond.
- Other Technical Changes
- Concurrent Surety Bond Rulemaking
- Statutory and Regulatory Requirements
- Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs)
This EO requires agencies to assess the costs and benefits of available regulatory alternatives.
- Summary – DHS gives an overview of the rule
DHS asserts that the benefits are getting a population of immigrants that is more self-sufficient and they are reducing the likelihood an alien will receive a covered public benefit in the future.
- Background and Purpose of the Rule
- Population – Adjustment of status applicants, applicants for extension of stay and change of nonimmigrant status
(a) Population Seeking Adjustment of Status – 5-year average number of adjustment of status applicants – 544,246
- Exemptions from Determination of Inadmissibility Based on Public Charge Grounds
An average of 161,981 adjustment applicants per year are exempt from the public charge review
- Exemptions from the Requirement to Submit an Affidavit of Support
Over the last five years, about half of adjustment applicants were exempt from submitting an affidavit of support.
(b) Population Seeking Extension of Stay or Change of Status
Over the last five years, an average of 336,335 beneficiaries filed extension of stay or change of status applications. An average of 174,866 filed I-539s over the last five years.
- Cost-Benefit Analysis
(a) Baseline Estimate of Current Costs – Current annual costs for the I-485, I-129 and I-539 processes are $1,040,053,529.
- Determination of Inadmissibility Based on Public Charge Grounds
- Form I-485, Adjustment of Status
- Form I-693, Report of Medical Examination
- Form I-912, Request for Fee Waiver
- Affidavit of Support Forms
- Consideration of Receipt, or Likelihood of Receipt of Public Benefits Defined in 212.21(b) for Applicants Requesting Extension of Stay of Change of Status
- Form I-120, Petition for a Nonimmigrant Worker
- Form I-129CW
- Form I-539, Application to Extend/Change Nonimmigrant status
(b) Costs of Regulatory Changes
The I-944 to show one won’t become a public charge would have the most new costs associated with it. New costs also associated with the I-129 and I-539 and with applying for a Public Charge Bond and cancellation of the bond. The I-944 annual costs would be $25,963,371. The I-129 would be from $12 million to $66 million. The I-539 would be from $6 million to $34 million. The total cost would be $45 million to $129 million per year.
- Form I-944, Declaration of Self-Sufficiency and Form I-485 – DHS estimates the time will be 4 hours 30 minutes on average to complete the I-944. Ten additional minutes will be required for the I-485
- Extension of Stay/Change of Status using Form I-129 – would increase 30 minutes per form
iii. Public Charge Bond
(c) Transfer Payments and Indirect Impacts of Regulatory Changes
Public benefits recipients who are members of households including foreign-born non-citizens:
- Medicaid – 5,685,422
- Low Income Subsidy for Medicare Part D – 1,070,185
- SNAP – 5,182,508
- TANF – 305,058
- SSI – 734,303
- Federal Rental Assistance – N/A
Estimated population of people who may disenroll or forego enrollment in a public benefits program
Medicaid – 142,136
LIS for Medicare Part D – 26,755
SNAP – 129,563
TANF – 7,626
SSI – 18,358
Federal Rental Assistance – 8,801
Potential follow-on effects of the reduction in transfer payments from the rule
- Worse health outcomes, including increased prevalence of obesity and malnutrition, especially for pregnant or breastfeeding women, infants, or children and reduced prescription adherence
- Increased use of emergency rooms and emergent care as a primary health care method
- Increased prevalence of communicable diseases, including among non-vaccinated members of the US citizen population
- Increases in uncompensated care
- Increased rates of poverty and housing instability; and
- Reduced productivity and educational attainment
(d) Discounted Direct Costs and Reduced Transfer Payments
- Discounted Direct Costs
- Discounted Reduction in Transfer Payments
(e) Costs to the Federal Government
(f) Benefits of Proposed Regulatory Changes
The major benefit cited is preventing immigrants from receiving public benefits and forcing them to rely on family members, sponsors and private organizations.
The process will be eased for those using the I-864W as those questions will be incorporated into the I-485. Also, some immigrants who might be barred under the status quo on public charge grounds will have the option of posting a bond to avoid the bar.
- Regulatory Flexibility Act – Measures the impact of the rule on small businesses
Initial Regulatory Flexibility Analysis
- A description of the reasons why the action by the agency is being considered
- A succinct statement of the objectives of, and legal basis for, the proposed rule.
- A description and, where feasible, an estimate of the number of small entities to which the proposed changes would apply. – 336,335 annually affected by the extension/change of status provisions.
- A description of the projected reporting, recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills necessary for preparation of the report or record.
- An identification of all relevant Federal rules, to the extent practical, that may duplicate, overlap, or conflict with the proposed rule.
- Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that the minimize any significant economic impact of the proposed rule on small entities.
- Congressional Review Act
- Unfunded Mandates Reform Act
- Executive Order 13132 (Federalism)
- Executive Order 12988 (Civil Justice Reform)
- Executive Order 13175 Consultation and Coordination With Indian Tribal Governments
- Family Assessment
- National Environmental Policy Act
- Paperwork Reduction Act
Regulatory text begins on p. 417
Part 103 – Immigration Benefits; Biometric Requirements; Availability of Records
103.6 Surety bonds. Allows DHS to approve a surety bond. Sets out process for public charge bonds and dealing with a breach of a bond.
103.7 – Fees – Sets the public charge bond form fee at $25 and the request for cancellation of public charge bond I-356 at $25;
Part 212 – Documentary Requirements: Nonimmigrants; Waivers; Admission of Certain Inadmissible Aliens; Parole
Section 212.18. Application for Waivers of inadmissibility in connection with an application for adjustment of status by T nonimmigrant status holders – provides exemptions for certain victims
Section 212.20 – Applicability of public charge inadmissibility. – The public charge provisions of sections 212.20 to 212.24 below cover all people who not exempt from INA Section 212(a)(4).
Section 212.21 Definition for Public Charge
(a) Public Charge means an aliens who receives one or more public benefits for more than 12 months in the aggregate in any 36-month period
(b) Public benefit means
(1) Any of the following benefits
(i) Any federal, state, local or tribal cash assistance for income maintenance including:
(C) General Assistance cash benefit programs
(ii) Non-cash benefits
(B) Section 8 Housing Assistance
(C) Section 8 Project-Based Rental Assistance
(i) Medicaid, except for:
(A) Benefits paid for emergency medical condition
(B) Services or benefits funded by Medicaid but provided under IDEA
(C) School-based benefits to children
(D) Medicaid benefits received by children of US citizens
(E) Medicaid benefits received by children attending an interview under the Child Citizenship Act of 2000
DHS modified the Medicaid triggers from the proposed rule to the final rule and now will exempt Medicaid received by people under age 21 and pregnant women. DHS is also now excluding Medicaid Part D benefits from consideration.
(ii) Any benefit provided for institutionalization for long-term care at government expense;
(iii) Premium and Cost Sharing Subsidies for Medicare Part D
(iv) Subsidized Housing under the Housing Act of 1937
(3) when there’s a combination of monetizable benefits equal to or less than 15% of FPG and non-monetizable benefits, the test will be if non-monetizable benefits are received for more than 9 months in the aggregate within a 36-month period.
(4) DHS won’t consider benefits received while someone is serving in the US Armed Forces and their families. In the final rule, DHS clarified that the exemption applies to all applications for admission, adjustment of status and extension of stay or change of status and covers family members as well.
(c) Likely at any time to become a public charge – likely at any time in the future to receive one or more public benefits.
(d) Alien’s household – (i) If the alien is 21 or over, or under 21 and married, the household includes
(A) The alien
(B) The alien’s spouse, in physically residing with the alien
(C) The alien’s children physically residing with the alien
(D) The alien’s other children not physically residing if there is a child support obligation
(E) Any other individuals to whom the alien provides 50%+ of the individual’s financial support or who are listed as dependents on the alien’s federal tax return
(F) Any individual who provides to the alien at least 50% of the alien’s financial support
(ii) If the alien is a child, the alien’s household includes the following:
(A) The alien
(B) The alien’s children physically residing with the alien
(C) The alien’s other children not physically residing if there is a child support obligation
(D) The alien’s parents, legal guardians, or any other individual providing or required to provide at least 50% support to the alien
(E) The parents’ or legal guardians’ other children physically residing with them
(F) The parents’ or legal guardians’ other children not residing with them if they’re paying child support
(G) Any other individuals to whom the alien’s parents or guardians provide at least 50% of the person’s financial support or who are listed on the parent/guardian tax return as a dependent
Section 212.22 Public Charge Inadmissibility Determination
(a) Prospective determination based on the totality of circumstances
(b) Minimum factors to consider
(1) The alien’s age. –
(i) Standard – whether the age makes the alien more or less likely becoming a public charge such as by impacting the alien’s ability to work
(2) The alien’s health
(i) Standard – Whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself, to attend school, or to work upon admission or adjustment of status
(ii) Evidence –
(A) An immigration medical exam
(B) Evidence of a medical condition that is likely to require extensive medical treatment or institutionalization after arrival
(3) The alien’s family status
(i) Standard -whether the household size makes the alien more or less likely to become a public charge
(4) The alien’s assets, resources and financial status
(i) Standard -DHS will consider whether
(A) The alien’s household gross income is at least 125% of the most recent Federal Poverty Guidelines (the final rule drops the requirement to 1005 for military families); the final rule clarified that this household gross income cannot include income from public benefits or from illegal activities.
(B) The alien has sufficient assets and resources to cover any reasonably foreseeable medical costs
(C) The alien has any financial liabilities or past receipt of public benefits
(A) Alien’s annual gross income excluding public benefits
(B) Additional income from individuals not in the household who reside with the alien
(C) Additional income from individuals not in the household on a continuing monthly or yearly basis
(D) Cash assets and resources
(E) Non-cash assets and resources that can be converted into cash within 12 months
(F) Whether the alien as (i) applied for any public benefit 60 days after the publication of the final rule or (ii) been certified or approved to receive public benefits on or after 60 days after the publication of the final rule
(G) Whether the alien has applied for or received an immigrant benefit request fee waiver on or after 60 days after the publication of the final rule; the final rule clarified that a fee waiver will only be considered when the underlying application requires a public charge inadmissibility determination.
(H) The alien’s credit history and credit score; and
(I) Whether the alien has private health insurance or financial resources to pay for reasonably foreseeable medical costs
(5) The alien’s education and skills
(i) Standard – DHS will consider whether the alien has adequate education and skills to either obtain or maintain employment sufficient to avoid becoming a public charge
(A) alien’s history of employment
(B) high school degree or higher
(C) occupational skills, certifications, or licenses;
(D) whether the alien is proficient in English or proficient in languages in addition to English
(6) The alien’s prospective immigration status and expected period of admission
(i) Standard – factors include whether it’s a nonimmigrant or immigrant classification and the duration of the stay
(7) An affidavit of support
(c) Heavily weighed factors
(1) Heavily weighed negative factors
(i) being unemployed
(ii) currently receiving a listed public benefit
(iii) received a benefit within the36 months immediately preceding a visa application
(iv) diagnosed with a medical condition interfering with the ability to attend school or work
(v) previously found inadmissible or deportable on public charge grounds
(2) Heavily weighed positive factors
(i) assets, resources and support of at least 250% of FPG
(ii) authorized to work and with an income of at least 250% of FPG
(d) Benefits received before 60 days from the date of the final rule – it’s a negative factor
Section 212.23 – Exemptions and waivers for public charge ground of inadmissibility
(3) Amerasian immigrants
(4) Afghan/Iraqi Interpreters
(5) Cuban/Haitian entrants under the 1986 Immigration Act
(6) Aliens applying to adjust under the Cuban Adjustment Act
(7) NACARA applicants
(8) Haitians under HRIFA
(9) Lautenberg parolees
(10) Special immigrant juveniles
(11) Registry applicants
(13) A-1/A-2 diplomats
(14) C-2/C-3 nonimmigrants
(15) G-1-4 nonimmigrants
(16) NATO nonimmigrants
(17) T nonimmigrants
(18) U nonimmigrants
(19) U adjustments
(21) Alien described in section 431(c) of the Welfare Reform Act of 1996
(23) American Indians born in Canada
(24) Texas Band of Kickapoo Indians
(25) Vietnam, Cambodia, and Laos nationals applying under PL 106-429
(26) Polish and Hungarian Parolees
(27) Any other categories exempt from the public charge of inadmissibility
(b) Waivers available to
(1) T nonimmigrants
(2) S nonimmigrants
(3) S nonimmigrants applying to adjust
(4) any other waivers authorized under law
Section 212.24 Valuation of monetizable benefits
Benefits divided and apportioned in proportion to the size of the household.
Part 213 – Public Charge Bonds
Section 213.1 Adjustment of status of aliens on submission of a public charge bond
(a) Inadmissible aliens – if a person is found inadmissible on public charge grounds, DHS may allow the alien to submit a public charge bond.
(b) Public Charge Bonds. (1) Types. DHS may require an alien to submit a surety bond, or cash or any cash equivalent. DHS will notify the alien of the type of bond that may be submitted. Must be executed on a form designated by DHS.
(2) Amount. $8,1000 minimum and annual inflation adjustments. (the earlier proposed rule set the minimum amount at $10,000).
(d) Conditions of the bond. Bond remains in effect until the alien naturalizes, departs US, dies, requests cancellation after 5 years of being an LPR, the alien changes immigration status to one not subject to public charge ground of inadmissibility and the bond is cancelled.
(e) Submission – DHS must notify the alien that a bond may be submitted and it must be submitted in accordance with the form designated by DHS; DHS will specify the amount; in the final rule, DHS removed references to a duration limit for bonds.
(f) Substitution – Must substitute in a new bond before the expiration of the validity of the submitted bond.
(g) Cancellation of the Public Charge Bond
(2) Permanent Departure Defined.
(3) Cancellation Request – outlines the process for having the bond cancelled
(4) Adjudication and Burden of Proof
(1) Breach and Claim in Favor of the United States
(2) Breach of Bond Conditions
(5) Demand for Payment
(6) Amount of Bond Breach and Effect on Bond
(i) Exhaustion of administrative remedies
Part 214 – Nonimmigrant Classes
Section 214.1 Requirements for admission, extension, and maintenance of status
Applicants for extension of status must demonstrate that he or she has not received a public benefit. Effective 60 days after rule is finalized. DHS may require the submission of a Form I-944.
Part 245 – Adjustment of Status
Section 245.4 – Adjustment applicants must submit a Form I-944
Part 248 – Change of Nonimmigrant Classification
Section 248.1 Eligibility
Applicants for change of status must demonstrate that he or she has not received a public benefit. Effective 60 days after rule is finalized. DHS may require the submission of a Form I-944.
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