Notice of Proposed Rulemaking

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DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 212, 213, 214, 245 and
248
[CIS No. 2499–10; DHS Docket No. USCIS–
2010–0012]
RIN 1615–AA22

Inadmissibility on Public Charge
Grounds
U.S. Citizenship and
Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
AGENCY:

The U.S. Department of
Homeland Security (DHS) proposes to
prescribe how it determines whether an
alien is inadmissible to the United
States under section 212(a)(4) of the
Immigration and Nationality Act (INA)
because he or she is likely at any time
to become a public charge. Aliens who
seek adjustment of status or a visa, or
who are applicants for admission, must
establish that they are not likely at any
time to become a public charge, unless
Congress has expressly exempted them
from this ground of inadmissibility or
has otherwise permitted them to seek a
waiver of inadmissibility. Moreover,
DHS proposes to require all aliens
seeking an extension of stay or change
of status to demonstrate that they have
not received, are not currently receiving,
nor are likely to receive, public benefits
as defined in the proposed rule.
DHS proposes to define ‘‘public
charge’’ as the term is used in sections
212(a)(4) of the Act. DHS also proposes
to define the types of public benefits
that are considered in public charge
inadmissibility determinations. DHS
would consider an alien’s receipt of
public benefits when such receipt is
above the applicable threshold(s)
proposed by DHS, either in terms of
dollar value or duration of receipt. DHS
proposes to clarify that it will make
public charge inadmissibility
determinations based on consideration
of the factors set forth in section
212(a)(4) and in the totality of an alien’s
circumstances. DHS also proposes to
clarify when an alien seeking
adjustment of status, who is
inadmissible under section 212(a)(4) of
the Act, may be granted adjustment of
status in the discretion of DHS upon the
giving of a public charge bond. DHS is
also proposing revisions to existing
USCIS information collections and new
information collection instruments to
accompany the proposed regulatory
changes. With the publication of this
proposed rule, DHS withdraws the
proposed regulation on public charge

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SUMMARY:

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that the former Immigration and
Naturalization Service (INS) published
on May 26, 1999.
DATES: Written comments and related
material to this proposed rule, including
the proposed information collections,
must be received to the online docket
via www.regulations.gov, or to the mail
address listed in the ADDRESSES section
below, on or before December 10, 2018.
ADDRESSES: You may submit comments
on this proposed rule, including the
proposed information collection
requirements, identified by DHS Docket
No. USCIS–2010–0012, by any one of
the following methods:
• Federal eRulemaking Portal
(preferred): www.regulations.gov.
Follow the website instructions for
submitting comments.
• Mail: Samantha Deshommes, Chief,
Regulatory Coordination Division,
Office of Policy and Strategy, U.S.
Citizenship and Immigration Services,
Department of Homeland Security, 20
Massachusetts Avenue NW,
Washington, DC 20529–2140. To ensure
proper handling, please reference DHS
Docket No. USCIS–2010–0012 in your
correspondence. Mail must be
postmarked by the comment submission
deadline.
FOR FURTHER INFORMATION CONTACT:
Mark Phillips, Residence and
Naturalization Division Chief, Office of
Policy and Strategy, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 20 Massachusetts
NW, Washington, DC 20529–2140;
telephone 202–272–8377.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Public Participation
II. Executive Summary
A. Major Provisions of the Regulatory
Action
B. Costs and Benefits
III. Purpose of the Proposed Rule
A. Self-Sufficiency
B. Public Charge Inadmissibility
Determinations
IV. Background
A. Legal Authority
B. Immigration to the United States
C. Extension of Stay and Change of Status
D. Public Charge Inadmissibility
1. Public Laws and Case Law
2. Public Benefits Under PRWORA
(a) Qualified Aliens
(b) Public Benefits Exempt Under
PRWORA
3. Changes Under IIRIRA
4. INS 1999 Interim Field Guidance
E. Public Charge Bond
V. Discussion of Proposed Rule
A. Applicability, Exemptions, and Waivers
1. Applicants for Admission
2. Extension of Stay and Change of Status
Applicants
3. Adjustment of Status Applicants

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4. Exemptions
5. Waivers
B. Definition of Public Charge and Related
Terms
1. Public Charge
2. Public Benefit
(a) Types of Public Benefits
(b) Consideration of Monetizable and NonMonetizable Public Benefits
i. ‘‘Primarily Dependent’’ Standard and Its
Limitations
ii. Fifteen Percent of Federal Poverty
Guidelines (FPG) Standard for Monetizable
Benefits
iii. Twelve Month Standard for NonMonetizable Benefits
iv. Combination of Monetizable Benefits
Under 15 Percent of FPG and One or
More Non-Monetizable Benefits
(c) Monetizable Public Benefits
i. Supplemental Security Income (SSI)
ii. Temporary Assistance for Needy
Families (TANF)
iii. General Assistance Cash Benefits
iv. Supplemental Nutrition Assistance
Program (SNAP) v. Housing Programs
a. Section 8 Housing Choice Voucher
Program
b. Section 8 Project-Based Rental
Assistance
(d) Non-Monetizable Public Benefits
i. Medicaid
a. Description of Program
b. Exceptions for Certain Medicaid
Services
c. Exception for Receipt of Medicaid by
Foreign-Born Children of U.S. Citizens
ii. Institutionalization for Long-Term Care
iii. Premium and Cost Sharing Subsidies
Under Medicare Part D
iv. Subsidized Public Housing
(e) Receipt of Public Benefits by Active
Duty and Reserve Servicemembers and
Their Families
(f) Unenumerated Benefits
(g) Request for Comment Regarding the
Children’s Health Insurance Program
(CHIP)
(h) Request for Comment Regarding Public
Benefit Receipt by Certain Alien
Children
(i) Request for Comment Regarding
Potential Modifications by Public Benefit
Granting Agencies
3. Likely at Any Time To Become a Public
Charge
4. Household
(a) Definition of Household in Public
Charge Context
(b) Definitions of ‘‘Household’’ and Similar
Concepts in Other Public Benefits
Contexts
(c) Definitions of Household and Similar
Concepts in Other Immigration Contexts
C. Public Charge Inadmissibility
Determination
1. Absence of a Required Affidavit of
Support
2. Prospective Determination Based on
Totality of Circumstances
D. Age
E. Health
1. USCIS Evidentiary Requirements
2. Potential Effects for Aliens With a
Disability, Depending on Individual
F. Family Status

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G. Assets, Resources, and Financial Status
1. Evidence of Assets and Resources
2. Evidence of Financial Status
(a) Public Benefits
(b) Fee Waivers for Immigration Benefits
(c) Credit Report and Score
(d) Financial Means To Pay for Medical
Costs
I. Education and Skills
1. USCIS Evidentiary Requirements
J. Prospective Immigration Status and
Expected Period of Admission
K. Affidavit of Support
1. General Consideration of Sponsorship
and Affidavits of Support
2. Proposal To Consider Required
Affidavits of Support
L. Heavily Weighed Factors
1. Heavily Weighed Negative Factors
(a) Lack of Employability
(b) Current Receipt of One of More Public
Benefit
(c) Receipt of Public Benefits Within Last
36 Months of Filing Application
(d) Financial Means To Pay for Medical
Costs
(e) Alien Previously Found Inadmissible or
Deportable Based on Public Charge
2. Heavily Weighed Positive Factors
(f) Previously Excluded Benefits
M. Summary of Review of Factors in the
Totality of the Circumstances
1. Favorable Determination of
Admissibility
2. Unfavorable Determination of
Admissibility
N. Valuation of Monetizable Benefits
O. Public Charge Bonds for Adjustment of
Status Applicants
1. Overview of Immigration Bonds
Generally
2. Overview of Public Charge Bonds
(a) Public Charge Bonds
(b) Current and Past Public Charge Bond
Procedures
(c) Relationship of the Public Charge Bond
to the Affidavit of Support
(d) Summary of Proposed Changes
3. Permission To Post a Public Charge
Bond
4. Bond Amount and Submission of a
Public Charge Bond
5. Public Charge Bond Substitution
6. Public Charge Bond Cancellation
(a) Conditions
(b) Definition of Permanent Departure
(c) Bond Cancellation for Lawful
Permanent Residents After 5 Years and
Cancellation if the Alien Obtains an
Immigration Status Exempt From Public
Charge Grounds of Inadmissibility
Following the Initial Grant of Lawful
Permanent Resident Status
(d) Request To Cancel the Bond, and
Adjudication of the Cancelation Request
(e) Decision and Appeal
7. Breach of a Public Charge Bond and
Appeal
(a) Breach Conditions and Adjudication
(b) Decision and Appeal
(c) Consequences of Breach
8. Exhaustion of Administrative Remedies
9. Public Charge Processing Fees
10. Other Technical Changes
11. Concurrent Surety Bond Rulemaking
VI. Statutory and Regulatory Requirements

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A. 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)
1. Summary
2. Background and Purpose of the Rule
3. Population
(a) Population Seeking Adjustment of
Status
i. Exemptions From Determination of
Inadmissibility Based on Public Charge
Grounds
ii. Exemptions From the Requirement To
Submit an Affidavit of Support
(b) Population Seeking Extension of Stay of
Change of Status
4. Cost-Benefit Analysis
(a) Baseline Estimates of Current Costs
i. Determination of Inadmissibility Based
on Public Charge Grounds
a. Form I–485, Application to Register
Permanent Residence or Adjust Status
b. Form I–693, Report of Medical
Examination and Vaccination Record
c. Form I–912, Request for Fee Waiver
d. Affidavit of Support Forms
ii. Consideration of Receipt, or Likelihood
of Receipt of Public Benefits Defined in
Proposed 212.21(b) for Applicants
Requesting Extension of Stay or Change
of Status
a. Form I–129, Petition for a Nonimmigrant
Worker
b. Form I–129CW, Petition for a CNMIOnly Nonimmigrant Transitional Worker
c. Form I–539, Application To Extend/
Change Nonimmigrant Status
(b) Costs of Proposed Regulatory Changes
i. Form I–944, Declaration of SelfSufficiency
ii. Extension of Stay/Change of Status
Using Form I–129, Petition for a
Nonimmigrant Worker; Form I–129CW,
Petition for a CNMI-Only Nonimmigrant
Transitional Worker; or Form I–539,
Application To Extend/Change
Nonimmigrant Status
iii. Public Charge Bond
(c) Transfer of Payments and Indirect
Impacts of Proposed Regulatory Changes
(d) Discounted Direct Costs and Reduced
Transfer Payments
i. Discounted Direct Costs
ii. Discounted Reduction in Transfer
Payments
(e) Costs to the Federal Government
(f) Benefits of Proposed Regulatory
Changes
B. Regulatory Flexibility Act
C. Congressional Review Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 12988 (Civil Justice
Reform)
G. Executive Order 13175 Consultation and
Coordination With Indian Tribal
Governments
H. Family Assessment
I. National Environmental Policy Act
(NEPA)
J. Paperwork Reduction Act
VII. List of Subjects and Regulatory
Amendments

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Table of Abbreviations
AFM—Adjudicator’s Field Manual
ASEC—Annual Social and Economic
Supplement of the Current Population
Survey
BIA—Board of Immigration Appeals
BLS—U.S. Bureau of Labor Statistics
CDC—Centers for Disease Control and
Prevention
CBP—U.S. Customs and Border Protection
CFR—Code of Federal Regulations
CHIP—Children’s Health Insurance Program
CNMI—Commonwealth of the Northern
Mariana Islands
DHS—U.S. Department of Homeland
Security
DOS—U.S. Department of State
FAM—Foreign Affairs Manual
FCRA—Fair Credit Reporting Act
FPG—Federal Poverty Guidelines
FPL—Federal Poverty Level
Form DS–2054—Medical Examination For
Immigrant or Refugee Applicant
Form I–129—Petition for a Nonimmigrant
Worker
Form I–129CW—Petition for a CNMI-Only
Nonimmigrant Transitional Worker
Form I–130—Petition for Alien Relative
Form I–140—Immigrant Petition for Alien
Worker
Form I–290B—Notice of Appeal or Motion
Form I–356—Request for Cancellation of
Public Charge Bond
Form I–407—Record of Abandonment of
Lawful Permanent Resident Status
Form I–485—Application to Register
Permanent Residence or Adjust Status
Form I–539—Application to Extend/Change
Nonimmigrant Status
Form I–600—Petition to Classify Orphan as
an Immediate Relative
Form I–693—Report of Medical Examination
and Vaccination Record
Form I–800—Petition to Classify Convention
Adoptee as an Immediate Relative
Form I–864—Affidavit of Support Under
Section 213A of the INA
Form I–864A—Contract Between Sponsor
and Household Member
Form I–864EZ—Affidavit of Support Under
Section 213A of the Act
Form I–864P—HHS Poverty Guidelines for
Affidavit of Support
Form I–864W—Request for Exemption for
Intending Immigrant’s Affidavit of Support
Form I–912—Request for Fee Waiver
Form I–94—Arrival/Departure Record
Form I–944—Declaration of Self-Sufficiency
Form I–945—Public Charge Bond
Form N–600—Application for Certificate of
Citizenship
Form N–600K—Application for Citizenship
and Issuance of Certificate Under Section
322
GA– General Assistance
GAO—U.S. Government Accountability
Office
HHS—U.S. Department of Health and Human
Services
ICE—U.S. Immigration and Customs
Enforcement IIRIRA—Illegal Immigration
Reform and Immigrant Responsibility Act
of 1996
INA—Immigration and Nationality Act
INS—Immigration and Naturalization Service

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IRCA—Immigration Reform and Control Act
of 1986
NHE—National Health Expenditure
PRA—Paperwork Reduction Act
PRWORA—Personal Responsibility and
Work Opportunity Reconciliation Act of
1996
RFE—Request for Evidence
SAVE—Systematic Alien Verification for
Entitlements
Secretary—Secretary of Homeland Security
SIPP—Survey of Income and Program
Participation
SNAP—Supplemental Nutrition Assistance
Program
SSA—Social Security Administration
SSI—Supplemental Security Income
TANF—Temporary Assistance for Needy
Families
USDA—U.S. Department of Agriculture
U.S.C.—United States Code
USCIS—U.S. Citizenship and Immigration
Services
WIC—Special Supplemental Nutrition
Program for Women, Infants, and Children

I. Public Participation
All interested parties are invited to
participate in this rulemaking by
submitting written data, views,
comments and arguments on all aspects
of this proposed rule. DHS also invites
comments that relate to the economic,
legal, environmental, or federalism
effects that might result from this
proposed rule. Comments must be
submitted in English, or an English
translation must be provided.
Comments that will provide the most
assistance to U.S. Citizenship and
Immigration Services (USCIS) in
implementing these changes will
reference a specific portion of the
proposed rule, explain the reason for
any recommended change, and include
data, information, or authority that
supports such recommended change.
Instructions: If you submit a
comment, you must include the agency
name and the DHS Docket No. USCIS–
2010–0012 for this rulemaking.
Regardless of the method used for
submitting comments or material, all
submissions will be posted, without
change, to the Federal eRulemaking
Portal at http://www.regulations.gov,
and will include any personal
information you provide. Therefore,
submitting this information makes it
public. You may wish to consider
limiting the amount of personal
information that you provide in any
voluntary public comment submission
you make to DHS. DHS may withhold
information provided in comments from
public viewing that it determines may
impact the privacy of an individual or
is offensive. For additional information,
please read the Privacy Act notice that
is available via the link in the footer of
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Docket: For access to the docket and
to read background documents or
comments received, go to http://
www.regulations.gov, referencing DHS
Docket No. USCIS–2010–0012. You may
also sign up for email alerts on the
online docket to be notified when
comments are posted or a final rule is
published.
The docket for this rulemaking does
not include any comments submitted on
the related notice of proposed
rulemaking published by INS in 1999.1
Commenters to the 1999 notice of
proposed rulemaking that wish to have
their views considered should submit
new comments in response to this
notice of proposed rulemaking.
II. Executive Summary
DHS seeks to better ensure that aliens
subject to the public charge
inadmissibility ground are selfsufficient, 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.2
DHS proposes to define the term
‘‘public charge’’ in regulation and to
identify the types, amount, and duration
of receipt of public benefits that would
be considered in public charge
inadmissibility determinations. DHS
proposes to amend its regulations to
interpret the minimum statutory factors
for determining whether an alien is
inadmissible because he or she is likely
to become a public charge. This
proposed rule would provide a standard
for determining whether an alien who
seeks admission into the United States
as a nonimmigrant or as an immigrant,
or seeks adjustment of status, is likely
at any time to become a public charge
under section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4). DHS also provides a
more comprehensive framework under
which USCIS will consider public
charge inadmissibility. DHS proposes
that certain paper-based applications to
USCIS would require additional
evidence related to public charge
considerations. Due to operational
limitations, this additional evidence
would not generally be required at ports
of entry.
DHS also proposes amending the
nonimmigrant extension of stay and
change of status regulations by
exercising its authority to set additional
conditions on granting such benefits.
Finally, DHS proposes to revise its
regulations governing the discretion of
the Secretary of Homeland Security
1 See Inadmissibility and Deportability on Public
Charge Grounds, 64 FR 28676 (May 26, 1999).
2 See 8 U.S.C. 1601(1), (2)(A).

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(Secretary) to accept a public charge
bond under section 213 of the Act, 8
U.S.C. 1183, for those seeking
adjustment of status.
A. Major Provisions of the Regulatory
Action
DHS proposes to include the
following major changes:
• Amending 8 CFR 103.6, Surety
bonds. The amendments to this section
set forth DHS’s discretion to approve
public charge bonds, cancellation, bond
schedules, and breach of bond, and
move principles governing public
charge bonds to 8 CFR 213.1, as
proposed to be revised in this NPRM.
• Amending 8 CFR 103.7, adding fees
for new Form I–945, Public Charge
Bond, and Form I–356, Request for
Cancellation of Public Charge Bond.
• Adding 8 CFR 212.20, Applicability
of public charge inadmissibility. This
section identifies the categories of aliens
that are subject to the public charge
inadmissibility determination.
• Adding 212.21, Definitions. This
section establishes key regulatory
definitions, including public charge,
public benefit, likely at any time to
become a public charge, and household.
• Adding 212.22, Public charge
determination. This section clarifies that
evaluating the likelihood of becoming a
public charge is a prospective
determination based on the totality of
the circumstances. This section
provides details on how the statute’s
mandatory factors would be considered
when making a public charge
inadmissibility determination.
• Adding 212.23, Exemptions and
waivers for the public charge ground of
inadmissibility. This section provides a
list of statutory and regulatory
exemptions from and waivers of
inadmissibility based on public charge.
• Adding 212.24 Valuation of
monetizable benefits. This section
provides the methodology for
calculating the annual aggregate amount
of the portion attributable to the alien
for the monetizable benefits and
considered in the public charge
inadmissibility determination.
• Amending 8 CFR 213.1, Adjustment
of status of aliens on submission of a
public charge bond. The updates to this
section change the title of this section
and add specifics to the public charge
bond provision for aliens who are
seeking adjustment of status, including
the discretionary availability and the
minimum amount for a public charge
bond.
• Amending 8 CFR 214.1,
Requirements for admission, extension,
and maintenance of status. These
amendments provide that, with limited

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exceptions, an application for extension
of nonimmigrant stay will be denied
unless the applicant demonstrates that
he or she has not received since
obtaining the nonimmigrant status he or
she seeks to extend, is not receiving,
and is not likely to receive, public
benefits as described in 8 CFR 212.21(b).
Where section 212(a)(4) of the Act does
not apply to the nonimmigrant category
that the alien seeks to extend, this
provision does not apply.
• Amending 8 CFR 245.4
Documentary requirements. These
amendments require applicants for
adjustment of status to file the new
USCIS Form I–944, Declaration of SelfSufficiency, to facilitate USCIS’ public
charge inadmissibility determination.
• Amending 8 CFR 248.1, Change of
nonimmigrant classification eligibility.
This section provides that with limited
exceptions, an application to change
nonimmigrant status will be denied
unless the applicant demonstrates that
he or she has not received since
obtaining the nonimmigrant status from
which the alien seeks to change, is not
currently receiving, nor is likely to
receive public benefits in the future, as
described in proposed 8 CFR 212.21(b).
Where section 212(a)(4) of the Act does
not apply to the nonimmigrant category
to which the alien requests a change of
status this provision does not apply.
B. Costs and Benefits
This proposed rule would impose
new costs on the population applying to
adjust status using Application to
Register Permanent Residence or Adjust
Status (Form I–485) that are subject to
the public charge grounds on
inadmissibility. DHS would now require
any adjustment applicants subject to the
public charge inadmissibility ground to
submit Form I–944 with their Form I–
485 to demonstrate they are not likely
to become a public charge.
The proposed rule would also impose
additional costs for seeking extension of
stay or change of status by filing Form
I–129 (Petition for a Nonimmigrant
Worker); Form I–129CW (Petition for a
CNMI-Only Nonimmigrant Transitional
Worker); or Form I–539 (Application to
Extend/Change Nonimmigrant Status) as
applicable. The associated time burden
estimate for completing these forms
would increase because these applicants
would be required to demonstrate that
they have not received, are not currently
receiving, nor are likely in the future to
receive, public benefits as described in
proposed 8 CFR 212.21(b). These

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applicants may also incur additional
costs if DHS determines that they are
required to submit Form I–944 in
support of their applications for
extension of stay or change of status.
Moreover, the proposed rule would
impose new costs associated with the
proposed public charge bond process,
including new costs for completing and
filing Form I–945 (Public Charge Bond),
and Form I–356 (Request for
Cancellation of Public Charge Bond).
DHS estimates that the additional
total cost of the proposed rule would
range from approximately $45,313,422
to $129,596,845 annually for the
population applying to adjust status
who also would be required to file Form
I–944, the population applying for
extension of stay or change of status that
would experience opportunity costs in
time associated with the increased time
burden estimates for completing Form
I–485, Form I–129, FormI–129CW, and
FormI–539, and the population
requesting or cancelling a public charge
bond using Form I–945 and Form I–356,
respectively.
Over the first 10 years of
implementation, DHS estimates the total
quantified new direct costs of the
proposed rule would range from about
$453,134,220 to $1,295,968,450
(undiscounted). DHS estimates that the
10-year discounted total direct costs of
this proposed rule would range from
about $386,532,679 to $1,105,487,375 at
a 3 percent discount rate and about
$318,262,513 to $910,234,008 at a 7
percent discount rate.
The proposed rule would impose new
costs on the population seeking
extension of stay or change of status
using Form I–129, Form I–129CW, or
Form I–539. For any of these forms,
USCIS officers would then be able to
exercise discretion in determining
whether it would be necessary to issue
a request for evidence (RFE) requesting
the applicant to submit Form I–944.
DHS conducted a sensitivity analysis
estimating the potential cost of filing
Form I–129, Form I–129CW, or Form I–
539 for a range of 10 to 100 percent of
filers receiving an RFE requesting they
submit Form I–944. The costs to Form
I–129 beneficiaries who may receive an
RFE to file Form I–944 range from
$6,086,318 to $60,863,181 annually and
the costs to Form I–129CW beneficiaries
who may receive such an RFE from
$114,132 to $1,141,315 annually. The
costs to Form I–539 applicants who may
receive an RFE to file Form I–944 range

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from $3,164,375 to $31,643,752
annually.
Simultaneously, DHS is proposing to
eliminate the use and consideration of
the Request for Exemption for Intending
Immigrant’s Affidavit of Support (Form
I–864W), currently applicable to certain
classes of aliens. In lieu of Form I–
864W, the alien would indicate
eligibility for the exemption of the
affidavit of support requirement on
Form I–485, Application to Register
Permanent Residence or Adjust Status.
The proposed rule would potentially
impose new costs on individuals or
companies (obligors) if an alien has
been found to be inadmissible on public
charge grounds, but has been given the
opportunity to submit a public charge
bond, for which USCIS intends to use
the new Form I–945. DHS estimates the
total cost to file Form I–945 would be
at minimum about $34,234 annually.3
The proposed rule would also impose
new costs on aliens or obligors who
would submit a Form I–356; DHS
estimates the total cost to file Form I–
356 would be approximately $825
annually.4
Moreover, the proposed rule would
also result in a reduction in transfer
payments from the federal government
to individuals who may choose to
disenroll from or forego enrollment in a
public benefits program. Individuals
may make such a choice due to concern
about the consequences to that person
receiving public benefits and being
found to be likely to become a public
charge for purposes outlined under
section 212(a)(4) of the Act, even if such
individuals are otherwise eligible to
receive benefits. For the proposed rule,
DHS estimates that the total reduction
in transfer payments from the federal
and state governments would be
approximately $2.27 billion annually
due to disenrollment or foregone
enrollment in public benefits programs
by aliens who may be receiving public
benefits. DHS estimates that the 10-year
discounted transfer payments of this
proposed rule would be approximately
$19.3 billion at a 3 percent discount rate
and about $15.9 billion at a 7 percent
discount rate. Because state
3 Calculation: $35.66 (cost per obligor to file Form
I–945) * 960 (estimated annual population who
would file Form I–945) = $34,233.60 = $34,234
(rounded) annual total cost to file Form I–945.
4 Calculation: $33.00 (cost per obligor to file Form
I–356) * 25 (estimated annual population who
would file Form I–356) = $825.00 annual total cost
to file Form I–356.

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participation in these programs may
vary depending on the type of benefit
provided, DHS was only able to estimate
the impact of state transfers. For
example, the federal government funds
all SNAP food expenses, but only 50
percent of allowable administrative
costs for regular operating expenses.5
Similarly, Federal Medical Assistance
Percentages (FMAP) in some HHS
programs like Medicaid can vary from
between 50 percent to an enhanced rate
of 100 percent in some cases.6 However,
assuming that the state share of federal
financial participation (FFP) is 50
percent, the 10-year discounted amount
of state transfer payments of this
proposed policy would be
approximately $9.65 billion at a 3
percent discount rate and about $7.95
billion at a 7 percent discount rate. DHS
recognizes that reductions in federal
and state transfers under federal benefit
programs may have downstream and
upstream impacts on state and local
economies, large and small businesses,
and individuals. For example, the rule
might result in reduced revenues for

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5 Per section 16(a) of the Food and Nutrition Act
of 2008. See also Per section 16(a) of the Food and
Nutrition Act of 2008. See also USDA, FNS
Handbook 901, p. 41 available at: https://fnsprod.azureedge.net/sites/default/files/apd/FNS_
HB901_v2.2_internet_Ready_Format.pdf
6 See Dept. of Health and Human Services,
‘‘Federal Financial Participation in State Assistance
Expenditures; Federal Matching Shares for
Medicaid, the Children’s Health Insurance Program,
and Aid to Needy Aged, Blind, or Disabled Persons
for October 1, 2016 through September 30, 2017.’’
ASPE FMAP 2017 Report. Dec. 29, 2015. Available
at https://aspe.hhs.gov/basic-report/fy2017-federalmedical-assistance-percentages. Accessed Sept. 13,
2018.

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healthcare providers participating in
Medicaid, pharmacies that provide
prescriptions to participants in the
Medicare Part D Low Income Subsidy
(LIS) program, companies that
manufacture medical supplies or
pharmaceuticals, grocery retailers
participating in SNAP, agricultural
producers who grow foods that are
eligible for purchase using SNAP
benefits, or landlords participating in
federally funded housing programs.
Additionally, the proposed rule
would add new direct and indirect costs
on various entities and individuals
associated with regulatory
familiarization with the provisions of
this rule. Familiarization costs involve
the time spent reading the details of a
rule to understand its changes. To the
extent that an individual or entity
directly regulated by the rule incurs
familiarization costs, those
familiarization costs are a direct cost of
the rule. For example, immigration
lawyers, immigration advocacy groups,
health care providers of all types, nonprofit organizations, non-governmental
organizations, and religious
organizations, among others, may need
or want to become familiar with the
provisions of this proposed rule. An
entity, such as a non-profit or advocacy
group, may have more than one person
that reads the rule. Familiarization costs
incurred by those not directly regulated
are indirect costs. DHS estimates the
time that would be necessary to read
this proposed rule would be
approximately 8 to 10 hours per person,
resulting in opportunity costs of time.

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The primary benefit of the proposed
rule would be to help ensure that aliens
who apply for admission to the United
States, seek extension of stay or change
of status, or apply for adjustment of
status are self-sufficient, i.e., 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.7 DHS also anticipates
that the proposed rule would produce
some benefits from the elimination of
Form I–864W. The elimination of this
form would potentially reduce the
number of forms USCIS would have to
process, although it likely would not
reduce overall processing burden. DHS
estimates the amount of cost savings
that would accrue from eliminating
Form I–864W would be $35.78 per
petitioner.8 However, DHS is unable to
determine the annual number of filings
of Form I–864W and, therefore, is
currently unable to estimate the total
annual cost savings of this change. A
public charge bond process would
provide benefits to applicants as they
potentially would be given the
opportunity to adjust their status if
otherwise admissible, at the discretion
of DHS, after a determination that they
are likely to become public charges.
Table 1 provides a more detailed
summary of the proposed provisions
and their impacts.
BILLING CODE 4410–10–P
78

U.S.C. 1601(2).
for the opportunity cost of time for
completing and submitting Form I–864W: ($34.84
per hour * 1.0 hours) = $34.84.
8 Calculation

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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.
Purpose and
applicability of public
charge inadmissibility.

To define the categories of aliens that
are subject to the public charge
inadmissibility determination.

Quantitative:

Benefits
• Cost savings of $35.78 per petitioner from no
longer having to complete and file Fonn 1864W.
Costs:

To establish key definitions,
including public charge, public
benefit, likely to become a public
charge, and household.

Adding 8 CFR 212.22.
Public charge
determination.

Clarifies that evaluating public
charge is a prospective determination
based on the totality of the
circumstances.

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Outlines 1ninimum and additional
factors considered when evaluating
whether an alien is inadmissible as
likely to become a public charge.
Positive and negative factors are
weighed to determine an individual's
likelihood of becoming a public
charge at any time in the future.

Adding 8 CFR 212.23.
Exemptions and
waivers for public
charge ground of
inadmissibility.

Outlines exemptions and waivers for
inadmissibility based on public
charge grounds.

Adding 212.24.
Valuation of
monetizable benefits.

Provides the methodology for
calculating value of the benefit
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
214.l(a)(3)(iv) and
amending 8 CFR
214.l(c)(4).
Nonimmigrant general

To provide, with limited exceptions,
that an application for extension of
stay or change of noni111111igrant
status will be denied unless the
applicant demonstrates that he or she

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•

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.

Qualitative:

Benefits
• Better ensure that aliens who are admitted to
the United States or apply for adjustment of
status are self-sufficient through an improved
review process of the mandatory statutory
factors.

Quantitative:

•

Potential annual costs for those filing Form
1-129 range from $6.09 million to $60.9
million depending on how many

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Adding 8 CFR 212.21.
Definitions.

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requirements; and
amending 8 CFR
248.l(a) and adding 8
CFR 248.l(c)(4).
Change of
nonimmigrant
classification eligibility.

has not received, is not currently
receiving, nor is likely to receive,
public benefits as defined in
proposed 8 CFR 212.2l(b).

•

•

beneficiaries are sent an RFE by USCIS to
complete Form I-944.
Potential annual costs for those filing Form
I-129CW range from $0.11 million to
$1.14 million depending on how many
beneficiaries are sent an RFE by USCIS to
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

•

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To outline requirements that aliens
submit a declaration of selfsufficiency on the form designated
by DHS and any other evidence
requested by DHS in the public
charge inadmissibility determination.

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Amending 8 CFR 245.
Adjustment of status to
that of a person
admitted for permanent
residence.

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.
Quantitative:
Direct Costs
• Total annual direct costs of the proposed
rule would range from about $45.3 to $129.6
million, including:
• $26.0 million to applicants who must 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;
• $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 I356.

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• 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

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•

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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

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BILLING CODE 4410–10–C

III. Purpose of the Proposed Rule

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A. Self-Sufficiency
DHS seeks to better ensure that
applicants for admission to the United
States and applicants for adjustment of
status to lawful permanent resident who
are subject to the public charge ground
of inadmissibility are self-sufficient, i.e.,
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.9 Under section 212(a)(4)
of the Act, 8 U.S.C. 1182(a)(4), an alien
is inadmissible if, at the time of an
application for a visa, admission, or
9 See

adjustment of status, he or she is likely
at any time to become a public charge.
The statute requires DHS to consider the
following minimum factors that reflect
the likelihood that an alien will become
a public charge: The alien’s age; health;
family status; assets, resources, and
financial status; and education and
skills. DHS may also consider any
affidavit of support submitted by the
alien’s sponsor and any other factor
relevant to the likelihood of the alien
becoming a public charge.
As noted in precedent administrative
decisions, determining the likelihood of
an alien becoming a public charge
involves ‘‘consideration of all the factors
bearing on the alien’s ability or potential

8 U.S.C. 1601(2).

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ability to be self-supporting.’’ 10 These
decisions, in general, conclude that an
alien who is incapable of earning a
livelihood, who does not have sufficient
funds in the United States for support,
and who has no person in the United
States willing and able to assure the
alien will not need public support
generally is inadmissible as likely to
become a public charge.11 Furthermore,
the following congressional policy
statements relating to self-sufficiency,
immigration, and public benefits inform
DHS’s proposed administration of
10 Matter of Vindman, 16 I&N Dec. 131, 132 (Reg’l
Comm’r 1977).
11 See, e.g., Matter of Vindman, 16 I&N Dec. 131
(Reg’l Comm’r 1977); Matter of Harutunian, 14 I&N
Dec. 583 (Reg’l Comm’r 1974).

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4).
(1) Self-sufficiency has been a basic
principle of United States immigration
law since this country’s earliest
immigration statutes.
(2) It continues to be the immigration
policy of the United States that—
(A) Aliens within the Nation’s borders
not depend on public resources to meet
their needs, but rather rely on their own
capabilities and the resources of their
families, their sponsors, and private
organizations; and
(B) The availability of public benefits
not constitute an incentive for
immigration to the United States.12
Within this administrative and
legislative context, DHS’s view of selfsufficiency is that aliens subject to the
public charge ground of inadmissibility
must rely on their own capabilities and
secure financial support, including from
family members and sponsors, rather
than seek and receive public benefits to
meet their needs. Aliens subject to the
public charge ground of inadmissibility
include: Immediate relatives of U.S.
citizens, fiance´(e)s, family-preference
immigrants, most employment-based
immigrants, diversity visa immigrants,
and certain nonimmigrants. Most
employment-based immigrants are
coming to work for their petitioning
employers; DHS believes that by virtue
of their employment, such immigrants
should have adequate income and
resources to support themselves without
resorting to seeking public benefits.
Similarly, DHS believes that, consistent
with section 212(a)(4), nonimmigrants
should have sufficient financial means
or employment, if authorized to work, to
support themselves for the duration of
their authorized admission and
temporary stay. In addition, immediate
relatives of U.S. citizens, fiance´(e)s,
most family-preference immigrants, and
some employment-based immigrants
require a sponsor and a legally binding
affidavit of support under section 213A
of the Act showing that the sponsor
agrees to provide support to maintain
the alien at an annual income that is not
less than 125 percent of the FPG.13
DHS’s view of self-sufficiency also
informs other aspects of this proposal.
DHS proposes that aliens who seek to
change their nonimmigrant status or
extend their nonimmigrant stay
generally should also be required to
continue to be self-sufficient and not
remain in the United States to avail
themselves of any public benefits for
12 Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, Public Law 104–193,
110 Stat. 2105, codified in part at.8 U.S.C. 1601.
13 See INA section 213A(a), 8 U.S.C. 1183a(a).

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which they are eligible, even though the
public charge inadmissibility
determination does not directly apply to
them. Such aliens should have adequate
financial resources to maintain the
status they seek to extend or to which
they seek to change for the duration of
their temporary stay, and must be able
to support themselves.
B. Public Charge Inadmissibility
Determinations
DHS seeks to interpret the term
‘‘public charge’’ for purposes of making
public charge inadmissibility
determinations. As noted above,
Congress codified the minimum
mandatory factors that must be
considered as part of the public charge
inadmissibility determination under
section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4): Age, health, family status,
assets, resources, financial status,
education, and skills.14 In addition to
these minimum factors, the statute
states that any affidavit of support under
section 213A of the Act may also be
considered.15 In fact, since an affidavit
of support is required for familysponsored immigrant applicants and
certain employment-sponsored
immigrant applicants, these aliens are
inadmissible as likely to become a
public charge if they do not submit such
a sufficient affidavit of support.16
Although INS 17 issued a proposed
rule and Interim Field Guidance in
1999, neither the proposed rule nor
Interim Field Guidance sufficiently
described the mandatory factors or
explained how to weigh these factors in
the public charge inadmissibility
determination.18 The 1999 Interim Field
Guidance allows consideration of the
receipt of cash public benefits when
determining whether an applicant meets
the definition of ‘‘public charge,’’ but
excluded consideration of non-cash
public benefits. In addition, the 1999
Interim Field Guidance placed its
14 See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
15 See INA section 212(a)(4)(B)(iii), 8 U.S.C.
1182(a)(4)(B)(iii).
16 See INA section 212(a)(4)(C), 8 U.S.C.
1182(a)(4)(C).
17 On March 1, 2003, INS functions were
transferred from the Department of Justice to DHS.
See Homeland Security Act of 2002, Public Law
107–296, sections 402(3), 441, 116 Stat. 2135, 2178,
2192.
18 See Inadmissibility and Deportability on Public
Charge Grounds, 64 FR 28676 (May 26, 1999); Field
Guidance on Deportability and Inadmissibility on
Public Charge Grounds, 64 FR 28689 (May 26,
1999). Due to a printing error, the Federal Register
version of the field guidance appears to be dated
‘‘March 26, 1999’’ even though the guidance was
actually signed May 20, 1999, became effective May
21, 1999 and was published in the Federal Register
on May 26, 1999, along with the NPRM.

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51123

emphasis on primary dependence on
cash public benefits. This proposed rule
would improve upon the 1999 Interim
Field Guidance by removing the
artificial distinction between cash and
non-cash benefits, and aligning public
charge policy with the self-sufficiency
principles set forth in the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996
(PRWORA).19 The proposed rule would
provide clarification and guidance on
the mandatory factors, including how
these factors would be evaluated in
relation to the new proposed definition
of public charge and in making a public
charge inadmissibility determination.20
IV. Background
Three principal issues 21 have framed
the development of public charge
inadmissibility: (1) The factors involved
in determining whether or not an alien
is likely to become a public charge, (2)
the relationship between public charge
and receipt of public benefits, and (3)
the consideration of a sponsor’s affidavit
of support within public charge
inadmissibility determinations.
19 Public

Law 104–193, 110 Stat. 2105.
this proposed policy change is
consistent with the March 6, 2017 Presidential
Memorandum directing DHS to issue new rules,
regulations, and/or guidance to enforce laws
relating to such grounds of inadmissibility and
subsequent compliance. See Implementing
Immediate Heightened Screening and Vetting of
Applications for Visas and Other Immigration
Benefits, Ensuring Enforcement of All Laws for
Entry Into the United States, and Increasing
Transparency Among Departments and Agencies of
the Federal Government and for the American
People, 82 FR 16279 (Apr. 3, 2017), available at
https://www.whitehouse.gov/the-press-office/2017/
03/06/memorandum-secretary-state-attorneygeneral-secretary-homeland-security.
21 See, e.g., Report of the Committee of the
Judiciary Pursuant to S. Res. 137, S. Rep. No. 81–
1515, at 346–50 (1950). Prior to passage of the INA
of 1952, the Senate Judiciary Committee issued a
report assessing issues within the immigration
system, including public charge. The committee
recommended retention of public charge exclusion
in the statute but highlighted two main problems
related to its implementation: (1) How to determine
who is likely to become a public charge and (2) how
to find a better way of meeting the purpose for
which affidavits of support were executed on the
alien’s behalf. The committee noted that there was
no definition of the term ‘‘likely to become a public
charge’’ and that the meaning of the term had been
left to the interpretation of administrative officials
and the courts. Factors such as financial status,
business ownership, health, and employability were
considerations, as were decisions rendered by the
courts and in public charge determinations made by
consular and immigration officers. The committee
advised against defining public charge in the INA.
Instead, it recommended that the determination of
whether an alien falls into the public charge
category should rest within the discretion of
consular and immigration officials because the
elements constituting public charge are varied. It
also recommended the use of a bond or suitable
undertaking over the practice of using affidavits of
support.
20 Moreover,

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A. Legal Authority
DHS’s authority for making public
charge inadmissibility determinations
and related decisions is found in several
statutory provisions. Section 102 of the
Homeland Security Act of 2002 (Pub. L.
107–296, 116 Stat. 2135), 6 U.S.C. 112,
and section 103 of the Immigration and
Nationality Act (INA, or the Act), 8
U.S.C. 1103, charge the Secretary with
the administration and enforcement of
the immigration and naturalization laws
of the United States. In addition to
establishing the Secretary’s general
authority for the administration and
enforcement of immigration laws,
section 103 of the Act enumerates
various related authorities including the
Secretary’s authority to establish
regulations and prescribe such forms of
bond as are necessary for carrying out
her authority. Section 212 of the Act, 8
U.S.C. 1182, establishes classes of aliens
that are ineligible for visas, admission,
or adjustment of status and paragraph
(a)(4) of that section establishes the
public charge ground of inadmissibility,
including the minimum factors the
Secretary must consider in making a
determination that an alien is likely to
become a public charge. Section
212(a)(4) of the Act also establishes the
affidavit of support requirement as
applicable to certain family-based and
employment-based immigrants, and
exempts certain aliens from both the
public charge ground of inadmissibility
and the affidavit of support
requirement. Section 213 of the Act, 8
U.S.C. 1183, provides the Secretary with
discretion to admit into United States an
alien who is determined to be
inadmissible as a public charge under
section 212(a)(4) of the Act, but is
otherwise admissible, upon the giving of
a proper and suitable bond. That section
authorizes the Secretary to establish the
amount and conditions of such bond.
Section 213A of the Act, 8 U.S.C. 1183a,
sets out requirements for the sponsor’s
affidavit of support, including
reimbursement of government expenses
where the sponsored alien received
means-tested public benefits. Section
214 of the Act, 8 U.S.C. 1184, addresses
requirements for the admission of
nonimmigrants, including authorizing
the Secretary to prescribe the conditions
of such admission through regulations
and when necessary establish a bond to
ensure that those admitted as
nonimmigrants or who change their
nonimmigrant status under section 248
of the Act, 8 U.S.C. 1258, depart if they
violate their nonimmigrant status or
after such status expires. Section 245 of
the Act, 8 U.S.C. 1255, generally
establishes eligibility criteria for

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adjustment of status to lawful
permanent residence. Section 248 of the
Act, 8 U.S.C. 1258, authorizes the
Secretary to prescribe conditions under
which an alien may change his or her
status from one nonimmigrant
classification to another. The Secretary
proposes the changes in this rule under
these authorities.
B. Immigration to the United States
The INA governs whether an alien
may obtain a visa, be admitted to or
remain in the United States, or obtain an
extension of stay, change of status, or
adjustment of status.22 The INA
establishes separate processes for aliens
seeking a visa, admission, change of
status, and adjustment of status. For
example, where an immigrant visa
petition is required, USCIS will
adjudicate the petition. If USCIS
approves the petition, the alien may
apply for a visa with the U.S.
Department of State (DOS) and
thereafter seek admission in the
appropriate immigrant classification. If
the alien is present in the United States,
he or she may be eligible to apply to
USCIS for adjustment of status to that of
a lawful permanent resident. In the
nonimmigrant context, the
nonimmigrant typically applies directly
to the U.S. consulate or embassy abroad
for a visa to enter for a limited purpose,
such as to visit for business or
tourism.23 Applicants for admission are
inspected at or, when encountered,
between the port of entry. The
inspection is conducted by immigration
officers in a timeframe and setting
distinct from the visa adjudication
process. If a nonimmigrant alien is
present in the United States, he or she
may be eligible to apply to USCIS for an
extension of nonimmigrant stay or
change of nonimmigrant status.
DHS has the discretion to waive
certain grounds of inadmissibility as
designated by Congress. Where an alien
is seeking an immigration benefit that is
subject to a ground of inadmissibility,
DHS cannot approve the immigration
benefit being sought if a waiver of that
ground is unavailable under the INA,
the alien does not meet the statutory
and regulatory requirements for the
waiver, or the alien does not warrant the
waiver in any authorized exercise of
discretion.
22 See, e.g., INA section 212(a), 8 U.S.C. 1182(a)
(listing grounds of inadmissibility).
23 Certain nonimmigrant classifications are
subject to petition requirements and require that a
petition be filed and approved by USCIS prior to
application for a visa. See, e.g., INA section 214(c),
8 U.S.C. 1184(c). In addition, certain aliens are not
subject to a visa requirement in order to seek
admission as a nonimmigrant. See, e.g., INA section
217, 8 U.S.C. 1187.

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C. Extension of Stay and Change of
Status
Pursuant to section 214(a)(1) of the
Act, 8 U.S.C. 1184(a)(1), DHS permits
certain nonimmigrants to remain in the
United States beyond their current
period of authorized stay to continue
engaging in activities permitted under
their current nonimmigrant status. The
extension of stay regulations require a
nonimmigrant applying for an extension
of stay to demonstrate that he or she is
admissible to the United States.24 For
some extension of stay applications, the
applicant’s financial status is an
element of the eligibility
determination.25 DHS has the authority
to set conditions in determining
whether to grant the extension of stay
request.26 The decision to grant an
extension of stay application, with
certain limited exceptions, is
discretionary.27
Under section 248 of the Act, 8 U.S.C.
1258, DHS may permit an alien to
change his or her status from one
nonimmigrant status to another
nonimmigrant status, with certain
exceptions, as long as the nonimmigrant
is continuing to maintain his or her
current nonimmigrant status and is not
inadmissible under section
212(a)(9)(B)(i) of the Act, 8 U.S.C.
1182(a)(9)(B)(i).28 An applicant’s
financial status is currently part of the
determination for changes to certain
nonimmigrant classifications.29 Like
extensions of stay, change of status
adjudications are discretionary
determinations, and DHS has the
authority to set conditions that apply for
a nonimmigrant to change his or her
status.30
D. Public Charge Inadmissibility
Section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), provides that an alien
applicant for a visa, admission, or
adjustment of status is inadmissible if
he or she is likely at any time to become
a public charge. The public charge
ground of inadmissibility, therefore,
applies to any alien applying for a visa
to come to the United States temporarily
or permanently, for admission, or for
24 See

8 CFR 214.1(a)(3)(i).
e.g., 8 CFR 214.2(f)(1)(i)(B).
26 See INA section 214(a)(1), 8 U.S.C. 1184(a)(1);
8 CFR 214.1(a)(3)(i).
27 See 8 CFR 214.1(c)(5).
28 See INA section 248(a), 8 U.S.C. 1258(a); 8 CFR
248.1(a).
29 See, e.g., Adjudicator’s Field Manual Ch.
30.3(c)(2)(C) (applicants to change status to a
nonimmigrant student must demonstrate that they
have the financial resources to pay for coursework
and living expenses in the United States)
[hereinafter AFM].
30 See INA section 248(a), 8 U.S.C. 1258(a); 8 CFR
248.1(a).
25 See,

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
adjustment of status to that of a lawful
permanent resident.31 Section 212(a)(4)
of the Act, does not, however, directly
apply to applications for extension of
stay or change of status because
extension of stay and change of status
applications are not applications for a
visa, admission, or adjustment of status.
The INA does not define public
charge. It does, however, specify that
when determining if an alien is likely at
any time to become a public charge,
consular officers and immigration
officers must, at a minimum, consider
the alien’s age; health; family status;
assets, resources, and financial status;
and education and skills.32
Some immigrant and nonimmigrant
categories are exempt from the public
charge inadmissibility ground. DHS
proposes to list these categories in the
regulation. DHS also proposes to list in
the regulation the applicants that the
law permits to apply for a waiver of the
public charge inadmissibility ground.33
Additionally, section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), permits the
consular officer or the immigration
officer to consider any affidavit of
support submitted under section 213A
of the Act, 8 U.S.C. 1183a, on the
applicant’s behalf when determining
whether the applicant may become a
public charge.34 In fact, with very
limited exceptions, aliens seeking
family-based immigrant visas and
adjustment of status, and a limited
number of employment-based
immigrant visas or adjustment of status,
must have a sufficient affidavit of
support or will be found inadmissible as
likely to become a public charge.35
In general, an alien whom DHS has
determined to be inadmissible based on
the public charge ground may, if
otherwise admissible, be admitted at the
discretion of the Secretary upon giving
a suitable and proper bond or
undertaking approved by the
Secretary.36 The purpose of issuing a
public charge bond is to ensure that the
alien will not become a public charge in
the future.37 Since the introduction of
enforceable affidavits of support in
section 213A of the Act, the use of
public charge bonds has decreased and
USCIS does not currently have a public
31 See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
INA section 212(a)(4)(B)(i), 8 U.S.C.
1182(a)(4)(B)(i).
33 See proposed 8 CFR 212.23.
34 See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii). When required, the applicant must
submit an Affidavit of Support Under Section 213A
of the INA (Form I–864).
35 See INA section 212(a)(4)(C), (D), 8 U.S.C.
1182(a)(4)(C), (D).
36 See INA section 213, 8 U.S.C. 1183.
37 See Matter of Viado, 19 I&N Dec. 252 (BIA
1985).

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32 See

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charge bond process.38 This rule would
outline a process under which USCIS
could, in its discretion, offer public
charge bonds to applicants for
adjustment of status who are
inadmissible only on public charge
grounds.
1. Public Laws and Case Law
Since at least 1882, the United States
has denied admission to aliens on
public charge grounds.39 The INA of
1952 excluded aliens who, in the
opinion of the consular officer at the
time of application for a visa, or in the
opinion of the Government at the time
of application for admission, are likely
at any time to become public charges.40
The Government has long interpreted
the words ‘‘in the opinion of’’ as
evincing the subjective nature of the
determination.41
A series of administrative decisions
after passage of the Act clarified that a
totality of the circumstances review was
the proper framework for making public
charge determinations and that receipt
of welfare would not, alone, lead to a
finding of likelihood of becoming a
public charge. In Matter of MartinezLopez, the Attorney General opined that
the statute ‘‘require[d] 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 showing that the burden of
supporting the alien is likely to be cast
on the public, must be present. A
healthy person in the prime of life
cannot ordinarily be considered likely
to become a public charge, especially
where he has friends or relatives in the
United States who have indicated their
ability and willingness to come to his
assistance in case of emergency.’’ 42 In
38 See

AFM Ch. 61.1(b).
Immigration Act of 1882, ch. 376, sections
1–2, 22 Stat. 214, 214. Section 11 of the Act also
provided that an alien who became a public charge
within 1 year of arrival in the United States from
causes that existed prior to his or her landing, was
deemed to be in violation of law, and was to be
returned at the expense of the person or persons,
vessel, transportation, company or corporation who
brought the alien into the United States.
40 See INA of 1952, ch. 477, section 212(a)(15), 66
Stat. 163, 183.
41 See Matter of Harutunian, 14 I&N Dec. 583, 588
(Reg’l Cmm’r 1974) (‘‘[T]he determination of
whether an alien falls into that category [as likely
to become a public charge] rests within the
discretion of the consular officers or the
Commissioner . . . Congress inserted the words ‘in
the opinion of’ (the consul or the Attorney General)
with the manifest intention of putting borderline
adverse determinations beyond the reach of judicial
review.’’ (citation omitted)); Matter of MartinezLopez, 10 I&N Dec. 409, 421 (Att’y Gen. 1962)
(‘‘[U]nder the statutory language the question for
visa purposes seems to depend entirely on the
consular officer’s subjective opinion.’’).
42 10 I&N Dec. 409, 421–23 (BIA 1962).
39 See

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51125

Matter of Perez, the Board of
Immigration Appeals (BIA) held that
‘‘[t]he determination of whether an alien
is likely to become a public charge . . .
is a prediction based upon the totality
of the alien’s circumstances at the time
he or she applies for an immigrant visa
or admission to the United States. The
fact that an alien has been on welfare
does not, by itself, establish that he or
she is likely to become a public
charge.’’ 43 As stated in Matter of
Harutunian,44 public charge
determinations should take into
consideration factors such as an alien’s
age, incapability of earning a livelihood,
a lack of sufficient funds for selfsupport, and a lack of persons in this
country willing and able to assure that
the alien will not need public support.
The totality of circumstances
approach to public charge
inadmissibility determinations was
codified in relation to one specific class
of aliens in the 1980s. In 1986, Congress
passed the Immigration Reform and
Control Act (IRCA), providing eligibility
for lawful status to certain aliens who
had resided in the United States
continuously prior to January 1, 1982.45
No changes were made to the language
of the public charge exclusion ground
under former section 212(a)(15) of the
Act, but IRCA contained special public
charge rules for aliens seeking
legalization under 245A of the Act.
Although IRCA provided otherwise
eligible aliens an exemption or waiver
for some grounds of excludability, the
aliens generally remained excludable on
public charge grounds.46 Under IRCA,
however, if an applicant demonstrated a
history of self-support through
employment and without receiving
public cash assistance, he or she would
not be ineligible for adjustment of status
on public charge grounds.47 In addition,
aliens who were ‘‘aged, blind or
disabled’’ as defined in section
1614(a)(1) of the Social Security Act,
could obtain a waiver from the public
charge provision.48
43 15

I&N Dec. 136, 137 (BIA 1974).
14 I&N Dec. 583, 589 (Reg’l Comm’r 1974).
45 See IRCA of 1986, Public Law 99–603, section
201, 100 Stat. 3359, 3394.
46 See INA section 245A(d)(2)(B)(ii)(IV), 8 U.S.C.
1255(d)(2)(B)(ii)(IV).
47 See INA section 245A(d)(2)(B)(iii), 8 U.S.C.
1255(d)(2)(B)(iii).
48 See INA section 245A(d)(2)(B)(ii); see also 42
U.S.C. 1382c(a)(1). DHS does not propose to apply
this proposed rule to legalization applications filed
pursuant to section 245A of the INA or otherwise
amend the regulations at 8 CFR part 245a. That
provision is subject to legal standards and
settlement agreements that impact public charge
inadmissibility determinations in this specific
context. See, e.g., Catholic Soc. Servs., Inc. v.
Meese, vacated sub nom. Reno v. Catholic Soc.
44 See

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INS promulgated 8 CFR 245a.3,49
which established that immigration
officers would make public charge
determinations by examining the
‘‘totality of the alien’s circumstances at
the time of his or her application for
legalization.’’ 50 According to the
regulation, the existence or absence of a
particular factor could never be the sole
criterion for determining whether a
person is likely to become a public
charge.51 Further, the regulation
established that the determination is a
‘‘prospective evaluation based on the
alien’s age, health, income, and
vocation.’’ 52 A special provision in the
rule stated that aliens with incomes
below the poverty level are not
excludable if they are consistently
employed and show the ability to
support themselves.53 Finally, an alien’s
past receipt of public cash assistance
would be a significant factor in a
context that also considers the alien’s
consistent past employment.54 In Matter
of A-,55 INS again pursued a totality of
circumstances approach in public
charge determinations. ‘‘Even though
the test is prospective,’’ INS
‘‘considered evidence of receipt of prior
public assistance as a factor in making
public charge determinations.’’ INS also
considered an alien’s work history, age,
capacity to earn a living, health, family
situation, affidavits of support, and
other relevant factors in their totality.56
The administrative practices
surrounding public charge
inadmissibility determinations began to
crystalize into legislative changes in the

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Servs., Inc., 509 U.S. 43 (1993); League of United
Latin Am. Citizens v. INS, vacated sub nom. Reno
v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993).
49 See Adjustment of Status for Certain Aliens, 54
FR 29442 (Jul. 12, 1989).
50 8 CFR 245a.3(g)(4)(i).
51 8 CFR 245a.3(g)(4)(i).
52 8 CFR 245a.3(g)(4)(i).
53 8 CFR 245a.3(g)(4)(iii).
54 See 8 CFR 245a.3(g)(4)(iii).
55 19 I&N Dec. 867 (Comm’r 1988).
56 See 19 I&N Dec. 867, 869 (Comm’r 1988).

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1990s. The Immigration Act of 1990
reorganized section 212(a) of the Act
and re-designated the public charge
provision as section 212(a)(4) of the Act,
8 U.S.C. 1182(a)(4).57 In 1996,
PRWORA 58 and the Illegal Immigration
Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) 59 altered the
legislative landscape of public charge
considerably.60 Through PRWORA,
which is commonly known as the 1996
welfare reform law, Congress declared
that aliens generally should not depend
on public resources and that these
resources should not constitute an
incentive for immigration to the United
States.61 Congress also created section
213A of the Act and made a sponsor’s
affidavit of support for an alien
beneficiary legally enforceable.62 The
affidavit of support provides a
mechanism for public benefit granting
agencies to seek reimbursement in the
event a sponsored alien received meanstested public benefits.63
2. Public Benefits Under PRWORA
PRWORA also significantly restricted
alien eligibility for many Federal, State,
and local public benefits.64 With certain
exceptions, Congress defined the term
‘‘Federal public benefit’’ broadly as:
(A) Any grant, contract, loan,
professional license, or commercial
license provided by an agency of the
57 See Immigration Act of 1990, Public Law 101–
649, section 601(a), 104 Stat. 4978, 5072.
58 Public Law 104–193, 110 Stat. 2105.
59 Public Law 104–208, div. C, 110 Stat 3009–546.
60 In 1990, Congress reorganized INA section
212(a), redesignated the public charge provision as
INA section 212(a)(4), and eliminated the exclusion
of paupers, beggars, and vagrants as these grounds
were sufficiently covered under the public charge
provision. See Immigration Act of 1990, Public Law
101–649, section 601(a), 104 Stat. 4978, 5072.
61 See Public Law 104–193, section 400, 110 Stat.
2105, 2260 (codified at 8 U.S.C. 1601).
62 See Public Law 104–193, section 423, 110 Stat.
2105, 2271 (codified at INA section 213A, 8 U.S.C.
1183a). The provision was further amended with
the passage of IIRIRA.
63 See INA section 213A(b), 8 U.S.C. 1183a(b).
64 See 8 U.S.C. 1601–1646.

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United States or by appropriated funds
of the United States; and
(B) 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.65
(a) Qualified Aliens
Generally, under PRWORA,
‘‘qualified aliens’’ are eligible for federal
means-tested benefits after 5 years and
are not eligible for ‘‘specified federal
programs,’’ and states are allowed to
determine whether the qualified alien is
eligible for ‘‘designated federal
programs.’’ 66 The following table
provides a list of immigration categories
that are qualified aliens under
PRWORA.67
65 See Public Law 104–193, section 401(c), 110
Stat. 2105, 2262 (1996) (codified as amended at 8
U.S.C. 1611(c)). Congress provided that such term
shall not apply—
(A) to any contract, professional license, or
commercial license for a nonimmigrant whose visa
for entry is related to such employment in the
United States, or to a citizen of a freely associated
state, if section 141 of the applicable compact of
free association approved in Public Law 99–239 or
99–658 (or a successor provision) is in effect;
(B) with respect to benefits for an alien who as
a work authorized nonimmigrant or as an alien
lawfully admitted for permanent residence under
the Immigration and Nationality Act [8 U.S.C. 1101
et seq.] qualified for such benefits and for whom the
United States under reciprocal treaty agreements is
required to pay benefits, as determined by the
Attorney General, after consultation with the
Secretary of State; or
(C) to the issuance of a professional license to, or
the renewal of a professional license by, a foreign
national not physically present in the United States.
8 U.S.C. 1611(c)(2).
66 See Public Law 104–193, tit. IV, 110 Stat. 2105,
2260–77.
67 See Public Law 104–193, section 431, 110 Stat.
2105, 2274 (codified at 8 U.S.C. 1641); Trafficking
Victims Protection Act of 2000 section 107(b)(1), 22
U.S.C. 7105(b)(1).

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The Trafficking Victims Protection
Act of 2000 further provided that an
alien who is a victim of a severe form
of trafficking in persons, or an alien
classified as a nonimmigrant under
section 101(a)(15)(T)(ii) of the Act, 8
U.S.C. 1101(a)(15)(T)(ii), is eligible for
benefits and services under any Federal
or State program or activity funded or
administered by any official or
agency.72 These individuals are

generally exempt from the public charge
inadmissibility ground.73
With certain exceptions, aliens who
were not ‘‘qualified aliens,’’ including
nonimmigrants and unauthorized
aliens, were generally barred from
obtaining Federal benefits.74 In addition
to the federal public benefits
definitions, PRWORA categorizes the
benefits into the following categories:
• Specified Federal Programs;

68 Lawful permanent residents seeking entry into
the United States typically are not applicants for
admission, and therefore, generally are not subject
to section 212(a) of the INA, 8 U.S.C. 1182(a),
including INA section 212(a)(4), 8 U.S.C 1182(a)(4),
but lawful permanent residents described in INA
section 101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), are
regarded as seeking admission and generally are
subject to inadmissibility grounds.
69 Parole is not a category of admission. See INA
section 101(a)(13)(B), 8 U.S.C. 1101(a)(13)(B); INA
section 212(d)(5), 8 U.S.C. 1182(d)(5).

70 While an alien paroled into the United States
is not subject to an admission determination at the
time the decision to parole the alien is made, if an
alien who has been paroled into the United States
is applying for an immigration benefit for which
admissibility is required, e.g. adjustment of status,
the parolee will be subject to section 212(a)(4) of the
Act in the context of seeking the subsequent
immigration benefit.
71 As in effect immediately before the effective
date of section 307 of division C of Public Law 104–
208, 110 Stat. 3009–546.

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51127

• Designated Federal Programs; and
• Federal Means-Tested Benefits.
The following tables provide a
summary of the definition of federal
public benefit and the three categories
of public benefits under PRWORA as
applicable to aliens and qualified aliens.
BILLING CODE 4410–10–P

72 See Trafficking Victims Protection Act of 2000
section 107(b)(1), 22 U.S.C. 7105(b)(1).
73 However, while lawful permanent residents
seeking entry into the United States typically are
not applicants for admission, and therefore,
generally are not subject to section 212(a) of the
INA (including section 212(a)(4)), a lawful
permanent resident described in section
101(a)(13)(C) of the INA is regarded as seeking
admission and is subject to section 212(a)(4).
74 See PRWORA, Public Law 104–193, section
401(a), 110 Stat. 2105, 2261 (codified at 8 U.S.C.
1611(a)).

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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.

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Exceptions
from the
definition
8 U.S. C.
16ll(b)

Categories of
Aliens Eligible
8 U.S. C.
16ll(a)
Categories of
Aliens Not
Eligible

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The definition of federal public benefit does not include the following:
• Any contract, professional license, or commercial license for a nonimmigrant whose visa for
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.
• Medical assistance for emergency medical condition (42 U.S. C. 1396(v)(3)) .
• Short-term, non-cash, in-kind emergency disaster relief.
• Public health assistance for immunizations for immunizable diseases and for testing and
treatment of symptoms of communicable diseases.
• 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.
payable under title II of the Social Security Acf 7 to an alien who is lawfully
• Any benefit
8
presenf 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 82relating to the Medicare program to an alien who is lawfully83present in the
United States with respect to benefits payable under part A of such title, who was
authorized to be employed with respect to wages attributable such benefits.
• Any benefit payable under the85Railroad Retirement Act of 197484 or the Railroad
Unemployment Insurance Act 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)) .
•
Qualified
aliens
•

•

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Aliens not listed as qualified aliens

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8 U.S. C.
16ll(c)(2)

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8 U.S. C.
16ll(a)

51129

I

Definition
8 U.S.C
1612(a)(3)

•
•

Exemption

•

Specified Federal Program
SSI86
SNAP (Food Stamps) 87

Qualified aliens eligible after 5 years
Certain grandfathering provision for aliens already receiving SSI88 and SNAP 89

SNAP (Food-Stamps) specific exemptions:

•
•
•

Categories of
Aliens Eligible

•
•
•
•
•

Categories of
Aliens Not
Eligible

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.
Lawful permanent residents with 40 Social Security quarters 92
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 tribe 95
Aliens who were receiving SSI on August 22, 1996 96
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;
section 243(h) of the Act, 8 U.S.C. 1253 99 or
• Aliens whose deportation was withheld under
100
section 241(b)(3) of such Act, as amended;
entrant from the time the status was granted; 101 and
• Cuban and Haitians
02
1
Amerasians
• Qualified aliens and all other aliens

Definition
8 U.S. C.
1612(b)

•
•
•

Categories of
Aliens Eligible

States are authorized to determine the eligibility of an alien who is a qualified alien (as defined in
8 U.S. C. 1641) for any designated Federal program.

Social SeiVices Block Grane 05
Medicaid106

The following categories are eligible for Designated Federal programs without a time limit:
• Lawful permanent residents with 40 Social Security quarters 107
• 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 spouse 108
• American Indian born109in Canada or who is a member of an Indian tribe would still be
eligible for Medicaid

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Designated Federal Programs 103
TANF!o4

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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
114
•
Amerasians
Categories of
Aliens Not
Eligible
Definition
8 U.S.C. 1613
Categories of
Aliens Eligible

Aliens not listed as qualified aliens

Federal Means-Tested Benefits
No statutory definition under PRWORA, however, some agencies have defined which benefits
would be considered means-tested. 115
In addition, qualified aliens eligible for all other means-tested benefits after 5 years of entry.
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

BILLING CODE 4410–10–C

Congress chose not to restrict
eligibility for certain benefits, including
75 If section 141 of the applicable compact of free
association approved in Public Law 99–239 or 99–
658 (or a successor provision) is in effect.

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76 See Final Specification of Community
Programs Necessary For Protection Of Life Or Safety
Under Welfare Reform Legislation, 66 FR 3613 (Jan.
16, 2001); see also Specification of Community
Programs Necessary for Protection of Life or Safety
Under Welfare Reform Legislation, 61 FR 45985
(Aug. 30, 1996).

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77 See

42 U.S.C. 401–434.
8 CFR 1.3(a).
79 42 U.S.C. 433.
80 42 U.S.C. 402(t).
81 Benefits payable under title XVIII of the Social
Security Act. See 42 U.S.C. 1395–1395lll.
82 See 8 CFR 1.3(a).
78 See

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Categories of
Aliens Not
Eligible

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;
118
•
Cuban and Haitian entrants;
119
•
Amerasians;
•
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 tribe 121
Aliens who enter the United States on or after August 22, 1996, not listed as qualified aliens

Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
emergency medical assistance; shortterm, in-kind, non-cash emergency
disaster relief; and public health
assistance related to immunizations and
83 See

42 U.S.C. 1395c to 1395i–5.
45 U.S.C. 231–231v.
85 See 45 U.S.C. 351–369.
86 See 42 U.S.C. 1381–1383f.
87 See Food Stamp Act of 1977.
88 In addition, there are certain extensions for SSI
benefits through fiscal year 2011. See 8 U.S.C.
1612(a)(2)(M).
89 See 8 U.S.C. 1612(a)(2)(D).
90 See 8 U.S.C. 162(a)(2)(J).
91 As defined in 38 U.S.C. 101.
92 See 8 U.S.C. 1612(a)(2)(B).
93 See 8 U.S.C. 1612(a)(2)(C).
94 See 8 U.S.C. 1612(a)(2)(G); see also INA section
289, 8 U.S.C. 1359.
95 See 8 U.S.C. 1612(a)(2)(G); see also 25 U.S.C
5304(e) (defining Indian tribe).
96 See 8 U.S.C. 1612(a)(2)(E).
97 See 8 U.S.C. 1612(a)(2)(F).
98 See 8 U.S.C. 1612(a)(2)(A).
99 As in effect immediately before the effective
date of section 307 of division C of Public Law 104–
208.
100 8 U.S.C. 1231(b)(3).
101 As defined in section 501(e) of the Refugee
Education Assistance Act of 1980.
102 See section 584 of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act, 1988 (as contained in section
101(e) of Public Law 100–202, 101 Stat. 1329, and
amended by the 9th proviso under migration and
refugee assistance in title II of the Foreign
Operations, Export Financing, and Related
Programs Appropriations Act, 1989, Public Law
100–461, 102 Stat. 2268, as amended).
103 An alien who was lawfully residing in the
United States and receiving benefits on August 2,
1996, would have continued to receive benefits
until January 1, 1997. In addition, an alien who was
receiving SSI would still be eligible to receive
Medicaid. See 8 U.S.C. 1612(b)(2)(F).
104 See 42 U.S.C. 601–619.
105 See 42 U.S.C. 1397–1397h.
106 See 42 U.S.C. 1396 to 1396w–5.
107 See 8 U.S.C. 1612(b)(2)(B).
108 See 8 U.S.C. 1612(b)(2)(C).
109 See 8 U.S.C. 1612(b)(2)(E).
110 See 8 U.S.C. 1612(b)(2)(A).
111 As in effect immediately before the effective
date of section 307 of division C of Public Law 104–
208, 110 Stat. 3009.
112 8 U.S.C. 1231(b)(3).
113 As defined in section 501(e) of the Refugee
Education Assistance Act of 1980.
114 See section 584 of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act, 1988 (as contained in section
101(e) of Pub. L. 100–202, 101 Stat. 1329, and
amended by the 9th proviso under migration and
refugee assistance in title II of the Foreign
Operations, Export Financing, and Related
Programs Appropriations Act, 1989, Pub. L. 100–
461, 102 Stat. 2268, as amended).
115 See Federal Means-Tested Public Benefits, 63
FR 36653 (July 7, 1998).
116 See 8 U.S.C. 1613(c).
117 See 8 U.S.C. 1613(b)(1).
118 See section 501(e) of the Refugee Education
Assistance act of 1980.
119 See 8 U.S.C. 1612(a)(2)(A)(i)(V).
120 See 8 U.S.C. 1613(b)(2).
121 See 8 U.S.C. 1613(d).

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84 See

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treatment of the symptoms of a
communicable disease.122
PRWORA defined the term ‘‘State or
local public benefit’’ in broad terms
except where the term encroached upon
the definition of Federal public
benefit.123 With certain exceptions for
qualified aliens, nonimmigrants, or
parolees, PRWORA also limited aliens’
ability to obtain certain State and local
public benefits.124 Under PRWORA,
States may enact their own legislation to
provide public benefits to certain aliens
not lawfully present in the United
States.125 PRWORA also provided that a
State that chooses to follow the Federal
‘‘qualified alien’’ definition in
determining aliens’ eligibility for public
assistance ‘‘shall be considered to have
chosen the least restrictive means
available for achieving the compelling
governmental interest of assuring that
aliens be self-reliant in accordance with
national immigration policy.’’ 126 Still,
some States and localities have funded
public benefits (particularly medical
and nutrition benefits) that aliens may
be not eligible for federally.127
While PRWORA allows both qualified
aliens and non-qualified aliens to
receive certain benefits (e.g., emergency
benefits (all aliens); SNAP (qualified
alien children under 18)), Congress did
not exempt the receipt of such benefits
from consideration for purposes of INA
section 212(a)(4).’’ 128 Therefore, DHS
may take into consideration for
purposes of a public charge
determination, receipt of public benefits
even if an alien may receive such
benefits under PRWORA.
(b) Public Benefits Exempt Under
PRWORA
Although PRWORA provided a broad
definition of public benefits that only
qualified aliens are eligible to
receive,129 it also made certain public
122 See 8 U.S.C. 1611(b)(1); see also Final
Specification of Community Programs Necessary for
Protection of Life or Safety Under Welfare Reform
Legislation, 66 FR 3613 (Jan. 16, 2001); Interim
Guidance on Verification of Citizenship, Qualified
Alien Status and Eligibility Under Title IV of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, 62 FR 61344 (Nov. 17,
1997).
123 See 8 U.S.C. 1621(c).
124 See generally 8 U.S.C. 1621.
125 See 8 U.S.C. 1621(d).
126 8 U.S.C. 1601(7).
127 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Overview of Immigrants Eligible for
SNAP, TANF, Medicaid and CHIP (Mar. 27, 2012),
available at http://aspe.hhs.gov/hsp/11/
ImmigrantAccess/Eligibility/ib.shtml.
128 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
129 See Public Law 104–193, section 401(c), 110
Stat. 2105, 2262 (codified as amended at 8 U.S.C.
1611(c)). Only qualified aliens may be eligible for
certain benefits. See 8 U.S.C. 1641.

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51131

benefits available even to non-qualified
aliens.130 Congress excluded certain
benefits, such as contracts, professional
licenses, and commercial licenses from
the ‘‘federal public benefit’’
definition.131 In addition, Congress
further provided that the following
public benefits are available to all
aliens, regardless of whether an
individual is a qualified alien: 132
• Medical assistance under title XIX
of the Social Security Act [42 U.S.C.
1396 et seq.] (or any successor program
to such title) for care and services that
are necessary for the treatment of an
emergency medical condition (as
defined in section 1903(v)(3) of such
Act [42 U.S.C. 1396b(v)(3)]) of the alien
involved and are not related to an organ
transplant procedure, if the alien
involved otherwise meets the eligibility
requirements for medical assistance
under the State plan approved under
such title (other than the requirement of
the receipt of aid or assistance under
title IV of such Act [42 U.S.C. 601 et
seq.], supplemental security income
benefits under title XVI of such Act [42
U.S.C. 1381 et seq.], or a State
supplementary payment).
• Short-term, non-cash, in-kind
emergency disaster relief.133
• Public health assistance (not
including any assistance under title XIX
of the Social Security Act [42 U.S.C.
1396 et seq.]) for immunizations with
respect to immunizable diseases and for
testing and treatment of symptoms of
communicable diseases whether or not
such symptoms are caused by a
communicable disease.
• Programs, services, or assistance
(such as soup kitchens, crisis counseling
and intervention, and short-term
shelter) specified by the Attorney
General, in the Attorney General’s sole
and unreviewable discretion after
consultation with appropriate Federal
agencies and departments, 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
130 See

8 U.S.C. 1611(b).
8 U.S.C. 1611(c)(2).
132 See 8 U.S.C. 1611(b).
133 Such relief would include a range of services
and benefits provided by the Federal Emergency
Management Agency and other agencies. For
instance, it would include the Disaster
Supplemental Nutrition Assistance Program (D–
SNAP), which ‘‘gives food assistance to low-income
households with food loss or damage caused by a
natural disaster.’’ See DHS, Disaster Assistance.gov,
Disaster Supplemental Nutrition Assistance
Program (D–SNAP), available at https://
www.disasterassistance.gov/get-assistance/formsof-assistance/5769 (last updated June 25, 2018).
131 See

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provided on the individual recipient’s
income or resources; and (iii) are
necessary for the protection of life or
safety.
• 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 [42 U.S.C. 1471 et
seq.], or any assistance under section
1926c of title 7, to the extent that the
alien is receiving such a benefit on
August 22, 1996.
These benefits, which are described in
8 U.S.C. 1611(b), were further clarified
by the Department of Justice and some
of the agencies that administer these
public benefits. On January 16, 2001,
the Department of Justice published a
notice of final order, ‘‘Final
Specification of Community Programs
Necessary for Protection of Life or
Safety Under Welfare Reform
Legislation,’’ 134 which indicated that
PRWORA does not preclude aliens from
receiving police, fire, ambulance,
transportation (including paratransit),
sanitation, and other regular, widely
available services programs, services, or
assistance. In addition, the notice
provided for a three-part test in
identifying excluded benefits and
services for the protection of life and
safety. Specified programs must satisfy
all three prongs of this test:
1. The government-funded programs,
services, or assistance specified are
those that: Deliver in-kind (non-cash)
services at the community level,
including through public or private nonprofit agencies or organizations; do not
condition the provision, amount, or cost
of the assistance on the individual
recipient’s income or resources; and
serve purposes of the type described in
the list below, for the protection of life
or safety.
2. The community-based programs,
services, or assistance are limited to
those that provide in-kind (non-cash)
benefits and are open to individuals
needing or desiring to participate
without regard to income or resources.
Programs, services, or assistance
delivered at the community level, even
if they serve purposes of the type
described, are not within this
specification if they condition on the
individual recipient’s income or
resources: (a) The provision of
assistance; (b) the amount of assistance
134 See Final Specification of Community
Programs Necessary for Protection of Life or Safety
Under Welfare Reform Legislation, 66 FR 3613 (Jan.
16, 2001); see also Specification of Community
Programs Necessary for Protection of Life or Safety
Under Welfare Reform Legislation, 61 FR 45985
(Aug. 30, 1996).

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provided; or (c) the cost of the
assistance provided on the individual
recipient’s income or resources.
3. Included within the specified
programs, services, or assistance
determined to be necessary for the
protection of life or safety are the
following types of programs:
• Crisis counseling and intervention
programs; services and assistance
relating to child protection, adult
protective services, violence and abuse
prevention, victims of domestic
violence or other criminal activity; or
treatment of mental illness or substance
abuse;
• Short-term shelter or housing
assistance for the homeless, for victims
of domestic violence, or for runaway,
abused, or abandoned children;
• Programs, services, or assistance to
help individuals during periods of heat,
cold, or other adverse weather
conditions;
• Soup kitchens, community food
banks, senior nutrition programs such as
meals on wheels, and other such
community nutritional services for
persons requiring special assistance;
• Medical and public health services
(including treatment and prevention of
diseases and injuries) and mental
health, disability, or substance abuse
assistance necessary to protect life or
safety;
• Activities designed to protect the
life or safety of workers, children and
youths, or community residents; and
• Any other programs, services, or
assistance necessary for the protection
of life or safety.
In congressional debates leading up to
the passage of IIRIRA, Senator Kennedy
stated that ‘‘[t]hese benefit all, because
they relate to the public health and are
in the public interest. Where the public
interest is not served, we should not
provide the public assistance to illegal
immigrants.’’ 135 Therefore, these
benefits were provided to all aliens
including illegal aliens. These benefits
would not be part of the public charge
determination under the proposed
rule.136
3. Changes Under IIRIRA
Under IIRIRA,137 the public charge
inadmissibility statute changed
135 See 142 Cong. Rec. S3282 (daily ed. Apr. 15,
1996) (statement of Sen. Kennedy), available at
https://www.congress.gov/crec/1996/04/15/CREC1996-04-15-pt1-PgS3276.pdf.
136 See 8 U.S.C. 1611(b)(1)(B); see also Final
Specification of Community Programs Necessary for
Protection of Life or Safety Under Welfare Reform
Legislation, 66 FR 3613 (Jan. 16, 2001);
Specification of Community Programs Necessary for
Protection of Life or Safety Under Welfare Reform
Legislation, 61 FR 45985 (Aug. 30, 1996).
137 Public Law 104–208, div. C, 110 Stat 3009–
546 (1996).

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significantly. IIRIRA codified the
following minimum factors that must be
considered when making public charge
determinations: 138
• Age;
• Health;
• Family status;
• Assets, resources, and financial
status; and
• Education and skills.139
Congress also generally permitted but
did not require consular and
immigration officers to consider an
enforceable affidavit of support as a
factor in the determination of
inadmissibility,140 except in certain
cases where an affidavit of support is
required and must be considered at least
in that regard.141 The law required
affidavits of support for most familybased immigrants and certain
employment-based immigrants and
provided that these aliens are
inadmissible unless a satisfactory
affidavit of support is filed on their
behalf.142 In the Conference Report, the
committee indicated that the
amendments to INA section 212(a)(4), 8
U.S.C. 1182(a)(4), were designed to
expand the public charge ground of
inadmissibility.143 The report indicated
that self-reliance is one of the
fundamental principles of immigration
law and aliens should have affidavits of
support executed.144
DHS believes that the policy goals
articulated in PRWORA and IIRIRA
should inform its administrative
implementation of the public charge
ground of inadmissibility. There is no
tension between the availability of
public benefits to some aliens as set
forth in PRWORA and Congress’s intent
to deny visa issuance, admission, and
adjustment of status to aliens who are
likely to become a public charge.
Indeed, Congress, in enacting PRWORA
and IIRIRA very close in time, must
have recognized that it made certain
public benefits available to some aliens
who are also subject to the public charge
grounds of inadmissibility, even though
receipt of such benefits could render the
alien inadmissible as likely to become a
public charge.
138 Public Law 104–208, div. C, section 531, 110
Stat. 3009–546, 3009–674 (1996) (amending INA
section 212(a)(4), 8 U.S.C. 1182(a)(4)).
139 See INA section 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B).
140 See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii).
141 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4);
INA section 213A, 8 U.S.C. 1183A.
142 See INA section 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D).
143 See H.R. Rep. No. 104–828, at 240–41 (1996)
(Conf. Rep.); see also H.R. Rep. No. 104–469(I), at
143–45 (1996).
144 See H.R. Rep. No. 104–828, at 241 (1996)
(Conf. Rep.).

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Under the carefully devised scheme
envisioned by Congress, aliens generally
would not be issued visas, admitted to
the United States, or permitted to adjust
status if they are likely to become public
charges. This prohibition may deter
aliens from making their way to the
United States or remaining in the
United States permanently for the
purpose of availing themselves of public
benefits.145 Congress must have
understood, however, that certain aliens
who were unlikely to become public
charges when seeking a visa, admission,
or adjustment of status might thereafter
reasonably find themselves in need of
public benefits that, if obtained, would
render them a public charge.
Consequently, in PRWORA, Congress
made limited allowances for that
possibility. But Congress also did not
correspondingly limit the applicability
of the public charge statute; if an alien
subsequent to receiving public benefits
wished to adjust status in order to
remain in the United States
permanently or left the United States
and later wished to return, the public
charge inadmissibility consideration
(naturally including consideration of
receipt of public benefits) would again
come into play. In other words,
although an alien may obtain public
benefits for which he or she is eligible,
the receipt of those benefits may be
considered for future public charge
inadmissibility determination purposes.

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4. INS 1999 Interim Field Guidance
On May 26, 1999, INS issued interim
Field Guidance on Deportability and
Inadmissibility on Public Charge
Grounds.146 This guidance identified
how the agency would determine if a
person is likely to become a public
charge under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a), for admission and
adjustment of status purposes, and
whether a person is deportable as a
public charge under section 237(a)(5) of
the Act, 8 U.S.C. 1227(a)(5).147 INS
proposed promulgating these policies as
regulations in a proposed rule issued on
May 26, 1999.148 DOS also issued a
cable to its consular officers at that time
implementing similar guidance for visa
adjudications, and its Foreign Affairs
Manual (FAM) was similarly
updated.149 USCIS has continued to
follow the 1999 Interim Field Guidance
in its adjudications, and DOS has
145 H.R.

Rep. No. 104–469(I), at 144–45 (1996).
64 FR 28689 (May 26, 1999).
147 See 64 FR 28689 (May 26, 1999).
148 See Inadmissibility and Deportability on
Public Charge Grounds, 64 FR 28676 (May 26,
1999).
149 See 64 FR 28676, 28680 (May 26, 1999).
146 See

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continued following the public charge
guidance set forth in the FAM.150
In the 1999 proposed rule, INS
proposed to ‘‘alleviate growing public
confusion over the meaning of the
currently undefined term ‘public charge’
in immigration law and its relationship
to the receipt of Federal, State, or local
public benefits.’’ 151 INS sought to
reduce negative public health and
nutrition consequences generated by the
confusion and to provide aliens, their
sponsors, health care and immigrant
assistance organizations, and the public
with better guidance as to the types of
public benefits that INS considered
relevant to the public charge
determinations.152 INS also sought to
address the public’s concerns about
immigrants’ fears of accepting public
benefits for which they remained
eligible, specifically in regards to
medical care, children’s immunizations,
basic nutrition and treatment of medical
conditions that may jeopardize public
health. With its guidance, INS aimed to
stem the fears that were causing
noncitizens to refuse limited public
benefits, such as transportation
vouchers and child care assistance, so
that they would be better able to obtain
and retain employment and establish
self-sufficiency.153
INS defined public charge in its
proposed rule and 1999 Interim Field
Guidance to mean ‘‘the likelihood of a
foreign national becoming primarily
dependent 154 on the government for
subsistence, as demonstrated by either:
• Receipt of public cash assistance for
income maintenance; or
• Institutionalization for long-term
care at government expense.’’
When developing the proposed rule,
INS consulted with Federal benefitgranting agencies such as the
Department of Health and Human
Services (HHS), the Social Security
Administration (SSA), and the
Department of Agriculture (USDA). The
Deputy Secretary of HHS, which
administers Temporary Assistance for
Needy Families (TANF), Medicaid, the
Children’s Health Insurance Program
(CHIP), and other benefits, advised that
the best evidence of whether an
individual is relying primarily on the
government for subsistence is either the
150 See Children’s Health Insurance Program
Reauthorization Act of 2009, Public Law 111–3,
section 214, 123 Stat. 8, 56; 9 FAM 302.8–2(B)(2),
Determining ‘‘Totality of Circumstances,’’ (g) Public
Charge Bonds, available at https://fam.state.gov/
fam/09fam/09fam030208.html.
151 See 64 FR 28676, 28676 (May 26, 1999).
152 See 64 FR 28676, 28676–77 (May 26, 1999).
153 See 64 FR 28676, 28676–77 (May 26, 1999).
154 Former INS defined ‘‘primarily dependent’’ as
‘‘the majority’’ or ‘‘more than 50 percent.’’

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51133

receipt of public cash benefits for
income maintenance purposes or
institutionalization for long-term care at
government expense.155 The Deputy
Commissioner for Disability and Income
Security Programs at SSA agreed that
the receipt of SSI ‘‘could show primary
dependence on the government for
subsistence fitting the INS definition of
public charge provided that all of the
other factors and prerequisites for
admission or deportation have been
considered or met.’’ 156 And the USDA’s
Under Secretary for Food, Nutrition and
Consumer Services advised that
‘‘neither the receipt of food stamps nor
nutrition assistance provided under the
Special Nutrition Programs
administered by [USDA] should be
considered in making a public charge
determination.’’ 157 While these letters
supported the approach taken in the
1999 proposed rule and Interim Field
Guidance, the letters specifically
focused on the reasonableness of a given
INS interpretation; i.e. primary
dependence on the government for
subsistence. The letters did not
foreclose the agency adopting a different
definition consistent with statutory
authority.
The 1999 proposed rule provided that
non-cash, supplemental and certain
limited cash, special purpose benefits
should not be considered for public
charge purposes, in light of INS’
decision to define public charge by
reference to primary dependence on
public benefits. Ultimately, however,
INS did not publish a final rule
conclusively addressing these issues.
E. Public Charge Bond
If an alien is determined to be
inadmissible on public charge grounds
under section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), he or she may be
admitted in the discretion of the
Secretary of Homeland Security, if
otherwise admissible, upon the giving of
a suitable and proper bond.158
155 See

64 FR 28676, 28686–87 (May 26, 1999).
FR 28676, 28687 (May 26, 1999).
157 64 FR 28676, 28688 (May 26, 1999). The
USDA letter did not include supportive reasoning.
As noted in greater detail elsewhere in this
preamble, DHS no longer believes that primary
dependence on the government for subsistence is
the appropriate standard for public charge
determination purposes. In light of the proposed
change in the public charge standard and the
passage of time, DHS does not believe that the
views expressed in those interagency consultations
remain fully relevant. DHS has nonetheless
considered such views, and has addressed the
relevant considerations—legal authority,
predictability, administrability, and adverse
impacts—throughout this proposed rule.
158 See INA section 213, 8 U.S.C. 1183; see also
8 CFR 103.6; 8 CFR 213.1.
156 64

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Historically, bond provisions started
with states requiring certain amounts to
assure an alien would not become a
public charge.159 Bond provisions were
codified in federal immigration laws in
1903.160 Notwithstanding codification
in 1903, the acceptance of a bond
posting in consideration of an alien’s
admission and to assure that he or she
will not become a public charge
apparently had its origin in federal
administrative practice earlier than this
date. Beginning in 1893, immigration
inspectors served on Boards of Special
Inquiry that reviewed exclusion cases of
aliens who were likely to become public
charges because the aliens lacked funds
or relatives or friends who could
provide support.161 In these cases, the
Board of Special Inquiry usually
admitted the alien if someone could
post bond or one of the immigrant aid
societies would accept responsibility for
the alien.162
The present language of section 213 of
the Act, 8 U.S.C. 1183, has been in the
law without essential variation since
1907.163 Under section 21 of the
Immigration Act of 1917, an
immigration officer could admit an alien
if a suitable bond was posted. In 1970,
Congress amended section 213 of the
Act to permit the posting of cash
received by the U.S. Department of the
Treasury and to eliminate specific
references to communicable diseases of
public health significance.164 At that
time, Congress also added, without
159 See, e.g., Mayor, Aldermen & Commonalty of
City of N.Y. v. Miln, 36 U.S. 102 (1837) (upholding
a New York statute that required vessel captains to
provide certain biographical information about
every passenger on the ship and further permitting
the mayor to require the captain to provide a surety
of not more than $300 for each noncitizen passenger
to indemnify and hold harmless the government
from all expenses incurred to financially support
the person and the person’s children); see also H.D.
Johnson & W.C. Reddall, History of Immigration
(Washington, 1856).
160 See Immigration Act of 1903, ch. 1012, 32 Stat.
1213 (repealed by Act of Feb. 20, 1907, ch. 1134,
34 Stat. 898, and Immigration Act of 1917, ch. 29,
39 Stat. 874).
161 Immigration Act of 1891, ch. 551, 26 Stat.
1084, created the Office of the Superintendent of
Immigration within the Treasury Department. The
Superintendent oversaw a new corps of U.S.
Immigrant Inspectors stationed at the country’s
principal ports of entry. See USCIS History and
Genealogy, Origins of Federal Immigration Service,
https://www.uscis.gov/history-and-genealogy/ourhistory/agency-history/origins-federal-immigrationservice (last updated Feb. 4, 2016).
162 See USCIS History and Genealogy, Origins of
Federal Immigration Service, https://
www.uscis.gov/history-and-genealogy/our-history/
agency-history/origins-federal-immigration-service
(last updated Feb. 4, 2016).
163 See Act of February 20, 1907, ch. 1134, section
26, 34 Stat. 898, 907.
164 See Public Law 91–313, 84 Stat. 413, 413
(1970); see also 116 Cong. Rec. S9957 (daily ed.
June 26, 1970).

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further explanation or consideration, the
phrase that any sums or other security
held to secure performance of the bond
shall be returned ‘‘except to the extent
forfeited for violation of the terms
thereof’’ upon termination of the
bond.165 Subsequently, IIRIRA amended
the provision yet again when adding a
parenthetical which clarified that a
bond is provided in addition to, and not
in lieu of, the affidavit of support and
the deeming requirements under section
213A of the Act, 8 U.S.C. 1183A.166
Regulations implementing the public
charge bond were promulgated in 1964
and 1966,167 and are currently found at
8 CFR 103.6 and 8 CFR 213.1.
V. Discussion of Proposed Rule
This proposed rule would establish a
proper nexus between public charge and
receipt of public benefits by defining the
terms public charge and public benefit,
among other terms. DHS proposes to
interpret the minimum statutory factors
involved in public charge
determinations and to establish a clear
framework under which DHS would
evaluate those factors to determine
whether or not an alien is likely at any
time in the future to become a public
charge. DHS also proposes to clarify the
role of a sponsor’s affidavit of support
within public charge inadmissibility
determinations.
In addition, DHS proposes that certain
factual circumstances would weigh
heavily in favor of determining that an
alien is not likely to become a public
charge and other factual circumstances
would weigh heavily in favor of
determining that an alien is likely to
become a public charge.168 The purpose
of assigning greater weight to certain
factual circumstances is to provide
clarity for the public and immigration
officers with respect to how DHS would
fulfill its statutory duty to assess public
charge admissibility. Ultimately, each
determination would be made in the
totality of the circumstances based on
consideration of the relevant factors. In
addition, DHS proposes that for
applications for adjustment of status,
the alien would be required to submit a
Form I–944.
DHS also proposes to establish a
public charge bond process in the
adjustment of status context, and
proposes to clarify DHS’s authority to
set conditions for nonimmigrant
165 See Public Law 91–313, 84 Stat. 413, 413
(1970).
166 See Public Law 104–208, div. C, section 564(f),
110 Stat. 3009–546, 3009–684.
167 See Miscellaneous Amendments to Chapter,
29 FR 10579 (July 30, 1964); Miscellaneous Edits to
Chapter, 31 FR 11713 (Sept. 7, 1966).
168 See proposed 8 CFR 212.22.

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extension of stay and change of status
applications.
Finally, this proposed rule interprets
the public charge inadmissibility
ground under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), not the public
charge deportability ground under
section 237(a)(5) of the Act, 8 U.S.C.
1227(a)(5). Department of Justice
precedent decisions would continue to
govern the standards regarding public
charge deportability determinations.
A. Applicability, Exemptions, and
Waivers
This rule would apply to any alien
subject to section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), who is applying for
admission to the United States or is
applying for adjustment of status to that
of lawful permanent resident before
DHS.169 DOS screens applicants who
are subject to public charge
inadmissibility grounds and who are
seeking nonimmigrant or immigrant
visas at consular posts worldwide.
Nearly sixty percent of the 2.7 million
immediate relatives, familysponsored,170 employment-based, and
diversity visa-based immigrants who
obtained lawful permanent resident
status in the United States between
fiscal years 2014 and 2016 consular
processed immigrant visa applications
overseas prior to being admitted to the
United States as lawful permanent
residents at a port-of-entry. Fifty-one
percent of immediate relatives, ninetytwo percent of family-sponsored
immigrants, and ninety-eight percent of
diversity visa immigrants obtained an
immigrant visa at a consular post
overseas before securing admission as a
lawful permanent resident at a port-ofentry between fiscal years 2014 and
2016.171
This rule also addresses eligibility for
extension of stay and change of
169 See

proposed 8 CFR 212.20.
first, second, third and fourth
preferences of family sponsored immigrants and
immediate relatives. See DHS, Yearbook of
Immigration Statistics 2016, Table 6, Persons
Obtaining Lawful Permanent Resident Status by
Type and Major Class of Admission: Fiscal Years
2014 to 2016, available at https://www.dhs.gov/
immigration-statistics/yearbook/2016/table6 (last
updated Dec. 18, 2017).
171 See DHS, Yearbook of Immigration Statistics
2016, Table 6, Persons Obtaining Lawful Permanent
Resident Status by Type and Major Class of
Admission: Fiscal Years 2014 to 2016, available at
https://www.dhs.gov/immigration-statistics/
yearbook/2016/table6 (last updated Dec. 18, 2017).
The 2016 Yearbook of Immigration Statistics is a
compendium of tables that provide data on foreign
nationals who are granted lawful permanent
residence (i.e., immigrants who receive a ‘‘green
card’’), admitted as temporary nonimmigrants,
granted asylum or refugee status, or are naturalized.
170 Including

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status.172 Because the processes,
evidentiary requirements, and nature of
the stay in the United States for aliens
seeking a visa, admission, extension of
stay, change of status, and adjustment of
status differ, DHS proposes public
charge processes appropriately tailored
to the benefit the alien seeks. For
instance, aliens seeking adjustment of
status undergo a different process than
a temporary visitor for pleasure from
Canada seeking admission to the United
States. The length and nature of the stay
of these two subsets of aliens differs
significantly, as does frequency of entry.
Accordingly, the processes and
evidentiary requirements proposed in
this rule vary in certain respects
depending on the type of benefit and
status an alien is seeking, as set forth
below.

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1. Applicants for Admission
Under section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), any alien who is
applying for a visa or for admission to
the United States is inadmissible if he
or she is likely at any time to become
a public charge. A nonimmigrant is
admitted into the United States to stay
for the limited period and purpose of
the classification under which he or she
was admitted and, in most instances,
then is expected to depart the United
States and return to his or her country.
A visa applicant applies directly to a
U.S. consulate or embassy abroad for a
nonimmigrant visa to travel to the
United States temporarily for a limited
purpose, such as to visit for business or
tourism.173 DOS consular officers assess
whether the alien would be
inadmissible, including under section
212(a)(4) of the Act, as applicable.
Applicants for admission are
inspected at, or when encountered
between, ports of entry. They are
inspected by immigration officers to
assess, among other things, whether
they are inadmissible under section
212(a) of the Act, including section
212(a)(4). Under the proposed rule, the
type of nonimmigrant status and the
duration of the nonimmigrant’s stay in
the United States 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. For example, in
172 See

proposed 8 CFR 214.1(a)(3)(iv); proposed
8 CFR 214.1(c)(4)(iv); proposed 8 CFR 248.1(a);
proposed 8 CFR 248.1(c)(4).
173 Certain nonimmigrant classifications are
subject to petition requirements, and a petition
generally must be approved on an alien’s behalf by
USCIS prior to application for a visa. See, e.g., INA
section 214(c), 8 U.S.C. 1184(c). In addition, certain
aliens are not subject to a visa requirement in order
to seek admission as a nonimmigrant. See, e.g., INA
section 217, 8 U.S.C. 1187; see also 8 CFR 212.1.

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determining whether an applicant for
admission as a B–2 nonimmigrant
visitor for pleasure who is coming to the
United States for a one-week vacation is
inadmissible on public charge grounds,
DHS would consider that this temporary
visit is short in nature and that the
individual likely would only need
financial resources to cover the
expenses associated with the vacation.
Similarly, an alien who is the
beneficiary of an immigrant visa
petition approved by USCIS may apply
to a DOS consulate abroad for an
immigrant visa to allow him or her to
seek admission to the United States as
an immigrant.174 As part of the
immigrant visa process, DOS determines
whether the applicant is eligible for the
visa, which includes a determination of
whether the alien has demonstrated that
he or she is admissible to the United
States and that no inadmissibility
grounds in section 212(a) of the Act
apply. In determining whether the
applicant has demonstrated that he or
she is not inadmissible on the public
charge ground, DOS reviews all of the
mandatory factors, including any
required affidavits of support submitted
under section 213A of the Act, 8 U.S.C.
1183a.
This process would not change under
the proposed rule, but it is likely that
DOS will amend its guidance to prevent
the issuance of visas to inadmissible
aliens,175 except as otherwise provided
in the Act. DOS would continue to
review affidavits of support and screen
aliens for public charge inadmissibility
in accordance with applicable
regulations and instructions prior to the
alien undergoing inspection and
applying for admission at a preinspection location or port-of-entry
Additionally, although lawful
permanent residents generally are not
considered to be applicants for
admission upon their return from a trip
abroad, in certain limited circumstances
a lawful permanent resident will be
considered an applicant for admission
and, therefore, subject to an
inadmissibility determination.176 This
174 See INA sections 221 and 222, 8 U.S.C. 1201
and 1202; 8 CFR 204; 22 CFR part 42.
175 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
176 Lawful permanent residents are regarded as
applicants for admission in the following
circumstances: (1) Lawful permanent residents who
have abandoned or relinquished that status; (2)
lawful permanent residents who have been outside
the United States for a continuous period in excess
of 180 days; (3) lawful permanent residents who
have engaged in illegal activity after departing the
United States; (4) lawful permanent residents who
have departed the United States while under legal
process seeking removal of the alien from the
United States, including removal proceedings and
extradition proceedings; (5) lawful permanent
residents who have committed an offense identified

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51135

inadmissibility determination includes
whether the alien is inadmissible as
likely to become a public charge, which
will be determined upon the lawful
permanent resident’s return to the
United States.
2. Extension of Stay and Change of
Status Applicants
As mentioned above, a nonimmigrant
is admitted into the United States to
stay for the limited period and purpose
of the classification under which he or
she was admitted and, in most
instances, then is expected to depart the
United States and return to his or her
country. However, consistent with the
INA and controlling regulations, DHS
may, in its discretion, extend an alien’s
nonimmigrant status or change an
alien’s nonimmigrant status from one
classification to another.177
Furthermore, DHS is authorized under
the INA to set conditions on the
extension of stay or change of status.
Consistent with this authority, DHS is
proposing to require an applicant for an
extension of stay or change of status to
attest that he or she has neither received
since obtaining the nonimmigrant status
he or she seeks to extend or to which
he or she seeks to change, is not
receiving, nor is likely to receive at any
time in the future one or more public
benefits as defined in this proposed
rule.
Although section 212(a)(4) of the Act
by its terms only applies to applicants
for visas, admission, and adjustment of
status, and thus does not, by its terms,
render aliens who are likely to become
a public charge ineligible for the
extension of stay or change of status, the
government’s interest in a
nonimmigrant alien’s ability to maintain
self-sufficiency for the duration of the
temporary stay does not end with his or
her admission as a nonimmigrant. In
particular, the government has an
interest in ensuring that aliens present
in the United States do not depend on
public benefits to meet their needs.178
Aliens therefore should remain selfsufficient for the entire period of their
stay, including any extension of stay or
additional period of stay afforded by a
change of status. Accordingly, DHS is
proposing to consider whether the alien
in section 212(a)(2) of the INA, 8 U.S.C. 1182(a)(2),
unless granted a waiver of inadmissibility for such
offense or cancellation of removal; and (6) lawful
permanent residents attempting to enter at a time
or place other than as designated by immigration
officers or who have not been admitted to the
United States after inspection and authorization by
an immigration officer. See INA section
101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C).
177 See INA sections 214(a)(1) and 248(a), 8 U.S.C.
1184(a)(1) and 1258(a); see also 8 CFR 214.1, 248.1.
178 See 8 U.S.C. 1601(2)(A).

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has received since obtaining the
nonimmigrant status he or she seeks to
extend or to which he or she seeks to
change, is currently receiving, or is
likely to receive public benefits as
defined in the proposed rule, when
adjudicating an application to extend a
nonimmigrant stay or change a
nonimmigrant status.
Extension of stay and change of status
applicants are already required to
provide evidence of maintenance of
their current nonimmigrant status.179 As
part of that determination, for some
applicants, DHS considers the alien’s
financial status 180 and believes it sound
policy to extend that consideration to
extensions of stay and change of status
generally, rather than to just subsets of
nonimmigrants. Although the INA does
not indicate that aliens seeking an
extension of stay or change of status
must establish self-sufficiency,
consideration of such alien’s selfsufficiency aligns with the
aforementioned policy statements set
forth in PRWORA.181
Except where the nonimmigrant
status that the alien seeks to extend or
to which the alien seeks to change is
exempted by law from section 212(a)(4)
of the Act, in order for an alien to
demonstrate that he or she has neither
received since obtaining the
nonimmigrant status he or she seeks to
extend or from which he or she seeks to
change, nor is currently receiving or

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179 See INA 214(a)(1), 8 U.S.C. 1184; 8 CFR
214.1(c)(4); INA 248(a), 8 U.S.C. 1258; 8 CFR
248.1(a).
180 See 8 CFR 214.2(f)(1)(i)(B); AFM Ch.
30.2(c)(2)(F) (‘‘Students seeking reinstatement must
submit evidence of eligibility, including financial
information . . . .’’); AFM Ch. 30.3(c)(2)(C)
(applicants applying to change status to a
nonimmigrant student must demonstrate that they
have the financial resources to pay for coursework
and living expenses in the United States).
181 8 U.S.C. 1601.

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likely to receive any such public
benefits, DHS will require applicants to
answer questions on their application
form,182 under penalty of perjury,
regarding their receipt of these public
benefits. The responses to these
questions would be used in determining
whether the applicant has met his or her
burden to establish eligibility for
extension of stay or change of status
under the proposed regulation.
In adjudicating whether the applicant
has demonstrated that he or she is not
likely to receive public benefits as
defined in the proposed rule, at any
time in the future, DHS would consider
the status to which the alien seeks to
extend or to which to change, as well as
the anticipated additional period of
stay. DHS would also consider whether
the applicant has provided evidence of
maintenance of status and that he or she
has sufficient financial means to
maintain the status he or she seeks, or
that he or she will be gainfully
employed in such status, as applicable.
Based on the information the alien
provides in support of the application
for extension of stay or change of status,
USCIS would determine whether the
applicant should also submit Form I–
944 in order to demonstrate that he or
she is unlikely to receive public benefits
during the temporary stay in the United
States.
For example, if the alien is a B–2
nonimmigrant who was admitted to the
United States to seek medical treatment
and is seeking to extend his or her visit
because he or she requires additional
medical treatment that was
unanticipated at the time of admission,
the alien would need to submit
evidence that he or she has the financial
182 Aliens in nonimmigrant classifications whose
employers will be filing Form I–129 or Form I–
129CW on their behalf will be required to provide
this information to their employer.

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means to pay for this additional medical
treatment and otherwise support
himself or herself during the extended
duration of his or her temporary stay.
An alien seeking to extend his or her
stay in, or change status to, F–1 or M–
1 nonimmigrant status would submit
evidence of his or her financial ability
to pay for his or her study and to
financially support himself or herself.183
An alien seeking to extend stay in or
change to an employment-based
nonimmigrant status, such as H–2B
temporary non-agricultural worker
status, would need to submit evidence
such as tax return transcripts, W–2, or
other documentation evidencing income
from gainful employment appropriate to
the nonimmigrant status being
sought.184
Table 4 below provides a summary of
nonimmigrant categories and the
applicability of the public charge
condition to such categories.
BILLING CODE 4410–10–P
183 See 8 CFR 214.2(f)(1)(i)(B) (students must
present ‘‘documentary evidence of financial support
in the amount indicated on the SEVIS Form I–20
(or the Form I–20A–B/I–20ID)’’); AFM Ch.
30.2(b)(2)(F) (‘‘(F) Students seeking reinstatement
must submit evidence of eligibility, including
financial information and a current I–20.’’); AFM
Ch. 30.3(c)(2)(C) (‘‘Aliens seeking F–1 or M–1 status
must submit the appropriate Form I–20 and
evidence of financial ability to maintain the new
status. Aliens seeking J–1 status must submit Form
IAP–66.’’); AFM Ch. 30.3(b)(3)(D) (‘‘[T]he applicant
[for change of status] must demonstrate he or she
is able to maintain him or herself in the status
sought, particularly financially. This issue needs
particular examination when the applicant seeks a
prolonged stay in any status where employment is
not a routine part of the status, for example student
status.’’).
184 See, e.g., AFM Ch. 30.3(b)(3)(E) (‘‘Because the
alien applicant on Form I–129 will be gainfully
employed once the new status is granted, it is
generally not necessary to further explore an
applicant’s ability to maintain status financially
(unless the rate of remuneration is so low that the
principal would be unable to support him/herself
and all dependents).’’).

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A-1- Ambassador, Public Minister,
Career Diplomat or Consular
Officer, or Immediate Family
A-2- Other Foreign Government
Official or Employee, or Immediate
Family
INA 10l(a)(l5)(A), 22 CFR 41.21
A-3 -Attendant, SeiVant, or
Personal Employee of A-1 or A-2,
or Immediate Family
INA 10l(a)(l5)(A), 22 CFR 41.21

No. Not applicable as
admitted for Duration of
Status, 8 CFR
214.l(c)(3)(v)

Yes. Files I-539, 8 CFR
248.l(a)

No. INA 102; 22
CFR 41.2l(d)

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes. INA 102; 22
CFR 41.2l(d)(3)

B-1 -Temporary Visitor for
Business
B-2 - Temporary Visitor for
Pleasure
* not admitted under Visa Waiver
Program
INA 10l(a)(l5)(B)
C-1 - Alien in Transit
C-1/D - Combined Transit and
Crewmember Visa
INA 10l(a)(l5)(C) and (D), INA
212(d)(8)

Yes. Files Form I-539, 8
CFR 214.l(c)(2), 8 CFR
214.2(b)(l)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

No.8 CFR
214.l(c)(3)(ii)

No. 8 CFR 248.2(a)(2),
except for change to T and
U, 8 CFR 248.2(b) using
Form I-914 or I-918

Not Applicable as
not eligible for
extension of stay or
change of status

C-2- Alien in Transit to United
Nations Headquarters District
Under Section 11.(3), (4), or (5) of
the Headquarters Agreement
INA 10l(a)(l5)(C) and (D), INA
212(d)(8)
C-3 -Foreign Government Official,
Immediate Family, Attendant,
SeiVant or Personal Employee, in
Transit
INA 10l(a)(l5)(C) and (D), INA
212(d)(8)

No. Not applicable as
admitted for Duration of
Status. 8 CFR
214.l(c)(3)(ii)

No, 8 CFR 248.2(a)(2) ,
except for change to T and
U, 8 CFR 248.2(b) using
Form I-914 or I-918

No. 22 CFR
41.2l(d)

No.8 CFR
214.l(c)(3)(ii)

No, 8 CFR 248.2(a)(2) ,
except for change to T and
U, 8 CFR 248.2(b) using
Form I-914 or I-918

No. 22 CFR
41.2l(d)

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EP10OC18.008

Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(i.e. May File Form 1-129 under proposed 8
(i.e. May File Form 1129 or Form 1-539)*
or I-Form 539)*
CFR
214.1(a)(3)(iv),
214.1(a)(4)(iv);
248.1(c)(4)

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CW-1 - Commonwealth of
Northern Mariana Islands
Transitional Worker
Section 6(d) of Public Law 94-241,
as added by Section 702(a) of
Public Law 110-229. 8 CFR
214.2(w)

Yes. Files Form I129CW, 8 CFR
214.l(c)(2) and 8 CFR
214.2(w)(l7)

Yes. Files Form I129CW, 8 CFR 248.l(a);
8 CFR 214.2(w)(l8)

CW-2 - Spouse or Child of CW-1

Yes. Files Form I-539, 8
CFR 214.l(c)(2) and 8
CFR 214.2(w)(l7)(v)

Yes. Files Form I-539, 8
CFR 248.l(a); 8 CFR
214.2(w)(l8)

D - Crewmember (Sea or Air)
D-2 - Crewmember departing from
a different vessel than one of arrival
INA 10l(a)(l5)(D)
E-1, E-2- Treaty Trader (Principal)
INA 10l(a)(l5)(E)

No.8 CFR
214.l(c)(3)(iii)

Yes. Files Form I-129, 8
CFR 214.l(c)(l); 8 CFR
214.2(e)(20)

No, 8 CFR 248.2(a)(2),
except for change to T and
U, 248.2(b) using Form I914 or Form I-918
Yes, Files Form I-129, 8
CFR 248.l(a), 8 CFR
214.2(e)(21 )(i)

E-1, E-2- Treaty Trader, Spouse or
Child
INA 10l(a)(l5)(E)

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. Files Form I-539, 8
CFR 214.2(e)(2l)(ii),

Yes.

E-2-CNMI - Commonwealth of
Northern Mariana Islands Investor
(Principal)
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
Northern Mariana Islands Investor,
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)

Yes. Files Form I-129, 8
CFR 214.2(e)(23)(xii)

Yes. FilesFormi-129,8
CFR 248.l(a), 8 CFR
214.2(e)(23)(xiii)

Yes.

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

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Yes.

Yes.

Yes.

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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

51139

E-3 - Australian Treaty Alien
coming to the United States Solely
to Perform Services in a Specialty
Occupation

Yes. Files Form I-129, 8
CFR 214.l(c)(l) and (2)

Yes. Files Form I-129, 8
CFR 248.l(a)

Yes.

E-3D- Spouse or Child ofE-3
E-3R- Returning E-3
INA 10l(a)(l5)(E)(iii)

Yes. Files I-539, 8 CFR
214.l(c)(l) and (2)

Yes. Files I-539, 8 CFR
248.l(a)

Yes.

F -1 - Student in an academic or
language training program
(principal)
INA 10l(a)(l5)(F).

Yes, only if the F-1
requesting reinstatement
to F-1 status or if the F-1
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)

Yes. Files Form I-539, 8
CFR 248.l(a),

Yes.

F-2- Spouse or Child ofF-1
INA 10l(a)(l5)(F).

No, not applicable as
admitted for Duration of
Status. 8 CFR
214.l(c)(3)(v); 8 CFR
214.2(f)(3)

Yes. Files Form I-539, 8
CFR 214.2(f)(3)

Yes.

G-1 - Principal Resident
Representative of Recognized
Foreign Government to
International Organization, Staff, or
Immediate Family
G-2- Other Representative of
Recognized Foreign Member
Government to International
Organization, or Immediate Family
G-3 - Representative of

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. 22 CFR
41.2l(d)

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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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
Personal Employee of G-1 through
G- 4, or Immediate Family.

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

H -lB - Alien in a Specialty
Occupation, Fashion Models of
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
National to Work in a Specialty
Occupation
INA 10l(a)(l5)(H)(i)(bl).
H-1C 185 - Nurse in health
professional shortage area
INA 10l(a)(l5)(H)(i)(c).

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. FilesFormi-129.8
CFR 248.l(a)

Yes.

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. Files Form I-129. 8
CFR 248.l(a)

Yes.

Yes. Filed Form I-129, 8
CFR 212.2(h)(4)(v)(E)

Yes. FiledFormi-129, 8
CFR 212.2(h)(4)(v)(E)

Yes.

H-2A- Temporary Worker
Performing Agricultural SeiVices
Unavailable in the United States
INA 10l(a)(l5)(H)(ii)(a).

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. FilesFormi-129

Yes.

H-2B- Temporary Worker
Performing Other SeiVices
Unavailable in the United States
INA 10l(a)(l5)(H)(ii)(b).
H-3 - Trainee
INA 10l(a)(l5)(H)(iii)

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. FilesFormi-129

Yes.

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. FilesFormi-539

Yes.

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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

51141

H -4 - Spouse or Child of Alien
Classified HlB/B 1/C, H2A/B, or
H-3
INA 10l(a)(l5)(H)(iv).
I- Representative of Foreign
Information Media, Spouse and
Child
INA 10l(a)(l5)(1).
J-1- Exchange Visitor
J-2- Spouse or Child of Jl
INA 10l(a)(l5)(J).

K-1- Fiance(e) of United States
Citizen
K-2- Child of Fiance(e) of U.S.
Citizen
INA 10l(a)(l5)(K).
K-3- Spouse of U.S. Citizen
awaiting availability of immigrant
visa
K-4 - Child of K-3
INA 10l(a)(l5)(K).

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L-1 - Intracompany Transferee
(Executive, Managerial, and
Specialized Knowledge Personnel
Continuing Employment with
International Firm or Corporation)
INA 10l(a)(l5)(L).
L-2 - Spouse or Child of
Intracompany Transferee
M -1 - Vocational Student or Other
Nonacademic Student
INA 10l(a)(l5)(M).

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Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. Files Form I-539. 8
CFR 248.l(a)

Yes.

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)
No, not applicable, as
generally admitted for
Duration of Status 186 8
CFR 214.l(c)(3)(v)

Yes. FilesFormi-539

Yes.

Yes, subject to receiving a
waiver of the foreign
residence requirement, if
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)

Yes.

No.8 CFR
214.l(c)(3)(iv)

No. 8 CFR 248.2(a)(2)
except for change to T and
U, 248.2(b) using Form I914 or I-918

Not Applicable

Yes. Files Form I-539, 8
CFR 214.l(c)(2) and 8
CFR 214.2(k)(l0)

No. 8 CFR 248.2(2)
except for change to T and
U, 248.2(b) using Form I914 or I-918

Yes.

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. Files Form I-129, 8
CFR 248.l(a)

Yes.

Yes. Files I-539 8 CFR
214.l(c)(l) and (2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. FilesFormi-539.
Not eligible if requesting
F-1, 8 CFR 248.l(c)(l)

Yes.

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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M-2- Spouse or Child ofM-1
INA 10l(a)(l5)(M).

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. FilesFormi-539

Yes.

N-8- Parent of an Alien Classified
SK3 (Unmarried Child Employee of
International Organization) or SN3
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).

Yes. FilesForm]I-539,
8 CFR 214.l(c)(2)

Yes. Files Form I-539, 8
CFR 248.l(e)

Yes.

NATO-I- Principal Permanent
Representative of Member State to
NATO (including any of its
Subsidiary Bodies) Resident in the
U.S. and Resident Members of
Official Staff; Secretary General,
Assistant Secretaries General, and
Executive Secretary of NATO;
Other Permanent NATO Officials
of Similar Rank, or Immediate
Family
Art. 12, 5 UST 1094; Art. 20, 5
UST 1098.
NAT0-2- Other Representative of
member state to NATO (including
any of its Subsidiary Bodies)
including Representatives,
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-ofForces 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.

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(i.e. May File Form 1-129 under proposed 8
(i.e. May File Form 1129 or Form 1-539)*
or I-Form 539)*
CFR
214.1(a)(3)(iv),
214.1(a)(4)(iv);
248.1(c)(4)

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

51143

NAT0-3 -Official Clerical Staff
Accompanying Representative of
Member State to NATO (including
any of its Subsidiary Bodies), or
Immediate Family
Art. 14, 5 UST 1096.

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

NAT0-4- Official of NATO (Other
Than Those Classifiable as
NATOl), or Immediate Family
Art. 18, 5 UST 1098.

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

NAT0-5- Experts, Other Than
NATO Officials Classifiable Under
NATO 4, Employed in Missions on
Behalf of NATO, and their
Dependents
Art. 21, 5 UST llOO.

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

NAT0-6 - Member of a Civilian
Component Accompanying a Force
Entering in Accordance with the
Provisions of the NATO Status-ofForces 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
Personal Employee of NATO 1,
NATO 2, NATO 3, NATO 4,
NATO 5, and NATO 6 Classes, or
Immediate Family
Arts. 12-20, 5 UST 1094-1098

No, not applicable as
admitted for Duration of
Status 8 CFR
214.l(c)(3)(v)

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

Yes. Files Form I-539,
8 CFR 214.2(s)(l)(ii).

Yes. Files Form I-539, 8
CFR 248.l(a)

No. INA 102; 22
CFR 41.2l(d)

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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0-1 - Alien with Extraordinary
Ability in Sciences, Arts,
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 02
INA 10l(a)(l5)(0).

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P-1 - Internationally Recognized
Athlete or Member of
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,
orP-3
INA 10l(a)(l5)(P).
Q-1 - Participant in an International
Cultural Exchange Program INA
10 l(a)(l5)(Q)(i).
R -1 - Alien in a Religious
Occupation
INA 10l(a)(l5)(R).
R-2- Spouse or Child ofR-1
INA 10l(a)(l5)(R).

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Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. Files Form I-129, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-539, 8
CFR 214.l(c)(l) and (2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-129, 8
CFR 213.l(c)(3)(i)

Yes. Files Form I-129, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-539, 8
CFR 214.l(c) (1) and (2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-129, 8
CFR 213.l(c)(3)(i)

Yes. Files Form I-129, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-129, 8
CFR 213.l(c)(3)(i)

Yes. Files Form I-129, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-539,
8 CFR 214.l(c)(l) and
(2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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

51145

S-5 - Certain Aliens Supplying
Critical Information Relating to a
Criminal Organization or Enterprise
S-6 - Certain Aliens Supplying
Critical Information Relating to
Terrorism
S-7 - Qualified Family Member of
S-5 or S-6
INA 10l(a)(l5)(S).

No.8 CFR
213.l(c)(3)(vi)

No. 8 CFR 248.2(2)
except for change to T and
U, 248.2(b) using Form I914 or I-918

Yes.

T -1 - Victim of a severe form of
trafficking in persons
INA 10l(a)(l5)(T).

Yes. FilesFormi-539.
INA§ 214(o)(7)(B); 8
CFR 214.11(1)(1) and
(2); 8 CFR 214.l(c)(2).

Yes. Files Form I-539, 8
CFR 248.l(a).

No.

T-2- Spouse ofT-1
T-3- Child ofT-1
T -4 - Parent of T -1 under 21 years
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
INA 214(e)(2)

Yes. FilesFormi-539.
INA 214(o)(7)(B); 8
CFR 214.l(c)(2)

Yes. Files Form Files I539, 8 CFR 248.l(a)

No.

Yes. Files Form I-129, 8
CFR 214.l(c)(l)

Yes. Files Form Files I129, 8 CFR 248.l(a)

Yes.

TD - Spouse or Child of NAFTA
Professional
INA 214(e)(2)
U -1 - Victim of criminal activity
U-2- Spouse ofU-1
U-3- Child ofU-1
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).

Yes. Files Form I-539, 8
CFR 214.l(c)(2)

Yes. Files Form I-539, 8
CFR 248.l(a)

Yes.

Yes. Files Form I-539, 8
CFR 214.l(c)(2); 8 CFR
214.14(g)(2)

Yes. Files Form I-539, 8
CFR 248.l(a)

No.

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Table 4. Summary of Nonimmigrant Categories Subject to Public Benefits Condition
Category
Eligible to apply for
Eligible to apply for
Subject to Public
Change of Status
Benefit Condition
Extension of Stay
(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)

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

BILLING CODE 4410–10–C

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3. Adjustment of Status Applicants
In general, an alien who is physically
present in the United States may be
eligible to apply for adjustment of status
before USCIS to that of a lawful
permanent resident if the applicant was
inspected and admitted or paroled, is
eligible to receive an immigrant visa, is
admissible to the United States, and has
an immigrant visa immediately
available at the time of filing the
adjustment of status application.187 As

185 This classification can no longer be sought as
of December 20, 2009. See the Nursing Relief for
Disadvantaged Areas Reauthorization Act of 2005,
Public Law 109–423.

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part of the adjustment process, USCIS is
responsible for determining whether the
applicant has met his or her burden of
proof to establish eligibility for the
benefit,188 which includes a
determination of whether the alien has
demonstrated that no inadmissibility
grounds in section 212(a) of the Act
apply (or, if they do apply, the alien is
eligible for a waiver of the
inadmissibility ground). In determining
whether the adjustment applicant has
demonstrated that he or she is not

186 J nonimmigrant who are admitted for a
specific time period are not eligible for an extension
of stay.
187 See INA section 245, 8 U.S.C. 1255. Aliens in
removal proceedings before an immigration judge

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inadmissible on the public charge
ground, DHS proposes to review the
mandatory statutory factors together
with any required affidavit of support
and any other relevant information, in
the totality of the circumstances.
Tables 5 through 9 below provide a
summary of immigrant categories for
adjustment of status and the
applicability of the public charge
inadmissibility determination to such
categories.
BILLING CODE 4410–10–P

may also apply for adjustment of status pursuant to
8 CFR 1245.
188 See INA section 291, 8 U.S.C. 1361.

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Table 5. Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications

51147

189

Category

Subject to INA 212(a)(4) and
must file Form I-944, Declaration
of Self-Sufficiency? *

INA 213A and Form I-864,
Affidavit of Support
Required or Exempt?

Immediate Relatives of U.S. citizens
including spouses, children and
parents 190

Yes. INA 212(a)(4)(A)

Required. INA 212(a)(4)(C)

Family-Based First Preference:
Unmarried sons/daughters of U.S.
citizens and their children191

Yes. INA 212(a)(4)(A)

Required. INA 212(a)(4)(C)

Family-Preference Second: Spouses,
children, and unmarried sons/daughters
of alien residents 192

Yes. INA 212(a)(4)(A)

Required. INA 212(a)(4)(C)

Family Preference Third: Married
sons/daughters of U.S. citizens and their
spouses and children 193

Yes. INA 212(a)(4)(A)

Required. INA 212(a)(4)(C)

Family Preference Fourth:
Brothers/sisters of U.S. citizens (at least
21 years of age) and their spouses and
children194

Yes. INA 212(a)(4)(A)

Required. INA 212(a)(4)(C)

Fiance 195
* admitted as nonimmigrant
K-l/K2

Yes. INA 212(a)(4)(A)

Required. INA 212(a)(4)(C)

Amerasians based on preference
category -born between December 31,
1950 and before October 22, 1982. 196

Yes. INA 212(a)(4)(A)

Exempt. Amerasian Act, Pub. L.
97-359 (Oct. 22, 1982).

Amerasians, born in Vietnam between
l/1/62-1/1/76
Immediate Relative: AM-6,
AR -6 Children

No. (1-360 and adjustment) Section
584 of the Foreign Operations,
Export Financing, and Related
Programs Appropriations Act of
1988, Pub. L. 100-202

Exempt. Section 584 of the
Foreign Operations, Export
Financing, and Related Programs
Appropriations Act of 1988, Pub.
L. 100-202

Yes. INA 212(a)(4)(A)

Exempt. 8 CFR 204.2 and 71 FR
35732.

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IW -6 Spouses, widows or widowers

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Amerasians under Amerasian
Homecoming Act, ;Pub. L. 100-202
(Dec. 22, 1987)197 - born between
l/1/1962-l/l/1976

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Table 5. Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications

189

Category

Subject to INA 212(a)(4) and
must file Form I-944, Declaration
of Self-Sufficiency? *

INA 213A and Form I-864,
Affidavit of Support
Required or Exempt?

Immediate Relative VA WA applicant,
including spouses and children198

No. INA 212(a)(4)(E)

Exempt. INA 212(a)(4)(E)

First Preference VAW A
B-16 Unmarried sons/daughters ofU.S.
citizens, self-petitioning
B-17 ChildrenofB-16

No. INA 212(a)(4)(C)(i)

Exempt. INA 212(a)(4)(C)(i)

Second Preference VAWA applicant,
including spouses and children199

No. INA 212(a)(4)(C)(i)

Exempt. INA 212(a)(4)(C)(i)

Third Preference VAWA Married
son/daughters of U.S. citizen, including
spouses and children200

No. INA 212(a)(4)(C)(i)

Exempt. INA 212(a)(4)(C)(i)

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* 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.

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
file Form I-944, Declaration of SelfSufficiency?*

INA 213A, and Form I-864,
Affidavit of Support
Required or Exempt?

First Preference : Priority
workers 201

Yes. INA 212(a)(4)(D)

Exempt, unless qualifying relative
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
with advanced degrees or aliens of
exceptional ability 203

Yes. INA 212(a)(4)(D)

Exempt, unless qualifying relative
or entity in which such relative has a
significant ownership interest (5%
or more) in filed Form I-140. INA
212(a)(4)(D), 8 CFR213a.l

Third: Skilled workers,
professionals, and other
workers 204

Yes. INA 212(a)(4)(D)

Exempt, unless qualifying relative
or entity in which such relative has a
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
Alien Entrepreneur (EB-5) 205

Yes. INA 212(a)(4)(D)

Not Applicable 206

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

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* 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.

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Table 7. Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Application
Category

Subject to INA 212(a)(4)
and must file Form I-944,
Declaration of SelfSufficiency? *

INA 213A, and Form I864, Affidavit of Support
Required or Exempt?

Special Immigrant (EB-4)- Religious Workers 207
8 CFR 204.5(m); INA 10l(a)(27)(C)

Yes. INA 212(a)(4)

Not Applicable

Special Immigrant (EB-4)- International employees
of US government abroad209

Yes. INA 212(a)(4)

Not Applicable 210

Yes. INA 212(a)(4)

Not Applicable 212

Yes. INA 212(a)(4)

Not Applicable 214

Yes. INA 212(a)(4)

Not Applicable 217

Special Immigrant (EB-4) -SL-6 Juvenile court
dependents, adjustments

No. SIJ are exempt under
245(h).

Not Applicable. INA
245(h)

Special Immigrant (EB-4)- U.S. Armed Forces
Personnee 18

Yes. INA 212(a)(4)

Not Applicable 219

Yes- INA 212(a)(4)

Not Applicable 221

No. Section 1059(a)(2) of
the National Defense
Authorization Act for Fiscal
Year 2006, as amended;
Public Law 109-163-Jan. 6,
2006, Section 1244(a)(3) of
the National Defense

Exempt. Section 602(b )(9)
of the Afghan Allies
Protection Act of 2009,
Title VI of Pub. L. 111-8,
123 Stat. 807, 809 (March
11, 2009) which states that
INA 245(c)(2), INA

INA 10l(a)(27)(D), 22 CFR 42.32(d)(2)
Special Immigrant (EB-4) Employees of Panama
Canae 11

208

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
Graduates 213
INA 10l(a)(27)(H), INA 203(b)(4)
Special Immigrant (EB-4) -Retired employees of
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

INA 10l(a)(27)(K)
Special Immigrant - International Broadcasters220

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Special Immigrant (EB-4)- Special immigrant
interpreters who are nationals of Iraq or
Afghanistan222

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

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51151

Table 7. Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Application
Category

Subject to INA 212(a)(4)
and must file Form I-944,
Declaration of SelfSufficiency? *

INA 213A, and Form I864, Affidavit of Support
Required or Exempt?

245(c)(7), and INA
245(c)(8) do not apply to
special immigrant Iraq and
Afghan nationals who were
employed by or on behalf
of the U.S. government (for
Section 602(b) and 1244
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.

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Authorization Act for Fiscal
Year 2008, as amended ; Pub.
L. 110-181 (Jan. 28, 2008)
Section 602(b) of the Afghan
Allies Protection Act of 2009,
as amended section (a)(2)(C),
Pub. L. 111-8 (Mar. 11,
2009)

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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 Iand must file Form I-944,
864, Affidavit of
Declaration of SelfSupport
Required or Exempt?
Sufficiency? *
Asylees 223
No. INA 209(c)
Exempt. INA 209(c)

Indochinese Parolees from Vietnam, Cambodia, and
Laos
IC-6 Indochinese refugees (Pub. L. 95-145 of 1977)
IC-7 Spouses or children of Indochinese refugees not
qualified as refugees on their own

No. Section 586, Pub. L.
106-429 (Nov. 6, 2000)

Exempt. Section 586,
Pub. L. 106-429 (Nov. 6,
2000)

Polish and Hungarian Parolees (Poland or Hungary who
were paroled into the United States from November 1,
1989 to December 31, 1991) 224

No. Title VI, SubtitleD,
Section 646(b ), Pub. L.
104-208; 8 CFR 245.12

Exempt. Title VI,
SubtitleD, Section
646(b), Pub. L. 104-208;
8 CFR245.12

Refugees 225

No. INA 207(c)(3); INA
209(c)

Exempt. INA207; INA
209(c)

Cuban-Haitian Entrant under IRCA- CH-6, CH-7 226

No. Section 202, Pub. L.
99-603, 100 Stat. 3359
(1986) (as amended), 8
U.S.C. 1255a.

Exempt. Section 202,
Pub. L. 99-603, 100 Stat.
3359 (1986) (as
amended), 8 U.S.C.
1255a.

Exempt. Section 902
No. Section 902 Pub. L.
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.

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HRIF A -Principal HRIF A Applicant who applied for
asylum before December 31, 1995 227

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51153

Table 9. Applicability of INA 212(a)(4) to Other Applicants Who Must be Admissible

Diplomats Section 13

Individuals Born in the US under Diplomatic Status
(NA-3) 8 CFR 101.3

INA 213A, and Form I-864,
Affidavit of Support
Required or Exempt?

Exempt, by statute, as they are
not listed in INA 212(a)(4) as a
category that requires an
Affidavit of Support.

Exempt. 8 CFR 101.3

Diversity, DV-1 diversity immigrant, spouse and
child

Yes. INA 212(a)(4)

Exempt, by statute, as they are
not listed in INA 212(a)(4) as a
category that requires 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
W -26 Entered as nonimmigrant and overstayed visa
before 1/1/82. Certain Entrants before January 1,
1982

Exempt, by statute as they are
not listed in INA 212(a)(4) as a
category that requires an
Affidavit of Support.

American Indians - INA 289

Yes. INA 212(a)(4)
(except for certain
aged, blind or disabled
individuals as defined
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).
Yes. Under INA
212(d)(l3)(A), INA
212(a)(4) only does not
apply at the
nonimmigrant status
stage. However,
a waiver is available for
T nonimmigrant
adjustment applicants.
INA 245(l)(c) INA
10l(a)(l5)(T),
No. INA289

Texas Band ofKickapoo Indians of the Kickapoo
Tribe of Oklahoma, Pub. L. 97-429 (Jan. 8, 1983)

No. Pub. L. 97-429
(Jan. 8, 1983)

T, T-1 victim, spouse, child, parent, sibling
INA 10l(a)(l5)(T), INA 212(d)(l3)(A)

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Subject to INA
212(a)(4) and must file
Form I-944,
Declaration of SelfSufficiency? *
Yes. Section 13 of
Public Law 85-316
(September 11, 1957),
as amended by Public
Law 97-116 (December
29, 1981); 8 CFR
245.3.
Yes. INA 212(a)(4)

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Exempt, by statute as they are
not listed in INA 212(a)(4) as a
category that requires an
Affidavit of Support.
Adjustment of status based on T
nonimmigrant status is under
INA 245(1) which does not fall
under INA 212(a)(4)(C) or (D).

Exempt. INA 289
Exempt. Pub. L. 97-429 (Jan. 8,
1983)

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Table 9. Applicability of INA 212(a)(4) to Other Applicants Who Must be Admissible
Category

KIC - Kickapoo Indian Citizen
KIP - Kickapoo Indian Pass
S (Alien witness or informant)

Private Immigration Bill providing for alien's
adjustment of status

Subject to INA
212(a)(4) and must file
Form I-944,
Declaration of SelfSufficiency? *

INA 213A, and Form I-864,
Affidavit of Support
Required or Exempt?

Yes, but there is a
waiver available- INA
245(j); INA
10l(a)(l5)(S); 8 CFR
214.2(t)(2); 8 CFR
124 5 .11 (Waiver filed
on Form I -854, InterWitness
and Infonnant Record)
Dependent on the text
of the Private Bill.

Exempt. INA 245(j); INA
10l(a)(l5)(S); 8 CFR
214.2(t)(2); 8 CFR 1245.11
(Waiver filed on I-854, InterInfonnant

Dependent on the text of the
Private Bill.

NACARA (202) 228
Principal NC-6, (NC 7-9) spouse and children

No. Section 202(a),
Pub.L. 105-100,111
Stat. 2193 (1997) (as
amended), 8 U.S.C.
1255.

Exempt. Section 202(a), Pub. L.
105-100, 111 Stat. 2193 (1997)
(as amended), 8 U.S.C. 1255.

NACARA203
Cancellation of removal (Z-13) Battered spouses or
children (Z-14) Salvadoran, Guatemalan and former
Soviet bloc country nationals (Form I-881,
Application for Suspension of Deportation or Special
Rule Cancellation of Removal (Pursuant to Section
203 of Public Law 105-100 (NACARA))
Lautenberg, LA-6 229

No. Section 203, Pub.
L. 105-100, 111 Stat.
2193 (1997) (as
amended), 8 U.S.C.
1255.

Exempt. Section 203, Pub. L.
105-100, 111 Stat. 2193 (1997)
(as amended), 8 U.S.C. 1255.

No. Section 599E, Pub.
L. 101-167, 103 Stat.
1195 (Nov. 21, 1989), 8
U.S.C.A. 1255.

Exempt. Section 599E, Pub. L.
101-167, 103 Stat. 1195 (Nov.
21, 1989), 8 U.S.C.A. 1255.

Registry, Z-66- Aliens who entered the United States
prior to January 1, 1972 and who meetthe other
conditions
U, U -1 Crime Victim, spouse, children and parents,
and siblings under INA 245(m)

No. INA 249 of the
Act and 8 CFR part 249

Exempt. INA 249 of the Act
and 8 CFR part 249

No. INA 212(a)(4)(E)

Exempt. INA 212(a)(4)(E)

Temporary Protected Status (TPS)

No. 8 CFR 244.3(a) 230

Exempt. 8 CFR 244.3(a) 231

189 Applicants who filed a Form I–485 prior to
December 19, 1997 are exempt from the Affidavit
of Support requirement. See Public Law 104–208,
div. C., section 531(b), 110 Stat. 3009–546, 3009–
675; 8 CFR 213a.2(a)(2)(i) (adjustment applicants)
and 213a.2(a)(2)(ii)(B) (applicants for admission).
Aliens who acquired citizenship under section 320

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of the Act upon admission to the United States are
exempt from submitting an affidavit of support. See
8 CFR 213a.2(a)(2)(ii)(E); Child Citizenship Act,
Public Law 106–395, section 101, 114 Stat. 1631,
1631 (2000) (amending INA section 320). In
addition, the surviving spouses, children, and
parents of a deceased member of the military who
obtain citizenship posthumously are exempt from a
public charge determination. See National Defense

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Authorization Act For Fiscal Year 2004, Public Law
108–136, section 1703(e), 117 Stat. 1392, 1695
(2003).
190 Including the following categories: IR–6
Spouses; IR–7 Children; CR–7 Children,
conditional; IH–8 Children adopted abroad under
the Hague Adoption Convention; IH–9 Children
coming to the United States to be adopted under the
Hague Adoption Convention; IR–8 Orphans

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* 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.

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adopted abroad; IR–9 Orphans coming to the United
States to be adopted; IR–0 Parents of adult U.S.
citizens. Note children adopted abroad generally do
not apply for adjustment of status.
191 Including the following categories: A–16
Unmarried Amerasian sons/daughters of U.S.
citizens F–16 Unmarried sons/daughters of U.S.
citizens; A–17 Children of A–11 or A–16; F–17
Children of F–11 or F–16; B–17 Children of B–11
or B–16.
192 Including the following categories: F–26
Spouses of alien residents, subject to country limits;
C–26 Spouses of alien residents, subject to country
limits, conditional; FX–6 Spouses of alien residents,
exempt from country limits; CX–6 Spouses of alien
residents, exempt from country limits, conditional;
F–27 Children of alien residents, subject to country
limits; C–28 Children of -C–26, or C–27, subject to
country limits, conditional; B–28 Children of, B–26,
or B–27, subject to country limits; F–28 Children of
F–26, or F–27, subject to country limits; C–20
Children of C–29, subject to country limits,
conditional; B–20 Children of B–29, subject to
country limits; F–20 Children of F–29, subject to
country limits; C–27 Children of alien residents,
subject to country limits, conditional; FX–7
Children of alien residents, exempt from country
limits; CX–8 Children of CX–7, exempt from
country limits, conditional; FX–8 Children of FX–
7, or FX–8, exempt from country limits; CX–7
Children of alien residents, exempt from country
limits, conditional; F–29 Unmarried sons/daughters
of alien residents, subject to country limits; C–29
Unmarried children of alien residents, subject to
country limits, conditional.
193 Including the following categories: A–36
Married Amerasian sons/daughters of U.S. citizens;
F–36 Married sons/daughters of U.S. citizens; C–36
Married sons/daughters of U.S. citizens,
conditional; A–37 Spouses of A–31 or A–36; F–37
Spouses of married sons/daughters of U.S. citizens;
C–37 Spouses of married sons/daughters of U.S.
citizens, conditional; B–37 Spouses of B–31 or B–
36; A–38 Children of A–31 or A–36, subject to
country limits; F–38 Children of married sons/
daughters of U.S. citizens; C–38 Children of C–31
or C–36, subject to country limits, conditional; B–
38 Children of B–31 or B–36, subject to country
limits.
194 Includes the following categories: F–46
Brothers/sisters of U.S. citizens, adjustments; F–47
Spouses of brothers/sisters of U.S. citizens,
adjustments; F–48 Children of brothers/sisters of
U.S. citizens, adjustments.
195 Includes the following categories: CF–1
Spouses, entered as fiance(e), adjustments
conditional; IF–1 Spouses, entered as fiance(e),
adjustments.
196 Includes the following categories: Immediate
Relative AR–6 Children, Amerasian, First
Preference: A–16 Unmarried Amerasian sons/
daughters of U.S. citizens; Third Preference A–36
Married Amerasian sons/daughters of U.S. citizens;
See INA 204(f). Note that this program does not
have a specific sunset date and technically
applicants could apply but should have already
applied.
197 Includes the following categories: AM–1
principal (born between 1/1/1962–1/1/1976); AM–
2 Spouse, AM–3 child; AR–1 child of U.S. citizen
born Cambodia, Korea, Laos, Thailand, Vietnam.
Note that this program does not have a specific
sunset date and technically applicants could apply
but should have already applied.
198 Includes the following categories: IB–6
Spouses, self-petitioning; IB–7 Children, selfpetitioning; IB–8 Children of IB–1 or IB–6; IB–0
Parents battered or abused, of U.S. citizens, selfpetitioning.
199 Includes the following categories: B–26
Spouses of alien residents, subject to country limits,
self-petitioning; BX–6 Spouses of alien residents,
exempt from country limits, self-petitioning; B–27

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Children of alien residents, subject to country
limits, self-petitioning; BX–7 Children of alien
residents, exempt from country limits, selfpetitioning; BX–8 Children of BX–6, or BX–7,
exempt from country limits; B–29 Unmarried sons/
daughters of alien residents, subject to country
limits, self-petitioning.
200 Includes the following categories: B–36
Married sons/daughters of U.S. citizens, selfpetitioning B–37 Spouses of B–36, adjustments; B–
38 Children of B–36, subject to country limits;
Third Preference VAWA; B–36 Married sons/
daughters of U.S. citizens, self-petitioning; B–37
Spouses of B–36, adjustments B–38 Children of B–
36, subject to country limits; Third Preference
VAWA; B–37 Spouses of B–36, adjustments; B–38
Children of B–36, subject to country limits.
201 Includes the following categories: E–16 Aliens
with extraordinary ability; E–17 Outstanding
professors or researchers; E–18 Certain
Multinational executives or managers; E–19
Spouses of E–11, E–12, E–13, E–16, E–17, or E–18;
E–10 Children of E–11, E–12, E–13, E–16, E–17, or
E–18.
202 Relative means a husband, wife, father,
mother, child, adult son, adult daughter, brother, or
sister. Significant ownership interest means an
ownership interest of 5 percent or more in a forprofit entity that filed an immigrant visa petition to
accord a prospective employee an immigrant status
under section 203(b) of the Act. See 8 CFR.213a.1.
203 Includes the following categories: E–26
Professionals holding advanced degrees; ES–6
Soviet scientists; E–27 Spouses of E–21 or E–26; E–
28 Children of E–21 or E–26.
204 Includes the following categories: EX–6
Schedule—A worker; EX–7 Spouses of EX–6; EX–
8 Children of EX–6; E–36 Skilled workers; E–37
Professionals with baccalaureate degrees; E–39
Spouses of E–36, or E–37; E–30 Children of E–36,
or E–37; EW–8 Other workers; EW–0 Children of
EW–8; EW–9 Spouses of EW–8; EC–6 Chinese
Student Protection Act (CSPA) principals; EC–7
Spouses of EC–6; EC–8 Children of EC–6.
205 Includes the following categories: C–56
Employment creation, not in targeted area,
adjustments, conditional E–56 Employment
creation; I–56 Employment creation, targeted area,
pilot program, adjustments, conditional; T–56
Employment creation, targeted area, conditional; R–
56 Investor pilot program, not targeted, conditional;
C–57 Spouses of C–51 or C–56, conditional; E–57
Spouses of E–51 or E–56; I–57 Spouses of I–51 or
I–56, conditional; T–57 Spouses of T–51 or T–56,
conditional; R–57 Spouses of R–51 or R–56,
conditional; C–58 Children of C–51 or C–56,
conditional; E–58 Children of E–51 or E–56; I–58
Children of I–51 or I–56, conditional; T–58
Children of T–51 or T–56, conditional; R–58
Children of R–51 or R–56, conditional.
206 EB–5 applicants are Form I–526, Immigrant
Petition by Alien Entrepreneur, self-petitioners. The
regulation at 8 CFR 213a.1 relates to a person
having ownership interest in an entity filing for a
prospective employee and therefore the
requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
207 Includes the following categories: SD–6
Ministers; SD–7 Spouses of SD–6; SD–8 Children of
SD–6; SR–6 Religious workers; SR–7 Spouses of
SR–6; SR–8 Children of SR–6.
208 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers (for example, a religious
institution), would generally not be a relative of the
alien or a for-profit entity and therefore the
requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
209 Includes the following categories: SE–6
Employees of U.S. government abroad, adjustments;
SE–7 Spouses of SE–6; SE–8 Children of SE–6. Note

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that this program does not have a specific sunset
date and technically applicants could apply but
should have already applied.
210 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers (for example, the U.S.
armed forces), would generally not be a relative of
the alien or a for-profit entity and therefore the
requirements for an affidavit of support under INA
section 212(a)(4)(D) is inapplicable.
211 Includes the following categories: SF–6
Former employees of the Panama Canal Company
or Canal Zone Government; SF–7 Spouses or
children of SF–6; SG–6 Former U.S. government
employees in the Panama Canal Zone; SG–7
Spouses or children of SG–6; SH–6 Former
employees of the Panama Canal Company or Canal
Zone government, employed on April 1, 1979; SH–
7 Spouses or children of SH–6. Note that this
program does not have a specific sunset date and
technically applicants could apply but should have
already applied.
212 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers generally would not be a
relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of
support under INA section 212(a)(4)(D) is
inapplicable.
213 Includes the following categories: SJ–6 Foreign
medical school graduate who was licensed to
practice in the United States on Jan. 9, 1978; SJ–
7 Spouses or children of SJ–6; Note that this
program does not have a specific sunset date and
technically applicants could apply but should have
already applied.
214 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers would generally not be a
relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of
support under INA section 212(a)(4)(D) is
inapplicable.
215 Includes the following categories: SK–6
Retired employees of international organizations;
SK–7 Spouses of SK–1 or SK–6; SK–8 Certain
unmarried children of SK–6; SK–9 Certain
surviving spouses of deceased international
organization employees.
216 Includes SN–6 Retired NATO–6 civilian
employees; SN–7 Spouses of SN–6; SN–9 Certain
surviving spouses of deceased NATO–6 civilian
employees; SN–8 Certain unmarried sons/daughters
of SN–6.
217 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers would generally not be a
relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of
support under INA section 212(a)(4)(D) is
inapplicable.
218 Includes the following categories: SM–6 U.S.
Armed Forces personnel, service (12 years) after 10/
1/91 SM–9 U.S. Armed Forces personnel, service
(12 years) by 10/91; SM–7 Spouses of SM–1 or SM–
6; SM–0 Spouses or children of SM–4 or SM–9;
SM–8 Children of SM–1 or SM–6.
219 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers would generally not be a
relative of the alien or a for-profit entity and
therefore the requirements for an affidavit of
support under INA section 212(a)(4)(D) is
inapplicable.
220 Includes the following categories: BC–6
Broadcast (IBCG of BBG) employees; BC–7 Spouses
of BC–1 or BC–6; BC–8 Children of BC–6.
221 For this category, although the applicants are
subject to public charge under INA section
212(a)(4), the employers would generally not be a
relative of the alien or a for-profit entity and
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4. Exemptions
The public charge inadmissibility
ground does not apply to all applicants
who are seeking a visa, admission, or
adjustment of status.232 Congress has
specifically exempted certain groups
from the public charge inadmissibility
ground and DHS regulations permit
waivers of the ground for certain other
groups, as follows:
• Refugees and asylees at the time of
admission and adjustment of status to
lawful permanent resident, pursuant to
support under INA section 212(a)(4)(D) is
inapplicable.
222 Includes the following categories: SI–6 Special
immigrant interpreters who are nationals of Iraq or
Afghanistan; SI–6, SI–7, SI–8—spouse and child of
SI–6; SQ–6 Certain Iraqis and Afghans employed by
U.S. Government SQ–6, SQ–7, SQ–8 Spouses and
children of SQ–6; SI–6 Special immigrant
interpreters who are nationals of Iraq or
Afghanistan; SI–7 Spouses of SI–1 or SI–6; SI–8
Children of SI–1 or SI–6.
223 Including the following categories: AS–6
Asylees; AS–7 Spouses of AS–6; AS–8 Children of
AS–6; SY–8 Children of SY–6; GA–6 Iraqi asylees;
GA–7 Spouses of GA–6; GA–8 Children of GA–6.
224 Note that this program does not have a specific
sunset date and technically applicants could apply
but should have already applied.
225 Includes the following categories: RE–6 Other
refugees (Refugee Act of 1980, Public Law 96–212,
94 Stat. 102); RE–7 Spouses of RE–6; RE–8 Children
of RE–6; RE–9 Other relatives.
226 Note that this program has a sunset date of two
years after enactment, however, some cases may
still be pending.
227 Includes the following categories: 1995—HA–
6 Principal HRIFA Applicant; Spouse of HA–6,
HA–7 and Child of HA–6, HA–8; Unmarried Son or
Daughter 21 Years of Age or Older of HA–6, HA–
9 Principal HRIFA Applicant paroled into the
United States before December 31, 1995- HB–6;
Spouse of HB–6, HB–7; Child of HB–6, HB–8;
Unmarried Son or Daughter 21 Years of Age or
Older of HB–6 HB–9; Principal HRIFA Applicant
who arrived as a child without parents in the
United States HC–6; Spouse of HC–6, HC–7; Child
of HC–6, HC–8; Unmarried Son or Daughter 21
Years of Age or Older of HC–6, HC–9; Principal
HRIFA Applicant child who was orphaned
subsequent to arrival in the United States HD–6,
Spouse of HD–6, HD–7; Child of HD–6, HD–8;
Unmarried Son or Daughter 21 Years of Age or
Older of HD–6, HD–9 Principal HRIFA Applicant
child who was abandoned subsequent to arrival and
prior to April 1, 1998—HE–6; Spouse of HE–6, HE–
7; Child of HE–6, HE–8; Unmarried Son or Daughter
21 Years of Age or Older of HE–6, HE–9. Note that
this program has a sunset date of March 31, 2000;
however, dependents may still file for adjustment
of status.
228 Note that this program has a sunset date of
April 1, 2000; however, some cases may still be
pending.
229 Note that this program sunset date of
September 30, 2014, only applies to parole. Eligible
applicants may still apply for adjustment of status.
230 INA section 244(c)(2)(ii), 8 U.S.C.
1254a(c)(2)(ii), authorizes DHS to waive any section
212(a) ground, except for those that Congress
specifically noted could not be waived.
231 See INA section 244(c)(2)(ii), 8 U.S.C.
1254a(c)(2)(ii).
232 See proposed 8 CFR 212.23(a).

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sections 207(c)(3) and 209(c) of the Act,
8 U.S.C. 1157(c)(3), 1159(c);
• Amerasian immigrants at
admission, pursuant to in section
584(a)(2) of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act of 1988, Public Law
100–202, 101 Stat. 1329–183 (Dec. 22,
1987) (as amended), 8 U.S.C. 1101 note
5;
• Afghan and Iraqi Interpreter, or
Afghan or Iraqi national employed by or
on behalf of the U.S. Government,
pursuant to section 1059(a)(2) of the
National Defense Authorization Act for
Fiscal Year 2006 Public Law 109–163
(Jan. 6, 2006), section 602(b) of the
Afghan Allies Protection Act of 2009, as
amended Public Law 111–8 (Mar. 11,
2009), and section 1244(g) of the
National Defense Authorization Act for
Fiscal Year 2008, as amended Public
Law 110–181 (Jan. 28, 2008);
• Cuban and Haitian entrants at
adjustment, pursuant to section 202 of
the Immigration Reform and Control Act
of 1986 (IRCA), Public Law 99–603, 100
Stat. 3359 (Jan. 3, 1986) (as amended),
8 U.S.C. 1255a, note;
• Aliens applying for adjustment of
status, pursuant to the Cuban
Adjustment Act, Public Law 89–732
(Nov. 2, 1966) as amended; 8 U.S.C.
1255, note;
• Nicaraguans and other Central
Americans who are adjusting status,
pursuant to section 202(a) and section
203 of the Nicaraguan Adjustment and
Central American Relief Act (NACARA),
Public Law 105–100, 111 Stat. 2193
(Nov. 19, 1997) (as amended), 8 U.S.C.
1255 note;
• Haitians who are adjusting status,
pursuant to section 902 of the Haitian
Refugee Immigration Fairness Act of
1998, Public Law 105–277, 112 Stat.
2681 (Oct. 21, 1998), 8 U.S.C. 1255 note;
• Lautenberg parolees, pursuant to
section 599E of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act of 1990, Public Law
101–167, 103 Stat. 1195 (Nov. 21, 1989),
8 U.S.C.A. 1255 note;
• Special immigrant juveniles,
pursuant to section 245(h) of the Act, 8
U.S.C. 1255(h);
• Aliens who entered the United
States prior to January 1, 1972, and who
meet the other conditions for being
granted lawful permanent residence
under section 249 of the Act, 8 U.S.C.
1259, and 8 CFR part 249;
• Aliens applying for Temporary
Protected Status, pursuant to section
244(c)(2)(ii) of the Act, 8 U.S.C.
1254a(c)(2)(ii) and 8 CFR 244.3(a); 233
233 INA section 244(c)(2)(ii), 8 U.S.C.
1254a(c)(2)(ii), authorizes DHS to waive any INA

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• A nonimmigrant described in
section 101(a)(15)(A)(i) and (A)(ii) of the
Act, 8 U.S.C. 1101(a)(15)(A)(i) and
(A)(ii) (Ambassador, Public Minister,
Career Diplomat or Consular Officer, or
Immediate Family or Other Foreign
Government Official or Employee, or
Immediate Family), pursuant to section
102 of the Act, 8 U.S.C. 1102, 22 CFR
41.21(d);
• A nonimmigrant classifiable as C–2
(alien in transit to U.N. Headquarters) or
C–3 (foreign government official),
pursuant to 22 CFR 41.21(d);
• A nonimmigrant described in
section 101(a)(15)(G)(i), (G)(ii), (G)(iii),
and (G)(iv), of the Act (Principal
Resident Representative of Recognized
Foreign Government to International
Organization, and related categories),234
8 U.S.C. 1101(a)(15)(G)(i), (G)(ii),
(G)(iii), and (G)(iv), pursuant to section
102 of the Act, 8 U.S.C. 1102, 22 CFR
41.21(d);
• A nonimmigrant classifiable as a
NATO representative and related
categories,235 pursuant to 22 CFR
41.21(d);
section 212(a), 8 U.S.C. 1182(a) ground, except for
those that Congress specifically noted could not be
waived.
234 Includes the following categories: G–1—
Principal Resident Representative of Recognized
Foreign Government to International Organization,
Staff, or Immediate Family; G–2—Other
Representative of Recognized Foreign Member
Government to International Organization, or
Immediate Family; G–3—Representative of Nonrecognized or Nonmember Foreign Government to
International Organization, or Immediate Family;
G–4—International Organization Officer or
Employee, or Immediate Family; G–5—Attendant,
Servant, or Personal Employee of G–1 through G–
4, or Immediate Family.
235 Includes the following categories: NATO 1—
Principal Permanent Representative of Member
State to NATO (including any of its Subsidiary
Bodies) Resident in the U.S. and Resident Members
of Official Staff; Secretary General, Assistant
Secretaries General, and Executive Secretary of
NATO; Other Permanent NATO Officials of Similar
Rank, or Immediate Family; NATO 2—Other
Representative of member state to NATO (including
any of its Subsidiary Bodies) including
Representatives, 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; NATO 3—Official Clerical Staff
Accompanying Representative of Member State to
NATO (including any of its Subsidiary Bodies), or
Immediate Family; NATO–4—Official of NATO
(Other Than Those Classifiable as NATO–1), or
Immediate Family; NATO–5—Experts, Other Than
NATO Officials Classifiable Under NATO–4,
Employed in Missions on Behalf of NATO, and
their Dependents; NATO 6—Member of a Civilian
Component Accompanying a Force Entering in
Accordance with the Provisions of the NATO
Status-of-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

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• A nonimmigrant described in
section 101(a)(15)(T) of the Act (Victim
of Severe Form of Trafficking), 8 U.S.C.
1101(a)(15)(T), pursuant to section
212(d)(13)(A) of the Act, 8 U.S.C.
1182(d)(13)(A), at time of admission;
• An applicant for, or who is granted,
nonimmigrant status under section
101(a)(15)(U) of the Act, 8 U.S.C.
1101(a)(15)(U) (Victim of Criminal
Activity), pursuant to section
212(a)(4)(E)(ii) of the Act, 8 U.S.C.
1182(a)(4)(E)(ii);
• Nonimmigrants who were admitted
under section 101(a)(15)(U) (Victim of
Criminal Activity) of the Act, 8 U.S.C.
1101(a)(15)(U), at the time of their
adjustment of status under section
245(m) of the Act, 8 U.S.C. 1155(m), and
8 CFR 245.24;
• An alien who is a VAWA selfpetitioner as defined in section
101(a)(51) of the Act, 8 U.S.C. 1101,
pursuant to section 212(a)(4)(E)(i) of the
Act, 8 U.S.C. 1182(a)(4)(E)(i);
• A qualified alien described in
section 431(c) of the PRWORA of 1996
(8 U.S.C. 1641(c)) (certain battered
aliens as qualified aliens), pursuant to
section 212(a)(4)(E)(iii) of the Act, 8
U.S.C. 1182(a)(4)(E)(iii);
• Applicants adjusting status under
section National Defense Authorization
Act For Fiscal Year 2004, Public Law
108–136, 117 Stat. 1392 (Nov. 24, 2003)
(posthumous benefits to surviving
spouses, children, and parents);
• American Indians Born in Canada,
pursuant to section 289 of the Act, 8
U.S.C. 1359; and
• Nationals of Vietnam, Cambodia,
and Laos adjusting status, pursuant to
section 586 of Public Law 106–429
(Nov. 1, 2000).
In general, the aforementioned classes
of aliens are vulnerable populations of
immigrants and nonimmigrants. Some
have been persecuted or victimized and
others have little to no private support
network in the United States. These
individuals tend to require government
protection and support. Admission of
these aliens also serves distinct public
policy goals separate from the general
immigration system. Other legal
provisions may permit waivers of public
charge provisions under section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4).

Dependents; NATO–7—Attendant, Servant, or
Personal Employee of NATO–1, NATO–2, NATO–
3, NATO–4, NATO–5, and NATO–6 Classes, or
Immediate Family.

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B. Definitions of Public Charge and
Related Terms
DHS proposes to add several
definitions that apply to public charge
inadmissibility determinations.
1. Public Charge
The term ‘‘public charge,’’ as used in
section 212(a)(4) of the Act, is not
defined.236 DHS is proposing to define
a public charge as an alien who receives
one or more public benefits, as defined
in 8 CFR 212.21(b).237 DHS believes that
its proposed definition of public charge
is consistent with legislative history,
case law, and the ordinary meaning of
public charge.
Consistent with the public charge
inadmissibility statute 238 and
Congressional objectives announced in
PRWORA, DHS proposes that aliens
subject to the public charge
inadmissibility ground 239 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.’’ 240
There is a scarcity of legislative
guidance and case law defining public
charge. Legislative history, however,
suggests a link between public charge
and the receipt of public benefits.
According to a 1950 Senate Judiciary
Committee report, which preceded the
passage of the 1952 Act, a Senate
236 See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
proposed 8 CFR 212.21(a) and (c).
238 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4)
(emphasis added). The alien is inadmissible if he
or she ‘‘is likely at any time to become a public
charge.’’
239 Aliens subject to the public charge ground of
inadmissibility are aliens outside the United States
seeking admission to the country, seeking a visa to
permit them to apply for admission as a
nonimmigrant or immigrant to the United States, or
in the United States seeking to adjust status to that
of lawful permanent residents.
240 See 8 U.S.C. 1601(2)(A).
237 See

5. Waivers
The proposed regulation at 8 CFR
212.23(b) lists the categories of
applicants Congress has authorized to
apply for waivers of the public charge
inadmissibility ground, as follows:

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• Nonimmigrants who were admitted
under section 101(a)(15)(T) of the Act, 8
U.S.C. 1101(a)(15)(T) (Victims of Severe
Form of Tracking in Persons) at the time
of their adjustment of status under
section 245(l)(2)(A) of the Act, 8 U.S.C.
1255(l)(2)(A);
• S (alien witness or informant)
nonimmigrants described in section
101(a)(15)(S), of the Act, 8 U.S.C.
1101(a)(15)(S);
• Applicants for admission and
adjustment of status under section 245(j)
of the Act, 8 U.S.C. 1255(j) (alien
witness or informant); and
• Other waivers of the public charge
inadmissibility provisions in section
212(a)(4) of the Act permissible under
the law.

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subcommittee highlighted concerns
raised by an immigration inspector
about aliens receiving old age
assistance. The Senate subcommittee
recommended against establishing a
strict definition of the term public
charge by law. Because the elements
that could constitute any given
individual’s likelihood of becoming a
public charge vary, the subcommittee
instead recommended that the
determination of whether an alien is
likely to become a public charge should
rest within the discretion of consular
officers and the Commissioner.241
Before Congress passed IIRIRA in
1996, debates on public charge
exclusion and deportation grounds
considered the significance of an alien’s
use of public benefits and selfsufficiency.242 One Senator opined that
immigrants, upon seeking admission,
make a ‘‘promise to the American
people that they will not become a
burden on the taxpayers,’’ 243 and
expressed that it is not ‘‘unreasonable
for the taxpayers of this country to
require recently arrived immigrants to
depend on their sponsors for the first 5
years under all circumstances if the
sponsor has the assets.’’ 244 Congress
through PRWORA 245 further
emphasized that ‘‘the availability of
public benefits not constitute an
incentive for immigration to the United
States.’’ 246
Absent a clear statutory definition,
some courts and administrative
authorities have tied public charge to
receipt of public benefits without
quantifying the level of public support
or the type of public support required.
For example, in analyzing the term
public charge in the context of
deportability under section 19 of the
241 See The 1950 Omnibus Report of the Senate
Judiciary Committee, S. Rep. No. 81–1515, at 349
(1950); see also Matter of Harutunian, 14 I&N Dec.
583 (Reg’l Comm’r 1974).
242 See 142 Cong. Rec. S4609 (May 2, 1996)
(statement of Sen. Byrd) (‘‘[S]elf-sufficiency will be
the watchword for those coming to the United
States. By making noncitizens ineligible for Federal
means-tested programs, and by ‘deeming’ a
sponsor’s income attributable to an immigrant, the
American taxpayer will no longer be financially
responsible for new arrivals.’’), available at https://
www.congress.gov/crec/1996/05/02/CREC-1996-0502-pt1-PgS4592.pdf.
243 142 Cong. Rec. S4495 (May 1, 1996) (statement
of Sen. Simon), available at https://
www.congress.gov/crec/1996/05/01/CREC-1996-0501-pt1-PgS4457.pdf.
244 142 Cong. Rec. S4495 (May 1, 1996) (statement
of Sen. Simon), available at https://
www.congress.gov/crec/1996/05/01/CREC-1996-0501-pt1-PgS4457.pdf.
245 8 U.S.C. 1601(2)(A).
246 8 U.S.C. 1601(2)(B).

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Immigration Act of 1917,247 the U.S.
District Court for the Northern District
of California in Ex parte Kichmiriantz
explained that public charge should be
interpreted as ‘‘a money charge upon, or
an expense to, the public for support
and care.’’ 248 The court made clear that
the money charge or expense must be
upon the public, rather than relatives,
but did not specifically identify how
much public support renders a person a
public charge. Similarly, the U.S.
District Court for the Northern District
of New York and the U.S. District Court
for the Southern District of New York,
in Ex parte Mitchell and In re
Keshishian respectively, indicated that a
public charge is one who is supported
at public expense without qualifying or
quantifying the level of support at
public expense necessary.249
Furthermore, when the Fifth Circuit
Court of Appeals considered criminal
misconduct and imprisonment within
the context of public charge in
Coykendall v. Skrmetta, the court
opined: ‘‘It cannot well be supposed
that the words in question were
intended to refer to anything other than
a condition of dependence on the public
for support.’’ 250 The Second Circuit
Court of Appeals, in Iorio v. Day,
likewise stated: ‘‘The language (sic)
itself, ‘public charge,’ suggests rather
dependency than imprisonment.’’ 251
Neither circuit court elaborated on the
degree of dependence required to
sustain a public charge finding.
In Matter of Martinez-Lopez, the
Attorney General indicated that public
support or the burden of supporting the
alien being cast on the public was a
fundamental consideration in public
charge inadmissibility
determinations.252 While an alien’s past
receipt of welfare alone does not
establish that he or she is likely to
become a public charge, case law
strongly suggests that an alien’s ability
or inability to remedy his or her past or
current reliance on public welfare for
financial support plays a critical role in
the outcome of a public charge
inadmissibility determination.253 For
247 Section 19 of the Immigration Act of 1917
addresses aliens who are deportable within five
years of entry.
248 283 F. 697, 698 (N.D. Cal. 1922).
249 See Ex parte Mitchell 256 F. 230, 234 (N.D. NY
1919) and In re Keshishian 299 F. 804 (S.D. NY
1924).
250 See Coykendall v. Skrmetta 22 F.2d 121 (5th
Cir. 1927).
251 See Iorio v. Day 34 F.2d 921 (2d Cir. 1929).
252 See Matter of Martinez-Lopez, 10 I&N Dec.
409, 421 (Att’y Gen. 1964)
253 See, e.g., Matter of Vindman, 16 I&N Dec. 131
(Reg’l Comm’r 1977); Matter of Perez, 15 I&N Dec.
136 (BIA 1974); Matter of Harutunian, 14 I&N Dec.
583 (Reg’l Comm’r 1974).

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example, in Matter of Perez, the BIA
acknowledged the respondent’s ability
to remedy her reliance on welfare in
determining that she may be able to
overcome the public charge ground
inadmissibility ground in a prospective
application for a visa.254 On the other
hand, in Matter of Harutunian and
Matter of Vindman, the respondents
failed to show a capacity to overcome
their dependence on public support.255
INS expected them to continue
receiving public support and
determined that they were inadmissible
as public charges.256
Bearing in mind the operative
legislative history and case law
examined above, DHS is proposing a
new definition of public charge.257 The
definitions cited in the 1999 Interim
Field Guidance and proposed rule
indicates that a person becomes a public
charge when he or she is committed to
the care, custody, management, or
support of the public, but DHS does not
believe that these definitions suggest or
require a primary dependence on the
government in order for someone to be
a public charge.258 DHS believes that a
person should be considered a public
charge based on the receipt of financial
support from the general public through
government funding (i.e., public
benefits).
This is consistent with various
dictionary definitions of public charge
and ‘‘charge’’ also support a definition
that involves the receipt of public
benefits. The current edition of the
Merriam-Webster Dictionary defines
public charge simply as ‘‘one that is
supported at public expense.’’ 259
Black’s Law Dictionary (6th ed.) further
defines public charge as ‘‘an indigent; a
person whom it is necessary to support
at public expense by reason of poverty
alone or illness and poverty.’’ 260 In
addition, the term ‘‘charge’’ is defined
254 See

Matter of Perez, 15 I&N Dec. at 137.
Matter of Harutunian, 14 I&N Dec. at 590
and Matter of Vindman, 16 I&N Dec. at 132.
256 See id.
257 See, e.g., Taniguchi v. Kan Pac. Saipan, Ltd.,
566 U.S. 560, 566 (2012) (‘‘When a term goes
undefined in statute, we give the term its ordinary
meaning.’’).
258 DHS acknowledges the importance of
increasing access to health care and helping people
to become self-sufficient in certain contexts (such
as with respect to other agencies’ administration of
government assistance programs). The INA,
however, does not dictate advancement of those
goals in the context of public charge inadmissibility
determinations.
259 Merriam-Webster Online Dictionary,
Definition of Public Charge, https://www.merriamwebster.com/dictionary/public%20charge (last
visited Sept. 4, 2018).
260 Black’s Law Dictionary 233 (6th ed. 1990),
available at http://www.republicsg.info/
dictionaries/1990_black’s-law-dictionary-edition6.pdf.
255 See

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in Merriam-Webster Dictionary as ‘‘a
person or thing committed into the care
of another’’ 261 and Black’s Law
Dictionary defines charge as ‘‘a person
or thing entrusted to another’s care,’’
e.g., ‘‘a charge of the estate.’’ 262 These
definitions generally suggest that an
impoverished or ill individual who
receives public benefits for a substantial
component of their support and care can
be reasonably viewed as being a public
charge. The proposed definition of
public charge is also consistent with the
concept of an indigent, which is defined
as ‘‘one who is needy and poor . . . and
ordinarily indicates one who is destitute
of means of comfortable subsistence so
as to be in want.’’ 263 DHS believes its
proposed definition reflects Congress’s
intent in having aliens be self-sufficient
and not reliant on the government (i.e.,
public benefits) for assistance to meet
their needs.
2. Public Benefit
DHS proposes to define public
benefit 264 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 that can be
monetized (i.e., where DHS can
determine the cash value of such
benefit) exceeds 15 percent of the
Federal Poverty Guidelines (FPG) for a
household of one within a period of 12
consecutive months based on the permonth FPG for the months during
which the benefits are received
(hereafter referred to as the 15 percent
of FPG or the proposed 15 percent
standard or threshold); or (2) for benefits
that cannot be monetized, the benefits
are received for more than 12 months in
the aggregate within a 36-month period.
The proposed definition also addresses
circumstances where an alien receives a
combination of monetizable benefits
equal to or below the 15 percent
threshold together with one or more
benefits that cannot be monetized. In
such cases, DHS proposes that the
threshold for duration of receipt of the
non-monetizable benefits would be 9
months in the aggregate within a 36month period.265
As proposed in this rule, DHS would
consider the following public benefits:
261 Merriam-Webster Online Dictionary,
Definition of Charge, https://www.merriamwebster.com/dictionary/charge (last updated Sept.
5, 2018).
262 Black’s Law Dictionary Charge (10th ed. 2014).
263 Black’s Law Dictionary 773 (6th ed. 1990),
available at http://www.republicsg.info/
dictionaries/1990_black’s-law-dictionary-edition6.pdf.
264 See proposed 8 CFR 212.21(b).
265 See proposed 8 CFR 212.21(c).

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• Monetizable benefits:
Æ Any Federal, State, local, or tribal
cash assistance 266 for income
maintenance, including: Supplemental
Security Income (SSI),267 Temporary
Assistance for Needy Families
(TANF),268 and Federal, State or local
cash benefit programs for income
maintenance (often called ‘‘General
Assistance’’ in the State context, but
which may exist under other names);
Æ Benefits that can be monetized in
accordance with proposed 8 CFR
212.24:
• Supplemental Nutrition Assistance
Program (SNAP, or formerly called
‘‘Food Stamps’’), 7 U.S.C. 2011 to 2036c;
• Public housing defined as Section 8
Housing Choice Voucher Program; 269
• Section 8 Project-Based Rental
Assistance (including Moderate
Rehabilitation); 270 and
• Non-cash benefits that cannot be
monetized:
Æ Benefits paid for by Medicaid, 42
U.S.C. 1396 et seq., except for
emergency medical conditions as
prescribed in in section 1903(v) of Title
XIX of the Social Security Act, 42 U.S.C.
1396b(v), 42 CFR 440.255(c), and for
services or benefits funded by Medicaid
but provided under the Individuals with
Disabilities Education Act (IDEA); and
benefits provided to foreign-born
children of U.S. citizen parents;
Æ Premium and Cost Sharing
Subsidies for Medicare Part D; 271
Benefits provided for
institutionalization for long-term care at
government expense;
Æ Subsidized Housing under the
Housing Act of 1937, 42 U.S.C. 1437 et
seq.

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(a) Types of Public Benefits
In formulating the proposed
definition of public benefits, DHS
contemplated pertinent case law, the
definition of public benefits in
PRWORA, and the treatment of certain
public benefits under the current public
charge policy. The cases examined draw
a distinction between the types of
public benefits that are appropriately
considered in public charge
determinations, and the types that are
not. In Matter of Harutunian, an INS
Regional Commissioner noted a
fundamental difference between
consideration of ‘‘individualized public
266 Cash assistance would include any
government assistance in the form of cash, checks
or other forms of money transfers, or instruments.
267 See 42 U.S.C. 1381–1383f
268 See 42 U.S.C. 601–619.
269 See 24 CFR part 984; 42 U.S.C. 1437f and
1437u.
270 See 24 CFR parts 5, 402, 880–884 and 886.
271 See 42 U.S.C. 1395w–14.

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support to the needy’’ and ‘‘essentially
supplementary benefits directed to the
general welfare of the public as a
whole.’’ 272 The BIA similarly observed
a distinction between individualized
receipt of welfare benefits and ‘‘the
countless municipal and State services
which are provided to all residents,
alien and citizen alike, without specific
charge of the municipality or the State,
and which are paid out of the general
tax fund’’ in assessing the relevance of
receipt of a government benefit or
service to public charge
determinations.273 Specific public
benefits considered relevant to public
charge determinations have included
old age assistance, Supplemental
Security Income (SSI), and receipt of
‘‘public funds from the New York
Department of Social Services.’’ 274
PRWORA, with certain exceptions,
defined Federal public benefits as ‘‘any
grant, contract, loan, professional
license, or commercial license provided
by an agency of the United States or by
appropriated funds of the United States;
and . . . 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.’’ 275 DHS believes
the definition of public benefits used in
PRWORA is in some respects too broad
for public charge inadmissibility
determinations. The principal reason
PRWORA’s definition does not work in
the public charge inadmissibility
determination is that it includes grants,
contracts, and licensures that are
transactional in nature and may involve
the exchange of government resources
for value provided by the alien.276
Because they are value-exchanged
benefits and do not evidence a lack of
self-sufficiency, DHS does not believe
that grants, contracts, and licensures are
appropriate for consideration in public
charge inadmissibility determinations.
Certain cash aid and non-cash
benefits directed toward food, housing,
and healthcare, on the other hand, are
directly relevant to public charge
272 See Matter of Harutunian, 14 I&N Dec. 583,
589 (Reg’l Comm’r 1974).
273 See Matter of B —, 3 I&N Dec. 323, 324–25
(BIA 1948).
274 See Matter of Harutunian 14 I&N Dec. 583,
590 (Reg’l Comm’r 1974) (considering old age
assistance for public charge excludability
purposes); Matter of Vindman, 16 I&N Dec. 131, 132
(Reg’l Comm’r 1977) (receipt of public funds from
the New York Department of Social Services).
275 See 8 U.S.C. 1611(c)(1) and (2).
276 See 8 U.S.C. 1611(c).

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inadmissibility determinations. 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 proposes to consider specific
public benefit programs as part of the
public charge inadmissibility analysis.
Consistent with the 1999 Interim Field
Guidance, DHS is proposing to consider
all federal, state, local, and tribal cash
assistance for income maintenance as
part of the public benefits definition.
The receipt of these public benefits
indicates that the recipient, rather than
being self-sufficient, needs the
government’s assistance to meet basic
living requirements such as housing,
food, and medical care. Therefore, DHS
believes that continuing to consider
these benefits in the public charge
inadmissibility consideration is
appropriate.277
DHS also proposes consideration of
certain non-cash benefits, because
receipt of such benefits is relevant to
determining whether an alien is selfsufficient. DHS recognizes that the
universe of non-cash benefits is quite
large, and that some benefits are more
commonly used, at greater taxpayer
expense, than others. In addition,
incorporating specific non-cash benefit
programs into the public charge
inadmissibility determination entails
certain indirect costs—for instance, as a
result of a final rule, the benefitsgranting agency may make changes to
forms or to enrollment or disenrollment
procedures. In light of these
considerations, and to provide
consistency in adjudications and
appropriate certainty for aliens and
benefits-granting agencies, DHS
proposes to incorporate consideration of
a limited list of non-cash benefits in the
public charge inadmissibility
determination context. Specifically, as
indicated above, DHS would consider
the following non-cash benefits:
Nonemergency Medicaid, Premium and
Cost Sharing Subsidies for Medicare
Part D; the Supplemental Nutrition
Assistance Program (SNAP); benefits
provided for institutionalization for
277 Not all cash assistance would qualify as cash
assistance for income maintenance under the
proposed rule. For instance, DHS would not
consider Stafford Act disaster assistance, including
financial assistance provided to individuals and
households under Individual Assistance under the
Federal Emergency Management Agency’s
Individuals and Households Program (42 U.S.C.
5174) as cash assistance for income maintenance.
The same would hold true for comparable disaster
assistance provided by State, local, or tribal
governments. Other categories of cash assistance
that are not intended to maintain a person at a
minimum level of income would similarly not fall
within the definition.

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long-term care at government expense;
and housing programs, including
Section 8 Housing Assistance under the
Housing Choice Voucher Program,
Section 8 Project-Based Rental
Assistance (including Moderate

Rehabilitation), and Subsidized Public
Housing.
Cash aid and non-cash benefits
directed toward food, housing, and
healthcare account for significant
federal expenditure on low-income

individuals and bear directly on selfsufficiency. Table 10 illustrates the
estimated average annual public
benefits payments and average annual
benefit for each assistance program
under consideration in this rule.

In addition to federal expenditure
impact, participation rates in these cash
and non-cash benefits programs are
significant. In fact, participation rates in
some non-cash programs are far higher
than participation rates in some cash
programs, regardless of a person’s
immigration status or citizenship. Using
the 2014 Panel of the Survey of Income

and Program Participation (SIPP), DHS
analyzed data detailing the participation
rates for various cash and non-cash
federal public benefits programs.286 The
results suggest that receipt of non-cash
public benefits is more prevalent than
receipt of cash benefits.287 When

analyzed by nativity and citizenship
status, the results also suggest
comparable levels of program
participation by native-born
individuals, foreign-born individuals,
and noncitizens.288 DHS recognizes that
the SIPP Panel includes respondentprovided data on nativity, citizenship
status, and initial immigration status,
but does not provide data on current
immigration classification.
Additionally, the categories represented
in the SIPP immigration status item do
not align precisely with the populations
covered by this rule—for instance, the
results include refugees, asylees, and
other populations that may access
public benefits but are not subject to the
public charge ground of inadmissibility.
The SIPP data and DHS’s analysis of
this data do not examine whether the
receipt of public benefits was
authorized, and DHS did not examine
program payment rate error information

278 For a list of federal expenditures by program,
see fiscal year 2016 data from table 2 of Gene Falk
et al., Cong. Research Serv., R45097, Federal
Spending on Benefits and Services for People with
Low Income: In Brief (2018), available at https://
fas.org/sgp/crs/misc/R45097.pdf.
279 See Table 50: Estimated Average Annual
Benefit per Person, by Public Benefit Program,
unless otherwise noted.
280 Ibid.
281 Note that per enrollee Medicaid costs will vary
by eligibility group and State.
282 Note that ‘‘Federal Rental Assistance’’
includes HUD Section 8 Project-based Rental
Assistance, HUD Section 8 Housing Choice
Vouchers, HUD Public Housing, HUD Section 202/
811, and USDA Section 521.
283 Note that spending on LIS beneficiaries varies
by individual.
284 See U.S. Dep’t of Health and Human Servs.
(HHS), Centers for Medicare & Medicaid (CMS),
Expenditure Reports from MBES/CBES. Available at
https://www.medicaid.gov/medicaid/finance/stateexpenditure-reporting/expenditure-reports/
index.html. (Accessed Aug. 2, 2018).
285 The estimated CHIP enrollment is 6,464,117,
which is shown in the Medicaid & CHIP Enrollment
Data Highlights, available at https://
www.medicaid.gov/medicaid/program-information/
medicaid-and-chip-enrollment-data/reporthighlights/index.html (last visited Aug. 23, 2018).

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286 The 2014 Panel represents the most recent full
year of data, and may not represent current
participation rates.
287 The SIPP is a longitudinal survey providing
detailed information about public benefit receipt
and the economic status of the U.S. civilian noninstitutionalized population residing in households
or group quarters. See U.S. Census Bureau, Survey
of Income and Program Participation: 2014 Panel
Users’ Guide (2016), available at https://
www.census.gov/content/dam/Census/programssurveys/sipp//-SIPP-Panel-Users-Guide.pdf. In this
proposed rule, estimates of income, poverty, and
program participation by immigration status are
produced from the September 27, 2017 re-release of
Wave 1 of the SIPP. See U.S. Census Bureau,
Release Notes: 2014 SIPP Wave 1, available at
https://www2.census.gov/programs-surveys/sipp/
tech-documentation/2014/2014-wave1releasenotes.pdf. The 2014 Panel may be used for
estimates representative of any month in calendar
year 2013. In the tables presenting SIPP data
throughout this preamble, annual averages are
presented, which are averages across the 12
monthly estimates for the calendar year. Estimates
represent persons residing in the household at the
time of the interview, and exclude those who lived
in the household during the month but not at the
time of interview (referred to as ‘‘Type 2’’ people
in SIPP documentation). See id.; see also
Memorandum from James B. Treat, Chief,
Demographic Statistical Methods Div., to Jason
Fields, Survey Director, Source and Accuracy
Statement for Wave 1 Public Use Files (S&A–20)

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(Apr. 7, 2017), available at https://
www2.census.gov/programs-surveys/sipp/techdocumentation/source-accuracy-statements/2014/
sipp-2014-source-and-accuracy-statement.pdf
[hereinafter Source and Accuracy Statement].
288 For this study, the foreign-born include those
who were not born in the U.S. and were either
noncitizens or became citizens through
naturalization, military service, or adoption.
Noncitizens are identified by self-responses to the
question of whether they are citizens of the United
States.

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for this purpose. Notwithstanding these
limitations, DHS believes the SIPP data
on noncitizen participation is
instructive with respect to the receipt of
non-cash benefits by the noncitizen
population on the whole. DHS
welcomes comments on its use of this
data, and whether alternative reliable
data sources are available.
Table 11 shows public benefit
participation, by nativity and
citizenship status, in 2013. The total
population studied was 310,867,000.
The data shows that the rate of receipt
for either cash or non-cash public
benefits was approximately 20 percent
among the native-born and foreign-born,
including noncitizens. The rate of
receipt of cash benefits was only 2 to 4
percent for these populations, with
receipt of non-cash benefits dominating
the overall rate.289

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289 In the discussion of SIPP data in this proposed
rule, the estimates provided are based on a sample,
which may not be identical to the totals and rates
if all households and group quarters in the
population were interviewed. The standard errors
provided in the tables give an indication of the
accuracy of the estimates. Any estimate for which
the estimate divided by its standard error (the
relative standard error) is greater than 30 percent is
considered unreliable. The standard errors

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themselves are estimates, and were calculated using
design effects described in the Source and Accuracy
Statement. Participation in Supplemental Nutrition
Assistance Program (SNAP), Temporary Assistance
for Needy Families (TANF), and General Assistance
(GA) for a given month is identified by the monthly
coverage variables for those benefits. These
variables identify household members who were
eligible for the benefit and were reported as being
covered in the given month. Supplemental Security
Income (SSI) and Medicaid receipt are defined by
the coverage spell; if a given month is contained in
the range of months of coverage, then the individual
is identified as a recipient of the benefit for that
month. The rent subsidy benefit for a given month
indicates the respondent reported that their rent
was lower because of a federal, state, or local
government housing program, and the housing
voucher benefit furthermore indicates that the
renter was able to choose where to live. Finally, the
2014 Panel of SIPP does not distinguish between
Medicaid, CHIP, and other types of comprehensive
medical assistance for low-income people. For a
number of reasons, DHS anticipates that CHIP
enrollees represent a relatively small portion of the
‘‘Medicaid/CHIP’’ population. Typically, only
persons below age 20 are eligible for CHIP, which
reduces its impact on the overall estimates of
Medicaid/CHIP. Furthermore, using data from the
2008 Panel of SIPP (Wave 13, reference month 1,
representing September through December, 2012), it
was found that 0.7 percent of noncitizen
respondents reported receiving CHIP, and 23% of
noncitizen Medicaid/CHIP recipients below age 20
overall reported receiving CHIP. For general
reference, see the following publications, in
addition to the cited sources in the preceding
footnotes: Carmen DeNavas-Walt & Bernadette D.

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51161

Table 11 also shows Medicaid
participation rates were 16.1 percent
(43,301,000) among native-born
individuals and 15.1 percent (6,272,000)
among foreign-born persons, while rates
among noncitizens were 15.5 percent
(3,130,000). Participation rates in SNAP
among native-born, foreign-born, and
noncitizen populations are 11.6 percent
(31,308,000), 8.7 percent (3,605,000),
and 9.1 percent (1,828,000),
respectively. The rate of receipt of cash
benefits was 3.5 percent among the
native-born and foreign-born, and about
2 percent among noncitizens. Although
these results do not precisely align with
the categories of aliens subject to this
rule, they support the general
proposition that non-cash public
benefits play a significant role in the
Nation’s social safety net, including
with respect to noncitizens generally.
Proctor, U.S. Census Bureau, Current Population
Reports: Income and Poverty in the United States:
2013 (Sept. 2014), available at https://
www2.census.gov/library/publications/2014/
demographics/p60-249.pdf; Kayla Fontenot et al.,
U.S. Census Bureau, Monthly and Average Monthly
Poverty Rates by Selected Demographic
Characteristics: 2013 (Mar. 2017), available at
https://www.census.gov/content/dam/Census/
library/publications/2017/demo/p70br-145.pdf.

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Table 12 reflects that noncitizens
showed comparable rates of program
participation regardless of whether their
status at admission to the U.S. was as a
lawful permanent resident or not. For
example, approximately 20 percent of
noncitizens who were lawful permanent

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residents at admission to the U.S., as
well as noncitizens who were not lawful
permanent residents at admission,
received non-cash benefits, and
approximately 2 percent of these
populations receive cash benefits.
Among the cash benefits considered,

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about 1 percent of noncitizens who were
lawful permanent residents at
admission, as well as those who were
not, received SSI while less than 1
percent received either TANF or
General Assistance.

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(b) Consideration of Monetizable and
Non-Monetizable Public Benefits
While an alien’s receipt of one or
more of these benefits alone would not
establish that he or she is likely at any
time in the future to become a public
charge, as explained above, case law
strongly suggests that an alien’s selfsufficiency, i.e., the alien’s ability to
meet his or her needs without
depending on public resources, plays a
critical role in the outcome of a public
charge inadmissibility determination.290
290 See,

e.g., Matter of Vindman, 16 I&N Dec. 131
(Reg’l Comm’r 1977); Matter of Perez, 15 I&N Dec.
137 (BIA 1974); Matter of Harutunian 14 I&N Dec.
583 (Reg’l Comm’r 1974).

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DHS recognizes the challenges of
quantifying or qualifying reliance or
dependence on public benefits. Indeed,
in the course of evaluating welfare
dependence or dependence on public
benefits, HHS acknowledges that
‘‘welfare dependence, like poverty, is a
continuum, with variations in degree
and in duration.’’ 291 As discussed
below, DHS believes that its proposed
monetizable, non-monetizable, and
combined standards appropriately
capture sufficient levels of dependence
on public benefits in degree and
duration to sustain a finding of public
charge or likelihood of becoming a
public charge. In arriving at these
thresholds, DHS considered the current
policy’s ‘‘primarily dependent’’
standard, other agencies’ definitions of
dependence, and the Federal Poverty
Guidelines. DHS notes, as discussed
elsewhere in the rule, 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 regarding the receipt of
such benefits above the proposed
291 See U.S. Dep’t of Health & Human Servs.,
Welfare Indicators and Risk Factors, at I–2 (2015),
available at https://aspe.hhs.gov/report/welfareindicators-and-risk-factors-fourteenth-reportcongress.

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threshold is not exclusively prospective
and is instead based on whether an
alien has received since obtaining the
nonimmigrant status that the alien seeks
to end or from which the alien seeks to
change, is receiving, or is likely at any
time to receive benefits above the
proposed threshold(s).
i. ‘‘Primarily Dependent’’ Standard and
Its Limitations
The proposed 15 percent of FPG
threshold would represent a change
from the standard set forth in the 1999
INS proposed rule and Interim Field
Guidance, which generally define a
public charge as a person who is
‘‘primarily dependent’’ on public
benefits, i.e., a person for whom public
benefits represent more than half of
their income and support. INS stated
that the primary dependence model of
public assistance provided context to
the development of public charge
exclusion in immigration in the late
19th century, because individuals who
became dependent on the Government
were institutionalized in asylums or
placed in ‘‘almshouses’’ for the poor. At
the time, the wide array of limitedpurpose public benefits now available
did not yet exist. After consulting with
SSA, HHS, and USDA, INS suggested
that the best evidence of primary
dependence on the government was the
receipt of cash assistance for income
maintenance or institutionalization for

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In sum, the data from Tables 11 and
12 show that for native-born and
foreign-born populations alike, non-cash
public benefits play a significant role in
many peoples’ lives. DHS does not
believe it is appropriate to ignore the
receipt of non-cash benefits in its public
charge inadmissibility analysis. Further,
we note that certain non-cash benefits,
just like cash benefits, provide
assistance to those who are not selfsufficient. DHS, therefore, proposes to
consider cash benefits and non-cash
public benefits. DHS believes that
consideration of cash and non-cash
benefit receipt represents an
appropriately comprehensive and also
readily administrable application of the
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long-term care at government expense.
INS further argued that non-cash public
benefits generally provide only
‘‘supplementary’’ support in the form of
vouchers or direct services to support
nutrition, health, and living condition
needs.
The current policy’s definition is
consistent, in some respects, with how
other agencies have defined dependence
in certain contexts. For example, in
certain congressional reports, HHS has
defined welfare dependence as ‘‘the
proportion of individuals who receive
more than half of their total family
income in one year from the Temporary
Assistance for Needy Families (TANF)
program, the Supplemental Nutrition
Assistance Program (SNAP) and/or the
Supplemental Security Income (SSI)
program.’’ 292 The IRS has also defined
a qualifying dependent child as one
who cannot have provided more than
half of his or her own support for the
year and a qualifying dependent relative
as generally someone who depends on
another for more than half of his or her
total support during the calendar
year.293 Within the context of preparing
reports to Congress on welfare
dependence or constructing certain tax
rules, a ‘‘primary dependence’’
approach may be appropriate. As HHS
has noted, ‘‘using a single point—in this
case 50 percent—yields a relatively
straightforward measure that can be
tracked easily over time, and is likely to
be associated with any large changes in
total dependence.’’ 294
DHS agrees with HHS that although a
50 percent threshold creates a bright
line that may be useful for certain
purposes, it is possible and likely
probable that individuals below such
threshold will lack self-sufficiency and
be dependent on the public for support.
Because of the nature of the public
benefits that would be considered under
this rule—which are generally meanstested and provide cash for income
maintenance and for basic living needs
such as food, medical care, and
housing—DHS believes that receipt of
such benefits even in a relatively small
amount or for a relatively short duration
292 The Welfare Indicators Act of 1994 requires
HHS to submit annual welfare dependence
indicators reports to Congress. See U.S. Dep’t of
Health & Human Servs., Welfare Indicators and
Risk Factors 1 (2018), available at https://
aspe.hhs.gov/pdf-report/welfare-indicators-andrisk-factors-seventeenth-report-congress.
293 See IRS Publication 501 (Jan. 2, 2018),
available at https://www.irs.gov/pub/irs-pdf/
p501.pdf.
294 See U.S. Dep’t of Health & Human Servs.,
Welfare Indicators and Risk Factors, at I–2 (2015),
available at https://aspe.hhs.gov/report/welfareindicators-and-risk-factors-fourteenth-reportcongress.

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would in many cases be sufficient to
render a person a public charge. This is
because a person with limited means to
satisfy basic living needs who uses
government assistance to fulfill such
needs frequently will be dependent on
such assistance to such an extent that
the person is not self-sufficient.
In addition, as noted above, DHS
considers the current policy’s focus on
cash benefits to be insufficiently
protective of the public budget,
particularly in light of significant public
expenditures on non-cash benefits.
Therefore, the DHS proposal takes into
account a finite list of non-cash benefits,
including some that can be monetized
and some that cannot. DHS proposes to
apply the aforementioned 15 percent
threshold for the cumulative value of
benefits only to the former, and to apply
a standard tied to the duration of receipt
of public benefits to the latter, as
discussed in more detail below.
In sum, DHS does not believe that the
plain text of section 212(a)(4) of the Act,
8 U.S.C. 1182(a)(4), requires an alien to
be ‘‘primarily’’ (50 percent or more)
dependent on the government or rely on
only cash assistance to be considered a
public charge. Nor does DHS believe
that such limitations are mandated by
the principles of PRWORA or the
century-plus of case law regarding the
public charge ground of inadmissibility.
As discussed above, the term public
charge is ambiguous as to how much
government assistance an individual
must receive or the type of assistance an
individual must receive to be
considered a public charge. The statute
and case law do not prescribe the degree
to which an alien must be receiving
public benefits to be considered a public
charge. Given that neither the statute
nor the case law prescribe the degree to
which an alien must be dependent on
public benefits to be considered a public
charge, DHS has determined that it is
permissible and reasonable to propose a
different approach.
ii. Fifteen Percent of Federal Poverty
Guidelines (FPG) Standard for
Monetizable Benefits
DHS proposes to consider receipt of
monetizable public benefits as listed in
8 CFR 212.21(b)(1), where the
cumulative value of one or more of the
listed benefits exceeds 15 percent of the
Federal Poverty Guidelines (FPG) for a
household of one within any period of
12 consecutive months, based on the
per-month average FPG for the months
during which the benefits are received.
This proposed threshold is most
straightforward to calculate within the
context of a 12-month period that spans
a single calendar year (January through

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December). For example, this 15 percent
of FPG threshold would exclude up to
$1,821 worth of monetizable public
benefits for a household of one if the
monetizable public benefits are received
from January 2018 through December
2018.295 On the other hand, the
threshold requires a slightly more
complex calculation when evaluating 12
consecutive months spanning two
calendar years. To illustrate, an alien
receives monetizable public benefits
between April 2017 and March 2018.
DHS would compare the amount
received for the 12 consecutive month
period against 15 percent of FPG
applicable to each month in question.
Fifteen percent of FPG is $150.75 per
month for April through December 2017
and $151.75 per month for January
through March 2018 based on the
respective poverty guidelines in effect
for calendar years 2017 and 2018, which
would equal $1,812 for this 12 month
consecutive period. In evaluating likely
receipt of future monetizable public
benefits, DHS would use the FPG in
effect on the date of adjudication.
In formulating this 15 percent of FPG
threshold, DHS proposes to use FPG as
the baseline for the percentage of
monetizable public benefits receipt
being considered in the totality of the
circumstances because the poverty
guidelines are authoritative and
transparent. The poverty guidelines are
a simplified version of the Census
Bureau’s poverty thresholds, which
Census uses to prepare its estimates of
the number of individuals and families
in poverty.296 HHS updates and adjusts
the FPG annually based on the
Consumer Price Index for All Urban
Consumers (CPI–U).297 As HHS notes, a
number of federal programs use the
poverty guidelines as an eligibility
criterion.298 ‘‘Some federal programs
use a percentage multiple of the
guidelines (for example, 125 percent or
185 percent of the guidelines)’’ to
determine public benefit eligibility.299
In the immigration context, DHS uses
the FPG as a standard for purposes of
the affidavit of support requirement
under section 213A of the Act, 8 U.S.C.
295 The calculation is an FPG of $12,140 for a
household of one, multiplied by 0.15. See U.S.
Dep’t of Health & Human Servs., HHS Poverty
Guidelines for 2018, available at https://
aspe.hhs.gov/poverty-guidelines (last visited Feb.
11, 2018).
296 See Annual Update of the HHS Poverty
Guidelines, 83 FR 2642 (Jan. 18, 2018).
297 See Annual Update of the HHS Poverty
Guidelines, 83 FR 2642 (Jan. 18, 2018).
298 See Annual Update of the HHS Poverty
Guidelines, 83 FR 2642 (Jan. 18, 2018).
299 See Annual Update of the HHS Poverty
Guidelines, 83 FR 2642 (Jan. 18, 2018).

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
1183a.300 DOS also uses FPG to evaluate
immigrant visa applicants who are not
subject to the requirements of 213A of
the Act, 8 U.S.C. 1183a, and who are
relying solely on personal income to
establish eligibility under section
212(a)(4) of the Act, 8 U.S.C. 1183a.301
The poverty guidelines thus provides a
proven, useful, and easily administrable
measure of the level of income and
resources below which a person
becomes increasingly likely to need
public benefits to satisfy basic living
(and other) needs.
DHS believes that the 15 percent
threshold is a reasonable approach. The
threshold would not lead to unintended
consequences, as could be the case if
there was no threshold or the threshold
was much smaller. Indeed, DHS
recognizes that individuals may receive
public benefits for in relatively small
amounts to supplement their ability to
meet their needs and the needs of their
household without seriously calling into
question their self-sufficiency.
At the same time, DHS believes that
an individual who receives monetizable
public benefits in excess of 15 percent
of FPG is neither self-sufficient nor on
the road to achieving self-sufficiency.
Receipt of monetizable public benefits
above the 15 percent threshold exceeds
what could reasonably be defined as a
nominal level of support that merely
supplements an alien’s independent
ability to meet his or her basic living
needs; individuals who receive the
designated benefits in such an amount
are not self-sufficient and so would be
considered public charges under this
rule.
DHS believes the proposed 15 percent
threshold is consistent with DHS’s
interpretation of the term public charge
and would achieve the policy aims of
this proposed rulemaking. The proposed
threshold is consistent with the selfsufficiency policy objective set forth in
PRWORA that aliens should be able to
financially support themselves with
their own resources or by relying on the
aid of family members, without
depending on government’s
assistance.302 Though not defined in
PRWORA, self-sufficiency, as used in
PRWORA, is tied to an alien’s ability to
support him or herself without
depending on public benefits.303 DHS
seeks public comments on whether the
proposed 15 percent threshold
applicable to monetizable public
benefits is an appropriate threshold in
300 See INA section 213A(f)(1)(E), 8 U.S.C.
1183a(f)(1)(E).
301 See 22 CFR 40.41(f).
302 See 8 U.S.C. 1601(a)(2).
303 See 8 U.S.C. 1601(a)(2).

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light of the stated goals of the rule. For
instance, DHS welcomes the submission
of views and data regarding whether the
proposed standard is appropriate, too
low, or too high for assessing reliance
on public benefits (and why), and
whether there is a more appropriate
basis for a monetizable threshold, other
than value as a percentage of the FPG or
duration of receipt, that indicates
whether an alien is a public charge.
DHS also seeks public comments on
whether DHS should consider the
receipt of designated monetizable public
benefits at or below the 15 percent
threshold as evidence in the totality of
the circumstances. For instance, DHS
could revise the rule to allow
adjudicators to assign some weight to
past or current receipt of designated
monetized public benefits in an amount
equal to 10 percent of FPG, and less
weight to past or current receipt of such
benefits in an amount equal to 5 percent
of FPG. The ultimate inquiry would
remain whether the alien is likely in the
totality of the circumstances to become
a public charge, i.e., to receive the
designated public benefits above the
applicable threshold(s), either in terms
of dollar value or duration of receipt.
iii. Twelve Month Standard for NonMonetizable Benefits
In addition to proposing a 15 percent
threshold for assessing the alien’s
likelihood to remain or become selfsufficient in the context of receipt of
monetizable public benefits (e.g., cash
assistance and SNAP), DHS is proposing
to consider the receipt of certain nonmonetizable public benefits (e.g.,
Medicaid) if received for more than 12
cumulative months during a 36-month
period. As indicated above, DHS
believes that it is appropriate to expand
the list of previously included public
benefits (under the 1999 INS Interim
Field Guidance) to include certain noncash benefits based on the Federal
government’s expenditures and noncitizen participation rates in those
programs. However, following
consultation with interagency partners
such as HHS and HUD, DHS lacks an
easily administrable standard for
assessing the monetary value of an
alien’s receipt of some non-cash
benefits. DHS believes that, like the 15
percent of FPG threshold described
above, the duration of the alien’s receipt
of these benefits over a period of time
is also reasonable proxy for assessing an
alien’s reliance on public benefits.
The duration of receipt is a relevant
factor under the existing guidance with
respect to covered benefits and is
specifically accounted for in the
guidance’s inclusion of long-term

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51165

institutionalization at government’s
expense.304 Additionally, in the context
of both state welfare reform efforts and
the 1990s Federal welfare reform,
Federal government and state
governments imposed various limits on
the duration of benefit receipt as an
effort to foster self-sufficiency among
recipients and prevent long-term or
indefinite dependence. States have
developed widely varying approaches to
time limits. Currently, 40 states have
time limits that can result in the
termination of families’ welfare benefits;
17 of those states have limits of fewer
than 60 months.305 Similarly, on the
Federal level, PRWORA established a
60-month time limit on the receipt of
TANF.306
As with the proposed 15 percent of
FPG standard, DHS believes that an
individual who receives monetizable
public benefits for more than 12
cumulative months during a 36-month
period is neither self-sufficient nor on
the road to achieving self-sufficiency.
Receipt of public benefits for such a
duration exceeds what could reasonably
be defined as a nominal level of support
that merely supplements an alien’s
independent ability to meet his or basic
living needs. 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;
they therefore are not self-sufficient and
so would be considered public charges
under this rule.
By way of illustration, under the
proposed policy, an alien’s receipt of
Medicaid for 9 months and receipt of
public housing for 6 months, if both
occurred within the same 36-month
period, would amount to 15 months of
receipt of non-monetizable benefits,
regardless of whether these periods of
time overlapped, were consecutive, or
occurred at different points in time
during the 36-month period. As such,
the receipt of those benefits would be
considered for purposes of this rule.
304 In assessing the probative value of past receipt
of public benefits, ‘‘the length of time . . . is a
significant factor.’’ 64 FR 28689, 28690 (May 26,
1999) (internal quotation marks and citation
omitted).
305 See, e.g., MDRC, formerly Manpower
Demonstration Research Corporation, Welfare Time
Limits State Policies, Implementation, and Effects
on Families. https://www.mdrc.org/sites/default/
files/full_607.pdf (last visited Sep. 12, 2018).
306 See Temporary Assistance for Needy Families
Program (TANF), Final Rule; 64 FR 17720, 17723
(Apr. 12, 1999) (‘‘The [Welfare to Work (WtW)]
provisions in this rule include the amendments to
the TANF provisions at sections 5001(d) and
5001(g)(1) of Pub. L. 105–33. Section 5001(d) allows
a State to provide WtW assistance to a family that
has received 60 months of federally funded TANF
assistance . . .’’).

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DHS seeks public comments on this
proposed approach, including any
alternatives for assessing self-sufficiency
based on the receipt of non-monetizable
benefits. DHS seeks public comments on
whether the proposed 12-month
threshold applicable to non-monetizable
public benefits is an appropriate
threshold in light of the stated goals of
the rule. For instance, DHS welcomes
the submission of views and data
regarding whether the proposed
standard is appropriate, too low, or too
high for assessing reliance on public
benefits (and why), and whether there is
a more appropriate basis for a nonmonetizable threshold, other than
duration of receipt, that indicates
whether an alien is a public charge.
DHS also seeks public comments on
whether DHS should consider the
receipt of one or more designated nonmonetizable public benefits for any
period less of than 12 months in the
aggregate as part of the public charge
inadmissibility determination. For
instance, similar to the potential
alternative described in the call for
comment in the preceding section, DHS
could revise the rule to allow
adjudicators to assign some weight to
past or current receipt of 2 designated
non-monetized benefits for a total of 8
months, and less weight to past or
current receipt of such benefits for a
total of 4 months. The ultimate inquiry
would remain whether the alien is
likely in the totality of the
circumstances to become a public
charge, i.e., to receive the designated
public benefits above the applicable
threshold(s), either in terms of dollar
value or duration of receipt.
DHS is also considering whether there
are other potential approaches to
monetizing these benefits, and seeks
comments on any such alternatives. In
addition, DHS seeks comments on the
proposed timeframes, including, if
applicable, any studies or data that
would provide a basis for an alternative
duration.
iv. Combination of Monetizable Benefits
Under 15 Percent of FPG and One or
More Non-Monetizable Benefits
DHS is proposing a separate approach
when an alien receives a combination of
monetizable benefits in an amount that
is equal to or less than the proposed 15
percent threshold while also receiving
one or more non-monetizable public
benefits. This approach is intended to
address circumstances where an alien’s
self-sufficiency is in question by virtue
of a combination of receipt of both
monetizable and non-monetizable
benefits, even if his or her receipt of
monetizable designated public benefits

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does not reach the 15 percent threshold
and his or her receipt of nonmonetizable benefits does not surpass
the 12-month duration threshold. Under
this proposal, if an alien receives a
combination of monetizable benefits
equal to or below the 15 percent
threshold together with one or more
benefits that cannot be monetized, the
threshold for duration of receipt of the
non-monetizable benefits would be 9
months in the aggregate (rather than 12
months) within a 36-month period (e.g,
receipt of two different non-monetizable
benefits in one month counts as two
months, as would receipt of one nonmonetizable benefit for one month in
January 2018 and another such benefit
for one month in June 2018).
DHS believes that reducing the
12-month timeframe by 3 months to
account for use of monetizable benefits
is a reasonable and easily administrable
guideline for determining whether an
individual who receives both
monetizable and non-monetizable
public benefits is self-sufficient or on
the road to achieving self-sufficiency. In
line with the other thresholds described
above, receipt of a designated nonmonetizable public benefits for threequarters of a year, compounded by
receipt of a designated monetizable
public benefit, exceeds what could
reasonably be defined as a nominal level
of support that merely supplements an
alien’s independent ability to meet his
or basic living needs. In DHS’s view,
individuals who receive public benefits
in these combinations are unable to
meet their basic needs without
government help, consequently are not
self-sufficient, and therefore would be
considered public charges under this
rule.
DHS seeks public comments on this
approach, including any alternatives for
addressing receipt of a combination of
public benefits, some of which can be
monetized and others which cannot to
ensure a consistent methodology for
treating recipients of these two types of
benefits.
(c) Monetizable Public Benefits
i. Supplemental Security Income (SSI)
SSI, which is monetizable public
benefit, provides monthly income
payments intended to help ensure that
a disabled, blind, or aged person with
limited income and resources has a
minimum level of income.307 Unlike
307 See U.S. Soc. Sec. Admin., Social Security
Handbook, Ch. 21, section 2102.1, available at
https://www.ssa.gov/OP_Home%2Fhandbook/
handbook.21/handbook-2102.html (last updated
Feb. 24, 2009); U.S. Soc. Sec. Admin., Social
Security, Understanding Supplemental Security

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Social Security retirement benefits,
which are financed through payroll
taxes, SSI is financed by general
revenues.308 According to one analysis,
SSI expenditures totaled approximately
$54.7 billion in fiscal year 2017, and
represented one of the largest Federal
expenditures for low-income people.309
ii. Temporary Assistance for Needy
Families (TANF) 310
TANF, which is a monetizable public
benefit, provides monthly income
assistance payments to low-income
families and is intended to foster selfsufficiency, economic security, and
stability for families with children.311
According to one analysis, TANF cash
assistance expenditures totaled
approximately $4.4 billion in fiscal year
2016, and represented one of the largest
Federal expenditures out of all Federal
programs for low-income people.312
iii. General Assistance Cash Benefits
Federal, State, local, and tribal cash
benefit programs for income
maintenance (often called ‘‘General
Assistance’’ in the State context, but
sometimes given other names), is a term
used to describe ‘‘aid provided by State
and local governments to needy
individuals or families who do not
qualify for major assistance programs
and to those whose benefits from other
Income (SSI) Overview—2018 Edition, available at
https://www.ssa.gov/ssi/text-over-ussi.htm (last
visited July 27, 2018).
308 See U.S. Soc. Sec. Admin., Office of Research,
Statistics, & Policy Analysis, Annual Report of the
Supplemental Security Income Program 46
tbl.IV.B9, 47 tbl.IV.C1 (2017), available at https://
www.ssa.gov/oact/ssir/SSI17/ssi2017.pdf (last
visited July 31, 2018); see also U.S. Soc. Sec.
Admin., Office of Research, Statistics, & Policy
Analysis, SSI Monthly Statistics, January 2018,
available at https://www.ssa.gov/policy/docs/
statcomps/ssi_monthly/2018-01/table01.html (last
visited July 31, 2018).
309 See Gene Falk et al., Cong. Research Serv.,
R45097, Federal Spending on Benefits and Services
for People with Low Income: In Brief (2018),
available at https://fas.org/sgp/crs/misc/
R45097.pdf.
310 See 42 U.S.C. 601.
311 See U.S. Dep’t of Health & Human Servs.,
Admin. for Children & Families, Office of Family
Assistance, About TANF, available at https://
www.acf.hhs.gov/ofa/programs/tanf/about (last
visited February 23, 2018); U.S. Dep’t of Health and
Human Servs., Admin. for Children and Families,
Office of Family Assistance, TANF 12th Report to
Congress.
312 See Gene Falk et al., Cong. Research Serv.,
R45097, Federal Spending on Benefits and Services
for People with Low Income: In Brief (2018),
available at https://fas.org/sgp/crs/misc/
R45097.pdf; U.S. Dep’t of Health & Human Servs.,
Office of Family Assistance. TANF Financial
Data—FY 2016, available at https://
www.acf.hhs.gov/ofa/resource/tanf-financial-datafy-2016 (last visited June 11, 2018). Note that the
latter link shows fiscal year 2016 TANF financial
data, but links to financial data for other fiscal years
can also be accessed.

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assistance programs are insufficient to
meet basic needs. General assistance is
often the only resource for individuals
who cannot qualify for unemployment
insurance, or whose benefits are
inadequate or exhausted. Help may
either be in cash or in kind, including
such assistance as groceries and
rent.’’ 313 To the extent that such aid is
in the form of cash, check, or money
instrument (as compared to in-kind
goods or services through vouchers and
similar means) and intended for income
maintenance, it would qualify as a cash
public benefit under this rule. For
example, in Minnesota, the ‘‘General
Assistance (GA) program helps people
without children pay for basic needs. It
provides money to people who can[no]t
work enough to support themselves, and
whose income and resources are very
low.’’ 314
iv. Supplemental Nutrition Assistance
Program (SNAP)
DHS proposes to consider SNAP 315
benefits, because the program is among
the largest Federal expenditures for lowincome people, and because receipt of
SNAP benefits indicates a lack of selfsufficiency in satisfying a basic living
need, i.e., food and nutrition. SNAP,
which is a non-cash, monetizable public
benefit, provides nutrition assistance to
low-income individuals and
households 316 who must meet certain
income and resource limitations to be
eligible. An eligible person or
household receives SNAP benefits on an
Electronic Benefit Transfer (EBT) card
on which the dollar amount of benefits
are automatically available each month.
The household can then purchase
eligible food at authorized retail food
stores.317

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v. Housing Programs
DHS is also proposing to include
certain high-expenditure housingrelated benefits. As noted in Table 10
above, the Federal government expends
313 See U.S. Soc. Sec. Admin., Social Security
Programs in the United States—General Assistance,
available at https://www.ssa.gov/policy/docs/
progdesc/sspus/genasist.pdf (last visited June 24,
2018).
314 See Minn. Dep’t of Human Servs., General
Assistance (GA), available at https://mn.gov/dhs/
people-we-serve/adults/economic-assistance/
income/programs-and-services/ga.jsp (last visited
June 24, 2018).
315 Formerly called ‘‘Food Stamps.’’ See 7 U.S.C.
2011–2036c.
316 See USDA, Food and Nutrition Service,
Supplemental Nutrition Assistance Program
(SNAP), available at https://www.fns.usda.gov/
snap/supplemental-nutrition-assistance-programsnap (last visited Feb. 24, 2018).
317 The listing of SNAP would not include
Disaster SNAP, which is provided under a separate
legal authority, under different circumstances. See
42 U.S.C. 5179.

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significant resources on Section 8
Housing Choice Vouchers, Section 8
Project-Based Rental Assistance, and
Public Housing. These programs impose
a significant expense upon multiple
levels of government, and because these
benefits relate to a basic living need (i.e.,
shelter), receipt of these benefits
suggests a lack of self-sufficiency. At the
same time, DHS recognizes that these
programs do not involve the same level
of expenditure as the other programs
listed in this proposed rule, and that
noncitizen participation in these
programs is currently relatively low.318
DHS nonetheless proposes to consider
these programs as part of public charge
determinations, for the above-stated
reasons and because the total Federal
expenditure for the programs overall
remains significant.
There are also numerous programs
that provide incentives for privatesector affordable housing preservation
and development.319 The Housing Act
of 1961 320 provides housing to low- and
moderate-income households through
the private sector.321 U.S. Department of
Housing and Urban Development (HUD)
oversees and administers the various
programs. There are various programs
within the public housing program
which provide payment for rent or
housing either to the person or the
housing unit or owner on behalf of the
person (privately owned subsidized
housing).
These programs provide low-income
individuals and families with housing at
below-market rent or rent subsidies for
market-rate housing. While there are
important variations between these
programs, they all use the same or
similar standard when establishing
income eligibility and contribution
towards rent. Specific to aliens, DHS
notes that Section 214 of the HCD Act
of 1980 requires that HUD may not
make financial assistance available for
the benefit of any alien, notwithstanding
any other provision of law, unless that
alien is a resident of the United States
318 An analysis of Wave 13 of the 2008 Panel of
the Survey of Income and Program Participation
(SIPP) suggests that 0.2% of noncitizens lived in
Section 8 housing, while 0.4% lived in housing
subsidized through some other government
program. Similarly, 0.7 percent of noncitizens
reported receiving CHIP benefits.
319 See Public Law 86–372, 73 Stat. 654. See also
Maggie McCarty et al., Cong. Research Serv.,
RL34591, Overview of Federal Housing Assistance
Programs and Policy 3 (2014), available at https://
www.hsdl.org/?view&did=752738.
320 See Public Law 87–70, 75 Stat. 149.
321 See Maggie McCarty et al., Cong. Research
Serv., RL34591, Overview of Federal Housing
Assistance Programs and Policy 4 (2014), available
at https://www.hsdl.org/?view&did=752738.

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and fits into one of the clearly
enumerated 7 categories.322
a. Section 8 Housing Choice Voucher
Program
The Section 8 Housing Choice
Voucher Program,323 which is a noncash public benefit that can be
monetized, provides assistance to very
low-income families to afford decent,
safe, and sanitary housing.324 The
Housing Choice Vouchers are
administered locally by Public Housing
Agencies. The participant is responsible
for finding their own suitable housing
unit, where the owner agrees to rent
under the program. Once an owner has
been identified, the public housing
agency enters into a housing assistance
payment contract with the landlord. The
PHA pays the landlord housing
subsidies based on a payment standard
established by HUD and the participant
is responsible for paying the difference
between the actual rent charged and the
amount subsidized by the program.325
Under certain circumstances, housing
vouchers may also be used to purchase
homes.326
b. Section 8 Project-Based Rental
Assistance
The Section 8 Project-Based Rental
Assistance Program (including Moderate
Rehabilitation), which is a non-cash but
monetizable public benefit, provides
rental assistance for extremely low- to
low-income households in obtaining
decent, safe, and sanitary housing in
private accommodations.327 This
program refers to a category of federally
assisted housing produced through a
public-private partnership to build and
maintain affordable rental housing for
low-income households. HUD provides
subsidies to private owners of
multifamily housing to lower rental
costs for low-income families and help
offset construction, rehabilitation, and
322 See section 214 of the Housing and
Community Development Act of 1980, 42 U.S.C.
1436a.
323 See 24 CFR part 982; 42 U.S.C. 1437f, 1437u.
324 See U.S. Dep’t of Housing & Urban Dev.,
Housing Choice Vouchers Fact Sheet, available at
https://www.hud.gov/topics/housing_choice_
voucher_program_section_8 (last visited Feb. 24,
2018).
325 See U.S. Dep’t of Housing & Urban Dev.,
Housing Choice Vouchers Fact Sheet, available at
https://www.hud.gov/topics/housing_choice_
voucher_program_section_8 (last visited Feb. 24,
2018).
326 See U.S. Dep’t of Housing & Urban Dev.,
Housing Choice Vouchers Fact Sheet, available at
https://www.hud.gov/topics/housing_choice_
voucher_program_section_8 (last visited July 11,
2018).
327 U.S. Dep’t of Housing & Urban Dev., Moderate
Rehabilitation, available at https://www.hud.gov/
program_offices/public_indian_housing/programs/
ph/modrehab (last visited July 3, 2018).

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(d) Non-Monetizable Public Benefits

preservation costs. The rental assistance
is the difference between what the
household can afford and the approved
rent for the housing unit in the
multifamily project. Authority to use
project-based rental assistance for new
construction or substantial
rehabilitation was repealed in 1983.
Therefore, HUD renews Section 8
project-based housing assistance
payments (‘‘HAP’’) contracts for units
already assisted with project-based
Section 8 renewal assistance. 328 The
contracts are with private owners of
multifamily rental housing including
both profit-motivated and nonprofit or
cooperative organizations.

a. Description of Program
Medicaid, which is a non-cash, nonmonetizable public benefit, is a joint
Federal and state program that provides
health coverage to individuals in the
United States.329 Medicaid is generally
available to needy persons who meet
specific income and resource
requirements. Certain individuals are
generally covered under Medicaid,
including low-income families,
qualified pregnant women and children,
and people already receiving SSI.330 In
addition, a State may opt to cover other

On the whole, Medicaid expenditures
per enrollee by enrollment group are
significant and are particularly

pronounced among persons with
disabilities and the aged. In its 2016
report, HHS observes that these average

costs reflect the relatively healthier
status of children and adults enrolled in
the program as compared to aged

328 U.S. Dep’t of Housing & Urban Dev., Moderate
Rehabilitation, available at https://www.hud.gov/
program_offices/public_indian_housing/programs/
ph/modrehab (last visited July 3, 2018).
329 See Ctrs. for Medicare & Medicaid Services,
Eligibility, available at https://www.medicaid.gov/
medicaid/eligibility/index.html (last visited Feb. 23,
2018).
330 See Ctrs. for Medicare & Medicaid Services,
Eligibility, available at https://www.medicaid.gov/

medicaid/eligibility/index.html (last visited Feb. 23,
2018).
331 See Ctrs. for Medicare & Medicaid Services,
Eligibility, available at https://www.medicaid.gov/
medicaid/eligibility/index.html (last visited Feb. 23,
2018).
332 See Table 26–1 Policy, Net Budget Authority
by Function, Category, and Program, available at
https://www.whitehouse.gov/wp-content/uploads/
2018/02/26-1-fy2019.pdf (last visited Aug. 8, 2018).

Expenditure amounts are net outlays unless
otherwise noted. See also Gene Falk et al., Cong.
Research Serv., R45097, Federal Spending on
Benefits and Services for People with Low Income:
In Brief (2018), available at https://fas.org/sgp/crs/
misc/R45097.pdf. Note however that neither HHS
nor DHS are able to disaggregate emergency and
non-emergency Medicaid expenditures. Therefore,
this rule considers overall Medicaid expenditures.

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i. Medicaid

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groups.331 Medicaid provides
continuous coverage, services, and
funding for medical treatment and can
impose substantial costs on multiple
levels of government, and a person’s
participation generally indicates a lack
of ability to be self-sufficient in
satisfying a basic living need, i.e.,
medical care. As indicated in Table 10
above, the total Federal expenditure for
the Medicaid program overall is larger
by far than any other programmatic
Federal expenditure for low-income
people.332 Table 13 below highlights
average costs per enrollee by eligibility
group as a percentage of FPG.

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enrollees and persons with disabilities,
who represent the smallest enrollment
groups in Medicaid but account for the
majority of expenditures.333 Despite the
high level of Medicaid expenditure in
aggregate and per enrollee by
enrollment group, Medicaid is one of
the most daunting public benefits to
monetize on an individual basis.
Medicaid eligibility, enrollment, and
receipt vary state-by-state and receipt of
goods and services vary enrollee-toenrollee. Therefore, DHS does not
propose a methodology to monetize
Medicaid benefits for purposes of the 15
percent of FPG standard. Rather, DHS
Medicaid would be categorized as a
non-monetizable benefit under the
proposed rule.
b. Exceptions for Certain Medicaid
Services

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Notwithstanding DHS’s proposal to
consider benefits under Medicaid, DHS
proposes to exclude two main types of
Medicaid services from consideration.
First, DHS proposes to except
consideration of assistance for an
‘‘emergency medical condition’’ as
provided under section 1903(v) of Title
XIX of the Social Security Act, 42 U.S.C.
1396b(v) and in implementing
regulations at 42 CFR 440.255(c). These
provisions specifically indicate that
payment may be made to a State for
medical assistance furnished to an alien
under certain specific emergency
circumstances.334 Under 42 CFR
440.255(c), ‘‘ ‘emergency medical
condition’ means a medical condition
(including emergency labor and
delivery) manifesting itself by acute
symptoms of sufficient severity
(including severe pain) such that the
absence of immediate medical attention
could reasonably be expected to result
in placing the patient’s health in serious
jeopardy, serious impairment to bodily
functions, or serious dysfunction of any
bodily organ or part.’’ States determine
whether an illness or injury is an
‘‘emergency medical condition’’ and
provide payment to the healthcare
provider as appropriate. Under this
proposed rule, DHS would exclude
receipt of Medicaid if the State
determines that the relevant treatment
falls under 42 U.S.C. 1396b(v) and 42
CFR 440.255(c).
333 See United States Department of Health &
Human Services, Centers for Medicare & Medicaid
Services, Office of the Actuary, 2016 Actuarial
Reports on the Financial Outlook for Medicaid, pp.
7–8, at https://www.cms.gov/Research-StatisticsData-and-Systems/Research/ActuarialStudies/
Downloads/MedicaidReport2016.pdf. (Site last
checked 9–11–2018).
334 See 42 U.S.C. 1396b(v); 42 CFR 440.255(c).

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In 8 U.S.C. 1611(b), Congress
specifically excluded emergency
medical conditions from the definition
of Federal public benefits, and States are
required to provide Medicaid payments
for ‘‘emergency medical conditions’’
regardless of the alien’s status.
PRWORA sets apart treatment for
emergency medical conditions and
makes funds available for the
reimbursement of states regardless of an
alien’s immigration status, and
regardless of whether or not an alien
would be subject to INA section
212(a)(4) or other grounds of
inadmissibility.335 Congress intended
that PRWORA exceptions generally, and
treatment of emergency medical
conditions in particular, be narrowly
construed. To qualify for emergency
medical condition exclusion, medical
conditions must be of an emergency
nature, such as medical treatment
administered in an emergency room,
critical care unit, or intensive care unit.
The same principle applies to pre-natal
or delivery care assistance; it was
intended to be of emergency nature.
Similarly, treatment for mental health
disorders was intended to be limited to
circumstances in which the alien’s
condition is such that he is a danger to
himself or to others and has therefore
been judged incompetent by a court of
appropriate jurisdiction.336 Over the
years since the enactment of PRWORA,
courts have refined the definition of
emergency medical condition.
Depending on the state, and the medical
condition, categorization as an
‘‘emergency medical condition’’ for
purposes of Medicaid reimbursement
may not be limited to hospital
emergency room visits. For example, in
Szewczyk v. Department of Social
Services,337 the Supreme Court of
Connecticut indicated that coverage for
an ‘‘emergency medical condition’’ did
335 H.R. Rep. No. 104–469 (VI), at 263–64 (1996)
(‘‘This section provides that sections 601 and 602
shall not apply to the provision of emergency
medical services, public health immunizations,
short-term emergency relief, school lunch programs,
child nutrition programs, and family violence
services. Section 601 restricted unauthorized aliens
from receiving public assistance, contracts, and
licenses, and section 602 made unauthorized aliens
ineligible for employment benefits.’’)
336 H.R. Rept. 104–469 (VI), at 264–65 (1996).
This report also discusses treatment of
communicable diseases and indicates that such
treatment is intended ‘‘to only apply where
absolutely necessary to prevent the spread of such
diseases. This is only a short term measure until the
deportation of an alien who is unlawfully present
in the U.S. It is not intended to provide authority
for continued long-term treatment of such diseases
as a means for illegal aliens to delay their removal
from the country.’’
337 See 881 A.2d 259, 273 (Conn. 2005) (quoting
Greenery Rehab. Grp., Inc. v. Hammon, 150 F.3d
226, 233 (2d Cir.1998)).

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51169

not limit an alien patient to treatment
rendered in the emergency room, but
applied to treatment for leukemia that
had ‘‘reached a crisis stage’’ and
required ‘‘immediate medical treatment,
without which the patient’s physical
well-being would likely be put in
jeopardy or serious physical impairment
or dysfunction would result.’’ However,
in Diaz v. Division of Social Services
and Div. of Medical Assistance, North
Carolina Dept. of Health and Human
Services,338 the Supreme Court of North
Carolina indicated that an alien’s acute
lymphocytic leukemia was not an
‘‘emergency medical condition’’ where
there was is nothing to indicate that the
prolonged chemotherapy treatments
must have been ‘‘immediate’’ to prevent
placing the alien’s health in serious
jeopardy, or causing serious impairment
or dysfunction.339
In addition, DHS believes that
preservation of life from an immediate
threat is an important policy
consideration. ‘‘Emergency medical
services’’ are often involuntary and
must be provided by doctors and
hospitals regardless of the ability to
pay,340 such as medical services at a
hospital after a car accident. Further,
Congress did not authorize any
consideration of an alien’s immigration
status for purposes of eligibility for
these benefits or to allow for continuous
services/treatment relating to them.
Therefore, DHS will not consider
treatment for emergency medical
338 See

628 S.E.2d 1, 5 (N.C. 2006).
also Greenery Rehab. Grp., Inc. v.
Hammon, 150 F.3d 226, 233 (2d Cir. 1998) (aliens
who suffered serious traumatic head injuries
initially satisfied the plain meaning of Sec.
1902(v)(3), but the continuous and regimented care
subsequently provided to them did not constitute
emergency medical treatment pursuant to the
statute); Luna ex rel. Johnson v. Div. of Soc. Servs.,
589 S.E.2d 917, 920 (N.C. 2004) (the absence of the
continued medical services could be expected to
result in one of the three consequences outlined in
the Medicaid statute for cancer patient that
underwent surgery after presenting at hospital’s
emergency room with weakness and numbness in
the lower extremities); Scottsdale Healthcare, Inc.
v. Ariz. Health Care Cost Containment Sys. Admin.,
75 P.3d 91, 98 (Ariz. 2003) (medical conditions had
not ceased when patients’ conditions had been
stabilized and they had been transferred from an
acute ward to a rehabilitative type ward after initial
injury); Spring Creek Mgmt., L.P. v. Dep’t of Pub.
Welfare, 45 A.3d 474, 483–84 (Pa. Commw. Ct.
2012) (alien’s condition as result of stroke, which
had sent her to emergency room, was not
‘‘emergency medical condition’’ when alien
received medical services from rehabilitation and
health care center even though alien could
eventually, suffer another stroke or other medical
problem; coverage was not being sought for an acute
condition, but for long term or open-ended nursing
care); Quiceno v. Dep’t of Soc. Servs., 728 A.2d 553,
554 (Conn. Super. Ct. 1999) (permanent dialysis
treatment was not for ‘‘emergency medical
condition’’).
340 See Emergency Medical Treatment & Labor
Act (EMTALA), 42 U.S. Code 1395dd.
339 See

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conditions funded by Medicaid in the
context of a public charge
determination.
The second proposed exclusion is for
services or benefits under the
Individuals with Disabilities Education
Act (IDEA) 341 and school-based benefits
provided to children who are at or
below the oldest age of children eligible
for secondary education as determined
under State law. The IDEA protects
educational opportunities for all
students with disabilities and requires
schools to provide certain services to all
children with disabilities. States and
school districts may bill and receive
reimbursement for the cost of providing
special education and health care
related services from a State’s public
insurance program (e.g., Medicaid).
Benefits or services under these laws
generally are not based on income
eligibility, and where a reimbursement
is available, it is provided to the school
or eligible entity. For example, under
the statutory framework created by
Congress for Part B of IDEA, school
districts, in meeting their obligation to
make a free appropriate public
education available to all children with
disabilities, may receive reimbursement
for the cost of providing special
education and related services if parents
provide consent for the school districts
to release their personally identifiable
information to a State public insurance
program (e.g., Medicaid) for billing
purposes. Subject to parental consent,
schools, and not individual parents or
students, may obtain reimbursement for
the cost of providing certain healthrelated services included in a child’s
individualized education program (IEP)
that are considered covered services
under such subsidized health insurance
programs. The IDEA provides in 20
U.S.C. 1412(a)(12)(B) that, when a noneducational public agency, such as a
State Medicaid agency, is assigned
responsibility under State or Federal
law to provide or pay for any services
that are also considered special
education and related services, the
financial responsibility of the State
Medicaid agency or other public insurer
of children with disabilities must
precede that of the LEA or State agency
responsible for developing a child’s IEP.
Also, 20 U.S.C. 1412(e) reinforces that
Part B of the IDEA may not be construed
to permit a State to reduce medical or
other assistance available, or to alter
eligibility, under the Social Security
Act. There are no restrictions on how
school districts and schools are
permitted to spend any funds that
Medicaid or other public insurance
341 See

20 U.S.C. 1400–1482.

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program reimburses for the provision of
IDEA services. By excluding services
provided under IDEA that may be
funded in whole or in part by Medicaid,
DHS would better ensure that schools
continue to receive financial resources
to cover the cost of special education
and related services, which they would
be legally required to provide at no cost
to the parents regardless of the outcome
of this rulemaking.
c. Exception for Receipt of Medicaid by
Foreign-Born Children of U.S. Citizens
DHS proposes to exclude
consideration of the receipt of all
Medicaid benefits by foreign-born
children as defined in section 101(c) of
the Act who either have U.S. citizen
parents, who have been adopted by U.S.
citizens, or who are coming to the
United States to be adopted by U.S.
citizens, where such children will
automatically acquire U.S. citizenship
under section 320 of the Act or be
eligible to naturalize under section 322
of the Act upon or after being admitted
to the United States. In some cases,
these children will acquire citizenship
upon finalization of their adoption in
the United States, under section 320 of
the Act, or the children will naturalize
upon taking the Oath of Allegiance (or
having it waived) under section 322 of
the Act. In other cases, the children will
acquire citizenship upon taking up
residence in United States in the legal
and physical custody of their U.S.
citizen parent as a lawful permanent
resident.
Alien children of U.S. citizens, who
must first establish eligibility for
admission, are subject to section
212(a)(4) even though they may
automatically acquire U.S. citizenship
upon taking up residence in the United
States after admission as lawful
permanent residents.342 Children of U.S.
citizens eligible for acquisition of
citizenship under section 320 of the Act,
however, are exempt from the affidavit
of support requirement.343
342 Note that children born abroad to U.S. citizen
parents may also acquire U.S. citizenship at birth
under certain circumstances, such as where both
parents are U.S. citizens and one parent had resided
in the United States prior to the child’s birth, or
where one parent is a U.S. citizen who was
physically present in the United States for at least
five years, two of which were after age 14. Such
children would enter the United States as U.S.
citizens and would not be subject to an
admissibility determination. See INA sections 301
and 309, 8 U.S.C. 1401 and 1409. DOS would issue
a Consular Report of Birth Abroad upon request.
See Dep’t of State, Birth of U.S. Citizens Abroad,
available at https://travel.state.gov/content/travel/
en/international-travel/while-abroad/birthabroad.html (last visited Aug. 28, 2018).
343 See Child Citizenship Act, Public Law 106–
395, 114 Stat. 1631 (Oct. 30, 2000); 8 CFR

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Children of U.S. citizens, including
those adopted abroad, typically receive
one of several types of immigrant visas
as listed below and are admitted to the
United States as lawful permanent
residents. Such children may become
U.S. citizens (1) automatically, (2)
following their admission to the United
States and upon the finalization of their
adoption, or (3) upon meeting other
eligibility criteria.344
The following categories of children
acquire citizenship upon admission as
lawful permanent residents and
beginning to reside in the legal and
physical custody of their U.S. citizen
parent(s):
• IR–2/IR–7 (Child of a U.S. citizen)—
requires an approval of a Form I–130
(Petition for Alien Relative). These
children are generally admitted as
lawful permanent residents or their
status is adjusted to that of lawful
permanent resident. The child must
then file a Form N–600 (Application for
Certificate of Citizenship) to receive the
Certificate of Citizenship. The certificate
generally would be dated as of the date
the child was admitted as a lawful
permanent resident.
• IR–3/IR–8 (Orphan adopted abroad
by a U.S. citizen)—requires an approval
of the Form I–600 (Petition to Classify
Orphan as an Immediate Relative).
These children are generally admitted as
lawful permanent residents, and USCIS
will send a Certificate of Citizenship to
the child without a Form N–600 being
filed or adjudicated.
• IH–3 (Hague Convention orphan
adopted abroad by a U.S. citizen)—
requires an approval of the Form I–800
(Petition to Classify Convention
Adoptee as an Immediate Relative).
These children are generally admitted as
lawful permanent residents and USCIS
will send a Certificate of Citizenship to
213a.2(a)(2)(ii)(E). Stepchildren of U.S. citizens are
not eligible for acquisition of citizenship under
section 320 of the Act or naturalization under
section 322 of the Act unless the child is adopted
by the U.S. citizen step-parent. See INA section
101(c)(1), 8 U.S.C. 1101(c)(1).
344 International adoptions vary depending on the
laws of the country of origin, the laws of the U.S.
state of residence, and multiple other factors. In the
majority of cases, adoptions are finalized in the
country of origin before the child enters the United
States and the child automatically acquires U.S.
citizenship. A minority of children whose
adoptions are not finalized until after their
admission do not automatically acquire citizenship
after admission, but may acquire it upon being
readopted, and are eligible to naturalize after they
have been finally adopted in the United States or
had the foreign adoption recognized by the state
where they are permanently residing. See U.S. Dep’t
of State, 2017 Annual Report on Intercountry
Adoptions, available at https://travel.state.gov/
content/dam/NEWadoptionassets/pdfs/Annual%20
Report%20on%20Intercountry%20Adoptions%20
FY2017%20(release%20date%20March%2023
%2020.._.pdf.

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the child without a Form N–600 being
filed or adjudicated.
The following categories of children are
admitted as lawful permanent residents
for finalization of adoption:
• IR–4/IR–9 (Orphan to be adopted by
a U.S. citizen). Generally, the parent(s)
must complete the adoption in the
United States. However, the child will
also be admitted as an IR–4 if the
foreign adoption was obtained without
either parent having seen the child, or
when the parent(s) must establish that
they have either ‘‘readopted’’ the child
or obtained recognition of the foreign
adoption in the State of residence (this
requirement can be waived if there is a
statute or precedent decision that
clearly shows that the foreign adoption
is recognized in the State of
residence).345
• IH–4 (Hague Convention Adoptee to
be adopted by a U.S. citizen). These
children are admitted as lawful
permanent residents and the parent(s)
must complete the adoption in the
United States.346
Furthermore, children of U.S.
citizens, who are residing outside of the
United States and are eligible to
naturalize under section 322 of the
Act,347 must apply for an immigrant or
nonimmigrant visa to enter the U.S.
before they naturalize. These children
are generally issued a B–2
nonimmigrant visa in order to complete
the process for naturalization through
an interview and taking the Oath of
Allegiance under section 322 of the Act.
Congress has enacted numerous laws
over the last two decades to ensure that
foreign-born children of U.S. citizens
are not subject to adverse immigration
consequences in the United States on
account of their foreign birth. Most
notably, the Child Citizenship Act of
2000 348 provides that children,
including adopted children, of U.S.
citizen parents automatically acquire
U.S. citizenship if certain conditions are
met.349 The same year, Congress passed
345 See

8 CFR 320.1.
INA section 101(b)(1), 8 U.S.C. 1101(b).
347 These children would file the N–600K,
Application for Citizenship and Issuance of
Certificate Under Section 322 and then receive an
interview notice to in come into the United States.
348 Public Law 106–395, section 101(a), 114 Stat.
1631, 1631 (codified at INA section 320(a)–(b), 8
U.S.C. 1431(a)–(b)); see also Children Born Outside
the United States; Applications for Certificate of
Citizenship, 66 FR 32138 (June 13, 2001). The CCA
applies to children who were under 18 as of
February 27, 2001. The law was passed after several
high-profile cases in which children who were
adopted abroad were subject to deportation despite
having grown up in the United States and having
believed that they were United States citizens.
349 See 8 CFR part 320; see also Dep’t of State,
FAQ: Child Citizenship Act of 2000, available at
https://travel.state.gov/content/travel/en/

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the Intercountry Adoption Act of 2000
(IAA) 350 to implement the Hague
Convention on Protection of Children
and Co-operation in Respect of
Intercountry Adoption,351 which
established international standards of
practices for intercountry adoptions.
The IAA protects the rights of children,
birth families, and adoptive parents, and
improves the Government’s ability to
assist U.S. citizens seeking to adopt
children from abroad.352
DOS has advised DHS that many U.S.
citizens seek to adopt children with
disabilities or serious medical
conditions, and that a significant
proportion of children adopted abroad
have special medical needs. U.S.
citizens seeking to adopt foreign-born
children abroad generally must undergo
a rigorous home study that includes a
detailed assessment of finances,
emotional, mental, and physical health,
and other factors to determine their
eligibility and suitability as prospective
adoptive parents.353 Accordingly, such
parents generally will have sufficient
financial resources to provide for the
child.354
Nevertheless, many U.S. citizens who
have foreign-born children with special
medical needs may seek Medicaid for
their children.355 Medicaid programs
vary by state, and may be based on the
Intercountry-Adoption/adopt_ref/adoption-FAQs/
child-citizenship-act-of-2000.html (last visited Aug.
16, 2018).
350 Public Law 106–279, 114 Stat. 1631 (codified
at 42 U.S.C. 14901–14954); see also Hague
Convention on Intercountry Adoption; Intercountry
Adoption Act of 2000; Accreditation of Agencies;
Approval of Persons, 71 FR 8064 (Feb. 15, 2006).
351 The United States signed the Convention in
1994, and the Convention entered into force for the
United States on April 1, 2008. Deposit of
Instrument of Ratification by the United States of
the Hague Convention on Protection of Children
and Co-operation in Respect of Intercountry
Adoption, 72 FR 71730 (Dec. 18, 2007). The full text
of the Convention is available at https://
www.hcch.net/en/instruments/conventions/fulltext/?cid=69 (last visited Aug. 16, 2018).
352 IAA § 2, 42 U.S.C. 14901(a); see also 146 Cong.
Rec. S8938–01, S8938 (daily ed. Sept. 21, 2000)
(statement by Sen. Landrieu) (‘‘I have said it before
and I believe it rings true here, adoption brings
people, whether they are Republican, Democrat,
conservative, liberal, American, Russian or Chinese,
together. United by the belief that all children
deserve to grow in the love of a permanent family.
Adoption breaks down barriers and helps build
families.’’). A year earlier, Congress passed Public
Law 106–139, 113 Stat. 1696 (1999), to amend the
definition of ‘‘child’’ in section 101(b)(1)(E) of the
INA, 8 U.S.C. 1101(b)(1)(E), a change that allowed
children adopted abroad to maintain their familial
relationship with their natural siblings, making it
easier for siblings to be adopted together.
353 See 8 CFR 204.3(e), 204.311(g)(3).
354 See 8 CFR 204.311(h) (financial
considerations); see also USCIS, Home Study
Information, available at https://www.uscis.gov/
adoption/home-study-information (last visited Aug.
16, 2018).
355 See Public Law 97–248, 96 Stat. 324.

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child’s disability alone rather than
financial means of the parents.
Excluding consideration of the receipt
of public benefits by such children
would be consistent with Congress’
strong interest in supporting U.S.
citizens seeking to welcome foreignborn children into their families.
Additionally, because the children are
being brought to the United States by
their U.S. citizen parents (including
adoptive parents) and will generally
become U.S. citizens upon or after
admission, and because their families
have been found to have the resources
to care for them, such a reading is not
at odds with Congress’ concerns in
enacting PRWORA, or as reflected in its
concurrent enactment of the public
charge grounds of inadmissibility, that
aliens should rely on their own
capabilities and the resources of their
families, their sponsors, and private
organizations; and that the availability
of public benefits should not constitute
an incentive for immigration to the
United States.356
Accordingly, DHS proposes to
exclude from consideration for purposes
of the public charge inadmissibility
determination receipt of Medicaid
benefits by children of U.S. citizen
parents:
• Whose lawful admission for
permanent residence and subsequent
residence in the legal and physical
custody of the U.S. citizen parent will
result automatically in the child’s
acquisition of citizenship or whose
lawful admission for permanent
residence will result automatically in
the child’s acquisition of citizenship
upon finalization of the adoption in the
United States by the U.S. citizen
parent(s) or upon meeting other
eligibility criteria pursuant to the Child
Citizenship Act of 2000, Public Law
106–395 (section 320(a)–(b) of the Act,
8 U.S.C. 1431(a)–(b)), in accordance
with 8 CFR part 320; or
• Who are entering the United States
for the primary purpose of attending an
interview under the Child Citizenship
Act of 2000, Public Law 106–395
(section 322 of the Act, 8 U.S.C. 1433)),
in accordance with 8 CFR part 322.
ii. Institutionalization for Long-Term
Care
Consistent with the 1999 Interim
Field Guidance, DHS proposes to
consider institutionalization for longterm care at government expense—at
any level of government—as a form of
government assistance included in the
definition of public benefit.
356 See Public Law 104–193, section 400, 110 Stat.
2105, 2260 (codified at 8 U.S.C. 1601).

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Institutionalization for long-term care at
government expense is a non-cash, nonmonetizable public benefit. The U.S.
government subsidizes health
insurance, which pays for expenses
associated with institutionalization of
individuals in the United States for both
long-term care; therefore, the receipt of
benefits to provide for the costs of
institutionalization indicates a lack of
self-sufficiency in satisfying a basic
living need, i.e., cost of medical care,
housing, and food. There are certain
inpatient, comprehensive services
provided by institutions which may be
covered under Medicaid or the Social
Security Act, including hospital
services, Intermediate Care Facilities for
People with Intellectual disability (ICF/
ID), Nursing Facility (NF), Preadmission
Screening & Resident Review (PASRR),
Inpatient Psychiatric Services for
Individuals Under Age 21, and Services
for Individuals Age 65 or Older in an
Institution for Mental Diseases.357
Institutions are residential facilities,
and assume total care of the basic living
requirements of individuals who are
admitted, including room and board.358
Benefits provided by Medicaid for
institutions may depend on the person’s
need and institutional level of care.359
In general, DHS would not assume that
a child or a person who is severely
disabled or has severe medical
conditions that may need
institutionalization would be
inadmissible under the public charge
ground. Instead, DHS would, in the
totality of the circumstances, take into
account the assets, resources, and
financial status of the alien’s parents or
legal guardians to determine whether
there is sufficient income and resources
to provide for his or her care. Parents
and legal guardians at the time of
adjudication of a petition may have
sufficient sources to provide for the
alien in the future and may also have
the ability to gather assets and resources
for the alien’s future care (i.e. long-term
care insurance).

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iii. Premium and Cost Sharing Subsidies
Under Medicare Part D
Like Medicaid, Medicare helps an
individual satisfy a basic living need,
i.e., medical care. Medicare provides
357 See Ctrs. for Medicare & Medicaid Servs.,
Institutional Long Term Care, available at https://
www.medicaid.gov/medicaid/ltss/institutional/
index.html (last visited Feb. 26, 2018).
358 See Ctrs. for Medicare & Medicaid Servs.,
Institutional Long Term Care, available at https://
www.medicaid.gov/medicaid/ltss/institutional/
index.html (last visited Feb. 26, 2018).
359 See Ctrs. for Medicare & Medicaid Servs.,
Institutional Long Term Care, available at https://
www.medicaid.gov/medicaid/ltss/institutional/
index.html (last visited Feb. 26, 2018).

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health insurance for people 65 or older,
certain people under 65 with
disabilities, and people of any age with
End-Stage Renal Disease (permanent
kidney failure requiring dialysis or a
kidney transplant).360 Medicare has four
parts. Medicare Part A is for hospital
coverage and is mandatory for eligible
participants; Part B provides optional
medical coverage; Part C provides a
managed care option through contracts
with commercial insurers; and Part D is
the optional Prescription Drug Plan.361
In general, people over age 65 or young
people with disabilities are eligible for
Medicare 362 if the person or his or her
spouse worked and paid Medicare taxes
for at least 10 years.363 People who did
not pay Medicare taxes, are age 65 or
older, and are U.S. citizens or lawful
permanent residents may also be able to
buy Medicare.364 Generally, DHS does
not propose to consider all of Medicare
as part of the definition of public
benefits. DHS is only proposing to
consider Premium and Cost Sharing
Subsidies (i.e., low-income subsidies)
for Medicare Part D as part of the
definition of public benefits, for the
reasons stated below.
The Medicare Prescription Drug,
Improvement, and Modernization Act of
2003 (MMA), provides subsidies for
prescription drugs for eligible
individuals whose income and
resources are limited.365 Beneficiaries
may apply for the Low-Income Subsidy
with the Social Security Administration
(SSA) or with their State Medicaid
agency.366 The provision of a Part D
360 See Ctrs. for Medicare and Medicaid Servs., A
Quick Look at Medicare (October 2017), available
at https://www.medicare.gov/Pubs/pdf/11514-AQuick-Look-at-Medicare.pdf. Medicare may also be
subsidized if he or she qualifies for both Medicare
and Medicaid. Medicare.gov, Are Medicare
Advantage Plans Subsidized?, available at https://
medicare.com/medicare-advantage/are-medicareadvantage-plans-subsidized (last visited Feb. 27,
2018).
361 See id.
362 See HHS, Who is Eligible for Medicare?,
available at https://www.hhs.gov/answers/
medicare-and-medicaid/who-is-elibible-formedicare/index.html (last visited Feb. 24, 2018).
363 See HHS, Who is Eligible for Medicare?,
available at https://www.hhs.gov/answers/
medicare-and-medicaid/who-is-elibible-formedicare/index.html (last visited Feb. 24, 2018).
364 See HHS, Who is Eligible for Medicare?,
available at https://www.hhs.gov/answers/
medicare-and-medicaid/who-is-elibible-formedicare/index.html (last visited Feb. 24, 2018).
365 See Ctrs. for Medicare & Medicaid Servs.,
Guidance to States on the Low Income Subsidy
Guidance 5 (Feb. 2009), available at https://
www.cms.gov/Medicare/Eligibility-and-Enrollment/
LowIncSubMedicarePresCov/Downloads/
StateLISGuidance021009.pdf.
366 See Ctrs. for Medicare & Medicaid Servs.,
Guidance to States on the Low Income Subsidy
Guidance 5 (Feb. 2009), available at https://
www.cms.gov/Medicare/Eligibility-and-Enrollment/

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low-income subsidy to an individual
can impose substantial costs on
multiple levels of government and
generally indicates a lack of ability to be
self-sufficient in satisfying a basic living
need, i.e., medical care. As noted above,
by at least one measure, this program
entails one of the most largest Federal
expenditures for low-income people.367
iv. Subsidized Public Housing
The considerations leading to
inclusion of high-expenditure housingrelated benefits, generally, including
subsidized public housing, are outlined
above. Subsidized public housing is
available to low-income individuals in
certain areas. Public housing was
‘‘established to provide decent and safe
rental housing for eligible low-income
families, the elderly, and persons with
disabilities by entering into Annual
Contributions Contracts (ACC) with
Public Housing Agencies, which are
state-created agencies with jurisdiction
to operate within a clearly delineated
area.’’ 368 Public housing may include
single-family houses or high-rise
apartments.369 HUD administers
‘‘[f]ederal aid to local housing agencies
(HAs) that manage the housing for lowincome residents at rents they can
afford.’’ 370 HUD uses the median
income of the county or metropolitan
area of where the person chooses to live
to determine the income eligibility
standards.371 Specially, HUD sets the
‘‘lower income limits at 80% and very
low income limits at 50% of the median
income.’’ 372
LowIncSubMedicarePresCov/Downloads/
StateLISGuidance021009.pdf.
367 See Table 26–1 Policy, Net Budget Authority
by Function, Category, and Program, available at
https://www.whitehouse.gov/wp-content/uploads/
2018/02/26-1-fy2019.pdf (last visited Aug. 8, 2018).
Expenditure amounts are net outlays unless
otherwise noted. See also Gene Falk et al., Cong.
Research Serv., R45097, Federal Spending on
Benefits and Services for People with Low Income:
In Brief (Feb. 6, 2018), available at https://fas.org/
sgp/crs/misc/R45097.pdf.
368 See U.S. Dep’t of Housing & Urban Dev.,
HUD’s Public Housing Program, available at https://
www.hud.gov/topics/rental_assistance/phprog (last
visited July 3, 2018).
369 See U.S. Dep’t of Housing & Urban Dev.,
HUD’s Public Housing Program, available at https://
www.hud.gov/topics/rental_assistance/phprog (last
visited July 3, 2018).
370 See U.S. Dep’t of Housing & Urban Dev.,
HUD’s Public Housing Program, available at https://
www.hud.gov/topics/rental_assistance/phprog (last
visited July 3, 2018).
371 See U.S. Dep’t of Housing & Urban Dev.,
HUD’s Public Housing Program, available at https://
www.hud.gov/topics/rental_assistance/phprog (last
visited July 3, 2018).
372 See U.S. Dep’t of Housing & Urban Dev.,
HUD’s Public Housing Program, available at https://
www.hud.gov/topics/rental_assistance/phprog (last
visited July 3, 2018).

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(e) Receipt of Public Benefits by Active
Duty and Reserve Servicemembers and
Their Families
DHS proposes to exclude
consideration of the receipt of any
public benefits by active duty
servicemembers, including those in the
Ready Reserve of the U.S. Armed
Forces, and their families. The United
States Government is profoundly
grateful for the unparalleled sacrifices of
the members of our armed services and
their families. Servicemembers who,
during their service, receive public
benefits, in no way burden the public;
indeed, their sacrifices are vital to the
public’s safety and security. The
Department of Defense (DOD) has
advised DHS that many of the aliens
who enlist in the military are early in
their careers, and therefore, consistent
with statutory pay authorities, earn
relatively low salaries that are
supplemented by certain allowances
and tax advantages.373 Although data
limitations exist, evidence suggests that
as a consequence of the unique
compensation and tax structure afforded
by Congress to aliens enlisting for
military service, some active duty alien
servicemembers, as well as their
spouses and children, as defined in
section 101(b) of the Act, may rely on
SNAP 374 and other listed public
benefits. As a result, the general
standard proposed in this rule could
373 See, e.g., 37 U.S.C. 201–212, 401–439 (Basic
Pay and Allowances Other than Travel and
Transportation Allowances, respectively); Lawrence
Kapp, Cong. Research Serv., Defense Primer:
Regular Military Compensation 2 tbl.1 (Jan. 2,
2018), available at https://fas.org/sgp/crs/natsec/
IF10532.pdf (reporting average regular military
compensation of $41,384 at the E–1 level in 2017,
comprised of $19,199 in average annual basic pay,
plus allowances and tax advantage); Lawrence Kapp
et al., Cong. Research Serv., RL33446, Military Pay:
Key Questions and Answers 6–9 (2018), available at
https://fas.org/sgp/crs/natsec/RL33446.pdf
(describing types of military compensation and
federal tax advantages).
374 See U.S. Gov’t Accountability Office, GAO–
16–561, Military Personnel: DOD Needs More
Complete Data on Active-Duty Servicemembers’
Use of Food Assistance Programs (July 2016),
available at https://www.gao.gov/assets/680/
678474.pdf (reporting estimates ranging from 2,000
active duty servicemembers receiving SNAP to
22,000 such servicemembers receiving SNAP).
Effective FY16, Congress implemented a
recommendation by the Military Compensation and
Retirement Modernization Commission to sunset
DOD’s Family Subsistence Supplemental
Allowance Program within the United States,
Puerto Rico, the U.S. Virgin Islands, and Guam;
SNAP reliance may have increased somewhat
following termination of the program. See Public
Law 114–92, div. A, § 602, 129 Stat. 726, 836
(2015); Military Comp. & Ret. Modernization
Comm’n, Final Report 187 (Jan. 2015) (‘‘The
[Family Subsistence Supplemental Allowance
Program] should be sunset in the United States,
Puerto Rico, Guam, and other U.S. territories where
SNAP or similar programs exist, thereby reducing
the administrative costs of a duplicative program.’’).

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result in a finding of inadmissibility
under section 212(a)(4) when such
aliens apply for adjustment of status.
Following consultation with DOD,
DHS has concluded that such an
outcome may give rise to concerns about
servicemembers’ immigration status or
the immigration status of
servicemembers’ spouses and children
as defined in section 101(b) of the Act,
which would reduce troop readiness
and interfere significantly with U.S.
armed forces recruitment efforts. This
exclusion is consistent with DHS’s
longstanding policy of ensuring support
for our military personnel who serve
and sacrifice for our nation, and their
families, as well as supporting military
readiness and recruitment.
Accordingly, DHS proposes to
exclude the consideration of the receipt
of all benefits listed in 8 CFR 212.21(b)
from the public charge inadmissibility
determination, when received by active
duty servicemembers, including those
in the Ready Reserve and their spouses
and children. Applicants that fall under
this exclusion would be required to
submit proof that the servicemember is
serving in active duty or the Ready
Reserve.
(f) Unenumerated Benefits
The definition of the term ‘‘public
charge’’ would not include receipt of
any non-cash public benefit not listed
under the proposed 8 CFR 212.21(b).
Benefits such as Social Security
retirement benefits, general Medicare,
and a wide range of Veteran’s benefits
would not be included in the definition.
Similarly, the proposed definition
would not include social insurance
programs such as worker’s
compensation and non-cash benefits
that provide education, child
development, and employment and job
training. Furthermore, DHS believes that
exclusion of education-related benefits
is justifiable in the interest of
administrability (e.g., many such
benefits are received indirectly through
schools). In sum, under this proposal,
any exclusively state, local or tribal
public benefit that is not cash assistance
for income maintenance,
institutionalization for long-term care at
government expense, or another public
benefit program not specifically listed in
the regulation, would not be included in
the definition of the term ‘‘public
charge.’’
As noted above, the definition of
public charge is based on DHS’s
preference to prioritize those programs
that impose the greatest cost on the
Federal government as well as those
programs that assist an individual with
satisfying basic living needs. DHS

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welcomes comment regarding whether
it should expand the list of designated
public benefits in a final rule, to include
specific public benefits that recipients
are generally aware they receive and
must opt into receipt and otherwise
similar in nature to the benefits
currently designated under the
proposed rule, i.e., other benefits
intended to help low-income people
meet basic living needs. Consistent with
the proposal described in the section of
this preamble entitled ‘‘Previously
Excluded Benefits’’, any such expansion
would be prospective in nature (i.e., not
effective until following publication of a
final rule).
In addition, DHS seeks public
comments on whether an alien’s receipt
of benefits other than those proposed to
be included in this rule as public
benefits should nonetheless be
considered in the totality of
circumstances, either above the
thresholds set forth in the proposed rule
for public monetizable and nonmonetizable public benefits, or at some
other threshold. DHS could construct a
process under which it provides
appropriate notice for consideration of
such benefits to the extent that they
have a bearing on the public charge
inquiry, i.e., whether the alien is likely
in the totality of the circumstances to
receive the designated public benefits
above the applicable threshold(s), either
in terms of dollar value or duration of
receipt. DHS welcomes comments and
data on this potential alternative.
(g) Request for Comment Regarding the
Children’s Health Insurance Program
(CHIP)
In addition to the public benefits
listed in proposed 8 CFR 212.21(b), DHS
is considering adding to the list of
included benefits. The Children’s
Health Insurance Program (CHIP),375
formerly known as the State Children’s
Health Insurance Program (SCHIP),376
provides low-cost health coverage to
children in families that earn too much
money to qualify for Medicaid but still
need assistance to pay for healthcare.377
CHIP is administered by states in
accordance with federal requirements.
Eligibility for CHIP is based on income
375 See

42 U.S.C. 1397aa to 1397mm.
with the Children’s Health
Insurance Program Reauthorization Act of 2009
(CHIPRA), SCHIP was referred to simply as CHIP.
Older references to SCHIP were not changed, and
any statutory or regulatory reference to one applies
interchangeably to the other. See Public Law
111–3, 123 Stat. 8.
377 See HealthCare.gov, The Children’s Health
Insurance Program (CHIP), available at https://
www.healthcare.gov/medicaid-chip/childrenshealth-insurance-program (last visited Feb. 23,
2018).
376 Beginning

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levels and the upper income level varies
by state. According to the Centers for
Medicare & Medicaid Services, 46 States
and the District of Columbia cover
children up to or above 200 percent the
Federal Poverty Level (FPL), and 24 of
these states offer coverage to children in
families with income at 250 percent of
the FPL or higher. States may get the
CHIP enhanced match for coverage up
to 300 percent of the FPL.378 While
coverage differs from state to state, all
states provide comprehensive coverage,
like routine check-ups, immunizations,
doctor visits, and prescriptions. The
program is funded jointly by states and
the federal government.379
As noted in Table 10, the Federal
government expends significant
resources on CHIP.380 CHIP imposes a
significant expense upon multiple levels
of government, and because these
benefits relate to a basic living need (i.e.,
medical care), receipt of these benefits
suggests a lack of self-sufficiency. At the
same time, DHS recognizes that this
program does not involve the same level
of expenditure as most of the other
programs listed in this proposed rule,
and that noncitizen participation in
these programs is currently relatively
low.381
DHS is nonetheless considering
including this program in a final rule,
because the total Federal expenditure
for the program remains significant, and
because it does provide for basic living
needs (i.e., medical care), similar to
Medicaid (elements of which are
included on the proposed list of public
benefits). DHS specifically requests
public comments on whether to include
CHIP in the final rule.

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(h) Request for Comment Regarding
Public Benefit Receipt by Certain Alien
Children
The language of the public charge
statute under section 212(a)(4)(B)(i) of
the Act states that an alien’s ‘‘age’’ shall
be one of several minimum enumerated
considerations in a public charge
determination, alongside ‘‘health,’’
378 See Medicaid.gov, Eligibility, available at
https://www.medicaid.gov/chip/eligibilitystandards/index.html (last visited Feb. 23, 2018).
379 See Benefits.gov, State Children’s Health
Insurance Program, available at https://
www.benefits.gov/benefits/benefit-details/607 (last
visited July 11, 2018).
380 DHS would not consider services or benefits
funded by CHIP but provided under the Individuals
with Disabilities Education Act (IDEA), 20 U.S.C.
1400–1482, nor would DHS consider school-based
services provided to children who are at or below
the oldest age of children eligible for secondary
education as determined under State law.
381 An analysis of Wave 13 of the 2008 Panel of
the Survey of Income and Program Participation
(SIPP) suggests that 0.7 percent of noncitizens
reported receiving CHIP benefits.

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‘‘family status,’’ ‘‘assets, resources, and
financial status,’’ and ‘‘education and
skills.’’ Each of these factors must be
taken into account in determining
whether an alien will be a charge on the
federal taxpayer. The United States has
separate immigration programs, such as
refugee admissions and asylum, where
aliens regardless of age and financial
circumstance are exempted from public
charge inadmissibility. Alien children
who are not asylees, refugees, or
otherwise exempt from the public
charge ground of inadmissibility are
subject to it, just as adult aliens are.
However, because the public charge
inadmissibility determination is a
prospective determination in the totality
of the circumstances, the circumstances
surrounding an alien’s receipt of public
benefits as a child, including the age at
which such benefits were received, are
a relevant consideration. For instance,
as alien children approach or reach
adulthood, they may age out of
eligibility for certain benefits, choose to
disenroll from such benefits (for which
their parents may have enrolled them),
or modify their chances of becoming
self-sufficient depending upon whether
they acquire education and skills,
secure employment, and accumulate
assets and resources. Therefore, DHS
seeks public comment on the best
mechanism to administer public charge
inadmissibility determinations for those
aliens who receive benefits while under
the age of majority (frequently 18) or
while still children under section 101(b)
of the INA, 8 U.S.C. 1101(b). DHS is
particularly interested in views and data
that would inform whether and to what
extent DHS should weigh past or
current receipt of benefits by such an
alien in the totality of the circumstances
as a potential indicator of likely future
receipt of public benefits.
(i) Request for Comment Regarding
Potential Modifications by Public
Benefit Granting Agencies
DHS recognizes that as a result of a
future final rule, some benefit-granting
agencies may decide to modify
enrollment processes and program
documentation for designated benefits
programs. For instance, agencies may
choose to advise potential beneficiaries
of the potential immigration
consequences of receiving certain public
benefits. DHS requests public comments
regarding such potential modifications,
including information regarding how
long it would take to make such
modifications, and the resources
required to make such modifications.
DHS may use this information to
determine the appropriate effective date
for a final rule, among other purposes.

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DHS seeks comments and
recommendations from potentially
affected state, local and tribal
governments and from the public
generally.
3. Likely at Any Time To Become a
Public Charge
DHS proposes to define ‘‘likely at any
time to become a public charge’’ to
mean likely at any time in the future to
receive one or more public benefits, as
defined in 8 CFR 212.21(b), based on the
totality of the alien’s circumstances.
Under this proposed definition, DHS
would find an alien inadmissible as a
public charge if DHS finds the alien is
likely at any time in the future to
receive one or more public benefits, as
defined in 8 CFR 212.21(b), in an
amount or for a duration exceeding the
thresholds described above.
DHS proposes to distinguish between
an alien who is a public charge based on
current receipt of public benefits and an
alien who is likely to become a public
charge at any time in the future. This
distinction is consistent with the
prospective nature of the statute. DHS
understands that its proposed definition
of public charge may suggest that DHS
would automatically find an alien who
is currently receiving public benefits, as
defined in this proposed rule, to be
inadmissible as likely to become a
public charge. But DHS does not
propose to establish a per se policy
whereby an alien is likely at any time
to become a public charge if the alien
is receiving public benefits at the time
of the application for a visa, admission,
or adjustment of status. Under the
‘‘likely at any time to become a public
charge’’ definition, an alien who is
currently receiving public benefits is not
necessarily inadmissible, because
current receipt of public benefits does
not automatically mean that the alien is
likely to receive public benefits at any
time in the future.
As discussed above and explained
further below, receiving public benefits
by itself does not establish that an alien
is likely to become a public charge;
rather, as set forth in the statute, a
public charge inadmissibility
determination requires a determination
predicated on an opinion as to the
likelihood of future events.382
Accordingly, as set forth in proposed 8
CFR 212.21, DHS proposes that an alien
who is currently receiving public
benefits is not necessarily inadmissible,
because such current receipt of public
benefits does not necessarily mean that
382 See

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the alien will continue to receive public
benefits at any time in the future.

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4. Household
For purposes of public charge
inadmissibility determinations under
section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), DHS proposes to consider
the alien’s household size as part of the
family status factor, as well as the
assets, resources, and financial status
factor. The number of people in the
alien’s household has an effect on the
alien’s assets and resources, and in
many cases may influence the
likelihood that an alien will become a
public charge. Household size would be
used to determine whether the alien’s
household income is at least 125
percent of the FPG in the public charge
inadmissibility determination, because
the alien is either a head of household
who has responsibilities to the
household or is a member of a
household who is supported by other
members of the household beyond the
sponsor. DHS notes that while the
number of children, including U.S.
citizen children, may count towards 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.
As discussed in greater detail below,
in developing the proposed definition of
an alien’s household, DHS reviewed the
individuals that public benefit granting
agencies include as part of a household
and/or as dependents in determining
eligibility for a public benefit, as well as
how USCIS determines household size
and income in the affidavit of support
context. The individuals identified as
part of the alien’s household are
intended to include individuals who are
financially interdependent with the
alien, either legally or otherwise.
(a) Definition of Household in Public
Charge Inadmissibility Context
DHS proposes to define an alien’s
household for the purposes of making a
public charge inadmissibility
determination as follows. First, if the
alien is 21 years of age or older, or
under the age of 21 and married, and
therefore not a child as defined in
section 101(b)(1) of the Act, 8 U.S.C.
1101(b)(1), the alien’s household would
include:
• The alien;
• The alien’s spouse, if physically
residing with the alien;
• The alien’s children, as defined in
section 101(b)(1) of the Act, 8 U.S.C.
1101(b)(1), physically residing with the
alien;

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• The alien’s other children, as
defined in section 101(b)(1) of the Act,
8 U.S.C. 1101(b)(1), not physically
residing with the alien for whom the
alien provides or is required to provide
at least 50 percent of financial support,
as evidenced by a child support order or
agreement, a custody order or
agreement, or any other order or
agreement specifying the amount of
financial support to be provided to the
alien;
• Any other individuals (including a
spouse not physically residing with the
alien) to whom the alien provides, or is
required to provide, at least 50 percent
of the individual’s financial support, or
who are listed as a dependent on the
alien’s federal income tax return; and
• Any individual who provides to the
alien at least 50 percent of the alien’s
financial support, or who lists the alien
as a dependent on his or her federal
income tax return.
Thus, for example, the applicant’s
household size would include the
applicant, her children, and her parents,
if:
• The applicant is an unmarried 23
year-old applicant for adjustment of
status;
• The applicant lives with two
children and her parents, who provide
53 percent of financial support to the
applicant; and
• The applicant has no other
individuals for whom she provides or is
required to provide (or from whom she
receives) financial support or who list
her on their tax return.
DHS would consider the income, assets,
and resources of all of these household
members (total of 5) in determining
whether the applicant has income at or
above 125 percent of the FPG.
Second, if the alien is a child as
defined in section 101(b)(1) of the Act,
8 U.S.C. 1101(b)(1), the alien’s
household would include:
• The alien;
• The alien’s children, as defined in
section 101(b)(1) of the Act, 8 U.S.C.
1101(b)(1), physically residing with the
alien;
• The alien’s other children, as
defined in section 101(b)(1) of the Act,
8 U.S.C. 1101(b)(1), not physically
residing with the alien, for whom the
alien provides or is required to provide
at least 50 percent of the children’s
financial support, as evidenced by a
child support order or agreement, a
custody order or agreement, or any other
order or agreement specifying the
amount of financial support to be
provided by the alien;
• The alien’s parents, legal guardians,
or any other individuals providing or

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required to provide at least 50 percent
of financial support to the alien as
evidenced by a child support order or
agreement, a custody order or
agreement, or any other order or
agreement specifying the amount of
financial support to be provided by the
alien;
• The parents’ or legal guardians’
other children, as defined in section
101(b)(1) of the Act, 8 U.S.C. 1101(b)(1),
physically residing with the alien;
• The parents’ or legal guardians’
other children, as defined in section
101(b)(1) of the Act, 8 U.S.C. 1101(b)(1),
not physically residing with the alien
for whom the parent or legal guardian
provides or is required to provide at
least 50 percent of the other children’s
financial support, as evidenced by a
child support order or agreement, a
custody order or agreement, or any other
order or agreement specifying the
amount of financial support to be
provided by the parents or legal
guardians; and
• Any other individuals to whom the
alien’s parents or legal guardians
provide or are required to provide at
least at least 50 percent of the
individuals’ financial support, or who
are listed as a dependent on the parents’
or legal guardians’ federal income tax
return.
For example, if a five year old is
applying for adjustment of status, the
applicant’s household would include
the applicant, the applicant’s mother
and father, the applicant’s two siblings,
and the applicant’s maternal
grandparents, if:
• The applicant lives with his
mother, father, and two siblings and has
no other siblings;
• The mother and father provide 52
percent of the financial support to the
mother’s parents (i.e., the alien’s
maternal grandparents) and do not and
are not required to provide financial
support to anyone else;
• Nobody else provides financial
support to the applicant;
• Neither the mother or the father
have any other children and have no
other dependents listed on their tax
return; and
• The mother and father do not
receive financial support from anyone
else.
DHS would consider the income of all
of the above individuals in determining
whether the alien can meet 125 percent
of the FPG.
As another example, if an 18 year old
is applying for adjustment of status, the
alien’s household would only include
the alien and the alien’s daughter, if:

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• The 18 year old lives in her own
apartment with only her 1 year old
daughter;
• The applicant has no other children
or siblings;
• The applicant does not receive any
financial support from his or her parents
or any other individual and has no legal
guardian;
• No individuals are required to
provide the applicant with any financial
support; and
• The applicant’s parents and the
applicant do not provide and are not
required to provide any support to
anyone else and list no one else as a
dependent on their federal income tax
returns.
The proposed household definition
would not include any person employed
by the household who is living in the
home, such as a nanny, or an individual
who is renting a part of the home from
one of the household members, or a
landlord, unless such individual
otherwise meets one of the enumerated
criteria.
(b) Definitions of ‘‘Household’’ and
Similar Concepts in Other Public
Benefits Contexts
The poverty guidelines do not define
who should be considered part of the
household, and different agencies and
programs have different
requirements.383 Public benefit granting
agencies generally consider an
applicant’s income for purposes of
public benefit eligibility and either use
the household size or family size to
determine the income threshold needed
to qualify for a public benefit. Each
federal program or State determines the
general eligibility requirements needed
to qualify for the public benefits and
how to define whose income is included
for purposes of determining income
based eligibility thresholds. For
example, SNAP uses the term
‘‘household’’ and includes everyone
who lives together and purchases and
prepares meals together. DHS is not
proposing to incorporate the SNAP
definition because an alien or an
individual who is financially
responsible for the alien’s support may
not have the legal responsibility to
support each person living in the home.
Instead, the proposed DHS definition
would take into account individuals for
whom the alien or the alien’s parent(s)
or legal guardian(s) or other individual
is providing at least 50 percent of
financial support because such
expenditure would have significant
bearing on whether the alien has
383 See Annual Update of the HHS Poverty
Guidelines, 83 FR 2642 (Jan. 18, 2018).

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sufficient assets and resources in the
context of a public charge
determination.
The U.S. Department of Housing and
Urban Development (HUD), per the
1937 Act, uses the term ‘‘families’’ 384
which includes: (i) Single persons in the
case of an elderly person, a disabled
person, a displaced person, the
remaining member of a tenant family,
and any other single persons; or (ii)
families with children and in the cases
of elderly families, near-elderly families,
and disabled families respectively.385
The U.S. Housing Act of 1937 (The 1937
Act) 386 requires that dwelling units
assisted under it must be rented only to
families who are low-income 387 at the
time of their initial occupancy. Section
3 of the 1937 Act also defines income
as income from all sources of each
member of the household, excluding
earned income of minors, as determined
by the Secretary. Beyond the statutory
framework defining families, and as
provided by the 1937 Act, HUD allows
public housing agencies the discretion
to determine particularities related to
family composition, as determined
under each public housing agency’s
plan.
While DHS’s proposed definition does
not precisely track HUD’s definition, it
would encompass many of the
individuals identified in the HUD
definition including spouses and
children as defined under the Act.388 In
384 See U.S. Dep’t of Hous. & Urban Dev.,
Occupancy Handbook ch. 3 (June 2007), available
at https://www.hud.gov/sites/documents/DOC_
35645.PDF.
385 The term includes in cases of elderly, nearelderly, and disabled families, 2 or more elderly
persons, near-elderly persons, or persons with
disabilities living together, and 2 or more such
persons living with 1 or more persons determined
under the public housing agency plan to be
essential to their care of well-being. See U.S. Dep’t
of Hous. & Urban Dev., Occupancy Handbook ch.
3 (June 2007), available at https://www.hud.gov/
sites/documents/DOC_35645.PDF. HUD also makes
their income determination based on Median
Family Income estimates and Fair Market Rent area
definitions for each metropolitan area, parts of some
metropolitan areas, and each non-metropolitan
county. See U.S. Dep’t of Hous. & Urban Dev.,
Office of Policy Dev. & Research, Income Limits,
available at https://www.huduser.gov/portal/
datasets/il.html (last visited June 14, 2018). The
1937 Act also provides that the temporary absence
of a child from the home due to placement in foster
care shall not be considered in determining family
composition and family size.
386 See ch. 896, 50 Stat. 888 (codified as amended
at 42 U.S.C. 1437 to 1437zz–10).
387 Section 3 of the 1937 Act defines ‘‘low-income
families’’ as those families whose incomes do not
exceed 80 percent of the median income for the
area, as determined by the Secretary.
388 The definition of child in INA section 101(b),
8 U.S.C. 1101(b), generally includes unmarried
persons under 21 years of age who are born in or
out of wedlock, stepchildren, legitimated children,
adopted children if adopted under the age of 16 or

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addition, the DHS definition focuses on
both individuals living in the alien’s
home, as well as individuals not living
in the alien’s home but for whom the
alien and/or the alien’s parent(s)/legal
guardian(s) is providing or is required to
provide at least 50 percent of financial
support.
The IRS defines ‘‘dependent’’ to
include a qualifying child (which has a
5-part test), or a qualifying relative
(which has a 4-part test).389 These tests
generally include some type of
relationship to the person filing
(including step and foster children and
their children) whether or not the
dependent is living with the person
filing and the amount of support being
provided by the person filing (over 50
percent).390 In general, the dependent
must also be a U.S. citizen or lawful
permanent resident in order to qualify
as a dependent for tax purposes.391
Because the IRS definition of
‘‘dependent’’ would generally exclude
alien dependents and the DHS
definition would not, DHS’s proposed
definition of household results in a
larger number of people being captured
than if DHS simply tracked the IRS’s
definition of ‘‘dependent.’’ DHS also
proposes to consider those individuals
who are supported by the alien and are
themselves aliens, or those who may be
contributing to the alien’s income, in
order to determine whether the alien’s
financial resources are sufficient to
support the alien and other members of
the alien’s household. For example, if
an alien is living with a younger sibling
who is attending school and providing
51 percent or more financial support for
the younger sibling, that sibling is a part
of the alien’s household, even though
the younger sibling may be earning
some wages from a part-time job.
Similarly, if the alien has an older
sibling who is providing 51 percent of
support to the alien, that older sibling
would also be included in the alien’s
household and his/her income counted
toward the requisite income threshold
along with any income earned by the
alien. DHS’s definition would adopt the
IRS consideration of the amount of
support being provided to the
individuals (50 percent) as the threshold
for considering as an individual as part
the age of 18 if natural siblings of another adopted
child.
389 See 26 U.S.C. 152; see also IRS Publication
501 (Jan 2, 2018), available at https://www.irs.gov/
pub/irs-pdf/p501.pdf.
390 See IRS Publication 501 (Jan 2, 2018),
available at https://www.irs.gov/pub/irs-pdf/
p501.pdf.
391 See IRS Publication 501 (Jan 2, 2018),
available at https://www.irs.gov/pub/irs-pdf/
p501.pdf.

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of the household in the public charge
determination, rather than consider any
support being provided.392
DHS believes that the ‘‘at least 50
percent of financial support’’ threshold
as used by the IRS is reasonable to apply
to the determination of who belongs in
an alien’s household, without regard to
whether these individuals physically
reside in the alien’s home. This would
include those individuals the alien may
not have a legal responsibility to
support but may nonetheless be
supporting. For example, this may
include a parent, legal guardian, sibling,
or a grandparent living with the alien,
or an adult child, sibling, or any other
adult who the alien may be supporting
or required to support or who
contributes to the alien’s financial
support.

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(c) Definitions of Household and Similar
Concepts in Other Immigration Contexts
DHS also considered how household
size is determined in the affidavit of
support context. There, USCIS defines
the terms ‘‘household income’’ and
‘‘household size.’’ 393 ‘‘Household
income’’ is used to determine whether
a sponsor meets the minimum income
requirements based on the FPG.394 The
affidavit of support household income
generally includes the income of:
• The sponsor;
• The sponsor’s spouse;
• Any other person included in
determining the sponsor’s household
size who must also be over the age of
18 and must have signed the additional
household member contract through the
Form I–864A; and
• The intending immigrant only if he
or she either is the sponsor’s spouse or
has the same principal residence as the
sponsor and certain additional
criteria.395
Also, in the affidavit of support context,
the ‘‘household size’’ is generally
defined as the total number of people
including:
• The sponsor;
• The intending immigrant(s) being
sponsored on the Form I–864; 396
392 See Internal Revenue Serv., Dependency
Exemptions, available at https://apps.irs.gov/app/
vita/content/globalmedia/4491_dependency_
exemptions.pdf (last visited Aug. 10, 2018); see also
Internal Revenue Serv., Table 2: Dependency
Exemption for Qualifying Relative, available at
https://apps.irs.gov/app/vita/content/globalmedia/
table_2_dependency_exemption_relative_4012.pdf
(last visited Aug. 10, 2018).
393 See 8 CFR 213a.1.
394 See INA section 213A, 8 U.S.C. 1183a.
395 See 8 CFR 213a.1.
396 If a child, as defined in INA section 101(b)(1),
8 U.S.C. 1101(b)(1), or spouse of the principal
intending immigrant is an alien who does not
currently reside in the United States and who either

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• The sponsor’s spouse;
• All of the sponsor’s children as
defined in 101(b)(1) of the Act, 8 U.S.C.
1101(b)(1), (including a stepchild who
meets the requirements of 101(b)(1)(b) of
the Act, 8 U.S.C. 1101(b)(1), unless the
stepchild does not reside with the
sponsor, is not claimed by the sponsor
as a dependent for tax purposes, and is
not seeking to immigrate based on the
stepparent/stepchild relationship),
except those children that have reached
the age of majority or are emancipated
under the law of the person’s domicile
and are not claimed as dependents on
the sponsor’s most recent tax return;
• Any other persons (whether related
to the sponsor or not) whom the sponsor
has claimed as dependents on the
sponsor’s federal income tax return for
the most recent tax year, even if such
persons do not have the same principal
residence as the sponsor;
• Any aliens the sponsor has
sponsored under any other affidavit of
support for whom the sponsor’s support
obligation has not terminated; and
• If the sponsor elects, any siblings,
parents, and/or adult children who have
the same principal residence as the
sponsor, and have combined their
income with the sponsor’s income by
submitting Form I–864A.397
The affidavit of support is part of the
public charge determination in that an
alien who is required to submit an
affidavit of support pursuant to sections
212(a)(4)(C) and (D) of the Actbut does
not submit a sufficient affidavit of
support is de facto deemed to be
inadmissible as likely to become a
public charge. In addition, because the
affidavit of support serves as an
agreement that the sponsor will use his
or her resources to support the alien if
necessary, DHS is proposing to consider
the affidavit of support in the totality of
the circumstances when determining
whether the alien is likely at any time
to become a public charge. However, the
proposed definition of household in this
rule does not specifically include or
exclude the sponsor and the sponsor’s
household. Rather, DHS is only
including those persons who rely upon
or contribute to the alien’s asserts and
resources. Therefore, if the sponsor is
already providing 50 percent or more of
financial support to the alien, the
sponsor would be included in the
proposed definition of household. For
example, when a child, as defined in
section 101(b) of the Act, 8 U.S.C.
is not seeking to immigrate at the same time as, or
will not seek to immigrate within six months of the
principal intending immigrant’s immigration, the
sponsor may exclude that child or spouse in
calculating the sponsor’s household size.
397 See 8 CFR 213a.1, 213a.2(c)(2)(i)(C)(1).

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1101(b)(1), is filing for adjustment of
status as the child of a U.S. citizen or
lawful permanent resident, the affidavit
of support sponsor would also be the
parent. Because the parent is part of the
household, the parent’s income would
be included as part of the household
income.398 The parent’s income would
be reviewed as part of the assets,
resources, and financial status factor
based on the total household size.
However, for example, if there is a cosponsor, who is the alien’s cousin and
who is not physically residing with the
alien, then the cousin would not be
counted as part of the household and
his or her income would not be
included as part of the assets, resources
or financial status unless the sponsor is
already contributing 50 percent or more
of the alien’s financial support.
In addition, if the sponsor is a
member of the alien’s household and
included in the calculation of the 125
percent of the FPG, DHS would only
count the sponsor’s income once for
purposes of determining the alien’s total
household assets and resources. A
sponsor’s income as reported on the
affidavit of support would be added to
the income of the other members of the
alien’s household. The sponsor’s
income that is added to the alien’s total
household assets and resources would
not be increased because the sponsor
also submitted an affidavit of support
promising to support the alien at least
125 percent of the FPG for the sponsor’s
household size. For example, assuming
the alien and sponsor’s household sizes
are the same, if the sponsor’s total
income reported on the affidavit of
support is 250 percent of the FPG for the
household size, that income would be
added to the alien’s assets and
resources; the alien’s total household
income would then be at least 250
percent of the FPG, which constitutes a
heavily weighed positive factor.
As discussed above, in proposing this
definition of household, DHS aims to
account for both (1) the persons whom
the alien is supporting and (2) those
persons who are contributing to the
household, and thus the alien’s assets
and resources. DHS believes that an
alien’s ability to support a household is
relevant to DHS’s consideration of the
alien’s assets, resources, financial status,
and family status. DHS recognizes that
household circumstances can vary and
expects the proposed definition could in
certain circumstances be over- or underinclusive. DHS welcomes public
comments on who should be counted as
members of a household, and whose
398 See INA section 213A(3)(f), 8 U.S.C.
1183a(3)(f).

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income, assets and resources should be
reviewed in the totality of the
circumstances when USCIS makes a
public charge inadmissibility
determination.
C. Public Charge Inadmissibility
Determination
DHS proposes codifying the public
charge inadmissibility determination as
a prospective determination based on
the totality of an alien’s circumstances
at the time of adjudication. As provided
by statute, if an alien is required to
provide an affidavit of support and the
affidavit is insufficient, the alien will be
found inadmissible based on public
charge regardless of any other evidence
the alien may submit.399
1. Absence of a Required Affidavit of
Support
Section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), permits DHS to consider any
submitted affidavit of support under
213A of the Act, 8 U.S.C. 1183a, in
public charge inadmissibility
determinations. The absence of a
statutorily required affidavit of support
under section 213A of the Act, 8 U.S.C.
1183a, conclusively establishes an
alien’s inadmissibility on public charge
grounds.400 Family-sponsored
immigrants and employment-based
immigrants petitioned by a relative (or
by an entity in which a relative has a
significant ownership interest) are
subject to such a requirement.401 Other
than failure to submit an affidavit of
support when required under section
213A of the Act, 8 U.S.C. 1183a, DHS
would not make a public charge
determination based on any single
factor.402
2. Prospective Determination Based on
Totality of Circumstances
As noted above, section 212(a)(4) of
the Act, 8 U.S.C. 1182(a)(4), uses the
words ‘‘likely at any time.’’ 403 DHS’s
review is predictive: An assessment of
an alien’s likelihood at any time in the
future to become a public charge.404
399 See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
INA section 212(a)(4)(C), 8 U.S.C.
1182(a)(4)(C); 8 CFR 213a.2.
401 See INA sections 212(a)(4) and 213A, 8 U.S.C.
1182(a)(4), 1183a.
402 See generally Matter of Martinez-Lopez, 10
I&N Dec. 409, 421–22 (Att’y Gen. 1964).
403 The ‘‘likely’’ language in the public charge
inadmissibility provision also appeared in the
initial codification in the INA of 1952. See ch. 477,
66 Stat. 163, 183.
404 See Matter of Perez, 15 I&N Dec. 136, 137 (BIA
1974) (concluding that the determination of
whether an alien is likely to become a public charge
requires consideration of the totality of
circumstances, including specific circumstances
such as mental or physical disability, health, age,
current reliance on welfare benefits, capacity to find

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400 See

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DHS would, as required by the statute,
assess whether the alien is likely to
become a public charge and not whether
the alien is currently a public charge.
While past or current receipt of public
benefits may make an alien, at present,
a public charge, the past or current
receipt of public benefits, alone, is
insufficient to sustain a finding that an
alien is likely to become a public charge
at any point in the future.405 Other than
an absent or insufficient required
affidavit of support,406 no single factor
or circumstance that Congress mandated
DHS to consider, or which DHS may
otherwise determine to consider, would
determine the outcome of a public
charge inadmissibility determination.
Consistent with the statute, DHS
proposes to codify the totality of the
circumstances standard,407 as follows:
An alien’s age; health; family status;
assets, resources, and financial status;
and education and skills. In the
Government’s discretion, the
determination can also account for an
affidavit of support filed under section
213A of the Act, 8 U.S.C. 1183a. Courts
previously considered similar factors
when evaluating the likelihood of an
alien to become a public charge.408 INS,
the Board, and DHS have consistently
reviewed the totality of the
circumstances in determining whether
employment, and friends or relatives in the United
States willing and able to provide assistance); see
also Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, 64 FR
28689, 28689–93 (May, 26 1999) (in addition to the
statutory factors, the public charge inadmissibility
analysis also includes consideration of the alien’s
current and past receipt of cash public assistance
for income maintenance, repayment of cash public
assistance, current or past institutionalization for
long-term care at government expense, specific
circumstances ‘‘reasonably tending to show that the
burden of supporting the alien is likely to be cast
on the public,’’ and whether the alien has a sponsor
who is willing and able to assist).
405 See Matter of Perez, 15 I&N Dec. 136, 137 (BIA
1974) (‘‘The fact that an alien has been on welfare
does not, by itself, establish that he or she is likely
to become a public charge.’’).
406 See INA section 213A, 8 U.S.C. 1183a.
407 See proposed 8 CFR 212.22.
408 See, e.g., Matter of Perez, 15 I&N Dec. 136, 137
(BIA 1974); see also Zambrano v. INS, 972 F.2d
1122 (9th Cir. 1992), vacated on other grounds, 509
U.S. 918 (1993); Matter of Martinez-Lopez, 10 I&N
Dec. 409, 421–22 (Att’y Gen. 1964) (in determining
whether a person is likely to become a public
charge, factors to consider include age, health and
physical condition, physical or mental defects
which might affect earning capacity, vocation, past
record of employment, current employment, offer of
employment, number of dependents, existing
conditions in the United States, sufficient funds or
assurances of support by relatives or friends in the
United States, bond or undertaking, or any ‘‘specific
circumstance . . . reasonably tending to show that
the burden of supporting the alien is likely to be
cast on the public’’); Field Guidance on
Deportability and Inadmissibility on Public Charge
Grounds, 64 FR 28689 (May 26, 1999).

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an alien is likely to become a public
charge.409
DHS’s proposed totality of the
circumstances standard would involve
weighing all the positive and negative
considerations related to an alien’s age;
health; family status; assets, resources,
and financial status; education and
skills; required affidavit of support; and
any other factor or circumstance that
may warrant consideration in the public
charge inadmissibility determination.410
If the negative factors outweigh the
positive factors, then the alien would be
found to be inadmissible as likely to
become a public charge; if the positive
factors outweigh the negative factors,
then the alien would not be found
inadmissible as likely to become a
public charge.
The proposed totality of the
circumstances approach is also
consistent with the body of
administrative case law that has
developed over the past 50 years, which
generally directs the agency to
‘‘consider[ ] all the factors bearing on
the alien’s ability or potential ability to
be self-supporting . . . .’’ 411 On the
whole, this case law strongly supports
the forward-looking totality of the
circumstances approach, considering
the following factors, where no one
factor is outcome-determinative:
• The ability of the alien to earn a
living, as evidenced or impacted by the
alien’s age, health, work history, current
employment status, future employment
prospects, and skills;
• The sufficiency of the alien’s funds
for self-support;
• The obligation and sufficiency of
sponsorship to assure that the alien will
not need public support; and
• The ability of the alien to remedy
any current dependence on public
benefits in the United States, as
evidenced or impacted by the alien’s
age, health, ability to earn a living,
funds, and sponsorship.412
To illustrate, in Matter of MartinezLopez,413 rather than concluding that
the respondent was likely to become a
public charge based solely on the fact
that the respondent had no job offer in
409 See Matter of A—,19 I&N Dec. 867, 869
(Comm’r 1988) (citing Matter of Perez, 15 I&N Dec.
136, 137 (BIA 1974)).
410 See proposed 8 CFR 212.22.
411 See Matter of Vindman 16 I&N Dec. 131, 132
(Reg’l Comm’r 1977).
412 DHS derived this framework from its analysis
of the statements and findings in Matter of
Martinez-Lopez, 10 I&N Dec. 409 (Att’y Gen. 1964),
Matter of Harutunian 14 I&N Dec. 583 (Reg’l
Comm’r 1974), Matter of Perez 15 I&N Dec. 136
(BIA 1974), Matter of Vindman 16 I&N Dec. 131
(Reg’l Comm’r 1977), and Matter of A—, 19 I&N
Dec. 867 (Comm’r 1988).
413 See 10 I&N Dec. 409 (Att’y Gen. 1964).

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the United States, the Attorney General
considered the respondent’s future
ability to earn a living based on his 10year work history in the United States,
his age, and his health.414 The Attorney
General also considered the fact that the
respondent had a brother and other
close family members who could
provide financial support.415 In Matter
of Perez,416 the Board made clear that
the respondent’s past and current
receipt of welfare was not determinative
as to whether she was likely to become
a public charge in the future, instead
looking to the totality of her
circumstances, including her age,
health, ability to find employment in
the future, and the availability of family
support.417 In Matter of A—,418
although the respondent and her
husband had been unemployed for the
4 years prior to the filing of her
application for temporary resident
status, the INS Commissioner held that
the respondent was not likely to become
a public charge ‘‘due to her age and
ability to earn a living,’’ as shown by her
recent employment among other
factors.419
An INS Regional Commissioner took
a similar totality of the circumstances
approach in Matter of Harutunian 420
and determined that the respondent in
that case was inadmissible as likely to
become a public charge because the
respondent lacked the means to support
herself, the ability to earn a living, and
the presence of a sponsor to assure that
she would not need public support.421
Furthermore, the alien was increasingly
likely to become dependent, disabled,
and sick because of her older age, and
accordingly was expected to become
dependent on old-age assistance for
support.422 Similarly, an INS Regional
Commissioner, in Matter of Vindman,
held that a husband and wife were
inadmissible as likely to become public
charges, because they had been
receiving public benefits for
approximately three years, they were
unemployed in the United States, and
414 See

10 I&N Dec. 409, 422–23 (Att’y Gen. 1964).
10 I&N Dec. 409, 423 (Att’y Gen. 1964).
416 15 I&N Dec. 136 (BIA 1974).
417 15 I&N Dec. 136, 137 (BIA 1974).
418 19 I&N Dec. 867 (Comm’r 1988). DHS notes,
however, that this case involves the special public
charge rule applicable only to applications under
INA section 245A, 8 U.S.C. 1255a.
419 See 19 I&N Dec. 867, 870 (Comm’r 1988).
420 Matter of Harutunian 14 I&N Dec. 583 (Reg’l
Comm’r 1974).
421 See 14 I&N Dec. 583, 589–90 (Reg’l Comm’r
1974).
422 See 14 I&N Dec. 583, 589–90 (Reg’l Comm’r
1974).

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they presented no prospect of future
employment.423
DHS proposes that certain factors and
circumstances would generally carry
heavy weight, as discussed below. The
weight given to an individual factor not
designated as carrying heavy weight
would depend on the particular facts
and circumstances of each case and the
relationship of the factor to other factors
in the analysis. Some facts and
circumstances may be positive while
other facts and circumstances may be
negative. Any factor or circumstance
that decreases the likelihood of an
applicant becoming a public charge is
positive; any factor or circumstance that
increases the likelihood of an applicant
becoming a public charge is negative.
Multiple factors operating together may
be weighed more heavily since those
factors in tandem may show that the
alien is already a public charge or is or
is not likely to become one.
For example, an alien’s assets,
resources, and financial status together
would frequently carry considerable
positive weight, because they are the
most tangible factors to consider in
public charge determinations. An alien’s
assets, resources, and financial status
examined together may show that the
alien is not likely to be a public charge
despite concerns about the alien’s age,
education, skills, and health. At the
same time, an alien’s assets, resources,
and financial status examined together
may be so limited that a finding that the
alien is not likely to become a public
charge would have to be based on
positive attributes associated with the
alien’s education, skills, health, family
status, age, or sponsorship.
Ultimately, DHS recognizes that, as
the Attorney General has noted, ‘‘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 reasonably tending to show
that the burden of supporting the alien
is likely to be cast on the public, must
be present.’’ 424 Indeed, if DHS finds
that the specific positive factors and
circumstances outweigh the specific
negative factors and circumstances in an
alien’s case, indicating that the alien is
less likely than not to receive one or
more public benefits at any time in the
future as described in 8 CFR 212.21(b),
then DHS would conclude that the alien
is not likely to become a public charge.
If DHS finds that the specific negative
423 See Matter of Vindman, 16 I&N Dec. 131, 132
(Reg’l Comm’r 1977).
424 Matter of Martinez-Lopez, 10 I&N Dec. 409,
421 (Att’y Gen. 1964).

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51179

factors and circumstances outweigh the
specific positive factors and
circumstances in an alien’s case
indicating that the alien is more likely
than not to receive public benefits as
described in 8 CFR 212.21(b), at any
time in the future, then DHS would
conclude that the applicant is likely to
become a public charge.425
D. Age
An alien’s age is a mandatory factor
that must be considered when
determining whether an alien is likely
to become a public charge in the
future.426 As discussed below, a
person’s age may impact his or her
ability to legally or physically work and
is therefore relevant to being selfsufficient, and the likelihood of
becoming a public charge. Accordingly,
DHS proposes to consider the alien’s age
primarily in relation to employment or
employability, and secondarily to other
425 As explained, the proposed public charge
policy is consistent with the totality of the
circumstances approach undertaken by the former
INS Commissioner in Matter of A—. We recognize
the Commissioner, in that decision, cited an earlier
decision of the Attorney General for the proposition
that ‘‘[a] healthy person in the prime of life cannot
ordinarily be considered likely to become a public
charge, especially where he has friends or relatives
in the United States who have indicated their
ability and willingness to come to his assistance in
case of emergency.’’ 19 I&N Dec. 867, 869 (Comm’r
1988) (quoting Matter of Martinez-Lopez, 10 I&N
Dec. 409, 421–22 (Att’y Gen. 1964)). In Matter of
A— and Matter of Martinez-Lopez, the INS
Commissioner and the Attorney General,
respectively, implicitly acknowledge that, although
individuals in the prime of life will not ordinarily
become public charges, they certainly may;
otherwise, it would have been pointless to assert
that what ordinarily is the case is especially true in
certain instances. See Matter of A—, 19 I&N Dec.
867, 869 (Comm’r 1988) (acknowledging that ‘‘all
factors should be considered in their totality’’ in
determining whether an individual is likely to
become a public charge). Accordingly, adverse
factors particular to a given circumstance may
counterbalance what otherwise is ordinarily true in
a vacuum, such that aliens may still be found
inadmissible under INA section 212(a)(4), 8 U.S.C.
1182(a)(4) notwithstanding their being ‘‘in the
prime of life.’’ Also consistent with those decisions,
which instruct that additional positive weight
should be afforded where friends or relatives in the
United States are willing and able to assist in
emergencies, DHS would give positive weight to a
Form I–864, Affidavit of Support, that satisfies
statutory and regulatory requirements and to
income and resources of certain household
members, although the filing of the Form I–864 and
shared resources likewise would not be
determinative. To the extent this proposed rule may
be viewed as inconsistent with Matter of A—,
however, including because the scope of the public
benefits covered by this proposed rule is broader
than under the longstanding administration of the
public charge ground, and the threshold for being
considered a public charge under the definition of
that term in this proposed rule is lower than it has
been for at least the past two decades, that decision
would be superseded if this rule is finalized as
drafted.
426 See INA section 212(a)(4)(B), 8 U.S.C.
1182(a)(4)(B).

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factors as relevant to determining
whether someone is likely to become a
public charge.
Specifically, DHS proposes to assess
whether the alien is between 18 and the
minimum ‘‘early retirement age’’ for
social security purposes (see 42 U.S.C.
416(l)(2)) (61 as of 2017), and whether
the alien’s age otherwise makes the
alien more or less likely to become a
public charge, such as by impacting the
alien’s ability to work. DHS would
consider a person’s age between 18 and
61 as a positive factor in the totality of
the circumstances, and consider a
person’s age under 18 or over 61 to be
a negative factor in the totality of the
circumstances when determining the
likelihood of becoming a public charge.
However, DHS acknowledges that
people under the age of 18 and over the
age of 61 may be working or have
adequate means of support, and would
recognize such means as positive
factors.
The 18 through 61 age range is based
on the age at which people are generally
able to work full-time and the age at
which people are generally able to retire
with some social security retirement
benefits under Federal law.427 At one
end of the spectrum, children under the
age of 18 generally face difficulties
working full-time.428 In general, the Fair
Labor Standards Act sets 14 years of age
as the minimum age for employment,
and limits the number of hours worked
by children until the age of 16.429 States
have varying laws addressing at what
age and for how many hours children
427 See

29 U.S.C. 213(c), 42 U.S.C. 416(l)(2).
29 U.S.C. 213(c); 29 CFR part 570; see also
Dep’t of Labor, Table of Employment/Age
Certification Issuance Practice Under State Child
Labor Laws, available at https://www.dol.gov/whd/
state/certification.htm (last updated Jan. 1, 2018).
429 See 29 U.S.C. 213(c); 29 CFR part 570; see also
Dep’t of Labor, Table of Employment/Age
Certification Issuance Practice Under State Child
Labor Laws, available at https://www.dol.gov/whd/
state/certification.htm (last updated Jan. 1, 2018).

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may work up to the age of 18.430
Further, most States require children to
attend school until a certain age,
generally until the ages of 16 or 18.431
DHS notes that the Fair Labor Standards
Act provides for certain exemptions for
children under 16 to work,432 and
children may be otherwise able to work.
At the other end of the age range,
retirement is the age at which a person
may begin receiving retirement benefits
from Social Security.433 The minimum
age for retirement for purposes of Social
Security is generally 62.434 People who
are at the minimum retirement age may
stop working and start receiving
retirement benefits such as Social
Security. If a person does have access to
Social Security benefits or a retirement
pension, he or she may not need public
benefits for income maintenance or
other benefits to be self-sufficient as the
income from Social Security or the
pension may suffice.
Other age-related considerations may
also be relevant to public charge
inadmissibility determinations, in
individual circumstances. Individuals
under the age of 18 may be more likely
to qualify for and receive public
benefits. The U.S. Census Bureau
reported that 18 percent of persons
under the age of 18 (13,253,000) and
430 See 29 U.S.C. 213(c); 29 CFR part 570; see also
Dep’t of Labor, Table of Employment/Age
Certification Issuance Practice Under State Child
Labor Laws, available at https://www.dol.gov/whd/
state/certification.htm (last updated Jan. 1, 2018).
431 See Nat’l Ctr. for Educ. Statistics, Table 5.1:
Compulsory School Attendance Laws, Minimum
and Maximum Age Limits for Required Free
Education, by State: 2015, available at https://
nces.ed.gov/programs/statereform/tab5_1.asp (last
visited Sept. 10, 2018).
432 See 29 CFR 570.122.
433 See 42 U.S.C. 416(l); see also U.S. Soc. Sec.
Admin., Retirement Planner: Benefits by Year of
Birth, available at https://www.ssa.gov/planners/
retire/agereduction.html (last visited Sept. 10,
2018).
434 See 42 U.S.C. 416(l); see also U.S. Soc. Sec.
Admin., Retirement Planner: Benefits by Year of
Birth, available at https://www.ssa.gov/planners/
retire/agereduction.html (last visited Sept. 10,
2018).

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11.1 percent of persons aged 18 and
over (27,363,000) lived below the
poverty level in 2016.435 The U.S.
Census Bureau also reported that
persons under the age of 18 were more
likely to receive means-tested benefits
than all other age groups.436
Similarly, studies show a relationship
between advanced age and receipt of
public benefits. DHS’s analysis of SIPP
data in Tables 14 and 15 shows
noncitizens age 62 and older were more
likely to receive cash and non-cash
benefits than U.S. citizens in the same
age group. Of noncitizens age 62 and
older, 11.8 percent received SSI, TANF,
or GA in 2013 compared to 4.5 percent
of U.S. citizens age 62 and older. The
rate of receipt of either cash or non-cash
benefits was about 40 percent among
U.S. citizens and noncitizens age 0 to
17. Among noncitizens, the receipt of
non-cash benefits was much lower
among individuals between age 18 and
61 (19.3 percent) than individuals under
age 18 (40.2 percent), or individuals
over age 61 (36.3 percent). Among U.S.
citizens, the receipt of non-cash benefits
was lower among individuals between
age 18 and 61 (15.3 percent) than
individuals under age 18 (39.7 percent),
and higher among individuals over age
61 (11.4 percent).
BILLING CODE 4410–10–P
435 See Jessica L. Semega et al., U.S. Census
Bureau, Income and Poverty in the United States:
2016, at 13 tbl.3 (Sept. 2017), available at https://
www.census.gov/content/dam/Census/library/
publications/2017/demo/P60-259.pdf. Statistics
provided for those aged 18 and over were inferred.
436 In an average month during 2012, 39.2 percent
of children received some type of means-tested
benefit. See Shelley K. Irving & Tracy A. Loveless,
U.S. Census Bureau, Household Economic Studies,
Dynamics of Economic Well-Being: Participation in
Government Programs, 2009–2012: Who Gets
Assistance? 6 (May 2015), available at https://
www.census.gov/content/dam/Census/library/
publications/2015/demo/p70-141.pdf; see also U.S.
Census Bureau, News Release, 21.3 Percent of U.S.
Population Participates in Government Assistance
Programs Each Month (May 28, 2015), available at
https://www.census.gov/newsroom/press-releases/
2015/cb15-97.html.

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

62+

18-61

%of Total
Population
22.1%

Benefit program
Cash or non-cash

Total
27,406

Pet.
39.9%

S.E.
0.5%

Total
26,251

Pet.
15.7%

S.E.
0.3%

Total
6,824

Pet.
12.4%

S.E.
0.4%

2,715
1,005
1,564
240

4.0%
1.5%
2.3%
0.3%

0.2%
0.1%
0.2%
0.1%

5,268
4,295
606
502

3.2%
2.6%
0.4%
0.3%

0.1%
0.1%
0.0%
0.0%

2,446
2,352
*11
158

4.5%
4.3%
*0.0%
0.3%

0.3%
0.2%
0.0%
0.1%

27,246
25,225
14,158
1,801
3,915

39.7%
36.7%
20.6%
2.6%
5.7%

0.5%
0.5%
0.4%
0.2%
0.3%

25,529
17,084
15,738
2,296
5,676

15.3%
10.2%
9.4%
1.4%
3.4%

0.3%
0.2%
0.2%
0.1%
0.1%

6,254
4,133
3,188
549
1,970

11.4%
7.5%
5.8%
1.0%
3.6%

0.4%
0.3%
0.3%
0.1%
0.2%

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Population
54,957

%of Total
Population
17.7%

Population
68,689

Cash benefits

Population
167,058

%of Total
Population
53.7%

Total Population
310,867

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

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%

-

-

-

2.5%
2.5%

*1.7%

0.9%

-

-

-

-

-

0.2%
0.2%
0.1%
0.1%

11.8%
11.2%

-

1.0%
*0.5%
*0.3%
*0.2%

172
163

*29

169
*91
*44
*38

*9

*0.6%

0.6%

685
592
258
*51
104

40.2%
34.8%
15.1%
*3.0%
6.1%

3.5%
3.4%
2.5%
1.2%
1.7%

3,286
2,123
1,339
209
625

19.3%
12.5%
7.9%
1.2%
3.7%

0.9%
0.8%
0.6%
0.3%
0.4%

527
415
232
*27
140

36.3%
28.6%
16.0%
*1.9%
9.6%

3.8%
3.5%
2.9%
1.1%
2.3%

Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Population
1,452

%of Total
Population
0.5%

Population
1,705

SSI
TANF
GA

Population
17,006

%of Total
Population
5.5%

Total Population
310,867

..
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.

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BILLING CODE 4410–10–C

Regardless of age, DHS recognizes that
an alien may have financial assets,
resources, benefits through
employment, education or skills, family,
or other means of support that decrease
his or her likelihood of becoming a
public charge. For example, the alien or
the alien’s spouse or parent may have
sufficient income, or savings,

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investments, or other resources—
including Social Security benefits and
Medicare—to support him or herself
and the household. In addition, as
people age, they may become eligible for
certain earned benefits including Social
Security benefits, health insurance from
Medicare, and benefits from an
employer pension or retirement benefit.

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E. Health
An alien’s health is a factor that must
be considered when determining
whether an alien is likely to become
public charge in the future.437 Prior to
Congress establishing health as a factor
for the public charge determination, the
437 See

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INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

10OCP3

EP10OC18.030

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Population
0.5%

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courts, the BIA and INS had also held
that a person’s physical and mental
condition was of major significance to
the public charge determination,
generally in relation to the ability to
earn a living.438 Accordingly, DHS
proposes that when considering an
alien’s health, DHS will consider
whether the alien has any physical or
mental condition that, although not
considered a condition or disorder that
would render the alien inadmissible
under the health-related ground of
inadmissibility,439 is significant enough
to interfere with the person’s ability to
care for him- or herself or to attend
school or work, or that is likely to
require extensive medical treatment or
institutionalization in the future.
The mere presence of a medical
condition would not render an alien
inadmissible. Instead, DHS would
consider the existence of a medical
condition in light of the effect that such
medical condition is likely to have on
the alien’s ability to attend school or
work, and weigh such evidence in the
totality of the circumstances. As part of
the assets, resources and financial status
factor, DHS would consider whether the
alien has private health insurance, or
the financial resources to pay for
associated medical costs.
Research and data establish that
healthcare is costly, particularly for the
government. In 2016, the National
Health Expenditure (NHE) grew to $3.3
trillion, or $10,348 per person, which
represents an increase of 4.3 percent
from 2015.440 Medicaid spending,
which is 17 percent of the total NHE,
grew by 3.9 percent to $565.5 billion.441
The Federal Government (28.3 percent)
and households (28.1 percent) paid the
largest shares of total health
spending.442
An alien’s medical conditions may
impose costs that a person is unable to
afford, and may also reduce that
person’s ability to attend school, work,
438 See, e.g., Matter of Martinez-Lopez, 10 I&N
Dec. 409, 421–23 (Att’y Gen. 1964); see also Matter
of A-, 19 I&N Dec. 867, 869 (Comm’r 1988) (citing
Matter of Harutunian, 14 I&N Dec. 583 (Reg’l
Comm’r 1974); Matter of Vindman, 16 I&N Dec. 131
(Reg’l Comm’r 1977)).
439 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1).
440 See Ctrs. for Medicare & Medicaid Servs., NHE
Fact Sheet, available at https://www.cms.gov/
research-statistics-data-and-systems/statisticstrends-and-reports/nationalhealthexpenddata/nhefact-sheet.html (last visited Feb. 3, 2018).
441 See Ctrs. for Medicare & Medicaid Servs., NHE
Fact Sheet, available at https://www.cms.gov/
research-statistics-data-and-systems/statisticstrends-and-reports/nationalhealthexpenddata/nhefact-sheet.html (last visited Feb. 3, 2018).
442 See Ctrs. for Medicare & Medicaid Servs., NHE
Fact Sheet, available at https://www.cms.gov/
research-statistics-data-and-systems/statisticstrends-and-reports/nationalhealthexpenddata/nhefact-sheet.html (last visited Feb. 3, 2018).

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or financially support him or herself.
Such medical conditions may also
increase the likelihood that the alien
could resort to Medicaid, or Premium
and Cost Sharing Subsidies for Medicare
Part D.443 However, DHS recognizes that
regardless of the alien’s health status,
the alien may have financial assets,
resources, or support, including private
health insurance or the means to
purchase it, that allows him or her to be
self-sufficient.444
Nevertheless, an alien’s inability to
work due to a medical condition, and
failure to maintain health insurance or
the financial resources to pay for the
medical costs, could make it likely that
such alien would become a public
charge. In addition, long-term health
care expenses to treat such a medical
condition could decrease an
individual’s available financial
resources.
1. USCIS Evidentiary Requirements
DHS proposes that USCIS’ review of
the health factor would include, but not
be limited to, the consideration of the
following types of evidence: (1) Any
required Report of Medical Examination
and Vaccination Record (Form I–693) or
applicable DOS medical examination
form 445 submitted in support of the
application for the diagnosis of any
medical conditions; 446 or (2) evidence
of a medical condition that is likely to
require extensive medical treatment or
institutionalization after arrival, or that
will interfere with the alien’s ability to
care for him- or herself, to attend school,
or to work.
The specific reference to the Form
I–693 or similar form is intended to help
standardize USCIS’ assessment of health
as a factor for public charge
consideration and avoid multiple
medical examinations for the alien.
Most immigrant visa applicants
applying with the DOS and those aliens
applying for adjustment of status with
USCIS are required to submit a medical
examination.447 Nonimmigrants
applying with DOS and nonimmigrants
seeking a change of status or extension
of stay with USCIS are generally not
required to submit a medical
examination with their applications.
However, nonimmigrants seeking a
443 See

42 U.S.C. 1395w–114.
example, a person may have savings,
investments or trust funds.
445 This is currently the Immigrant or Refugee
Applicant (Form DS–2054).
446 The medical examination documentation
indicates whether the applicant has either a Class
A or Class B medical condition. In addition, the
alien must provide a vaccination record. Class A
and Class B medical conditions are defined in the
HHS regulations. See 42 CFR 34.2.
447 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1).
444 For

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change of status to that of a spouse of
a legal permanent resident (V–1) or
child (V–2) status must submit a
medical examination.448 In addition, a
consular officer may request a medical
examination if the officer has concerns
that the applicant may be inadmissible
on health-related grounds.449 Likewise,
a CBP officer at a port of entry may
require a nonimmigrant to submit to a
medical examination to determine
medical inadmissibility.450
Civil surgeons and panel physicians
test for Class A 451 and Class B 452
medical conditions, and report the
findings on the appropriate medical
examination form. An alien is
inadmissible on a health-related ground
for being diagnosed with a Class A
medical condition unless a waiver is
available and authorized.453 Class A
medical conditions, as defined in HHS
regulations, include the following: 454
• Communicable disease of public
health significance, including
gonorrhea, Hansen’s Disease
(infectious), syphilis (infectious stage),
and active tuberculosis; 455
• Failure to meet vaccination
requirements; 456
• Present or past physical or mental
disorders with associated harmful
behavior or harmful behavior that is
likely to recur; 457 and
• Drug abuse or addiction.458
In identifying a Class A medical
condition, the HHS regulations direct
physicians conducting the immigration
medical examinations to explain on the
medical report ‘‘the nature and extent of
the abnormality; the degree to which the
alien is incapable of normal physical
activity; and the extent to which the
condition is remediable . . . [as well as]
the likelihood, that because of the
condition, the applicant will require
448 See INA section 101(a)(15)(v), 8 U.S.C.
1101(a)(15)(v); see also 8 CFR 214.15.
449 See INA section 221(d), 8 U.S.C. 1201(d).
450 See INA section 232, 8 U.S.C. 1222.
451 The alien would be inadmissible for healthrelated grounds under INA section 212(a)(1), 8
U.S.C. 1182(a)(1).
452 Class B medical conditions do not make an
alien inadmissible on health-related grounds under
INA section 212(a)(1), 8 U.S.C. 1182(a)(1), but are
relevant to the public charge determination.
453 See INA section 212(a)(1), 8 U.S.C. 1182(a)(1).
454 See 42 CFR 34.2(d). The alien with a Class A
medical condition would be inadmissible based on
health-related grounds under INA section 212(a)(1),
8 U.S.C. 1182(a)(1). However, these medical
conditions may also be considered as part of the
public charge inadmissibility determination.
455 See 42 CFR 34.2(b) and (d)(1); see also INA
section 212(a)(1)(i), 8 U.S.C. 1182(a)(1)(i).
456 See 42 CFR 34.2(d); see also INA section
212(a)(1)(ii), 8 U.S.C. 1182(a)(1)(ii).
457 See 42 CFR 34.2(d); see also INA section
212(a)(1)(iii), 8 U.S.C. 1182(a)(1)(iii).
458 See 42 CFR 34.2(d), (h), (i); see also INA
section 212(a)(1)(iv), 8 U.S.C. 1182(a)(1)(iv).

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extensive medical care or
institutionalization.’’ 459 A waiver of the
health-related ground of inadmissibility
is available for communicable diseases
of public health significance, physical
or mental disorder accompanied by
harmful behavior, and lack of
vaccinations.460
A Class B medical condition is
defined as a physical or mental
condition, disease, or disability serious
in degree or permanent in nature.461
Currently, the CDC Technical
Instructions for Medical Examinations
of Aliens, which direct physicians to
provide information about Class B
conditions, describe a Class B condition
as one that, although it does not
‘‘constitute a specific excludable
condition, represents a departure from
normal health or well-being that is
significant enough to possibly interfere
with the person’s ability to care for himor herself, to attend school or work, or
that may require extensive medical
treatment or institutionalization in the
future.’’ 462
459 42

CFR 34.4(b)(2).
INA section 212(g)(1), 8 U.S.C. 1182(g)(1).
Although a waiver is unavailable for inadmissibility
due to drug abuse or addiction, an applicant may
still overcome this inadmissibility if his or her drug
abuse or addiction is found to be in remission. See
Ctrs. for Disease Control & Prevention, Technical
Instructions for Panel Physicians and Civil
Surgeons, Remission, available at https://
www.cdc.gov/immigrantrefugeehealth/exams/ti/
civil/mental-civil-technical-instructions.html (last
updated Oct. 23, 2017).
461 See 42 CFR 34.2(b)(2).
462 See Ctrs. for Disease Control & Prevention,
Required Evaluations—Other Physical or Mental
Abnormality, Disease, or Disability, Technical
Instructions For Medical Examination Of Aliens,
available at https://www.cdc.gov/
immigrantrefugeehealth/exams/ti/panel/technicalinstructions/panel-physicians/other-physicalmental.html (last updated Nov. 23, 2016); Ctrs. for
Disease Control & Prevention, Required Evaluation
Components Other Physical or Mental Abnormality,
Disease or Disability, Technical Instructions for the
Medical Examination of Aliens in the United States,
available at https://www.cdc.gov/
immigrantrefugeehealth/exams/ti/civil/technicalinstructions/civil-surgeons/required-evaluationcomponents/other-disease-disability.html (last

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460 See

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If the physician conducting the
immigration medical examination
identifies a Class B medical condition
that is ‘‘a substantial departure from
normal well-being,’’ 463 the HHS
regulations direct the physician to
explain in the medical notification 464
‘‘the degree to which the alien is
incapable of normal physical activity,
and the extent to which the condition is
remediable . . . [and] the likelihood,
that because of the condition, the
applicant will require extensive medical
care or institutionalization.’’ 465
DHS would consider any of the abovedescribed conditions in the totality of
the circumstances. Any such condition
would not serve as the sole factor
considered in whether an alien is likely
to become a public charge. Absence of
a diagnosis of such a condition would
be a positive factor. DHS recognizes that
some conditions that are Class A and
Class B are treatable and the person may
in the future be able to work or attend
school. These circumstances, as
identified by a civil surgeon or panel
physician, would also be taken into
consideration in the totality of the
circumstances.
In addition to the types of evidence
described above, DHS would also take
into consideration any additional
medical records or related information
provided by the alien to clarify any
medical condition included on the
medical form or other information that
may outweigh any negative factors.
Such documentation may include, for
instance, a licensed doctor’s attestation
of prognosis and treatment of a medical
condition.
updated Aug. 3, 2010). The HHS regulations require
physicians conducting medical examinations for an
alien to comply with the CDC’s Technical
Instructions for Medical Examinations of Aliens. 42
CFR 34.3(i).
463 See 42 CFR 34.4(c)(1).
464 See 42 CFR 34.2(l) (defining a medical
notification as ‘‘[a] medical examination document
issued to a U.S. consular authority or DHS by a
medical examiner’’).
465 42 CFR 34.4(c)(2).

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51183

The presence or absence of a medical
condition would only be considered a
positive or negative factor as it pertains
to the alien’s likelihood of becoming a
public charge; frequently, this would
entail consideration of whether, in light
of the alien’s health, the alien will be
able to adequately care for him- or
herself, to attend school, or to work.466
2. Potential Effects for Aliens With a
Disability, Depending on Individual
Circumstances
As noted above, DHS would consider
any immigration medical examination
submitted with the alien’s application,
as well as any other evidence
demonstrating that the individual has a
medical condition that will affect the
alien’s ability to work, attend school, or
otherwise support himself or herself. As
part of the immigration medical
examination, when identifying a Class B
medical condition, civil surgeons and
panel physicians are required to report
on certain disabilities, including the
nature and severity of the disability, its
impact on the alien’s ability to work,
attend school, or otherwise support
himself or herself, and whether the
disability will require hospitalization or
institutionalization. Under the proposed
rule, DHS would only consider
disability as part of the health factor to
the extent that such disability, in the
context of the alien’s individual
circumstances, impacts the likelihood of
the alien becoming a public charge.
Frequently, this would entail
consideration of the potential effects on
the alien’s ability to work, attend school
or otherwise support him or herself.
466 Relatedly, as part of the assets, resources and
financial status factor, DHS would consider
whether the alien either has sufficient household
assets and resources, including private health
insurance, 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, to
attend school, or to work.

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The Rehabilitation Act of 1973 467 and
the Americans with Disabilities Act
(ADA) of 1990 468 prohibit
discrimination against individuals
based on their disabilities.469 Both laws
require, among other things, that
employers provide reasonable
accommodations for individuals with
disabilities who need them to apply for
a job, perform a job’s essential
functions, or enjoy equal benefits and
privileges of employment, absent undue
hardship (i.e., significant difficulty or
expense). The Individuals with
Disabilities Education Act (IDEA) 470
ensures equality of educational
opportunity and assists States in
providing special education and related
services to children with disabilities.
Further, DHS is specifically prohibited
from discriminating against individuals
with disabilities and otherwise
preventing individuals with disabilities
from participating in benefits
programs.471 Congress has noted that
‘‘[d]isability is a natural part of the
human experience and in no way
diminishes the right of individuals to
. . . contribute to society; pursue
meaningful careers; and enjoy full
inclusion and integration in the
economic, political, social, cultural, and
educational mainstream of American
society.’’ 472 Individuals with
disabilities make substantial
contributions to the American economy.
For example, in 2010, 41.1 percent of
people with disabilities between the
ages of 21 to 64 were employed (27.5
percent of adults with severe disability
and 71.2 percent of adults with nonsevere disabilities were employed)
during a study conducted by the
467 Public Law 93–112, section 504, 87 Stat. 355,
394 (codified as amended at 29 U.S.C. 794)
(prohibiting discrimination solely on the basis of
disability in Federal and federally-funded programs
and activities).
468 Public Law 101–336, 104 Stat. 327 (codified as
amended at 42 U.S.C. 12101–12213).
469 See 42 U.S.C. 12112(b)(5); see also 29 CFR
1630.2(o), 1630.9.
470 Public Law 108–446, 118 Stat 2647 (2004)
(codified as amended at 20 U.S.C. 1400–1482).
471 See 6 CFR 15.30(b)(1)(i) (‘‘The Department, in
providing any aid, benefit, or service, may not
directly or through contractual, licensing, or other
arrangements, on the basis of disability . . . [d]eny
a qualified individual with a disability the
opportunity to participate in or benefit from the aid,
benefit, or service . . . .’’); 6 CFR 15.30(b)(4) (‘‘The
Department may not, directly or through
contractual or other arrangements, utilize criteria or
methods of administration the purpose or effect of
which would [s]ubject qualified individuals with a
disability to discrimination on the basis of
disability; or [d]efeat or substantially impair
accomplishment of the objectives of a program or
activity with respect to individuals with a
disability.’’).
472 See 29 U.S.C. 701(3).

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CDC.473 The ADA,474 the Rehabilitation
Act of 1973,475 and the IDEA 476 provide
further protections for individuals with
disabilities to better ensure that such
individuals have the opportunity to
make such contributions.477
Ultimately, DHS has determined that
considering, as part of the health factor,
an applicant’s disability diagnosis that,
in the context of the alien’s individual
circumstances, affects his or her ability
to work, attend school, or otherwise care
for him or herself, is not inconsistent
with federal statutes and regulations
with respect to discrimination, as the
alien’s disability is treated just as any
other medical condition that affects an
alien’s likelihood, in the totality of the
circumstances, of becoming a public
charge. Under the totality of the
circumstances framework, an alien with
a disability is not being treated
differently, or singled out, and the
disability itself would not be the sole
basis for an inadmissibility finding. In
other words, as with any other factor
and consideration in the public charge
inadmissibility determination, DHS
would look at each of the mandatory
factors, and the affidavit of support, if
required, as well as all other factors in
the totality of the circumstances.
In sum, an applicant’s disability could
not be the sole basis for a public charge
inadmissibility finding. In addition, as
part of its totality of the circumstances
determination, DHS would always
recognize that the ADA, the
Rehabilitation Act, IDEA, and other
laws provide important protections for
individuals with disabilities, including
with respect to employment
opportunities. Furthermore, as it relates
to a determination of inadmissibility
under section 212(a)(4) of the Act, DHS
does not stand in the position of an
employer vis-a-vis when the alien is
applying for the immigration benefit.
DHS is also not proposing to include
employee benefits of any type in the
definition of public benefit.
F. Family Status
An applicant’s family status is a factor
that must be considered when
determining whether the alien is likely
473 See Mathew W. Brault, U.S. Census Bureau,
Americans With Disabilities: 2010, at 10 (2012),
available at https://www2.census.gov/library/
publications/2012/demo/p70-131.pdf.
474 See Public Law 101–336, 104 Stat. 327 (1990)
(codified as amended at 42 U.S.C. 12101–12213).
475 See Public Law 93–112, section 504, 87 Stat.
355, 394 (codified as amended at 29 U.S.C. 794).
476 See Public Law 108–466, 118 Stat 2647 (2004)
(codified as amended at 20 U.S.C. 1400–1482).
477 See generally Dep’t of Justice, Civil Rights
Div., Disability Rights Sec., A Guide to Disability
Rights Laws (July 2009), https://www.ada.gov/
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to become a public charge in the
future.478 When considering an alien’s
family status, DHS proposes to consider
whether the alien has a household to
support, or whether the alien is being
supported by another household and
whether the alien’s household size
makes the alien more or less likely to
become a public charge. DHS notes that
it would frequently view family status
in connection with, among other things,
the alien’s assets and resources, because
the amount of assets and resources
necessary to support a larger number of
people in a household is generally
greater. Thus, as described in the Assets,
Resources, and Financial Status section
below, DHS’s proposed standard for
evaluating assets, resources and
financial status requires DHS to
consider whether the alien can support
him or herself and the household as
defined in 8 CFR 212.21(d), at the level
of at least 125 percent of the most recent
FPG based on the alien’s household
size.
As noted in the description above of
the proposed definition of the ‘‘alien’s
household,’’ an alien who has no
dependents would have a household of
one, and would only have to support
him or herself. By contrast, a child alien
who is part of a parent’s household
would be part of a larger household, and
would have to demonstrate that his or
her own assets, resources and financial
status and his or her parent’s or legal
guardian’s assets, resources, and
financial status are sufficient to support
the alien and the rest of the household.
The research and data below discuss
how the number of household members
may affect the likelihood of receipt of
public benefits. Table 16 and Table 17
show that among both U.S. citizens and
noncitizens, the receipt of non-cash
benefits generally increased as family
size increased. Among U.S. citizens,
individuals in families with 3 or 4
persons were more likely to receive noncash benefits compared to families of 2,
while individuals in families of 5 or
more were about three times as likely to
receive non-cash benefits as families of
2. Among noncitizens in families with
3 or 4 people, about 20 percent received
non-cash assistance, while about 30
percent of noncitizens in families of 5
or more received non-cash benefits.
Across family sizes, the rate of receipt
of cash assistance ranged from about 3
to 5 percent among U.S. citizens, and
about 1 to 3 percent among noncitizens.
The rate of receipt of either TANF or GA
478 See proposed 8 CFR 212.2; see also INA
section 212(a)(4), 8 U.S.C. 1182(a)(4).

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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

%of Total
Population
19.0%

%of Total
Population
24.6%

Population
59,207

Benefit program
Cash or non-cash

Total
11,002

Pet.
18.6%

S.E.
0.5%

Total
9,867

Pet.
12.9%

S.E.
0.4%

Total
11,296

Pet.
21.9%

S.E.
0.5%

3,072
2,795
*83
279

5.2%
4.7%
*0.1%
0.5%

0.3%
0.3%
0.0%
0.1%

2,221
1,794
269
222

2.9%
2.3%
0.4%
0.3%

0.2%
0.2%
0.1%
0.1%

2,000
1,332
544
194

3.9%
2.6%
1.1%
0.4%

0.2%
0.2%
0.1%
0.1%

10,640
6,617
6,095
1,038
3,488

18.0%
11.2%
10.3%
1.8%
5.9%

0.5%
0.4%
0.4%
0.2%
0.3%

9,451
7,108
5,231
747
2,170

12.4%
9.3%
6.8%
1.0%
2.8%

0.4%
0.3%
0.3%
0.1%
0.2%

11,014
8,920
6,154
938
2,058

21.4%
17.3%
11.9%
1.8%
4.0%

0.5%
0.5%
0.4%
0.2%
0.3%

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Family size 4

Family size 5+

%of Total
Population
17.3%

Population
53,883

Benefit program
Cash or non-cash

Total
11,200

Pet.
20.8%

S.E.
0.5%

Total
17,115

Pet.
34.5%

S.E.
0.6%

1,342
708
592
*81

2.5%
1.3%
1.1%
*0.2%

0.2%
0.1%
0.1%
0.0%

1,796
1,023
693
124

3.6%
2.1%
1.4%
0.3%

0.2%
0.2%
0.2%
0.1%

SSI
TANF
GA

Population
49,604

%of Total
Population
16.0%

Total Population
310,867

Cash benefits

Population
51,516

%of Total
Population
16.6%

Total Population
310,867

Cash benefits

Population
76,493

Family size 3

20.5% 0.5%
34.0% 0.6%
11,035
16,888
29.0% 0.6%
17.4% 0.5%
9,387
14,412
10.9% 0.4%
19.6% 0.5%
SNAP
5,895
9,709
2.3%
1.5% 0.2%
0.2%
Housing vouchers
802
1,121
3.1% 0.2%
4.4%
0.3%
Rent subsidy
1,668
2,179
..
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.

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BILLING CODE 4410–10–C

In light of the above data on the
relationship between family size and
receipt of public benefits, DHS proposes
that in evaluating family status for
purposes of the public charge
inadmissibility determination, DHS
would consider the number of people in
a household as defined in the proposed
8 CFR 212.21(d). As with the other
factors, household size, on its own,
would never dictate the outcome of a
public charge inadmissibility
determination. Regardless of household
size, that an alien may present other
factors (e.g., assets, resources, financial

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status, education, and skills) that weigh
for or against a finding that the alien is
likely to become a public charge. For
instance, an alien who is part of a large
household may have his or her own
income or access to additional assets
and resources that would assist in
supporting the household and therefore
would also be considered in the totality
of the circumstances.
G. Assets, Resources, and Financial
Status
In addition to age, health, and family
status, USCIS must consider an
applicant’s assets, resources, and

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financial status in making a public
charge determination.479 The statute
does not define these terms, but the
agency has historically interpreted these
terms to include information that would
provide an overview of the alien’s
financial means and overall financial
health. Since Legacy INS issued the
1999 Interim Field Guidance, the
practical focus has been primarily on
the sufficiency of an Affidavit of
Support submitted on the alien’s behalf.
However, given that the statute sets out
the Affidavit of Support as a separate
479 See

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requirement and the statute includes the
mandatory review of assets, resources
and financial status as a factor,480 DHS
is proposing to consider in the totality
of the circumstances whether the alien
can, taking into account both the alien’s
assets and liabilities, establish the
ability to support himself or herself and
the household as defined in the
proposed 8 CFR 212.21(d).
All else being equal, the more assets
and resources an alien has, the more
self-sufficient the alien is likely to be,
and the less likely the alien is to receive
public benefits. On the other hand, an
alien’s lack of assets and resources,
including income, makes an alien more
likely to receive public benefits.
Whether a person may be qualified for
public benefits frequently depends on
where the person’s household income
falls with respect to the FPG.481 Federal,
State, and local public benefit granting
agencies frequently use the FPG to
determine eligibility for public
benefits.482 Some major means-tested
programs, however, rely on different
income-related measurements for
purposes of determining eligibility.483
Because assets and resources include
the employment income earned by an
alien and the members of an alien’s
household, and are an important factor
in determining whether the alien is
likely to receive public benefits in the
future, DHS proposes that when
considering an alien’s assets and
resources, DHS will consider whether
the alien has gross household income of
at least 125 percent of the FPG based on
the household size. If the alien’s
household income is less than 125
percent of the FPG, the alien’s other
household assets and resources should
be at least 5 times the difference
between the household income and 125
480 See

INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
poverty guidelines are updated
periodically in the Federal Register by HHS. The
U.S. Census Bureau definition of family and family
household can be found in U.S. Census Bureau,
Current Population Survey 2017 Annual Social and
Economic Supplement (ASEC) 9–1 to 9–2, available
at https://www2.census.gov/programs-surveys/cps/
techdocs/cpsmar17.pdf (last visited Sept. 13, 2018).
482 Different Federal programs use different
percentages of the FPG such as 125 percent, 150
percent, or 185 percent. See U.S. Dep’t of Health &
Human Servs., Office of the Assistant Sec’y for
Planning & Evaluation, Frequently Asked Questions
Related to the Poverty Guidelines and Poverty,
What Programs Use the Federal Poverty Guidelines,
available at https://aspe.hhs.gov/frequently-askedquestions-related-poverty-guidelines-and-poverty
#collapseExample9 (last visited Sept. 8, 2018).
483 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Frequently Asked Questions Related to
the Poverty Guidelines and Poverty, What Programs
Use the Federal Poverty Guidelines, available at
https://aspe.hhs.gov/frequently-asked-questionsrelated-poverty-guidelines-and-poverty#collapse
Example9 (last visited Sept. 8, 2018).

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of the FPG based on the household
size.484
DHS has chosen a household income
of at least 125 percent of the FPG, which
has long served as a touchpoint for
public charge inadmissibility
determinations.485 As of February 2018,
within the contiguous United States,
125 percent of FPG ranges from
approximately $20,300 for a family of
two to $51,650 for a family of eight.486
Additionally, consistent with the
affidavit of support context, if the
alien’s household income is under 125
percent of the FPG, the alien may use
his or her assets, as well household
members’ assets, to meet the minimum
income threshold to avoid the alien’s
household income being considered a
negative factor in the totality of the
circumstances review.487 If using
household assets to demonstrate that the
alien can meet the 125 percent of FPG
threshold, the alien must present
evidence that the assets total value is at
least 5 times the difference between the
household income and 125 percent of
FPG for the household size.
The following example illustrates
how an applicant would be able to use
his or her household assets and
resources to demonstrate that he or she
has financial support at 125 percent of
the FPG. The applicant has filed an
application for adjustment of status. The
applicant has a household size of 4,
where 125 percent of the FPG for that
household size is $31,375. The
applicant’s household income is
$24,000, which is $7,375 below 125
percent of the FPG for a household of
4. Therefore, in order to avoid DHS
determining that the applicant’s
household income is a negative factor in
the totality of the circumstances, the
alien would need $36,875 in household
assets and resources.
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. Below, DHS describes
the proposed rule’s evidentiary
requirements for this factor.
DHS welcomes public comments on
whether 125 percent of the FPG is an
appropriate threshold in considering the
alien’s assets and resources or if there
484 This is consistent with the provisions for
assets under the affidavit of support in 8 CFR
213a.2(c)(2)(iii)(B)(3).
485 See INA section 213A(f)(1)(E), 8 U.S.C.
1183a(f)(1)(E).
486 Annual Update of the HHS Poverty
Guidelines, 83 FR 2642 (Jan. 18, 2018).
487 See INA section 213A(f)(1)(E), 8 U.S.C.
1183a(f)(1)(E).

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are other potential alternatives,
including any studies or data that would
provide a basis for a different measure
or threshold.
1. Evidence of Assets and Resources
DHS proposes that USCIS would
consider certain types of evidence when
reviewing this factor. USCIS
consideration of an alien’s assets and
resources would include, but not be
limited to, a review of such information
as:
• The alien’s annual gross household
income (i.e., all sources of income
before deductions), excluding any
income from public benefits;
• Any additional income from
individuals not included in the alien’s
household as defined in the proposed 8
CFR 212.21(d) who physically reside
with the alien and whose income will
be relied on by the alien to meet the
proposed standard of household income
at or above 125 percent of FPG;
• Any additional income to the alien
from another person or source not
included in the alien’s household on a
continuing monthly or yearly basis for
the most recent calendar year, excluding
any income from public benefits;
• The household’s cash assets and
resources, including as reflected in
checking and savings account
statements in the last 12 months;
• The household’s non-cash assets
and resources that can be converted into
cash within 12 months, such as net cash
value of real estate holdings minus the
sum of all loans secured by a mortgage,
trust deed, or other lien on the home;
annuities; securities; retirement and
educational accounts; and any other
assets that can be converted into cash
easily.
All of this information is potentially
relevant to a determination of the alien’s
assets and resources, and likelihood of
becoming a public charge.
2. Evidence of Financial Status
When reviewing whether the alien
has any financial liabilities or past
reliance on public benefits that make
the alien more or less likely to become
a public charge, DHS proposes to review
the following evidence:
• Evidence that the alien has applied
for or received any public benefit, as
defined in the proposed 8 CFR
212.21(b), on or after the effective date
of the final rule;
• Been certified or approved to
receive public benefits, as defined in 8
CFR 212.21(b), on or after the effective
date of the final rule;
• Evidence that the alien has applied
for or received a fee waiver for

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immigration benefits after the effective
date of the final rule;
• Credit histories and credit scores;
and
• Whether the alien has the private
health insurance or the financial
resources to pay for medical costs
associated with a medical condition
identified in 8 CFR 212.22(b)(2).
(a) Public Benefits
Current or past applications for or
receipt of public benefits, as defined in
the proposed 8 CFR 212.21(b), suggests
that the alien’s overall financial status is
so weak that he or she is or was unable
to fully support him or herself without
government assistance, i.e., that the
alien will receive such benefits in the
future. DHS, therefore, proposes to
consider any current and past receipt of
public benefits as set forth in 8 CFR
212.21(b) as a negative factor in the
totality of the circumstances, because it
is indicative of a weak financial status
and increases the likelihood that the
alien will become a public charge in the
future. The weight given to this factor
would depend on how recently the alien
has received public benefits, and
whether the person has received public
benefits for an extended period of time
(i.e., receives public benefits for
multiple years) or at multiple different
time periods (i.e., 3 times in the last two
years).488
DHS would also consider whether the
alien has been certified or approved to
receive public benefits, as defined in 8
CFR 212.21(b), on or after the effective
date of the final rule. For example, a
person may be certified for SNAP
benefits for a month or up to 24 months
at one time and then receive the benefits
from the EBT card on a monthly basis.
In general, an alien who is certified or
preapproved for benefits in the future is
likely to continue to receive public
benefits in the future. An alien
nevertheless may otherwise establish
that he or she has terminated the receipt
of those benefits through documentation
from the benefit-granting agency.
DHS recognizes that a person who
previously received public benefits may
have changed circumstances and DHS
would review those circumstances as
part of the totality of the circumstances.
For example, where an alien is currently
unemployed and finishing a college
education and received benefits, the
alien may provide evidence that he or
she has pending employment with
benefits upon graduation from college
and attaining a degree. It is possible that
488 This proposed policy is generally consistent
with longstanding policy affording less weight to
benefits that were received longer ago in the past.

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in the review of the totality of the
circumstances, the alien would not be
found likely to become a public charge.
Review of past applications for or
receipt of public benefits would include
a review of both cash and non-cash
public benefits as defined in the
proposed 8 CFR 212.21(b). According to
the U.S. Census Bureau, in 2012,
approximately 52.2 million people in
the United States (or 21.3 percent of the
overall population) participated in
major means-tested government
assistance programs each month.489 In
addition, among those with family
income below the poverty level 490 an
average of 61.3 percent participated in
at least one major means tested
benefit.491 Participation rates were
highest for Medicaid (15.3 percent) and
SNAP (13.4 percent).492 The largest
share of participants (43.0 percent) who
benefited from one or more meanstested assistance programs between
January 2009 and December 2012 stayed
in the programs between 37 and 48
months.493
489 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009–2012:
Who Gets Assistance? (May 2015), available at
https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p70-141.pdf; see
also U.S. Census Bureau, News Release: 21.3
Percent of U.S. Population Participates in
Government Assistance Programs Each Month (May
28, 2015), available at https://www.census.gov/
newsroom/press-releases/2015/cb15-97.html. The
U.S. Census Bureau included Temporary Assistance
for Needy Families (TANF), General Assistance
(GA), Supplemental Security Income (SSI),
Supplemental Nutrition Assistance Program
(SNAP), Medicaid, and housing assistance as major
means-tested benefits as major means-tested
government benefits.
490 See U.S. Census Bureau, News Release: 21.3
Percent of U.S. Population Participates in
Government Assistance Programs Each Month (May
28, 2015), at 5, available at https://www.census.gov/
newsroom/press-releases/2015/cb15-97.html. Note
that the Census reports use the term income to
poverty ratio.’’ A ratio of less than 1 indicates a
person’s income is below the poverty level. The
census report refers to average monthly
participation rates.
491 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Household Economic Studies,
Dynamics of Economic Well-Being: Participation in
Government Programs, 2009–2012: Who Gets
Assistance? 6 (May 2015), available at https://
www.census.gov/content/dam/Census/library/
publications/2015/demo/p70-141.pdf. This report
includes Temporary Assistance for Needy Families
(TANF), General Assistance (GA), Supplemental
Security Income (SSI), Supplemental Nutrition
Assistance Program (SNAP), Medicaid, and housing
assistance as major means-tested benefits.
492 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Household Economic Studies,
Dynamics of Economic Well-Being: Participation in
Government Programs, 2009–2012: Who Gets
Assistance? 6 (May 2015), available at https://
www.census.gov/content/dam/Census/library/
publications/2015/demo/p70-141.pdf.
493 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Household Economic Studies,
Dynamics of Economic Well-Being: Participation in

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(b) Fee Waivers for Immigration Benefits
Under INA section 286(m), 8 U.S.C.
1356(m), USCIS collects fees at a level
that will ensure recovery of the full
costs of providing adjudication and
naturalization services, including the
costs of providing similar services
without charge to asylum applicants
and other immigrants. USCIS may waive
fees for specific immigration benefit
forms if a person demonstrates
‘‘inability to pay.’’ 494
DHS proposes that USCIS would
consider past receipt of a fee waiver as
part of the financial status factor.495
Requesting or receiving a fee waiver for
an immigration benefit suggests a weak
financial status. Since fee waivers are
based on an inability to pay, a fee
waiver for an immigration benefit
suggests an inability to be self-sufficient.
In addition, the Senate Appropriations
Report, which accompanied the fiscal
year 2017 Department of Homeland
Security Appropriations Act,496
expressed concern about the increased
use of fee waivers, as those paying fees
are forced to absorb costs for which they
receive no benefit.497 The committee
specifically expressed concern that
those unable to pay fees are less likely
to live in the United States independent
of government assistance.498
DHS would not consider a fee
exemption as part of the determination
of whether an alien is likely to become
a public charge,499 as such exemption
would have no bearing on whether an
alien would be likely to become a public
charge in the future. Fee exemptions are
not fee waivers and are not affirmatively
requested by an alien based on an
inability to pay. Instead, fee exemptions
are provided either to specific forms or
immigrant categories based on statutory
authority, regulations, or agency policy.
(c) Credit Report and Score
As also noted above, DHS also
proposes that USCIS would consider an
alien’s liabilities and information of
Government Programs, 2009–2012: Who Gets
Assistance? 6 (May 2015), available at https://
www.census.gov/content/dam/Census/library/
publications/2015/demo/p70-141.pdf.
494 See 8 CFR 103.7(c).
495 This would be inclusive of fee exceptions
where an applicant actively requests a fee waiver
under 8 CFR 103.7(d).
496 See Public Law 115–31, div. F, 131 Stat. 135,
404.
497 See S. Rep. No. 114–264, at 125 (2016).
498 See S. Rep. No. 114–264, at 125 (2016).
499 See 8 CFR 103.7(d); see also 22 CFR 41.107(c)
(listing categories of aliens exempt from
nonimmigrant visa fees); 9 FAM 403.4–3 (same).
Diplomats, UN visitors, U.S. Government
employees, and those coming to perform charitable
work are typical classes of aliens whose
nonimmigrant visa fees are exempted.

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such liabilities in a U.S. credit report
and score as part of the financial status
factor. Not everyone has a credit history
in the United States. Nevertheless, a
good credit score in the United States is
a positive factor that indicates a person
is likely to be self-sufficient and support
the household. Conversely, a lower
credit score or negative credit history in
the United States may indicate that a
person’s financial status is weak and
that he or she may not be self-sufficient.
Credit reports contain information about
a person’s bill payment history, loans,
current debt, and other financial
information.500 Credit reports may also
provide information about work and
residences, lawsuits, arrests, and
bankruptcies in the United States.501
A U.S. credit score is a number that
rates a person’s credit risk at a point in
time.502 It can help creditors determine
whether to give the person credit, affect
the terms of credit the person is offered,
or impact the rate the person will pay
for a loan in the United States.503 U.S.
banks and other entities use credit
scoring to determine whether a person
is likely to repay any loan or debt. A
credit report takes into account a
person’s bill-paying history, the number
and type of accounts with overdue
payments, collection actions,
outstanding debt, and the age of the
accounts in the United States.504
Because credit reports and scores
provide information on a person’s
financial status, DHS is proposing that
USCIS would review any available U.S.
credit reports as part of its public charge
inadmissibility determinations. USCIS
would generally consider a credit score
characterized as ‘‘good’’ or better to be
a positive factor as it demonstrates an
applicant may be able to support him or
herself and any dependents assuming
all other financial records are sufficient.
A ‘‘good’’ credit report is generally near
or slightly above the average of U.S.
500 See USA.gov, Credit Reports and Scores,
available at https://www.usa.gov/credit-reports (last
updated Mar. 8, 2018).
501 See USA.gov, Credit Reports and Scores,
available at https://www.usa.gov/credit-reports (last
updated Mar. 8, 2018).
502 See USA.gov, Credit Reports and Scores,
available at https://www.usa.gov/credit-reports (last
updated Mar. 8, 2018).
503 See USA.gov, Credit Reports and Scores,
available at https://www.usa.gov/credit-reports (last
updated Mar. 8, 2018).
504 See Fed. Trade Comm’n, Consumer
Information: Credit Scores (Sept. 2013), available at
https://www.consumer.ftc.gov/articles/0152-creditscores#how.

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consumers,505 and therefore the person
may be self-sufficient and less likely to
become a public charge. A poor credit
report is well below the average of U.S.
consumers.506
DHS recognizes that not everyone has
a credit report in the United States. The
absence of an established U.S. credit
history would not necessarily be a
negative factor when evaluating public
charge in the totality of the
circumstances. Absent a U.S. credit
report or score, USCIS may give positive
weight to an alien who can show little
to no debt and a history of paying bills
timely. An alien may provide evidence
of regular and timely payment of bills,
and limited balances on credit cards and
loans. In addition, USCIS would not
consider any error on a credit score that
has been verified by the credit agency in
determining whether an alien is likely
to become a public charge in the future.
DHS welcomes comments on whether
DHS should also consider credit scores
that are categorized less than ‘‘good,’’
the types of credit reports to be
considered and the type of information
from the credit history that should be
reviewed.
(d) Financial Means To Pay for Medical
Costs
DHS also proposes that USCIS would
consider evidence of whether an alien
has the financial means for pay for
certain reasonably foreseeable medical
costs, including through private health
insurance, as part of the financial factor
for public charge inadmissibility
determinations.
Health insurance helps cover the cost
of health care and being covered by
health insurance programs, other than
the ones included in the definition of
public benefits under proposed 8 CFR
212.21(b). Some aliens currently obtain
health insurance with government
funding.507
Having private health insurance
would be a positive factor in the totality
505 MyFICO, Understanding FICO Scores 5,
available at https://www.myfico.com/Downloads/
Files/myFICO_UYFS_Booklet.pdf (last visited Aug.
6, 2018).
506 MyFICO, Understanding FICO Scores 5,
available at https://www.myfico.com/Downloads/
Files/myFICO_UYFS_Booklet.pdf (last visited Aug.
6, 2018).
507 See Jessica C. Barnett & Edward R. Berchick,
U.S. Census Bureau, Health Insurance Coverage in
the United States: 2016 Current Population Reports
(Sept. 2017), available at https://www.census.gov/
content/dam/Census/library/publications/2017/
demo/p60-260.pdf.

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51189

of the circumstances. DHS would not
consider health insurance provided
through government employment as a
public benefit, but instead consider it a
positive factor in the totality of the
circumstances. By contrast, lack of
health insurance or lack of the financial
resources to pay for the medical costs
would be a negative factor in the totality
of the circumstances for any person.508
While having health insurance would
generally be a positive factor in the
totality of the circumstances, recent
(within the past 36 months) or current
receipt of health insurance that
constitutes a public benefit under
proposed 8 CFR 212.21(b), would
generally be weighed heavily as a
negative factor. Regardless of health
status, DHS recognizes that an alien may
have financial assets, resources, earned
benefits, education or skills, or other
support that may decrease his or her
likelihood of becoming a public charge
and would consider those factors in the
totality of the circumstances.
I. 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.509 In
general, an alien with educational
credentials and skills is more
employable and less likely to become a
public charge. DHS, therefore, proposes
that when considering this factor, DHS
would consider whether the alien has
adequate education and skills to either
obtain or maintain employment
sufficient to avoid becoming a public
charge, if authorized for employment.510
508 In 2016, 6,147,000 (26 percent) noncitizens
and 1,726,000 (8.4 percent) naturalized citizens did
not have health insurance. See U.S. Census Bureau,
Current Population Survey, available at https://
www.census.gov/cps/data/cpstablecreator.html (last
visited Feb. 20, 2018) (Nativity and Health
Insurance Coverage). In 2005, the estimated number
of uninsured noncitizens was 45 percent (9.6
million people); U.S. Dep’t of Health & Human
Servs., Office of the Assistant Sec’y for Planning &
Evaluation, Estimating The Number Of Individuals
in the U.S. Without Health Insurance, Table:
Immigration Status (Apr. 8, 2005), available at
https://aspe.hhs.gov/dataset/table-1immigrationstatus.
509 See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
510 The level of education may be an indicator for
continued employment. See U.S. Bureau of Labor
Statistics, Employment Projections, Unemployment
Rates and Earnings by Educational Attainment,
2016, available at https://www.bls.gov/emp/ep_
chart_001.htm (last updated Mar. 27, 2018).

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Various studies and data support the
concept that a person’s education and
skills are positive factors for selfsufficiency. The U.S. Bureau of Labor
Statistics (BLS) observed in 2016 that
there was a relationship between the
educational level and unemployment
rate.511 The unemployment rate for an
individual with a doctoral degree was
only 1.6 percent compared to 7.4
percent for an individual with less than
a high school diploma.512 According to
the U.S. Census Bureau, lower
educational attainment was associated
with higher public benefit program
participation rates for people over the
age of 18.513 In 2012, 37.3 percent of
people who did not graduate from high
school received means-tested benefits,
compared with 21.6 percent of high
school graduates and 9.6 percent of
individuals with 1 or more years of
college.514

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511 See U.S. Bureau of Labor Statistics,
Employment Projections, Unemployment Rates and
Earnings by Educational Attainment, 2016,
available at https://www.bls.gov/emp/ep_chart_
001.htm (last updated Mar. 27, 2018).
512 See U.S. Bureau of Labor Statistics,
Employment Projections, Unemployment Rates and
Earnings by Educational Attainment, 2016,
available at https://www.bls.gov/emp/ep_chart_
001.htm (last updated Mar. 27, 2018).
513 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009–2012:
Who Gets Assistance? 10 (May 2015), available at
https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p70-141.pdf.
514 See Shelley K. Irving &Tracy A. Loveless, U.S.
Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009–2012:
Who Gets Assistance? 10 (May 2015), available at
https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p70-141.pdf.

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Additionally, the data suggest that
people who have lower education levels
are not only more likely to receive
public benefits but they tend to stay on
them longer. For example, 49.4 percent
of people with less than 4 years of high
school who received public benefits
from a major means-tested program
between January 2009 and December
2012 stayed on the benefit program for
37 to 48 months. In contrast, only 39.3
percent of high school graduates and
29.0 percent of those with 1 or more
years of college who received public
benefits during the same time period
stayed on the public benefit program for
37 to 48 months.515 The National Center
for Education Statistics found that ‘‘[i]n
2015, the poverty rate for children
under age 18 was highest for those
whose parents had not completed high
school (52 percent) and lowest for those
whose parents had attained a bachelor’s
or higher degree (4 percent).’’ 516 The
data suggests that a lack of education
increases the likelihood of poverty and
unemployment, which may in turn
increase the likelihood to need public
assistance.
The results of DHS’s analysis of the
SIPP data also show a relationship
between education level and selfsufficiency. Tables 18 and 19 indicate a
515 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009–2012:
Who Gets Assistance? 10 (May 2015), available at
https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p70-141.pdf.
516 See Nat’l Ctr. for Educ. Statistics,
Characteristics of Children’s Families, available at
https://nces.ed.gov/programs/coe/indicator_
cce.asp# (last updated May 2018).

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relationship between education level
and public benefit participation rates
among both U.S. citizens and
noncitizens in 2013. U.S. citizens with
less than a high school education were
more likely to participate in either cash
or non-cash welfare programs compared
to U.S. citizens with any other
education level. In particular, 37.2
percent of U.S. citizens with less than
a high school education received either
cash or non-cash benefits, while 19.2
percent of those with a high school
degree and about 13.3 percent with
some college received those benefits.
When examining the cohort of U.S.
citizens that have attained a college
degree, only 5.5 percent with a
Bachelor’s degree, and 2.8 percent with
a graduate degree received those
benefits. For the noncitizen population,
the rate of receipt of cash or non-cash
benefits among those with less than a
high school education was 28.2 percent,
while among those with a diploma had
a rate of receipt at 23.6 percent. Among
those with some college the rate of
receipt for cash and non-cash benefits
was 18.0 percent, and with a Bachelor’s
or graduate degree, the rate was about
10 percent. For U.S. citizens and
noncitizens alike, the rate of receipt of
cash benefits was much higher among
those without a high school education
(12.2 percent of U.S. citizens and 3.7
percent of noncitizens) than among any
other education group (ranging from
between 1 and 4 percent of U.S.
citizens, and 1 percent or less of
noncitizens).
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Table 18. Public Benefit Participation of U.S. Citizens Age 18+, by Education Level, 2013 (in thousands)
Less than High School
%of Total
Population
7.4%

Some college/Associate's
degree

High School graduate

Benefit program
Cash or non-cash

Total
8,607

Pet.
37.2%

S.E.
0.9%

Total
12,577

Pet.
19.2%

S.E.
0.4%

Total
8,896

Pet.
13.3%

S.E.
0.4%

2,823
2,489
198
232

12.2%
10.8%
0.9%
1.0%

0.6%
0.6%
0.2%
0.2%

2,835
2,438
242
228

4.3%
3.7%
0.4%
0.3%

0.2%
0.2%
0.1%
0.1%

1,453
1,182
141
163

2.2%
1.8%
0.2%
0.2%

0.2%
0.1%
0.1%
0.1%

0.4%
0.4%
0.4%
0.1%
0.2%

8,587
5,478
5,051
811
2,004

12.8%
8.2%
7.5%
1.2%
3.0%

0.4%
0.3%
0.3%
0.1%
0.2%

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

35.7% 0.9%
8,250
25.5% 0.8%
5,904
22.4% 0.7%
5,176
3.5% 0.3%
808
9.3%
0.5%
2,155
Bachelor's degree

%of Total
Population
13.6%

18.5%
12,152
12.4%
8,131
11.3%
7,435
1.5%
993
4.2%
2,728
Graduate degree

%of Total
Population
7.6%

Total Population
310,867

Population
42,426

Benefit program
Cash or non-cash

Total
2,319

Pet.
5.5%

S.E.
0.3%

Total
676

Pet.
2.8%

S.E.
0.3%

414
367
*17
*37

1.0%
0.9%
*0.0%
*0.1%

0.2%
0.1%
0.0%
0.0%

189
170
*19

0.8%
0.7%
*0.1%

0.2%
0.2%
0.1%

-

-

-

2,186
1,309
930
197
609

5.2%
3.1%
2.2%
0.5%
1.4%

0.3%
0.3%
0.2%
0.1%
0.2%

608
396
335
*35
151

2.6%
1.7%
1.4%
*0.1%
0.6%

0.3%
0.3%
0.2%
0.1%
0.2%

Cash benefits

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Population
23,771

Population
67,138

%of Total
Population
21.6%

Population
23,141

Cash benefits

Population
65,539

%of Total
Population
21.1%

Total Population
310,867

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..
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.

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

Moreover, according to the National
Center for Education Statistics,
increased education is associated with
increased employment productivity and
increased earnings.517 Unemployment
decreases as skills gained through
education increase.518 In 2013, only 27
percent of U.S. jobs required less than
a high school degree, while 74 percent
required skills associated with formal
education (39 percent required a high

school degree, 18 percent required a
bachelor’s degree, and 16 percent
required more than a bachelor’s
degree).519
Tables 20 and 21 below show that
among U.S. citizens and noncitizens,
individuals holding professional
certificates or licenses had lower rates of
non-cash means-tested public benefits
participation compared to their
respective overall populations in 2013.

In particular, 8.5 percent of U.S. citizens
and 13.7 percent of noncitizens with
professional certificates or licenses
received non-cash benefits compared to
about 20 percent of the overall U.S.
citizen and noncitizen populations. The
rate of receipt of cash benefits among
those with a professional certificate was
1.4 percent for U.S. citizens and 0.4
percent for noncitizens, compared to a
rate of 3.6 percent among U.S. citizens

517 See Nat’l Ctr. for Educ. Statistics, Education
and the Economy: An Indicators Report (Mar.
1997), available at https://nces.ed.gov/pubs97/web/
97939.asp.

518 See U.S. Bureau of Labor Statistics,
Employment Projections, Unemployment Rates and
Earnings by Educational Attainment, 2016,
available at https://www.bls.gov/emp/ep_chart_
001.htm (last updated Mar. 27, 2018).

519 See U.S. Bureau of Labor Statistics, Education
Level and Jobs: Opportunities by State (Sept. 2014),
available at https://www.bls.gov/careeroutlook/
2014/article/education-level-and-jobs.htm.

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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
%of Total
Population
93.5%

Citizen with prof. cert.
%of Total
Population
Population
16.9%
52,514

Total Population
310,867

Population
290,704

Benefit program
Cash or non-cash

Total
60,480

Pet.
20.8%

S.E.
0.2%

Total
4,683

Pet.
8.9%

S.E.
0.4%

10,429
7,652
2,181
900

3.6%
2.6%
0.8%
0.3%

0.1%
0.1%
0.0%
0.0%

724
571
*76
*93

1.4%
1.1%
*0.1%
*0.2%

0.2%
0.1%
0.0%
0.1%

59,029
46,443
33,085
4,645
11,562

20.3%
16.0%
11.4%
1.6%
4.0%

0.2%
0.2%
0.2%
0.1%
0.1%

4,447
2,808
2,579
381
1,032

8.5%
5.3%
4.9%
0.7%
2.0%

0.4%
0.3%
0.3%
0.1%
0.2%

Cash benefits

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

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 with prof. cert.
Noncitizen
%of Total
%of Total
Total Population
Population
Population
Population
Population
6.5%
0.6%
310,867
20,163
2,020
Benefit program
Cash or non-cash
Cash benefits

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP

Pet.
22.6%

S.E.
0.9%

Total
280

Pet.
13.8%

S.E.
2.4%

370
254
*73
*47

1.8%
1.3%
*0.4%
*0.2%

0.3%
0.2%
0.1%
0.1%

*8
*8

*0.4%
*0.4%

0.4%
0.4%

-

-

-

-

-

-

4,498
3,130
1,828
287
869

22.3%
15.5%
9.1%
1.4%
4.3%

0.9%
0.8%
0.6%
0.3%
0.4%

276
197
*63
*16
*65

13.7%
9.8%
*3.1%
*0.8%
*3.2%
..

2.4%
2.1%
1.2%
0.6%
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
certificates or licenses, the rates of noncash participation among the U.S.
citizen and noncitizen populations were
lower for those having an educational
certificate compared to their respective

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overall populations in 2013, as
highlighted in Tables 22 and 23. For
example, among U.S. citizens, the
participation rate for non-cash benefits
was 12.7 percent for those having an
educational certificate compared to 20.3

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percent overall. Among noncitizens, the
participation rate for non-cash benefits
was very similar to that of U.S. citizens,
with a rate of 13.1 percent among those
having an educational certificate
compared to 21.3 percent overall. The

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Housing vouchers
Rent subsidy

Total
4,558

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

citizens and 0.8 percent among
noncitizens.

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
%of Total
Population
93.5%

Citizen with ed. certificate
%of Total
Population
Population
10.3%
32,068

Total Population
310,867

Population
290,704

Benefit program
Cash or non-cash

Total
60,480

Pet.
20.8%

S.E.
0.2%

Total
4,250

Pet.
13.3%

S.E.
0.6%

Cash benefits
SSI
TANF
GA

10,429
7,652
2,181
900

3.6%
2.6%
0.8%
0.3%

0.1%
0.1%
0.0%
0.0%

764
624
*75
*86

2.4%
1.9%
*0.2%
*0.3%

0.3%
0.2%
0.1%
0.1%

Non-cash benefits
Medicaid
SNAP
Housing vouchers
Rent subsidy

59,029
46,443
33,085
4,645
11,562

20.3%
16.0%
11.4%
1.6%
4.0%

0.2%
0.2%
0.2%
0.1%
0.1%

4,061
2,504
2,587
442
1,022

12.7%
7.8%
8.1%
1.4%
3.2%

0.5%
0.4%
0.4%
0.2%
0.3%

520 The SIPP includes questions on professional
certification and licenses developed by the
Interagency Working Group on Expanded Measures
of Enrollment and Attainment (GEMEnA). See Nat’l
Ctr. for Educ. Statistics, Working Definitions of NonDegree Credentials, https://nces.ed.gov/surveys/
gemena/definitions.asp (last visited Sept. 12, 2018);
see also U.S. Bureau of Labor Statistics, Adding
Questions on Certifications and Licenses to the

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Current Population Survey (Nov. 2016), available at
https://www.bls.gov/opub/mlr/2016/article/pdf/
adding-questions-on-certifications-and-licenses-tothe-current-population-survey.pdf. GEMEnA
developed working definitions that categorize
certification as a credential awarded by a nongovernmental body, and involve successfully
passing an examination. A license is awarded by a
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do a specific job. Both certifications and licenses
are time-limited, so must be renewed periodically.
Educational certificates are awarded by an
educational institution and need not be renewed.
See also See U.S. Bureau of Labor Statistics,
Education Level and Jobs: Opportunities by State
(Sept. 2014), available at https://www.bls.gov/
careeroutlook/2014/article/education-level-andjobs.htm.

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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.

51195

Relatedly, English language
proficiency is a skill that also is relevant
in determining whether an alien is
likely to become a public charge in the
future. An inability to speak and
understand English may adversely affect
whether an alien can obtain
employment.522 Aliens who cannot
speak English may be unable to obtain
employment in areas where only
English is spoken. People with the
lowest English speaking ability tend to
have the lowest employment rate,
lowest rate of full-time employment,
and lowest median earnings.523
According to U.S. Census Bureau data,
people who spoke a language other than

English at home were less likely to be
employed, and less likely to find fulltime work when employed.524 In a 2005
study, ‘‘on average, workers who spoke
only English earned $5,600 more than
people who spoke another
language,’’ 525 however, between the
people who spoke English ‘‘very well’’
and people who spoke only English the
difference was only $966.526 People
who spoke English ‘‘very well’’ had
higher earnings than people who spoke
English ‘‘well’’—an earning differential
of $7,000.527
Table 24 highlights a relationship
between English language proficiency
and public benefit participation in 2013.

Among the noncitizen adults who speak
a language other than English at home,
the participation rates for both cash and
non-cash benefits are higher among
those who do not speak English well, or
at all, than among those who speak the
language well. The SIPP data indicate
that the rate of coverage of non-cash
benefits among those who spoke English
either well or very well (about 15 to 20
percent) was significantly lower than
the rate among those who either spoke
English poorly or not at all (about 25 to
30 percent). The rate of receipt of cash
benefits for each of these groups ranged
from about 1 to 5 percent.

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

at https://www.census.gov/hhes/socdemo/language/
data/acs/PAA_2005_AbilityandEarnings.pdf.
524 See Jennifer Cheeseman Day and Hyon B.
Shin, U.S. Census Bureau, How Does Ability to
Speak English Affect Earnings? 6 (2005), available
at https://www.census.gov/hhes/socdemo/language/
data/acs/PAA_2005_AbilityandEarnings.pdf.
525 See Jennifer Cheeseman Day and Hyon B.
Shin, U.S. Census Bureau, How Does Ability to
Speak English Affect Earnings? 6 (2005), available
at https://www.census.gov/hhes/socdemo/language/
data/acs/PAA_2005_AbilityandEarnings.pdf.

526 See Jennifer Cheeseman Day and Hyon B.
Shin, U.S. Census Bureau, How Does Ability to
Speak English Affect Earnings? 6 (2005), available
at https://www.census.gov/hhes/socdemo/language/
data/acs/PAA_2005_AbilityandEarnings.pdf.
527 See Jennifer Cheeseman Day and Hyon B.
Shin, U.S. Census Bureau, How Does Ability to
Speak English Affect Earnings? 6 (2005), available
at https://www.census.gov/hhes/socdemo/language/
data/acs/PAA_2005_AbilityandEarnings.pdf.

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

BILLING CODE 4410–10–C

Additionally, numerous studies have
shown that immigrants’ English
language proficiency or ability to
acquire English proficiency directly
correlate to a newcomer’s economic
assimilation into the United States.528
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528 Barry

R. Chiswick & Paul W. Miller,
Immigrant Earnings: Language Skills, Linguistic
Concentrations and the Business Cycle, 15 J.
Population Econ., 31, 31–57 (2002); Christian
Dustmann, Fluency, Writing Fluency, and Earnings
of Migrants, 7 J. Population Econ., 133, 133–156
(1994); Ingo E. Isphording, IZA Discussion Paper
No. 7360, Disadvantages of Linguistic Origin:
Evidence from Immigrant Literacy Scores (2013),
available at http://ftp.iza.org/dp7360.pdf; Org. for
Econ. Cooperation & Dev./European Union,
Indicators of Immigrant Integration 2015: Settling In

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DHS may also consider an applicant’s
proficiency in other languages in
addition to English, with appropriate
consideration given to market demand,
when reviewing the education and skills
factor.
1. USCIS Evidentiary Requirements
DHS proposes that USCIS would
consider certain types of evidence when
reviewing this factor. For the reasons
expressed above, USCIS’ review would
include, but not be limited to:
• Evidence of the alien’s recent
history of employment;
(2015), available at http://www.oecd.org/els/mig/
Indicators-of-Immigrant-Integration-2015.pdf.

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• The alien’s academic degree or
certifications including a high school
degree (or equivalent) or higher;
• The alien’s occupational skills,
certifications, or licenses; and
• The alien’s proficiency in English
or proficiencies in additional languages.
J. Prospective Immigration Status and
Expected Period of Admission
DHS would also take into
consideration the immigration status
and duration of admission sought by an
alien, and the classification the alien is
seeking, as part of this determination.
The type of evidence generally required
of an applicant for an immigrant visa,

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admission as an immigrant, or
adjustment of status would generally
differ in scope from the evidence
required of a bona fide applicant
seeking a nonimmigrant visa or
admission as a nonimmigrant. For
example, an alien seeking permanent
residence in the United States may be
eligible for certain public benefits upon
his or her entry as a permanent resident
or after five years. As a result, there is
a chance that he or she would avail him
or herself of the available public benefit.
USCIS would consider this possibility
in the totality of the circumstances.
On the other hand, aliens who are
coming to the United States temporarily
as a nonimmigrant may be less likely to
avail themselves of public benefits,
particularly if they are coming to the
United States for a short period of time
or if they are coming to the United
States for employment purposes. For
example, an alien coming to the United
States on a nonimmigrant visitor (B–2)
for a vacation in the United States for
two weeks must establish he or she has
sufficient funds to cover any expenses
in the United States. Therefore,
generally, a nonimmigrant visitor would
be unlikely to avail him or herself of any
public benefits for which he or she
would be eligible based on being
lawfully present in the United States.
Therefore, such an alien, if otherwise
entitled to a nonimmigrant visa and
admission as a nonimmigrant, generally
would not be subject to the public
charge inadmissibility ground under
section 212(a)(4) of the Act, 8 U.S.C.
1182(a)(4), although it is possible that
evidence may exist that gives rise to a
public charge concern.

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K. Affidavit of Support
Failure to submit a required affidavit
of support when required under section
212(a)(4)(C) or section 212(a)(4)(D) of
the Act, 8 U.S.C. 1182(a)(4)(C) or
1182(a)(4)(D), necessarily results in a
determination of inadmissibility based
on the public charge ground without
review of any other statutory factors.529
For aliens who submit an affidavit of
support, the statute allows DHS to
consider the affidavit of support under
section 213A of the Act, 8 U.S.C. 1183a,
in public charge inadmissibility
determinations.530 DHS, therefore,
proposes to consider any required
529 Certain applicants are exempt from filing the
affidavit of support under INA section 213A, 8
U.S.C. 1183a.
530 See INA section 212(a)(4)(B)(ii), 8 U.S.C.
1182(a)(4)(B)(ii); see also proposed 8 CFR
212.22(b)(7).

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affidavit of support 531 as part of the
totality of the circumstances.
1. General Consideration of Sponsorship
and Affidavits of Support
DHS would consider a sponsor’s
facially sufficient affidavit of support as
a positive factor in the totality of the
circumstances, but a sufficient affidavit
of support alone would not result in a
finding that an alien is unlikely at any
time to become a public charge due the
statute’s requirement to consider the
mandatory factors. Moreover, DHS has
concerns about relying on sponsors to
ensure that aliens will not become a
public charge, as submitting a sufficient
affidavit of support does not guarantee
that the alien will not receive public
benefits in the future.
PRWORA and IIRIRA amended the
INA by setting forth requirements for
submitting what would be an
enforceable affidavit of support, i.e.,
current Form I–864.532 Approximately 1
month after PRWORA was enacted,
Congress amended the public charge
inadmissibility ground, through passage
of IIRIRA, to require certain applicants
for lawful permanent resident status to
submit an affidavit of support in
accordance with section 213A of the
Act, 8 U.S.C. 1183a.533 An Affidavit of
Support under Section 213A of the INA
(Form I–864) 534 is a contract between
the sponsor and the U.S. Government
that imposes on the sponsor a legally
enforceable obligation to support the
alien. The sponsor generally must
demonstrate that he or she is able to
maintain the sponsored alien at an
annual income of not less than 125
percent of the FPG.535 By creating these
requirements in section 213A of the Act,
8 U.S.C. 1183a, Congress intended to
ensure that affidavits of support were
enforceable and that public benefitgranting agencies could be reimbursed
for certain aid provided to the
sponsored alien.536
531 See INA section 212(a)(4)(C) and (a)(4)(D), 8
U.S.C. 1182(a)(4)(C) and 1182(a)(4)(D).
532 See INA sections 212(a)(4) and 213A, 8 U.S.C.
1182(a)(4) and 1183a.
533 See IIRIRA, Public Law 104–208, div. C,
section 531(b), 110 Stat. 3009–546, 3009–675.
534 The Affidavit of Support Under Section 213A
of the INA, Form I–864EZ, may be used instead of
Form I–864 in certain circumstances. References to
the affidavit of support in this rule include Form
I–864EZ.
535 See INA section 213A, 8 U.S.C. 1183a.
536 In explaining the provision, Congress
continued to emphasize that the affidavits of
support (before 1996) were previously
unenforceable. Congress highlighted the difference
between the situation at the time, before 1996, and
the new law which would make the affidavits
enforceable and permit benefit-providing agencies
to seek reimbursement. See H.R. Rep. No. 104–651,
at 1449 (1996).

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51197

As part of PRWORA, benefit-granting
agencies assess the combined income
and resources of the sponsor (and his or
her spouse) and the alien to determine
whether the combined income and
resources meet the eligibility
requirements.537 This is called
‘‘sponsor-to-alien deeming.’’ Public
benefits agencies, however, have
encountered challenges obtaining
information about the sponsor’s income
when determining the alien’s eligibility
for public benefits. A U.S. Government
Accountability Office (GAO) 2009 report
found that although the number of
sponsored noncitizens potentially
affected by such deeming is unknown,
most recent information then available
suggested that 11 percent (473,000) of
sponsored aliens in 2007 applied for
TANF, Medicaid, or SNAP during the
course of 2007, and less than one
percent applied for SSI.538 In addition,
according to a 2002 study of the New
York and Los Angeles areas by the
Urban Institute for the Office of the
Assistant Secretary for Planning and
Evaluation of HHS, individuals who
have become lawful permanent
residents since the affidavit of support
under section 213A of the Act was
enacted in 1996 were poorer (with
incomes below 100 percent of the FPL)
than those who arrived earlier.539 ‘‘Legal
immigrants who entered the country
since 1996 are poorer than those who
arrived earlier, despite new policies
requiring their sponsors to demonstrate
incomes over 125 percent of the
[FPL].’’ 540 The report also indicates that
some immigrant families with incomes
below twice the poverty level 541
received SNAP, TANF or Medicaid from
1999–2000.542 For example, in Los
Angeles 13 percent and in New York
City 22 percent of noncitizen families
537 See PRWORA, Public Law 104–193, section
423, 11 Stat. 2105, 2271–74.
538 See U.S. Gov’t Accountability Office, GAO–
09–375, Sponsored Noncitizens and Public Benefits
(May 2009), available at https://www.gao.gov/
products/GAO-09-375.
539 See Randy Capps et al., How Are Immigrants
Faring After Welfare Reform? Preliminary Evidence
from Los Angeles and New York City ii (Mar. 4,
2002), available at https://aspe.hhs.gov/system/
files/pdf/72691/report.pdf.
540 Randy Capps et al., How Are Immigrants
Faring After Welfare Reform? Preliminary Evidence
from Los Angeles and New York City ii (Mar. 4,
2002), available at https://aspe.hhs.gov/system/
files/pdf/72691/report.pdf.
541 The report describes these families as lowincome families.
542 See Randy Capps et al., How Are Immigrants
Faring After Welfare Reform? Preliminary Evidence
from Los Angeles and New York City iv (Mar. 4,
2002), available at https://aspe.hhs.gov/system/
files/pdf/72691/report.pdf. Note that this report
uses a household centered approach to evaluate
data.

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with income below twice the poverty
level received food stamps (SNAP).543

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2. Proposal To Consider Required
Affidavits of Support
Certain aliens are required to submit
an affidavit of support.544 With certain
exceptions, the requirement to submit
an affidavit of support applies to
immediate relatives (including
orphans), family-preference immigrants,
and those employment-based
immigrants whose petitioners are
relatives or a firm in which a U.S.
citizen or lawful permanent resident
relative holds a significant ownership
interest.545 Immigrants seeking
admission or adjustment of status in
these categories are inadmissible under
subparagraphs (C) and (D) of section
212(a)(4) of the Act, 8 U.S.C.
1182(a)(4)(C) and (D), unless an
appropriate sponsor has completed and
filed a sufficient affidavit of support.546
A sufficient affidavit of support does
not guarantee that the alien will not
receive public benefits in the future and,
therefore, DHS would only consider the
affidavit of support as one factor in the
totality of the circumstances. When
determining the weight 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 applicant, the likelihood
that the sponsor would actually provide
financial support to the alien, and any
other related considerations.
In order to assess the sponsor’s
likelihood of meeting his or her
obligation to support the alien, DHS
would look at how close of a
relationship the sponsor has to the
alien, as close family members would be
more likely to financially support the
alien if necessary. DHS would also look
at whether the sponsor lives with this
alien, as this could be indicative of the
sponsor’s willingness to support the
alien if needed. Additionally, DHS
would look at whether the sponsor has
submitted affidavit of support with
respect to other individuals, as this may
be indicative of the sponsor’s
543 See Randy Capps et al., How Are Immigrants
Faring After Welfare Reform? Preliminary Evidence
from Los Angeles and New York City iv (Mar. 4,
2002), available at https://aspe.hhs.gov/system/
files/pdf/72691/report.pdf.
544 See INA section 212(a)(4).
545 See INA sections 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D); see also 8 CFR 213a.2(a)(2).
546 Certain immigrant categories are exempt from
the affidavit of support requirements including:
Qualified battered spouses and children (and their
eligible family members) and qualified widow(er)s
of citizens, if these aliens have filed visa petitions
on their own behalf. For more information on who
must file an affidavit of support, see AFM Ch. 20.5.

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willingness or ability to financially
support the alien.
To the extent that the initial evidence
submitted by the sponsor is insufficient
to make this determination, USCIS
would request additional information
from the sponsor or interview the
sponsor to determine whether the
sponsor is willing and able to support
the alien on a long-term basis. The
inability or unwillingness of the sponsor
to financially support the alien may be
viewed as a negative factor in the
totality of the circumstances. DHS
expects that a sponsor’s sufficient
affidavit of support would not be an
outcome-determinative factor in most
cases; the presence of a sufficient
affidavit of support does not eliminate
the need to consider all of the
mandatory factors in the totality of the
circumstances.547
L. Heavily Weighed Factors
DHS proposes a number of factors or
factual circumstances that it has
determined would generally weigh
heavily in determining whether an alien
is likely to become a public charge in
the future.548 The mere presence of any
one enumerated circumstance would
not, alone, be determinative. A heavily
weighed factor could be outweighed by
countervailing evidence in the totality
of the circumstances. Other negative
and positive factors, including factors
not enumerated elsewhere in this rule,
may also be weighed heavily in
individual determinations, as
circumstances warrant.
1. Heavily Weighed Negative Factors
DHS proposes to consider certain
factors listed below as heavily negative
because these factors are particularly
indicative of a likelihood that the alien
would become a public charge.
(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.549 Self-sufficiency
547 However, the statute requires a finding of
inadmissibility on public charge grounds if the
alien is required to submit an affidavit of support
and fails to do so. INA section 212(a)(4)(D), 8 U.S.C.
1182(a)(4)(D).
548 See proposed 8 CFR 212.22.
549 See proposed 8 CFR 212.22(c)(1)(ii). While a
full-time student must still demonstrate he or she
is not likely to become a public charge, because the
public charge determination is based on the totality
of the circumstances under the proposed 8 CFR
212.22(d) that includes consideration of the alien’s
immigration status, the lack of employment or
employment history is not counted as a heavily

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generally involves people being capable
and willing to work and being able to
maintain gainful employment. A person
who is capable and able to work but
does not work demonstrates a lack of
self-sufficiency. As previously
discussed, various studies and data
support the concept that a person’s
education and skills may be positive
factors for purposes of evidencing selfsufficiency, including the SIPP data
reviewed in the Education and Skills
section, and the U.S. Census Bureau
report that indicates that lower
educational attainment is associated
with higher public benefit program
participation rates for people over the
age of 18.550
In addition, the concept that a
person’s education and skills may be
positive factors for purposes of
evidencing self-sufficiency is supported
by two Census Bureau studies covering
2004 to 2007 and 2009 to 2012, showing
that in each of the covered years,
individuals with full-time work were
less likely to receive means-tested
benefits during the year (ranging from
4.5 percent to 5.1 percent) than those
with either part-time work (ranging from
12.6 percent to 14.2 percent) or those
who were unemployed (ranging from
24.8 percent to 31.2 percent).551
DHS recognizes however, that not
everyone authorized to work needs to
work. Some aliens may have sufficient
assets and resources, including a
household member’s income and assets,
which may overcome any negative
factor related to lack of employment.
DHS would review those considerations
in the totality of the circumstances.
(b) Current Receipt of One or More
Public Benefits
DHS proposes that current receipt of
one or more public benefits, as defined
weighed negative factor when making public charge
determinations regarding full-time students. The
full-time student is working toward a degree, which
makes the student more employable in the future,
and as such, has a reasonable prospect of
employment in the future.
550 See Shelley K. Irving & Tracy A. Loveless, U.S.
Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009–2012:
Who Gets Assistance? 10 (May 2015), available at
https://www.census.gov/content/dam/Census/
library/publications/2015/demo/p70-141.pdf.
551 See Jeongsoo Kim, Shelley K. Irving, & Tracy
A. Loveless, U.S. Census Bureau, Dynamics of
Economic Well-Being: Participation in Government
Programs, 2004 to 2007 and 2009—Who Gets
Assistance? 12 (July 2012), available at https://
www2.census.gov/library/publications/2012/demo/
p70-130.pdf; Shelley K. Irving & Tracy A. Loveless,
U.S. Census Bureau, Dynamics of Economic WellBeing: Participation in Government Programs,
2009–2012: Who Gets Assistance? 10 (May 2015),
available at https://www.census.gov/content/dam/
Census/library/publications/2015/demo/p70141.pdf.

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in proposed 212.21(b), would be a
heavily weighed negative factor in a
public charge inadmissibility
determination.552 Current receipt of
public benefits, alone, would not justify
a finding of inadmissibility on public
charge grounds. However, an alien’s
current receipt of one or more public
benefits means that the alien is
currently a public charge as defined
under proposed 8 CFR 212.21(a), and
suggests that the alien may continue to
receive public benefits in the future and
be more likely to continue to be a public
charge.
Research indicates that the largest
share of participants (43.0 percent) who
benefited from one or more meanstested assistance programs between
January 2009 and December 2012 stayed
in the programs between 37 and 48
months.553 DHS is also aware that a
separate study showed that receipt of
benefits across a two-year timespan is
likely to occur in all months, suggesting
relatively long welfare spell lengths.
Between January 2004 and December
2005, a greater share of the population
received one or more means-tested
benefits for the entire 24-month study
period (10.2 percent) than for either one
to 11 months (8.5 percent) or 12 to 23
months (6.5 percent).554 These studies,
though, do not directly address the issue
of individuals who stopped receiving
benefits later returning to these
programs.
Some studies suggest that although
most people who leave welfare
programs are working after they leave
those programs, people may come back
to receive additional public benefits.555
In a research study funded by HHS, A
Profile of Families Cycling On and Off
Welfare, researchers conclude that
people who left welfare (leavers)
experienced ‘‘a fair amount of
employment instability—the median
proportion of people employed in all
four post-exit quarters was 37 percent.
Thus, job loss among welfare leavers
may give rise to cycling back to
552 See

proposed 8 CFR 212.22(c)(1)(ii) and (iii).
U.S. Census Bureau, News Release: 21.3
Percent of U.S. Population Participates in
Government Assistance Programs Each Month (May
28, 2015), available at https://www.census.gov/
newsroom/press-releases/2015/cb15-97.html.
554 See Jeongsoo Kim, Shelley K. Irving, & Tracy
A. Loveless, U.S. Census Bureau, Dynamics of
Economic Well-Being: Participation in Government
Programs, 2004 to 2007 and 2009—Who Gets
Assistance? 4 fig.4 (July 2012), available at https://
www2.census.gov/library/publications/2012/demo/
p70-130.pdf.
555 See Lashawn Richburg-Hayes & Stephen
Freedman, A Profile of Families Cycling On and Off
Welfare 4 (Apr. 2004), available at https://
aspe.hhs.gov/system/files/pdf/73451/report.pdf.

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welfare.’’ 556 Regarding Medicaid and
food stamp participation among leavers,
the authors found ‘‘the proportion of
leavers who receive these benefits at
some point in the year after exit is much
higher than the proportion who receives
them in any given quarter, suggesting a
fair amount of cycling into and out of
these programs.’’ 557
HHS also funds various research
projects on welfare. Across fifteen state
and county welfare studies funded by
HHS, it was found that the number of
leavers who received food stamps
within one year of exit was between 41
and 88 percent.558 Furthermore, TANF
leavers returned to the program at a rate
ranging between 17 and 38 percent
within one year of exit.559 Twelve of
these studies included household
surveys, with some conducting
interviews less than a year post-exit,
and some as much as 34 months after
exit.560 A review of these surveys found
that among those who left Medicaid, the
rate of re-enrollment at the time of
interview was between 33 and 81
percent among adults, and between 51
and 85 percent among children.
Employment rates at the time of
interview ranged between 57 and 71
percent.561
DHS thus would view current receipt
of public benefits as a strong indicator
that an alien will continue to receive
public benefits, and is therefore likely to
become a public charge. However, an
556 Lashawn Richburg-Hayes & Stephen
Freedman, A Profile of Families Cycling On and Off
Welfare 4 (Apr. 2004) (citing Gregory Arcs & Pamela
Loprest, U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Final Synthesis Report of Findings from
ASPE ‘‘Leavers’’ Grants (2001)), available at https://
aspe.hhs.gov/system/files/pdf/73451/report.pdf.
This study was based on the first and fourth
quarter.
557 Lashawn Richburg-Hayes & Stephen
Freedman, A Profile of Families Cycling On and Off
Welfare 4 (Apr. 2004), available at https://
aspe.hhs.gov/system/files/pdf/73451/report.pdf.
558 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
559 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
560 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
561 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.

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51199

alien may be able to establish
circumstances indicating that the
receipt of public benefits will stop in
the near future and he or she will have
sufficient income to support him or
herself.
(c) Receipt of Public Benefits Within 36
Months of Filing Application
Similarly, DHS proposes that an
alien’s past receipt of public benefits
within the 36 months immediately
preceding his or her application also
carries significant weight in determining
whether the alien is likely to become a
public charge. The weight given to this
factor will depend on how recently the
alien has received public benefits, and
whether the person has received public
benefits for an extended period of time
(i.e., receives public benefits for
multiple years) or at multiple different
time periods (i.e., 3 times in the last two
years).562
As previously discussed, some studies
suggest that although most people who
leave welfare programs are working after
they leave those programs, people may
come back to receive additional public
benefits.563 In a research study funded
by HHS, A Profile of Families Cycling
On and Off Welfare, researchers
conclude that people who left welfare
(leavers) experienced ‘‘a fair amount of
employment instability—the median
proportion of people employed in all
four post-exit quarters was 37 percent.
Thus, job loss among welfare leavers
may give rise to cycling back to
welfare.’’ 564 Regarding Medicaid and
food stamp participation among leavers,
the authors found ‘‘the proportion of
leavers who receive these benefits at
some point in the year after exit is much
higher than the proportion who receives
them in any given quarter, suggesting a
fair amount of cycling into and out of
these programs.’’ 565
HHS also funds various research
projects on welfare. Across fifteen state
and county welfare studies funded by
562 This proposed policy is generally consistent
with longstanding policy affording less weight to
benefits that were received longer ago in the past.
563 See Lashawn Richburg-Hayes & Stephen
Freedman, A Profile of Families Cycling On and Off
Welfare 4 (Apr. 2004), available at https://
aspe.hhs.gov/system/files/pdf/73451/report.pdf.
564 Lashawn Richburg-Hayes & Stephen
Freedman, A Profile of Families Cycling On and Off
Welfare 4 (Apr. 2004) (citing Gregory Arcs & Pamela
Loprest, U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Final Synthesis Report of Findings from
ASPE ‘‘Leavers’’ Grants (2001)), available at https://
aspe.hhs.gov/system/files/pdf/73451/report.pdf.
This study was based on the first and fourth
quarter.
565 Lashawn Richburg-Hayes & Stephen
Freedman, A Profile of Families Cycling On and Off
Welfare 4 (Apr. 2004), available at https://
aspe.hhs.gov/system/files/pdf/73451/report.pdf.

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HHS, it was found that the number of
leavers who received food stamps
within one year of exit was between 41
and 88 percent.566 Furthermore, TANF
leavers returned to the program at a rate
ranging between 17 and 38 percent
within one year of exit.567 Twelve of
these studies included household
surveys, with some conducting
interviews less than a year post-exit,
and some as much as 34 months after
exit.568 A review of these surveys found
that among those who left Medicaid, the
rate of re-enrollment at the time of
interview was between 33 and 81
percent among adults, and between 51
and 85 percent among children.
Employment rates at the time of
interview ranged between 57 and 71
percent.569
DHS would view past receipt of
public benefits within 36 months as a
strong indicator that an alien will
continue to receive public benefits, and
therefore is likely to become a public
charge. However, the weight given to
public benefits will depend on whether
the alien received multiple benefits,
how long ago the benefits were received,
and the amounts received.570 For
example, the receipt of a public benefit
5 years ago would be a negative factor;
however, a public benefit received six
months before the adjustment of status
application would be considered a
heavily weighed negative factor.
DHS welcomes public comments on
the appropriate period of time to
examine. DHS is particularly interested
in data regarding how frequently
individuals who previously used public
benefits later do so again, and whether
a 24-month or 48-month timeframe
would be more appropriate.
566 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
567 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
568 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
569 See U.S. Dep’t of Health & Human Servs.,
Office of the Assistant Sec’y for Planning &
Evaluation, Status Report on Research on the
Outcomes of Welfare Reform app. B (Aug. 2001),
available at https://aspe.hhs.gov/report/statusreport-research-outcomes-welfare-reform-2001.
570 This proposed policy is generally consistent
with longstanding policy affording less weight to
benefits that were received longer ago in the past.

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(d) Financial Means To Pay for Medical
Costs
An alien is a high risk of becoming a
public charge if he or she does not have
private health insurance or the 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. However, the alien may
provide evidence of the prospect of
obtaining health insurance, such as
pending employment that provides
employer-sponsored health insurance.
DHS proposes this factual
circumstance as a heavily weighed
negative factor in 8 CFR 212.22(c)(1)(iv).
Certain chronic medical conditions can
be costly to treat.571 Certain conditions
may adversely affect an applicant’s
ability and capacity to obtain and retain
gainful employment. Other conditions
could result in long-term
institutionalization in a health care
facility at government expense.
According to the Multiple Chronic
Conditions Chartbook 2010 Medical
Expenditure Panel Survey Data,572 86
percent of the nation’s $2.7 trillion
annual health care expenditures were
for individuals with chronic and mental
health conditions.573 The Centers for
571 See U.S. Dep’t of Health & Human Servs.,
Research In Action, Issue #19: The High
Concentration of U.S. Health Care Expenditures
(June 2006), available at https://archive.ahrq.gov/
research/findings/factsheets/costs/expriach/
expendria.pdf; see also Ctrs. for Medicare &
Medicaid Servs., NHE Fact Sheet, available at
https://www.cms.gov/research-statistics-data-andsystems/statistics-trends-and-reports/
nationalhealthexpenddata/nhe-fact-sheet.html (last
modified Sept 13, 2018) (in 2016, NHE grew to $3.3
trillion). For a discussion of expenditures, see
generally Ctrs. for Medicare & Medicaid Servs.,
National Health Expenditure Data, available at
https://www.cms.gov/Research-Statistics-Data-andSystems/Statistics-Trends-and-Reports/
NationalHealthExpendData (last modified Sept 13,
2018); see also Ctrs. for Disease Control &
Prevention, Chronic Disease Prevention and Health
Promotion, Chronic Disease Data available at
https://www.cdc.gov/chronicdisease/data/
index.htm (last visited Sept. 13, 2018). The CDC
collects large amounts of data on numerous major
chronic diseases. In addition, the CDC provides an
overview of chronic diseases in the United States,
including prevalence and cost. See Ctrs. for Disease
Control & Prevention, National Center for Chronic
Disease Prevention and Health Promotion, About
Chronic Diseases, Health and Economic Costs of
Chronic Diseases, available at https://www.cdc.gov/
chronicdisease/about/costs/index.htm (last visited
Sept. 13, 2018).
572 As cited by the CDC. See Ctrs. for Disease
Control & Prevention, National Center for Chronic
Disease Prevention and Health Promotion, About
Chronic Diseases, Health and Economic Costs of
Chronic Diseases, available at https://www.cdc.gov/
chronicdisease/about/costs/index.htm (last visited
Sept. 13, 2018).
573 See Ctrs. for Disease Control & Prevention,
National Center for Chronic Disease Prevention and

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Disease Control and Prevention (CDC)
has listed the five most expensive health
conditions as heart disease, cancer,
trauma, mental disorders, and
pulmonary conditions.574 These are all
classified as costly medical
conditions.575 In the United States,
chronic diseases and conditions that
cause them account for most of the
health care costs.576
• From 2012 to 2013, the total annual
direct medical costs for heart disease
and strokes were $190 billion;577
• Cancer care cost $157 billion in
2010 dollars;578 and
• In 2017, the total estimated direct
medical cost for diagnosed diabetes was
$237 billion.579
Health Promotion, About Chronic Diseases, Health
and Economic Costs of Chronic Diseases, available
at https://www.cdc.gov/chronicdisease/about/costs/
index.htm (last visited Sept. 13, 2018).
574 See U.S. Dep’t of Health & Human Servs.,
Research In Action, Issue #19: The High
Concentration of U.S. Health Care Expenditures
(June 2006), available at https://archive.ahrq.gov/
research/findings/factsheets/costs/expriach/
expendria.pdf; see also Ctrs. for Disease Control &
Prevention, National Center for Chronic Disease
Prevention and Health Promotion, About Chronic
Diseases, Health and Economic Costs of Chronic
Diseases, available at https://www.cdc.gov/
chronicdisease/about/costs/index.htm (last visited
Sept. 13, 2018). See also generally the Ctrs. for
Disease Control & Prevention, Statistics on Chronic
Disease Prevention and Health Promotion, Chronic
Disease Data available at https://www.cdc.gov/
chronicdisease/data/index.htm (last visited Sept.
13, 2018).
575 See U.S. Dep’t of Health & Human Servs.,
Research In Action, Issue #19: The High
Concentration of U.S. Health Care Expenditures
(June 2006), available at https://archive.ahrq.gov/
research/findings/factsheets/costs/expriach/
expendria.pdf; see also Ctrs. for Disease Control &
Prevention, National Center for Chronic Disease
Prevention and Health Promotion, About Chronic
Diseases, Health and Economic Costs of Chronic
Diseases, available at https://www.cdc.gov/
chronicdisease/about/costs/index.htm (last visited
Sept. 13, 2018). See also generally the Ctrs. for
Disease Control & Prevention, Statistics on Chronic
Disease Prevention and Health Promotion, Chronic
Disease Data available at https://www.cdc.gov/
chronicdisease/data/index.htm (last visited Sept.
13, 2018).
576 See Ctrs. for Disease Control & Prevention,
National Center for Chronic Disease Prevention and
Health Promotion, About Chronic Diseases, Health
and Economic Costs of Chronic Diseases, available
at https://www.cdc.gov/chronicdisease/about/costs/
index.htm (last visited Sept. 13, 2018).
577 See Ctrs. for Disease Control & Prevention,
National Center for Chronic Disease Prevention and
Health Promotion, About Chronic Diseases, Health
and Economic Costs of Chronic Diseases, available
at https://www.cdc.gov/chronicdisease/about/costs/
index.htm (last visited Sept. 13, 2018).
578 See Nat’l Cancer Inst., Cancer Prevalence and
Cost of Care Projections, http://
costprojections.cancer.gov/ (last visited Sept. 13,
2018).
579 See American Diabetes Association, The Cost
of Diabetes, available at http://www.diabetes.org/
advocacy/news-events/cost-of-diabetes.html (last
visted Sept. 13, 2018). See also Ctrs. for Disease
Control & Prevention, National Center for Chronic
Disease Prevention and Health Promotion, About
Chronic Diseases, Health and Economic Costs of

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Individuals in poor to fair health are
more likely to access public benefits to
treat their medical condition. Tables 25
and 26 show a relationship between
health and receipt of public benefits
irrespective of citizenship status, with
higher rates of participation in most
programs among those who reported
their health as fair or poor than those
who reported their health as excellent,
very good, or good.
DHS also acknowledges that the
health of certain individuals may have
improved because of their access to
these subsidized health insurance and
other public benefits. In other cases,
individuals may have needed the public

benefits because of their compromised
health. About 40 percent of U.S. citizens
and 50 percent of noncitizens 580 who
described their health as poor received
some form of cash or non-cash public
benefit. Moreover, about 20 percent of
U.S. citizens and noncitizens who
reported their health as excellent
participated in at least one type of cash
or non-cash benefit program in 2013.
The rate of receipt of cash or non-cash
benefits was about 20 percent among
U.S. citizens who reported their health
as excellent, very good, or good; and the
rate was 30 to 40 percent among U.S.
citizens who reported their health as fair
or poor. Among noncitizens, the rate of

Chronic Diseases, available at https://www.cdc.gov/
chronicdisease/about/costs/index.htm (last visited
Sept. 13, 2018).

580 The difference in rates between citizens and
noncitizens who describe their health as poor is not
statistically significant.

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receipt of these benefits among those
who reported their health as excellent,
very good, or good was similarly about
20 percent, while among those who
reported their health as fair or poor, the
rate was 30 to 50 percent. About 1 to 2
percent of both U.S. citizens and
noncitizens who reported their health as
excellent or good received at least one
of SSI, TANF, or GA, which was a rate
much lower than those who reported
their health as either good (10.0 percent
of U.S. citizens and 7.1 percent of
noncitizens) or excellent (17.3 percent
of citizens and 12.8 percent of
noncitizens).581
581 See Amy Finkelstein et al., Nat’l Bureau of
Econ. Research, Working Paper 17190, The Oregon
Health Insurance Experiment: Evidence from the
First Year (July 2011), available at http://
www.nber.org/papers/w17190.pdf.

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Table 25: Public Benefit Participation of U.S. Citizens, by Health Status, 2013 (in thousands)
Very good
Excellent
Good
%of Total
Population
32.2%

%of Total
Population
27.5%

Population
99,975

Benefit program
Cash or non-cash

Total
19,702

Pet.
19.7%

S.E.
0.4%

Total
13,987

Pet.
16.4%

S.E.
0.4%

Total
13,383

Pet.
20.2%

S.E.
0.4%

1,659
584
927
201

1.7%
0.6%
0.9%
0.2%

0.1%
0.1%
0.1%
0.0%

1,577
921
542
130

1.8%
1.1%
0.6%
0.2%

0.1%
0.1%
0.1%
0.0%

2,468
1,932
460
185

3.7%
2.9%
0.7%
0.3%

0.2%
0.2%
0.1%
0.1%

19,539
16,520
9,946
1,347
3,122

19.5%
16.5%
9.9%
1.3%
3.1%

0.4%
0.4%
0.3%
0.1%
0.2%

13,680
10,934
7,405
1,085
2,599

16.0%
12.8%
8.7%
1.3%
3.0%

0.4%
0.3%
0.3%
0.1%
0.2%

12,980
9,700
7,506
1,075
2,658

19.6%
14.6%
11.3%
1.6%
4.0%

0.4%
0.4%
0.4%
0.1%
0.2%

Cash benefits

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Population
85,478

Fair

Poor

%of Total
Population
8.9%

Population
27,631

Benefit program
Cash or non-cash

Total
8,795

Pet.
31.8%

S.E.
0.8%

Total
4,614

Pet.
40.8%

S.E.
1.2%

2,770
2,467
189
195

10.0%
8.9%
0.7%
0.7%

0.5%
0.5%
0.1%
0.1%

1,954
1,749
*63
189

17.3%
15.5%
*0.6%
1.7%

1.0%
0.9%
0.2%
0.3%

8,448
6,058
5,444
749
2,067

30.6%
21.9%
19.7%
2.7%
7.5%

0.8%
0.7%
0.7%
0.3%
0.4%

4,382
3,231
2,784
389
1,116

38.8%
28.6%
24.6%
3.4%
9.9%

1.2%
1.1%
1.1%
0.5%
0.8%

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Population
11,298

%of Total
Population
3.6%

Total Population
310,867

Cash benefits

Population
66,323

%of Total
Population
21.3%

Total Population
310,867

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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.

As noted in the discussion of the
health factor above, USCIS would rely
on panel physician and civil surgeon
medical examination for purposes of
whether an individual’s circumstances
gives rise to this heavily weighted
negative factor. USCIS would consider it
a heavily weighed negative factor if the
panel physician or civil surgeon reports
a medical condition that is likely to
require extensive medical treatment or
institutionalization, or that will interfere

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with the alien’s ability to provide for
him- or herself, attend school, or work;
and the alien is uninsured or has health
insurance that constitutes a public
benefit under 212.21(b), or the alien has
no prospect of obtaining private health
insurance, or other non-governmental
means of paying for medical treatment.

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(e) Alien Previously Found Inadmissible
or Deportable Based on Public Charge
DHS is proposing to consider an alien
previously found inadmissible or
deportable based on public charge
grounds to be a high risk of becoming
a public charge in the future.582 Absent
countervailing positive factors and
evidence to show that current
582 See

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circumstances outweigh the conditions
that supported the finding of
inadmissibility, the previous finding
will carry heavy weight in determining
that an alien is likely to be a public
charge again.

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2. Heavily Weighed Positive Factors
Significant income, assets, and
resources play a major role in whether
an individual is likely to become a
public charge. In addition, as described
above, Tables 27 and 28 show a
relationship between the FPG and
welfare participation rates among both
U.S. citizens and noncitizens in receipt
of non-cash benefits in 2013. The
percentage of people receiving these
public benefits generally goes down as
the income percentage increases.
Specifically, 52.0 percent of U.S.
citizens living below 125 percent of the
FPG received non-cash benefits
compared to 42.4 percent of those living
between 125 and 250 percent of the
FPG, 36.9 percent of those living
between 250 and 400 percent of the
FPG, and 13.5 percent of those above
400 percent of the FPL. Noncitizen

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participation rates in non-cash benefit
programs among those living below 125
percent of the FPG was about 40
percent, compared to about 35 percent
of those either between 125 and 250
percent of the FPG or 250 and 400
percent of the FPG.583 Among
noncitizens living above 400 percent of
the FPG, the rate of receipt was 17.1
percent. Among U.S. citizens, the rate of
receipt of cash benefits among those
living below 125 percent of the FPG was
12.9 percent, compared to a rate of 10.3
percent among those living between 125
and 250 percent of the FPG, 5.5 percent
among those living between 250 and
400 percent of the FPG, and 1.9 percent
of those living above 400 percent of the
FPG. Among noncitizens, the rates of
receipt were 6.7 percent among those
living below 125 percent of the FPG,
about 2 to 3 percent among those either
living between 125 to 250 percent of the
583 The difference in rates between noncitizens
living below 125 percent of the FPG and those
living either between 125 and 250 percent of the
FPG, or 250 and 400 percent of the FPG, was not
statistically significant.

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FPG or living between 250 to 400
percent of the FPG, and 1.1 percent
among those living above 400 percent of
the FPG. Because many public benefit
programs determine eligibility based on
the FPG, individuals living above 250
percent of the FPG are less likely to
receive public benefits.
For these reasons, and based on the
data that follows, DHS proposes to
consider it a heavily weighed positive
factor if the alien has financial assets,
resources, support, or annual income of
at least 250 percent of the FPG in the
totality of the circumstances.584
However, DHS notes that an alien with
an annual income of less than 250
percent of FPG would not automatically
be inadmissible based on public charge.
Instead, all the factors as discussed
above would be considered in the
totality of the circumstances, which may
be favorable to be person regardless of
whether the income is below 250
percent of the FPG.
584 Income between 125 and 250 percent of the
FPL is considered a positive factor in the public
charge inadmissibility analysis.

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51205

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

Total Population
310,867
Benefit program
Cash or non-cash
Cash benefits

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

Total
10,506

Pet.
52.7%

S.E.
1.0%

Total
9,006

Pet.
43.3%

S.E.
0.9%

2,572
1,909
463
240

12.9%
9.6%
2.3%
1.2%

0.6%
0.6%
0.3%
0.2%

2,138
1,480
561
178

10.3%
7.1%
2.7%
0.9%

0.6%
0.5%
0.3%
0.2%

10,368
7,844
7,596
1,455
3,671

52.0%
39.3%
38.1%
7.3%
18.4%

1.0%
0.9%
0.9%
0.5%
0.7%

8,819
6,545
6,215
956
2,558

42.4%
31.5%
29.9%
4.6%
12.3%

0.9%
0.9%
0.9%
0.4%
0.6%

>250-400% FPG
%of Total
Population
Population
8.4%
26,101

Total Population
310,867
Benefit program
Cash or non-cash
Cash benefits

SSI
TANF
GA
Non-cash benefits
Medicaid

SNAP
Housing vouchers
Rent subsidy

>125-250% FPG
%of Total
Population
Population
6.7%
20,790

>400%FPG
%of Total
Population
Population
72.0%
223,865

Total
9,774

Pet.
37.4%

S.E.
0.8%

Total
31,194

Pet.
13.9%

S.E.
0.2%

1,439
1,036
313
120

5.5%
4.0%
1.2%
0.5%

0.4%
0.3%
0.2%
0.1%

4,280
3,227
844
361

1.9%
1.4%
0.4%
0.2%

0.1%
0.1%
0.0%
0.0%

9,635
7,528
6,107
995
2,103

36.9%
28.8%
23.4%
3.8%
8.1%

0.8%
0.8%
0.7%
0.3%
0.5%

30,207
24,525
13,167
1,240
3,229

13.5%
11.0%
5.9%
0.6%
1.4%

0.2%
0.2%
0.1%
0.0%
0.1%

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*Estimate is considered umeliable due to a high relative standard error.
-Estimate of zero.

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(f) Previously Excluded Benefits
DHS would not consider public
benefits under the proposed 8 CFR
212.21(b) that were previously excluded
under the 1999 Interim Field Guidance
if received before effective date of the
final rule. DHS, however, would
continue to consider cash benefits for
income maintenance SSI, TANF and
benefits for long-term
institutionalization (i.e. those
previously considered under the 1999
Interim Field Guidance) that an alien

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received before the effective date of the
final rule.585
585 Under the 1999 Interim Field Guidance, DHS
would consider the current receipt of cash benefits
for income maintenance or long-term
institutionalization at government expense in the
totality of the circumstances. See Field Guidance on
Deportability and Inadmissibility on Public Charge
Grounds, 64 FR 28689, 28690 (May 26, 1999) (‘‘If
at the time of application for admission or
adjustment an alien is receiving a cash public
assistance for income maintenance or is
institutionalized for long-term care (as discussed in
section 6, below), that benefit should be taken into
account under the totality of the circumstances test,
along with the other statutory factors under section
212(a)(4)(B)(i) and any [adjustment of status].’’).
DHS would also consider past receipt of cash
benefits for income maintenance or long-term
institutionalization at government expense in the

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Public benefits previously considered
under the 1999 Interim Field Guidance
and received prior to the effective date
of this rule would be considered as a
negative factor in the totality of the
circumstances analysis when
determining whether an alien is
inadmissible as likely at any time to
become a public charge. However, the
totality of the circumstances. See Field Guidance on
Deportability and Inadmissibility on Public Charge
Grounds, 64 FR 28689, 28690 (May 26, 1999)
(‘‘[P]ast receipt of cash income-maintenance
benefits does not automatically make an alien
inadmissible as likely to become a public charge,
nor does past institutionalization for long-term care
at government expense. Rather this history would
be one of many factors to be considered in applying
the totality of the circumstances test.’’).

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51206

receipt of such benefits would not be
considered as a heavily weighed
negative factor.

Table 29 provides a summary of how
benefits received prior to and after the
effective date of this proposed rule

would be considered under the
proposed rule.

Examples

Example 1: Benefits Excluded Under the
1999 Interim Field Guidance
Example 1 is based on the following
scenario: The DHS rule on public charge

inadmissibility under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), goes into effect on
January 1, 2019. The alien is the only
member of the household, has been paroled
into the United States pursuant to section
212(d)(5) of the Act for over five years, and
is seeking to adjust status based on a visa
category subject to public charge
inadmissibility. The alien files the
adjustment of status application on May 1,
2019, and the application is adjudicated on
September 1, 2019. HHS published the new
FPG in early January 2019, which contains
the same values as the 2018 FPG for purposes
of this example. For a household of 1, the
FPG is $12,140. Fifteen percent of the FPG
is $1,821 in a 12-month period. The alien is
certified to receive SNAP benefits for 36
months, beginning on January 1, 2018. For
the consecutive 12-month period between
January 1, 2018 and December 31, 2018, the
alien receives $2,160 in SNAP benefits. For
the consecutive twelve-month period
between January 1, 2019 and December 31,
2019, the alien receives $2,160 in SNAP
benefits. The alien received no other public
benefits. SNAP was previously excluded
under the 1999 Interim Field Guidance, but
is included in proposed 8 CFR 212.21(b).
Under proposed 8 CFR 212.22(d), the
SNAP benefits the alien received before

January 1, 2019, the effective date of the
public charge rule, would not be considered.
However, the SNAP benefits the alien
received on or after January 1, 2019 would
be considered if the aggregate annual value
of SNAP benefits received since the effective
date of the rule exceeds $1,821 (fifteen
percent of the FPG for the household of one
within any period of consecutive twelve
consecutive months). For the consecutive
twelve-month period between January 1,
2019 and September 1, 2019, the date of
adjudication, the alien had only received a
total of $1,620 in SNAP benefits, which is
less than the threshold amount. However,
because the alien is certified to receive
$2,160 in SNAP benefits for a consecutive
twelve-month period beginning after the
rule’s effective date, and such amount
exceeds fifteen percent of the FPG, these
benefits would be considered as a heavily
weighed negative factor in the totality of the
circumstances, as illustrated in Table 30. In
this case, absent other evidence tending to
show that the alien is unlikely to receive the
benefits covered by the certification, USCIS
would probably find that the alien is likely
to become a public charge and is ineligible
for adjustment of status.589

586 SNAP benefits received after the effective date
of the proposed rule will be valued as set forth in
proposed 8 CFR 212.24(a).
587 The 1999 Interim Field Guidance suggests that
any past or current receipt of the type of public
benefits included for consideration will be included
in the public charge inadmissibility determination.
See Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, 64 FR
28689, 28690 (May 26, 1999) (‘‘If at the time of
application for admission or adjustment an alien is
receiving a cash public assistance for income
maintenance or is institutionalized for long-term
care (as discussed in section 6, below), that benefit

should be taken into account under the totality of
the circumstances test, along with the other
statutory factors under section 212(a)(4)(B)(i) and
any AOS . . . . Past receipt of cash incomemaintenance benefits does not automatically make
an alien inadmissible as likely to become a public
charge, nor does past institutionalization for longterm care at government expense. Rather this
history would be one of many factors to be
considered in applying the totality of the
circumstances test. In the case of an alien who has
received cash income-maintenance benefits in the
past or who has been institutionalized for long-term
care at government expense, a Service officer
determining admissibility should assess the totality

of the alien’s circumstances at the time of the
application for admission or adjustment and make
a forward-looking determination regarding the
likelihood that the alien will become a public
charge after admission or adjustment.’’ (emphasis
added)).
588 See proposed 8 CFR 212.21(c).
589 Pursuant to proposed 8 CFR 212.24(a), for
SNAP benefits, DHS would calculate the value of
the benefit attributable to the alien in proportion to
the total number of people covered by the benefit,
based on the amount(s) deposited as defined in
212.21(b) which the benefits are received in the
Electronic Benefits Transfer (EBT) card account.

The following examples illustrate
how DHS will consider benefits
received prior to the effective date of the
rule for the purposes of making public
charge inadmissibility determinations.
These examples are for illustrative
purposes only and assume a closed
universe of facts for purposes of
simplicity. The examples are not
intended to represent actual possible
outcomes, as each case is reviewed
individually on its own merits. Under
the proposed rule, benefits received
prior to the effective date of the rule
would be excluded from consideration
unless such benefits would have been
considered under the 1999 Interim Field
Guidance.588 However, benefits received
after the effective date of the rule would
be considered to the extent that they are
a public benefit, as defined in 8 CFR
212.21(b).

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

Example 2: Benefits Excluded Under the
1999 Interim Field Guidance
Example 2 is based on the following
scenario: The DHS rule on public charge
inadmissibility under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), goes into effect on
January 1, 2019. An alien is the only member
of the household, has been paroled pursuant
to section 212(d)(5) of the Act for over five
years, and is seeking to adjust status based
on a visa category subject to a public charge
inadmissibility determination. The alien files
the adjustment of status application on May
1, 2020, and the application is adjudicated on
September 1, 2020. HHS publishes the
calendar year 2019 FPG in early January 2019
and the 2020 FPG in early January 2020. For
the purposes of this example, the FPG for
2019 and 2020 contains the same values as
the FPG for 2018, which is $12,140. Fifteen
percent of the FPG for 2018, 2019 and 2020
would be $1,821 in the relevant consecutive

12-month periods for this example .The alien
was certified to receive SNAP for 36 months
beginning in January 2018. The alien
received no other public benefits. For the
consecutive twelve-month period between
January 1, 2018 and December 31, 2018, the
alien received $2,160 in SNAP benefits. For
the consecutive twelve-month period
between January 1, 2019 and December 31,
2019, the alien received $2,160 in SNAP
benefits. Beginning on January 1, 2020,
however, the alien no longer receives any
SNAP benefits. The alien provided a benefits
termination letter as evidence along with the
alien’s adjustment application.
Under proposed 8 CFR 212.22(d), the
SNAP benefits the alien received before
January 1, 2019, the effective date of the
public charge rule, would not be considered.
However, the SNAP benefits the alien
received on or after January 1, 2019 would
be considered if the aggregate annual value

of SNAP benefits received since the effective
date of the rule exceeds $1,821 (fifteen
percent of the FPG for the household of one
within any period of consecutive twelve
consecutive months). For the consecutive
twelve-month period between January 1,
2019 and December 31, 2019, the SNAP
benefits the alien received exceeded the
fifteen percent threshold, and therefore
would be considered. Because the receipt
was within the 36 months immediately
preceding the application, it is a heavily
weighed factor in the totality of the
circumstances. The termination letter
suggests, however, that the alien is unlikely
to receive future public benefits. DHS would
weigh the termination letter along with the
other evidence, in the totality of the
circumstances. The preceding analysis is
summarized in Table 31.590

590 Pursuant to proposed 8 CFR 212.24(a), for
SNAP benefits, DHS would calculate the value of
the benefit attributable to the alien in proportion to

the total number of people covered by the benefit,
based on the amount(s) deposited as defined in

212.21(b) which the benefits are received in the
Electronic Benefits Transfer (EBT) card account.

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51209

Example 3: Benefits Previously Excluded
and Included Under the 1999 Interim Field
Guidance
The example is based on the following
scenario: The DHS rule on public charge
inadmissibility under section 212(a)(4) of the
Act, 8 U.S.C. 1182(a)(4), goes into effect on
January 1, 2019. An alien has been paroled
into the United States pursuant to section
212(d)(5) of the Act for over five year and is
seeking to adjust status based on a visa
category subject to the public charge
inadmissibility determination. The alien’s
household of three includes the alien and the
alien’s two U.S. citizen children. The alien
files an adjustment of status application on
May 1, 2019, and the application is
adjudicated on September 1, 2019. HHS
publishes the calendar year 2019 FPG in
early January 2019. For the purposes of this
example, the FPG for 2019 contains the same
values as the FPG for 2018. The relevant FPG
based on a household of one in a consecutive
twelve-month period is $12,140. Fifteen
percent of the average FPG for the
consecutive twelve-month period between
January 1, 2018 and FPG for December 31,
2018 is $1,821. Fifteen percent of the average
FPG for the consecutive twelve-month period
between January 1, 2019 and FPG for
December 31, 2019 is also $1,821.

For the consecutive twelve-month period
between January 1, 2018 and December 31,
2018, the alien’s household of 3 receives
$2,400 in SNAP benefits. The proportional
value of the $2,4000 SNAP benefit
attributable to the alien based on her
household size of 3 for this consecutive
twelve-month period would be $800, or one
third of $2,400. Similarly, for the consecutive
twelve-month period between January 1,
2019 and December 31, 2019, the alien’s
household is certified to receives $1,800 in
SNAP benefits for the a household size of 3.
The alien is also receiving TANF. For the
consecutive twelve-month period between
January 1, 2018 until December 31, 2018, the
alien also receives a proportionate share of
$100 per month in TANF benefits or $1,200
for the twelve-month period. The alien is
certified to continue to receive TANF at this
level through December 2019, and there is no
evidence that the alien has terminated
receipt.
Under proposed 8 CFR 212.22(d), the
SNAP benefits the alien received before
January 1, 2019, the effective date of the
public charge rule, would not be considered.
However, the SNAP benefits the alien
received on or after January 1, 2019 would
be considered if the cumulative value of all
monetizable benefits received exceeded

$1,821. TANF was considered under the
1999 Interim Field Guidance and therefore,
the total value of the benefit received prior
January 1, 2019 would be considered as a
negative factor in the totality of the
circumstances.591 TANF benefits received
after January 1, 2019 would be considered if
the total value of the alien’s receipt of one
or more public benefits exceeded $1,821
during the relevant consecutive twelvemonth period. At the time the alien’s
application was adjudicated on September 1,
2019, the alien received $600 in proportional
SNAP benefits and $900 in TANF benefits
during the consecutive 12-month period
between January 1, 2019 and September 1,
2019, which, cumulatively, is less than 15
percent of the FPG in the amount of $1,821.
Therefore, the alien’s receipt of SNAP and
TANF in 2019 would not be considered past
receipt of public benefits within the 36month period immediately preceding the
application. However, because the alien was
certified to receive both SNAP and TANF for
the entire consecutive twelve-month period
between January 1, 2019 and December 31,
2019 in a cumulative amount that exceeds
the fifteen percent threshold, this would be
a heavily weighed factor in the totality of the
circumstances, as illustrated in Table 32.

591 Note that considering the past receipt of
previously included benefits as a negative factor in
the totality of the circumstances is consistent with
how such benefits were treated under the 1999
Interim Field Guidance, under which an ‘‘officer
determining admissibility should assess the totality
of the alien’s circumstances at the time of the
application for admission or adjustment . . . The

longer ago an alien received such cash benefits or
was institutionalized, the less weight these factors
will have as a predictor of future receipt. Also, the
‘length of time an applicant has received public
cash assistance is a significant factor.’ The longer
an alien has received cash income-maintenance
benefits in the past and the greater the amount of
benefits, the stronger the implication that the alien

is likely to become a public charge. The negative
implication of past receipt of such benefits or past
institutionalization [sic], however, may be
overcome by positive factors in the alien’s case
demonstrating an ability to be self-supporting.’’
Field Guidance on Deportability and Inadmissibility
on Public Charge Grounds, 64 FR 28689, 28690
(May 26, 1999).

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DHS notes that the proposed
exclusion of certain benefits received
before the effective date may provide an
opportunity for public benefit granting
agencies to communicate the
consequences of receiving public
benefits, to the extent such agencies
deem appropriate. In addition, the
proposed exclusion provides advance
notice to aliens that DHS is considering
to change which public benefits it will
consider for purposes of public charge
inadmissibility determinations. If
finalized, this provision, coupled with
the proposed 60-day effective date,

would give aliens an opportunity to stop
receiving public benefits and obtain
other means of support before filing for
immigration benefits.
DHS welcomes comment on whether
DHS should consider receipt of public
benefits previously considered under
the 1999 Interim Field Guidance as
described in Table 29 at all, or if DHS
should consider the benefit(s) in some
other way than as a negative factor in
the totality of the circumstances.

M. Summary of Review of Factors in the
Totality of the Circumstances

592 The family status factor consideration entails
determining the alien’s household size and whether
the alien has his or her own household or is a part

of another individual’s household. Among
noncitizens in families with 3 or 4 people, about 20
percent received non-cash assistance, while about

30 percent of noncitizens in families of 5 or more
received non-cash benefits.

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An alien’s likelihood of becoming a
public charge, as discussed above, is
prospective and based on the totality of
the alien’s circumstances. The Form I–
944, Declaration of Self-Sufficiency,
would be used by DHS to assess
whether the alien is likely to become a
public charge based on the totality of
the circumstances. Table 33 below,
provides a brief summary of the totality
of the circumstances framework for
public charge inadmissibility
determinations. 592

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51211

Table 33. Totality of Circumstances Framework for Public Charge Determinations
Factor

Age

Health

Considerations

•
•
•

18SageS61
Age> 61
Age> 18

•

Evidence of any medical
condition( s) that:
(1) Is likely to require
extensive treatment or
institutionalization, or

Examples of Positive
or Negative Findings
Bv Factor
Positive
• 18SageS61

.

Negative
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

(2) Will interfere with
the alien's ability to care
for him- or herself, to
attend school, or to work

Positive
• Absence of any medical
conditions that is likely
to require extensive
medical treatment or
institutionalization or
that will interfere with
the alien's ability to care
for him- or herself, to
attend school, or to work

Weight of Factor

The degree to which the alien's age affects
otherwise makes the alien more or less likely to
become a public charge, such as by impacting the
alien's ability to work

The degree to which the alien's health makes the
alien more or less likely to become a public
charge, including whether the alien has been
diagnosed with a medical condition that is likely
to require extensive medical treatment or
institutionalization or that will interfere with the
alien's ability to provide and care for him- or
herself, to attend school, or to work upon
admission or adjustment of status

.

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

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Assets, Resources,
and Financial Status

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• Whether alien has a
household that he or she
supports
• Whether another
household is supporting
the alien
• Annual gross household
income excluding any
income from public
benefits
• Any additional income
from individuals not
included in the alien's
household who
physically reside with the
alien
• Additional income to the
alien by or source outside
of the household on a
continuing monthly or
yearly basis for the most
recent calendar year
excluding any income
from public benefits

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Positive/ Negative 592
Alien's household size in
relation to alien's
household assets and
resources

The degree to which the alien's household size
makes the alien more or less likely to become a
public charge

Positive
• Annual gross household
income 2 125% of the
most recent FPG based
on the household size; or
Household assets and
resources 2 5 times the
difference between the
total household income
and 125% of the FPG for
the household size

In General
The degree to which the alien's household's
income, assets, and resources make the alien more
or less likely to become a public charge

• Alien has sufficient
household assets and
resources to cover any
reasonably foreseeable
medical costs related to a
medical condition that is

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.

Heavil:~:

•

Weighed Positive
Household assets, resources, and suppmt 2
250% of the FPG for the household size

Alien is authorized to work and currently
employed with an annual household income 2
250% of the FPG for the household size

Heavil:~:

•

Weighed Negative
Alien cannot demonstrate current
employment, employment history, or
reasonable prospect of future employment

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Table 33. Totality of Circumstances Framework for Public Charge Determinations
Factor

Considerations

• Household cash assets
and resources, including
as reflected in checking
and savings account
statements covering 12
months prior to filing the
application
• Non-cash assets and
resources that can be
converted into cash
within 12 months, such
as net cash value of real
estate holdings minus the
sum of all loans secured
by a mortgage, trust deed,
or other lien on the home;

Examples of Positive
or Negative Findings
By Factor
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
• Alien has not applied for
or received any public
benefits, as defined in 8
CFR 212.2l(b), on or
after effective date of the
rule

Weight of Factor

•

Alien is currently receiving one or more public
benefits, as defined 8 CFR 212.2l(b).

•

Alien has received one or more public
benefits, as defined in 8 CFR 212.21(b),
within 36 months immediately preceding
filing his or her application for a visa,
admission, or adjustment of status

•

Alien was diagnosed with a medical condition
that is likely to require extensive medical
treatment or institutionalization or that will
interfere with the alien's ability to provide for
him- or herself, attend school, or work; and
the alien is uninsured and has neither the
prospect of obtaining private health insurance,
or the financial resources to pay for reasonably
foreseeable medical costs related to a the
medical condition

•

Alien was previously found inadmissible or
deportable on public charge grounds

annuities; securities;

•
•

•

•

•
•

retirement and
educational accounts; and
any other assets that can
be converted into cash
easily
Financial liabilities
Applied for or received
any public benefit as
defined in 212.2l(b) on
or after the effective date
Been certified or
approved to receive
public benefits, as
defined in 8 CFR
212.2l(b), on or after the
effective date
Applied for or received a
fee waiver for an
immigration benefit
request on or after the
effective date
Credit history and credit
score
Private health insurance
or the financial resources
to pay for reasonably
foreseeable medical costs
related to a medical
condition that is likely to
require extensive medical
treatment or

• Alien was not certified
or approved to receive
public benefits, as
detlned in S CFR
212.21(b), on or after the
effective date of the rule
• Alien has not applied for
or received an
immigration fee waiver
on or after the effective
date
• Alien has good credit
and a credit score
• Alien has 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

institutionalization, or

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Negative
• Alien's assets and
resources

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that will interfere with
the alien's ability to
provide care for him- or
herself, to attend school,
or to work

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Table 33. Totality of Circumstances Framework for Public Charge Determinations
Factor

Considerations

Examples of Positive
or Negative Findings
By Factor

Weight of 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

•
•
•
•

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Employment history
High school diploma or
higher education
Occupational skills,
certifications, or licenses
Proficiency in English or
in additional languages

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Positive
• Alien has adequate
education and skills to
obtain or maintain
employment sufficient to
avoid becoming a public
charge in the United

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The degree to which the alien has adequate
education and skills to either obtain or maintain
employment sufficient to avoid becoming a
public charge, if authorized for employment.

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Table 33. Totality of Circumstances Framework for Public Charge Determinations

Factor

Considerations

Examples of Positive
or Negative Findings
By Factor

Weight of 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
Support593
(if required)

• Sponsor's annual
income, assets, and
resources
• Sponsor's relationship to
the applicant
• Likelihood that the
sponsor would actually
provide financial support
to the alien

Positive
• Assets and resources ::0
125% of the most recent
Federal Poverty
Guidelines based on the
sponsor's household size
• Likely that sponsor
would provide financial
support to the alien

Disqualifying - Inadmissible
• Assets and resources < 125% of the most
recent FPG based on household size

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.

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

Below, DHS provides examples of
potential public charge inadmissibility
determinations. These examples are for
illustrative purposes only and assume a
closed universe of facts for purposes of
simplicity. The examples are not
intended to represent actual possible

outcomes, as each case is reviewed
individually on its own merits.

593 A sponsor must be able to demonstrate the
means to maintain an income of at least 125 percent
of the Federal Poverty Guidelines for the sponsor’s
household size. See INA section 213A, 8 U.S.C.
1183a. For aliens who are subject to the sponsor

requirements, if a sponsor is not able to have a
sufficient affidavit of support, the alien is
inadmissible based on public charge under INA
sections 212(a)(4) and 213A, 8 U.S.C. 1182(a)(4) and
1183a.

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1. Favorable Determination of
Admissibility
The following is an example (Table
34) of a set of facts that would likely

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51215

result in a favorable determination of
admissibility for public charge
purposes. An alien would need to meet
all other admissibility and eligibility
requirements of the immigration benefit
the alien is seeking.

594 Except that the absence of a sufficient affidavit
of support, where required, will lead to an
inadmissibility finding. See INA 212(a)(4)(C), (D), 8
U.S.C. 1182(a)(4)(C), (D).

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2. Unfavorable Determination of
Admissibility

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The following is an example (Table
35) of a set of facts that would likely

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result in an unfavorable determination
of admissibility for public charge
purposes. The alien may also be subject
to other inadmissibility grounds.

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Table 35: Example Applicant B
Factor

Considerations

Age

•

68

Health

•

Family Status

•

Arthritis and heart disease (Class B medical conditions)
that affect ability to work and require extensive medical
treatment, as indicated in the medical examination
Widow, adult child is providing alien with over 50% of
support. Household of 6 (alien, alien's adult child, and the
adult child's spouse, and 3 children)

Assets, Resources
and Financial
Status

•

Alien has no earned income

•

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Affidavit of
Support
Prospective
Immigration
Status and Period
of Stay
Analysis in the
totality of the
circumstances:

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Weight
of Factor

Negative

Neutral

Positive - in
comparison to
assets and
resources
Negative

Neutral

Neutral

Annual household gross income is at 125 percent of the
FPG for household of 6 (including adult child's income)

Positive

Neutral

•

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
for over the last 12 months

Negative

Heavily
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
is likely to require extensive medical treatment or
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.
No history of employment
No high school diploma or other education or skills

Negative

Heavily
weighed

Negative

Neutral

Positive

Neutral

Neutral

Neutral

•
•
•
•
•

Sufficient Affidavit of Support from adult child at 125
percent of the FPG for household of 6
Applying for Adjustment of Status under Family Category
-Parent of a U.S. citizen (IR-0)
LPR/Permanent period of stay

Neutral

Although the alien's family status, assets, sources, and financial status (household income is at
125 percent of the FPG), and sufficient affidavit of support are positive factors, the alien's
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.

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Positive or
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Findings By
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Negative

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N. Valuation of Monetizable Benefits
DHS has consulted with the relevant
Federal agencies regarding the inclusion
and consideration of certain
monetizable public benefits, and is
proposing a benefit-specific
methodology to establish a value for
certain monetizable benefits in order to
determine whether the alien has
received in excess of the 15 percent
threshold. This methodology ensures
that for benefits which are provided on
the basis of a household and not the
individual, USCIS would only take into
consideration the portion of the benefit
that is attributable to the alien.
However, in circumstances where the
alien is not eligible for a given benefit
but is part of a household that receives
the benefit (such as by living in a
household that receives a housing
benefit by virtue of other household
members’ eligibility), such benefit based
on the eligibility and receipt of such
benefit(s) by his/her household
members, USCIS would not consider
such use for purpose of a public charge
inadmissibility determination.
In valuing the cash monetizable
benefits, USCIS would calculate the
amount of the benefit attributable to the
alien in proportion to the other
household members. Thus, for instance,
a household cash benefit of $600, shared
among three eligible individuals, would
be attributed to the alien in the amount
of $200.
In valuing the non-cash monetizable
benefits, DHS would use the same
methodology, as follows:
• With respect to the Supplemental
Nutrition Assistance Program (SNAP, or
formerly called ‘‘Food Stamps’’), 7
U.S.C. 2011 to 2036c, DHS would
calculate the annual aggregate amount
of the benefit attributable to the alien
alone, based on the amount(s) deposited
monthly in the Electronic Benefits
Transfer (EBT) card account. This
calculation would be performed based
on the alien’s reporting of the monthly
amounts deposited. DHS would divide

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the amount received by the number of
eligible household members enrolled in
the benefit.
• With respect to the Section 8
Housing Assistance under the Housing
Choice Voucher Program, as
administered by HUD under 24 CFR
part 984; 42 U.S.C. 1437f and 1437u,
DHS would calculate the proportional
value of the voucher attributable to the
eligible alien alone, based on the
amount of the benefit received. In
calculating the proportional value of the
benefit, DHS would use the same
methodology—it would divide the value
of the benefit by the number of people
receiving it. DHS also welcomes
comments on a potential alternative
methodology, under which DHS would
assign value to the benefit using HUD
rules at 24 CFR 5.520.
• With respect to Section 8 ProjectBased Rental Assistance (including
Moderate Rehabilitation) under 24 CFR
parts 5, 402, 880–884 and 886, DHS
would calculate the proportional value
of the rental assistance attributable to
the eligible alien alone, based on the
amount of the benefit received. In
calculating the proportional value of the
benefit, DHS would use the same
methodology as above—it would divide
the value of the benefit by the number
of people receiving it. DHS also
welcomes comment on a potential
alternative methodology, under which
DHS would assign value to the benefit
using HUD rules at 24 CFR 5.520.
DHS seeks public comments on these
proposed approaches described above,
including any studies or data that would
support an alternative approach.
O. Public Charge Bond for Adjustment
of Status Applicants
DHS has the broad authority to
prescribe forms of bonds as is deemed
necessary for carrying out the
Secretary’s authority under the
provisions of the Act.595 Additionally,
an alien who DHS has determined to be
595 See

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inadmissible based on public charge
grounds may, if otherwise admissible,
be admitted at the discretion of the
Secretary upon giving a suitable and
proper bond.596 Currently, the
regulatory authority for posting a public
charge bond can be found in 8 CFR
103.6 and 8 CFR 213.1.
1. Overview of Immigration Bonds
Generally
Immigration bonds may generally be
secured by cash or cash equivalents, or
may be underwritten by a surety
company certified by the Department of
Treasury under 31 U.S.C. 9304–9308.597
A bond, including a surety bond, is a
contract between the United States (the
obligee) and an individual or a company
(obligor) who pledges a sum of money
to guarantee a set of conditions set by
the government concerning an alien.598
Surety bonds are bonds in which the
surety company and its agents serve as
co-obligors on the bond. Such company
and its agents are jointly and severally
liable for the payment of the face
amount of the bond if the bond is
breached.599
2. Overview of Public Charge Bonds
(a) Public Charge Bonds
Public charge bonds are intended to
hold the United States and all states,
territories, counties, towns,
municipalities and districts harmless
against aliens becoming a public
charge.600 A public charge bond is
issued on the condition that the alien
does not become a public charge. If the
government permits the alien to submit
a public charge bond, the government
596 See

INA section 213, 8 U.S.C. 1183.
generally 8 CFR 103.6.
598 See, e.g., Matter of Allied Fid. Ins. Co., 19 I&N
Dec. 124, 125–26 (BIA 1984) (discussing the
contractual nature of delivery bonds submitted
under 8 CFR 103.6); see Merriam-Webster Online
Dictionary, Definition of Bond, https://
www.merriam-webster.com/dictionary/bond (last
updated Sept. 3, 2018).
599 See 8 CFR 103.6(e).
600 See INA section 213, 8 U.S.C. 1183.
597 See

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admits the alien despite having found
the alien inadmissible as likely to
become a public charge.
If an alien admitted after submitting a
public charge bond becomes a public
charge, the bond is breached. The bond
is breached regardless of whether a
demand for payment of the public
expense has been made otherwise, as
reflected below.601
(b) Current and Past Public Charge Bond
Procedures

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Regulations governing public charge
bonds can be found at 8 CFR 103.6 and
8 CFR 213.1. Agency guidance is
provided in the Adjudicator’s Field
Manual (AFM), Chapter 61.1. According
to the AFM, although DHS has the
authority to require public charge
bonds, the authority has rarely been
exercised since the passage of IIRIRA in
1996, which codified the affidavit of
support requirements.602 Consequently,
USCIS does not currently have a process
601 See INA section 213, 8 U.S.C. 1183; see also
Matter of Viado, 19 I&N Dec. 252, 253–54 (BIA
1985).
602 See AFM, Chapter 61.1 (‘‘(b) Policy. Although
USCIS has the authority to require a public charge
bond, such authority is rarely exercised in light of
the statutory changes contained in the Illegal
Immigration Reform and Immigrant Responsibility
Act of 1996 (IIRIRA) which created the enforceable
affidavit of support (see Chapter 20.5 of this field
manual).’’ IIRIRA section 564(f) amended INA
section 213, 8 U.S.C. 1183. In addition to the
regular bonding requirements, IIRIRA section 564(a)
through (e) also established 3-year pilot programs
in 5 district offices of INS to require aliens to post
a bond in addition to the affidavit requirements
under INA section 213, 8 U.S.C. 1183a, and the
deeming requirements under section 421 of the
Personal Responsibility and Work Opportunity
Reconciliation Act of 1996, 8 U.S.C. 1631. Congress
provided that any pilot program established
pursuant to this subsection shall require an alien to
post a bond in an amount sufficient to cover the
cost of benefits described in INA section
213A(d)(2)(B), 8 U.S.C. 1183a, and for the alien and
the alien’s dependents, and shall remain in effect
until the departure, naturalization, or death of the
alien. See IIRIRA, Public Law 104–208, div. C,
section 564(a), 110 Stat 3009–546, 3009–683. Suit
on that bond was supposed to be brought under the
terms and conditions of INA section 213A, 8 U.S.C.
1183a. Within 180 days after the date of IIRIRA,
which was on September 30, 1996, the Attorney
General was directed to issue regulations
establishing the pilot program, including criteria
and procedures for certification of bonding
companies, debarment of any such company that
fails to pay a bond, and criteria for setting the
amount of the bond to assure that the bond is in
an amount that is not less than the cost of providing
benefits under INA section 213A(d)(2)(B) for the
alien and the alien’s dependents for 6 months. See
IIRIRA, Public Law 104–208, div. C, section 564(b),
110 Stat 3009–546, 3009–683 to -684. Congress
furthermore imposed an annual reporting
requirement, starting 9 months after the date of the
implementation of the program. See IIRIRA, Public
Law 104–208, div. C, section 564(d), 110 Stat 3009–
546, 3009–684. DHS is unable to locate
implementing materials relating to this pilot
program.

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in place to regularly accept public
charge bonds.
Prior to 1996, INS had issued public
charge bond guidance in the Operating
Instructions (OI) 103.6 and 213.1,603 and
its predecessor, the Examinations
Handbook, at Part VI, VI–88 through VI–
98.604 Although these manuals do not
appear to comprehensively address
public charge bonds, the following
summarizes parameters of past public
charge bond practices:
A consular officer would advise an
immigrant visa applicant required to
post a bond in writing, specifying the
amount to be posted with INS. Without
such a letter, INS would not accept the
posting of a bond.605 INS informed the
DOS of the posting of the bond as soon
as an alien-designated obligor in the
United States posted the bond.606
According to 8 CFR 213.1, a public
charge bond had to be at least $1,000.
As soon as a bond was posted, INS
monitored the bond periodically.607
Any interested party could request the
review and cancellation of the bond at
any time.608 Upon receiving the request,
INS would notify the alien of his or her
opportunity to present evidence to
establish that the bond was not
breached and that the alien was not
likely to become a public charge in the
future; receipt of public assistance was
ordinarily sufficient to warrant the
continuation of the bond.609 According
to the OIs, if no request to cancel the
bond was made, INS would review the
bond every 5 years to determine
whether INS should cancel the bond.
Ordinarily, and in addition to the
statutory reasons for cancellation, a
bond was cancelled after the initial 5year period (or earlier, if warranted) if
the review showed that the alien had
not and would not likely become a
public charge.610 Additionally, and in
603 See INS Operating Instructions (Nov. 1997)
[hereinafter OI]. INS removed Operating
Instructions in 1998 and transferred the parts
relating to the bond to the Inspector’s Field Manual,
Chapter 45. See Transmittal Memo (TM2), M–450
Inspector’s Field Manual, Dated March 13, 1998,
and Transmittal Memo (TM1), M–450 Inspector’s
Field Manual, Dated June 24, 1997. No further
guidance on public charge bond processing appears
to have been issued.
604 See INS Examinations Handbook, Part VI, VI–
88 through VI–98 (Oct. 1, 1988) [hereinafter
Examinations Handbook].
605 See Examinations Handbook, Part VI, at VI–89;
see OI 213.1.
606 See Examinations Handbook, Part VI, at VI–89;
see OI 213.1.
607 See Examinations Handbook, Part VI, at VI–91
and VI–92; see OI 103.6(c)(1).
608 See Examinations Handbook, Part VI, at VI–94;
see OI 103.6(c)(1).
609 See Examinations Handbook, Part VI, at VI–94;
see OI 103.6(c)(1).
610 See Examinations Handbook, Part VI, at VI–94;
see OI 103.6(c)(1).

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51219

accordance with 8 CFR 103.6(c)(1), the
bond could be cancelled if INS
determined that there is no likelihood
that the alien would become a public
charge.611
If the alien became a public charge by
using public assistance, the bond was
breached in the necessary amount with
any remainder continued in effect.612
According to the Examinations
Handbook, if the alien had received any
public funds, and the agency from
which the alien had obtained the funds
requested repayment, the obligor was
required to pay the actual expenses to
INS within thirty days. If no payment
was made, the obligor was then required
to pay the total amount due plus $200
to the INS. If the payment was not
made, the amount was then extracted
from the bond itself.613
The 1999 public charge guidance did
not detail any procedures on public
charge bonds.614 The current USCIS
guidance in the Adjudicator’s Field
Manual addresses the possibility of a
bond in certain circumstances, and
outlines that upon termination on
account of the statutory reasons, the
sums or other security held to secure its
performance, except to the extent it is
forfeited for violation of its terms, must
be returned to the person who posted
the bond, or to his legal
representatives.615
Although the current bond form used
by U.S. Immigration and Customs
Enforcement (ICE), Immigration Bond
(Form I–352), references public charge
bonds, ICE does not administer public
charge bonds. However, Form I–352
does specify that the obligor shall pay
to the United States or to any State,
territory, county, town, municipality or
district that provided public assistance
any and all charges up to the total
amount of the bond. In the event that
the public authority providing
assistance is not authorized to accept
reimbursement, the obligor agrees that
he or she will pay DHS.
611 See Examinations Handbook, Part VI, at VI–94;
see OI 103.6(c)(1).
612 See Examinations Handbook, Part VI, at VI–95;
see OIs 103.6(c)(1).
613 See Examinations Handbook, Part VI, at VI–95.
614 Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, 64 FR
28689 (May 26, 1999).
615 See AFM Ch. 61.1, Posting, Cancellation and
Breaching of Public Charge Bonds. As already
mentioned, USCIS’ bond authority is rarely
exercised in light of the statutory changes contained
in the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) which created
the enforceable affidavit of support.

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(c) Relationship of the Public Charge
Bond to the Affidavit of Support
The Affidavit of Support and the
public charge bond are distinct, but
complementary, means to recover costs
associated with the alien’s receipt of
public benefits. As discussed above,
certain applicants seeking immigrant
status must submit an enforceable
Affidavit of Support under Section
213A of the INA (Form I–864).616 The
affidavit of support is a contract
between the alien’s sponsor and the U.S.
Government that imposes on the
sponsor a legally enforceable obligation
to support the alien. The obligation may
be enforced against the sponsor by the
sponsored alien, the Federal
Government, any State or any political
subdivision thereof, or by any other
entity that provides any means-tested
public benefit.617 According to section
213A(b) of the Act, 8 U.S.C. 1183a(b), a
non-governmental entity that provided
such benefit(s) or the appropriate entity
of the Federal Government, a State, or
any political subdivision of the State
must request reimbursement by the
sponsor in the amount of the
unreimbursed costs of the benefits or,
after non-payment, bring an action
against the sponsor under section 213A
of the Act, 8 U.S.C. 1183A, no later than
10 years after the date on which the
sponsored alien last received any
means-tested benefit to which the
affidavit of support applies.618 Section
213A of the Act, 8 U.S.C. 1183a, does
not require a sponsored immigrant to
request the sponsor or joint sponsor to
comply with the support obligation
before bringing an action to compel
compliance.619 Neither USCIS nor DHS
are directly involved in enforcing an
Affidavit of Support sponsor’s
obligation to reimburse an agency.
USCIS does, however, make information

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616 See

INA section 213A, 8 U.S.C. 1183a.
617 See INA section 213A(a)(1)(B), 8 U.S.C.
1183a(a)(1)(B).
618 See INA section 213A(b), 8 U.S.C. 1183A(b).
Implementing regulations on the request for
reimbursement and actions to compel
reimbursement can be found at 8 CFR 213a.4.
Remedies available to enforce an affidavit of
support under this section include any or all of the
remedies described in 28 U.S.C. 3201 (Judgement
liens), 28 U.S.C. 3203 (Execution), 28 U.S.C. 3204
(Installment payment order), or 28 U.S.C. 3205
(Garnishment), as well as an order for specific
performance and payment of legal fees and other
costs of collection and include corresponding
remedies available under State law. See INA section
213A(c), 8 U.S.C. 1183a(c). A Federal agency may
seek to collect amounts owed under this section in
accordance with the provisions of subchapter II of
31 U.S.C. Chapter 37 (Claims of the United States
Government). See INA section 213A(c), 8 U.S.C.
1183a(c).
619 See 8 CFR 213a.4(a)(2).

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about the sponsor available to an agency
seeking reimbursement.620
Under section 213 of the Act, 8 U.S.C.
1183, an alien may be admitted to the
United States at the discretion of the
Attorney General upon the giving of a
suitable and proper bond. In contrast to
the affidavit of support, which is a
contract between the government and
the sponsor, a bond, including a surety
bond, is a contract between the United
States (the obligee) and an individual or
a company (obligor) who pledges a sum
of money to guarantee conditions set by
the government concerning an alien.621
Thus, there are distinct differences
between the affidavit of support and the
bond. For example, unlike the affidavit
of support, in which the alien as well as
the government entity may have a cause
of action to recover expenses, only the
government entity being part of the
bond contract may pursue recovery from
the obligor if the bond is breached and
only the obligor may challenge the
breach determination.622
In section 213 of the Act, 8 U.S.C.
1183, Congress directly addresses the
affidavit of support and the deeming
requirement imposed in section 213 of
the Act when it added a parenthetical to
the public charge bond provision stating
that the alien may be admitted ‘‘(subject
to the affidavit of support requirement
and attribution of sponsor’s income and
resources under Section 213A)’’ upon
having posted a suitable bond.623 In the
provision amending section 213 of the
Act, section 564(f) of IIRIRA, Congress
emphasized that the bond was to be
considered in addition to the sponsor
and deeming requirements under
section 213A of the Act, 8 U.S.C. 1183A,
and not instead of them.624 The Joint
Explanatory Statement in the House
Conference Report for IIRIRA confirms
620 See

8 CFR 213a.4(a)(3). Upon receipt of a duly
issued subpoena, USCIS will provide the agency
with a certified copy of a sponsor’s Form I–864.
Additionally, USCIS routinely provides the
sponsor’s name, address and Social Security
number to Federal, state, and local agencies
providing means-tested benefits.
621 See, e.g., Matter of Allied Fid. Ins. Co., 19 I&N
Dec. 124, 125–26 (BIA 1984).
622 Compare INA section 213A(b)(2), 8 U.S.C.
1183a, with INA section 213, 8 U.S.C. 1183. See
also Matter of Ins. Co. of N. Am., 17 I&N Dec. 251,
251 (BIA 1978) (finding that only the obligor and
the obligee are party to the contract and that only
the obligor, but not the alien, may challenge the
government breach determination).
623 See IIRIRA, Public Law 104–208, div. C,
section 564(f), 110 Stat. 3009–546, 3009–684.
624 See IIRIRA, Public Law 104–208, div. C,
section 564(f), 110 Stat. 3009–546, 3009–684 (‘‘(f)
Bonds in addition to sponsorship and deeming
requirements—Section 213 (8 U.S.C. 1183) is
amended by inserting ‘(subject to the affidavit of
support requirement and attribution of sponsor’s
income and resources under section 213A)’ after ‘in
the discretion of the Attorney General.’ ’’).

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that Congress intended that bonds
‘‘should be required in addition to, and
not in lieu of, the new sponsorship and
deeming requirements of section 213A
of the Act, 8 U.S.C. 1183a.’’ 625
Correspondingly, Congress also retained
in section 213 of the Act, 8 U.S.C. 1183,
the longstanding concept that suit on
the bond may be made irrespective of
the reasons for the breach and
irrespective of whether a demand for
payment of public expenses have been
made.626
(d) Summary of Proposed Changes
In this rule, DHS proposes to clarify
when an alien seeking adjustment of
status will be permitted to post a public
charge bond under DHS’s authority
outlined in sections 103 and 213 of the
Act, 8 U.S.C. 1103 and 1183.
Additionally, as reflected below, DHS
proposes to establish a new minimum
bond amount of $10,000 (adjusted
annually for inflation), explain the
circumstances under which a public
charge bond will be cancelled, as well
as establish specific conditions under
which a public charge bond will be
breached.627 Finally, DHS proposes
processing fees for the initial
submission of the Public Charge Bond
(Form I–945) and for the Request for
Cancellation of Public Charge Bond
(Form I–356); both fees would be
initially set at $25. USCIS plans to
establish a process to accept and process
public charge bonds, which would be
available on the effective date of the
final rule. DHS welcomes comments on
any aspect of the public charge bond or
public charge bond process, including
whether the minimum public charge
bond amount should be higher or lower,
and possible ranges for that amount.
3. Permission To Post a Public Charge
Bond
First, the proposed regulation clarifies
that permitting an alien who is found
inadmissible as a public charge but is
otherwise admissible to submit a public
charge bond is within DHS’s
discretion.628 Section 213 of the Act
gives DHS discretion to allow an alien
625 See H.R. Conf. Rep. No. 104–828, at 243 (1996)
(Conf. Rep.).
626 See INA section 213, 8 U.S.C. 1183; see also
Matter of Viado, 19 I&N Dec. 252, 253 (BIA 1985)
(distinguishing inadmissibility under section
212(a)(4) of the Act and a public charge bond from
deportability under section 237(a)(5) of the Act);
Matter of B, 3 I&N Dec. 323, 326 (BIA 1948)
(holding that before an alien could be considered
deportable on public charge ground, the state
authorities must have demanded repayment of
charges for services rendered and the charges must
thereafter have remained unpaid.).
627 See proposed 8 CFR 213.1.
628 See proposed 8 CFR 213.1.

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
to post a ‘‘suitable and proper’’ public
charge bond if the alien is otherwise
admissible. Therefore, DHS proposes
that in circumstances under which
USCIS determines, after a finding of
inadmissibility on the public charge
ground that a favorable exercise of
discretion is warranted, USCIS will
notify the alien of the possibility to
submit a bond and USCIS will specify
the bond amount and bond conditions.
The alien would then be permitted to
submit the appropriate form for the
public charge bond in accordance with
the form instructions and with the
appropriate fee. DHS proposes that a
public charge bond could only be
submitted on the alien’s behalf after
USCIS makes this option available to
the alien, and that USCIS would reject
any unsolicited attempt to submit a
bond.
The same factors that weighed
positively when making the public
charge inadmissibility determinations
will generally indicate that offering the
option of a public charge bond to an
alien is warranted. Ultimately, the
purpose of the public charge bond is to
allow DHS to admit an alien who is
inadmissible as likely to become a
public charge, but who warrants a
favorable exercise of discretion. DHS
believes that offering a public charge
bond in the adjustment of status context
would generally only be warranted in
limited circumstances in which the
alien has no heavily weighed negative
factors, but the presence of such factors
would not automatically preclude DHS
from offering a public charge bond. As
explained above, DHS would consider
the heavily weighed negative factors
particularly indicative of the likelihood
that an alien would become a public
charge. However, as is the case with any
discretionary determination, DHS may
also consider any of a range of positive
and negative factors applicable to the
alien’s case when determining whether
the alien should be offered the option to
post a public charge bond and be
admitted to the United States on bond.
For example, an officer could consider
whether allowing the alien to become a
lawful permanent resident would offer
benefits to national security, or would
be justified for exceptional
humanitarian reasons. Another example
in which USCIS may offer an alien the
possibility to post a bond would be if an
alien had a weak financial status, had
received public benefits 40 months prior
to applying for immigration status, and
had a medical condition, but the alien’s
prospect of obtaining medical insurance
(that does not meet the definition of a
public benefit under proposed 8 CFR

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212.21(b)) is good and the grant of
admission upon public bond would be
in the interest of family unity.
4. Bond Amount and Submission of a
Public Charge Bond
DHS proposes that, in cases in which
USCIS has determined that offering a
public charge bond to an alien is
warranted, the public charge bond be set
at no less than $10,000, annually
adjusted for inflation based on the
Consumer Price Index for All Urban
Consumers (CPI–U),629 and rounded up
to the nearest dollar. This would raise
the amount that is currently stated in 8
CFR 213.1 from no less than $1,000 to
no less than $10,000.
Proposing a base amount sufficient for
a public charge bond based on historical
public benefit data is difficult, because
the amount of average public benefit
being considered under the proposed
rule depends on the public benefit the
person receives and how long the
person receives the benefit. The broad
range of public benefits available to
individuals on the Federal, State, and
local level, but not necessarily to
immigrants, renders such a
determination even more complex.
As indicated above, DHS proposes to
set the base amount of the public charge
bond at $10,000. The current 8 CFR
213.1 refers to a bond amount of at least
$1,000. 8 CFR 213.1 was promulgated in
July of 1964.630 This provision has not
been updated and inflation has never
been accounted to represent present
dollar values. Simply adjusting the
amount for inflation using CPI–U would
bring the bond floor in June 2018 to
about $8,100.631 DHS notes that bond
amounts could be $1,000 or more (in
1964 dollars) and once adjusted for
inflation, these amounts are equivalent
to $8,100 or more in present dollar
values. Additionally, when examining
previous public charge bonds granted by
legacy immigration agencies, DHS has
found that the minimum amount of
approved public charge bonds remained
relatively stable in inflation-adjusted
dollars and fluctuated around or above
629 U.S. Bureau of Labor Statistics, Consumer
Price Index for All Urban Consumers, https://
data.bls.gov/cgi-bin/surveymost?cu (select ‘‘U.S. All
items, 1982–84=100—CUUR0000SA0’’) (last visited
Sept. 5, 2018).
630 Miscellaneous Amendments to Chapter, 29 FR
10579 (July 30, 1964).
631 DHS uses the semi-annual average for the first
half of 2018 and the annual average from 1964 from
the historical CPI–U for U.S. City Average, All
Items. See https://www.bls.gov/cpi/tables/
supplemental-files/historical-cpi-u-201806.pdf.
Calculation: Annual average for 1st half of 2018
(250.089)/annual average for 1964 (31) = 8.1; CPI–
U adjusted present dollar amount = $1,000 * 8.1 =
$8,100.

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$10,000.632 Accordingly, DHS proposes
that $10,000 would be an amount that
would provide USCIS with an
appropriate starting point when
determining the public charge bond
amount that is minimally necessary to
ensure that United States can recoup
cost of public benefits received by the
alien. Additionally, as with determining
whether to offer an alien the option of
posting a public charge bond, USCIS
will consider the alien’s individual
circumstances when determining the
exact amount of the bond the alien is
required to post.
If USCIS determines that the alien
seeking an adjustment of status may
submit a public charge bond, neither the
alien nor an obligor, including a surety
company, would be able to appeal the
amount of the bond required.633 As
discussed more fully in this preamble,
DHS has discretion to allow an alien to
post a public charge bond ‘‘in such
amount and containing such
conditions’’ as DHS may prescribe.
Given the discretionary nature of DHS’s
authority under section 213 of the Act,
8 U.S.C. 1183, DHS has determined that
the bond amount would not be
appealable administratively either to the
AAO or the BIA, because neither
administrative body has jurisdiction
over this discretionary determination.634
As indicated above, under this
proposed rule, USCIS would notify the
alien of the bond amount and
conditions, including the type of bond
the alien may submit. Each submission
would be on the form designated and in
accordance with the applicable
instructions and fees prescribed in 8
CFR 103.7. While the proposed rule
632 See, e.g., Wallis v. U.S. ex rel. Mannara, 273
F. 509, 511 (2d Cir. 1921) ($1000 public charge
bond posted in September 1920, which would
amount to about $12,600.30 in July 2018); Matter
of Viado, 19 I&N Dec. 252, 252 (BIA 1985) ($5000
bond posted in February 1979, which would
amount to about $$18,234.88 in July 2018); In re
Obligor, 2007 WL 5326596, at *1 (AAO June 6,
2007) (adjustment upon $10,000 bond in June 1999,
which would amount to about $15,162.82 in July
2018). For purposes of these calculations, DHS used
the CPI Inflation Calculator from the Bureau of
Labor Statistics at https://www.bls.gov/data/
inflation_calculator.htm (last visited Aug. 20th,
2018).
633 See proposed 8 CFR 213.1(b).
634 See United States ex rel. Chanin v. Williams,
177 F. 689, 690 (2d Cir. 1910) (‘‘The matter of
admission under bond of a person once found to be
likely to become a public charge is by the statute
confided to the Secretary, and we do not see why
his refusal to admit is not an adverse exercise of
such discretion in any particular case. His reasons
for refusal may or may not seem persuasive to a
court; but it is to him, not to the court, that Congress
has confided the discretion.’’); see also In re
Obligor, 2007 WL 5326596, at *1 (AAO June 6,
2007) (sustained appeal that public charge bond
was not breached). The BIA does not have
jurisdiction. 8 CFR 1003.1(b)

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retains the options for a surety bond or
a cash or cash equivalent such as a
cashier’s check or money order deposit
and agreement to secure a bond, due to
operational feasibility considerations
USCIS plans to initially allow for only
surety bonds.635 For example, surety
bonds do not involve the actual
exchange of money until the bond is
breached, while the undertaking of cash
bonds involves additional accounting
mechanisms, including the management
of interest. DHS proposes to use new
USCIS Form I–945, Public Charge Bond
for this purpose. As discussed in greater
detail below, DHS is proposing a $25
public charge bond processing fee to be
submitted with the Form I–945.
For all public charge surety bonds, an
acceptable surety company is generally
one that appears on the current Treasury
Department Circular 570 as a company
holding the requisite certificate of
authority to act as a surety on Federal
bonds.636 Treasury-certified sureties
have agents throughout the United
States from whom aliens could seek
assistance in procuring an appropriate
bond.637 The Department of the
Treasury certifies companies only after
having evaluated a surety company’s
qualifications to underwrite Federal
bonds, including whether those sureties
meet the specified corporate and
financial standards. Under 31 U.S.C.
9305(b)(3), a surety (or the obligor) must
carry out its contracts and comply with
statutory requirements, including
prompt payment of demands arising
from an administratively final
determination that the bond had been
breached.
If an alien successfully posts a public
charge bond in the amount and under
the conditions specified in the form
instructions and USCIS notice, USCIS
will continue to adjudicate the alien’s
application for adjustment of status and
will grant such application if all
eligibility criteria are met. Additionally,
if the bond has been successfully
posted, USCIS must ensure that the
bond is maintained during the effective
period of the bond. To achieve this goal,
DHS proposes that an obligor would
need to notify DHS within 30 days of
any change in the obligor’s or the alien’s
physical and mailing address. Given the
contractual nature of the public charge
bond, the change of address requirement
imposed is similar to the one imposed
on a sponsor’s change of address
635 See

proposed 8 CFR 213.1(b)(1).
8 CFR 103.6(b); see also proposed 8 CFR
103.6, as published in 83 FR 25951 (June 5, 2018).
637 See Dep’t of Treasury Circular 570, Listing of
Approved Sureties (July 1, 2018).
636 See

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requirement for purposes of the affidavit
of support under 8 CFR 213a.3, except
that the obligor would also need to
notify USCIS of the bonded alien’s
change of address. An alien would still
need to comply with the change of
address requirements under section 265
of the Act, 8 U.S.C. 1305, and 8 CFR
265.1 to notify USCIS of his or her
change of address.
If the alien does not respond to the
notice soliciting a public charge bond,
or the bond submitted does not comply
with the bond amount and conditions
set by USCIS, USCIS will deny the
alien’s application. Given the
complexity of a bond process, DHS
plans to issue separate guidance
addressing the specifics of public charge
bond submission.
5. Public Charge Bond Substitution
DHS proposes that if USCIS accepts a
bond of limited duration, the bond on
file must be substituted with a new
bond 180 days before the bond on file
with USCIS expires.638 A bond of
limited duration is a bond that expires
on a date certain regardless of whether
the statutory terms for cancellation of
such a bond have been met (i.e.,
naturalization, permanent departure, or
death of the alien). A bond of unlimited
duration is a bond that does not have a
specific end date but ends upon USCIS
canceling the bond. Bonds of limited
duration are sometimes easier and
cheaper to obtain and DHS is proposing
to allow for this option so long as a
substitute bond is valid and effective
before the expiration date of the bond
on file. Because a bond has to be
maintained until cancelled by USCIS,
substitution ensures continuous
indemnification of the United States
against the alien receiving public
benefits until the conditions for the
cancellation of the bond have been met.
Additionally, requiring that the
substitute bond for a bond of limited
duration is submitted to DHS at least
180 days before the expiration of the
bond previously submitted expires
permits USCIS to allow for some time to
adjudicate the sufficiency of any
substitute bonds, which further ensures
continuous indemnification of the
United States against the alien receiving
public benefits.
Either the obligor, a substitute obligor,
or the alien would be able to submit the
substitute bond at any time and
regardless of the reasons. The substitute
bond would need to be valid, properly
submitted with the appropriate fee, and
effective on the day the previously
submitted bond on file with USCIS
638 See

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expires. The substitute bond would
need to meet all of the requirements
applicable to the bond on file with
USCIS, as required by 8 CFR 103.6 and
8 CFR 213.1. To ensure continued bond
coverage of the alien as required under
section 213 of the Act, the substitute
bond would also need to cover a bond
breach that occurred before USCIS
accepted the substitute bond, in the
event USCIS does not have knowledge
of the breach until after the expiration
or cancellation of the bond on file with
USCIS. If USCIS determined that the
substitute bond proffered is sufficient, it
would accept the bond and the bond
would become effective on the day the
bond currently on file expires or when
the new bond takes effect, if prior to the
expiration of the bond on file.639
Additionally, the bond previously on
file would be cancelled, if needed.640 If
the substitute bond was insufficient,
USCIS would notify the obligor of the
substitute bond so that the obligor could
correct the deficiency within the
timeframe stipulated in the notice.
USCIS may also send a copy of the
notification to the alien, the alien’s
representative (if any), and the initial
obligor. If the deficiency is not corrected
within the timeframe stipulated in the
notice, the substitute would be rejected.
6. Public Charge Bond Cancellation
(a) Conditions
A public charge bond must remain in
effect until the alien naturalizes or
otherwise obtains U.S. citizenship,
permanently departs the United States,
or dies, until the bond is substituted
with another bond, or until the bond is
otherwise cancelled by DHS.641 During
this period, as a condition of the bond,
an alien on whose behalf a public
charge bond has been accepted agrees to
not receive public benefits, as defined in
8 CFR 212.21(b), after the alien’s
adjustment of status to that of a legal
permanent resident and until the bond
is cancelled according to proposed 8
CFR 212.21(g). The alien also has to
comply with any other conditions
imposed as part of the bond. That means
that a bond is considered breached if the
alien receives public benefits, as defined
in proposed 8 CFR 212.21(b), after the
639 See

proposed 8 CFR 213.1.
purposes of this type of cancellation,
neither the obligor nor the alien must submit Form
I–356. Form I–356 is submitted to assess whether
the alien has received any public benefits, as
defined in 8 CFR 212.21(b), or otherwise breached
a condition of the bond. At the time for
substitution, USCIS does not engage in a breach
assessment as the bond is substituted with another,
not actually cancelled according to the terms of
proposed 8 CFR 213.1(g).
641 See INA section 213, 8 U.S.C. 1183; see also
proposed 8 CFR 213.1.
640 For

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alien’s adjustment of status to that of a
lawful permanent resident and until the
bond is cancelled under proposed 8 CFR
213.1(g). A bond is also considered
breached if the alien fails to comply
with any other condition of the bond. In
these situations, USCIS cannot cancel
the bond. Public benefits, as defined in
proposed 8 CFR 212.21(b), received by
an alien present in the United States in
an immigration status that is exempt
from the public charge ground of
inadmissibility under section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4), and
public benefits received after the alien
obtained U.S. citizenship are not
counted towards any breach
determination, and therefore, also for
purposes of the cancellation
determination.642 Additionally,
consistent with the public benefits
definition proposed in this rule, DHS
would not consider as part of a public
charge bond cancellation determination
any public benefits received by an alien
enlisted in the U.S. armed forces under
the authority of 10 U.S.C. 504(b)(1)(B) or
10 U.S.C. 504(b)(2), serving in active
duty or in the Ready Reserve component
of the U.S. Armed Forces, or if received
by such an individual’s spouse or child
as defined in section 101(b) of the Act,
8 U.S.C. 1101(b), regardless of whether
such receipt occurred prior to the alien
enlisting into the U.S. Armed Forces.
(b) Definition of Permanent Departure
According to section 213 of the Act,
a public charge bond must be cancelled
when the alien naturalizes or otherwise
obtains U.S. citizenship, permanently
departs the United States, or dies. When
codifying section 213 of the Act,
Congress did not define ‘‘permanent’’
and the concept of permanent departure
does not exist in other areas of
immigration law. However,
‘‘permanent’’ is defined in section
101(a)(31) of the Act, 8 U.S.C. 1101(31),
as ‘‘a relationship of continuing or
lasting nature, as distinguished from
temporary, but a relationship may be
permanent even though it is one that
may be dissolved eventually at the
instance either of the United States or of
the individual, in accordance with law.’’
‘‘Departing’’ or ‘‘departure’’ is not
defined in the INA, but DHS believes
that it is reasonable to conclude that
permanent departure for the purposes of
canceling a public charge bond means
that the alien has left the United States
on a lasting, non-temporary basis after
losing the lawful permanent resident
status either voluntarily or
involuntarily, and is physically outside
the United States. Losing lawful
642 See

proposed 8 CFR 213.1(h).

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permanent resident status either
voluntarily or involuntary coupled with
physically leaving the United States is
consistent with the INA’s definition for
permanent. The proposed rule will
clarify that an alien has permanently
departed for bond cancellation when he
or she has (1) lost or abandoned lawful
permanent resident status, whether
involuntary by operation of law or
voluntarily, and (2) physically left the
United States.643 An alien must
establish that both elements, as
described above, have been met before
USCIS may cancel the bond.
DHS further proposes that an alien is
only deemed to have involuntarily lost
lawful permanent resident status in
removal proceedings with the entry of a
final order of removal 644 or through
rescission of adjustment of status.645 An
alien may be found to have abandoned
LPR status, even if the assessment is
made outside of removal proceedings
and if the alien’s actions were
unintentional.646 If an alien loses his or
her LPR status through operation of law,
the alien would be required to provide
evidence of the loss of status by
submitting evidence of the official
determination of loss of LPR status
before USCIS will cancel the bond.647
Generally, determining whether an
alien has abandoned his or her status is
highly fact specific and courts consider
factors such as the length of an alien’s
absence from the United States, family
and employment ties, property
holdings, residence, and the alien’s
intent or actions.648 An alien may
643 See

proposed 8 CFR 213.1.
8 CFR 1.2; see also Matter of Lok, 18 I&N
Dec. 101, 105–06 (BIA 1981).
645 See INA section 246, 8 U.S.C. 1256.
646 Abandonment is not directly addressed in the
INA. The question typically arises in the context of
LPRs returning to the United States. INA section
101(a)(20), 8 U.S.C. 1101(a)(20), defines the term
‘‘lawfully admitted for permanent residence’’ as
‘‘the status of having been lawfully accorded the
privilege of residing permanently in the United
States as an immigrant in accordance with the
immigration laws, such status not having changed’’
(emphasis added). INA section 211(b), 8 U.S.C.
1181, provides for a waiver of the documentary
requirements for admission for one who can qualify
as a ‘‘returning resident immigrant’’ as defined in
INA section 101(a)(27)(A), 8 U.S.C. 1101(a)(27)(A),
that is as ‘‘an immigrant, lawfully admitted for
permanent residence, who is returning from a
temporary visit abroad.’’ Finally, according to INA
section 101(a)(13)(C)(i), 8 U.S.C. 1101(a)(13)(C)(i),
an alien lawfully admitted for permanent residence
in the United States is not regarded as seeking
admission into the United States, unless the alien
has abandoned or relinquished that status. See also
INA section 223, 8 U.S.C. 1203.
647 For example, if the alien has his or her lawful
permanent resident status in removal proceedings,
the alien must present a copy of the removal order.
648 See, e.g., Matter of Huang, 19 I&N Dec. 749,
755–57 (BIA 1988) (considering the alien’s absence
from the United States because of her husband’s
work and study abroad, as well as her own
644 See

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51223

intentionally relinquish lawful
permanent resident status through his or
her voluntary actions, such as by
submitting a declaration of intent to
abandon LPR status. Neither the INA
nor DHS regulations direct how aliens
may formally inform the U.S.
Government of their abandoning their
lawful permanent resident status. To
simplify the process, USCIS had
developed, in the past, Form I–407,
Record of Abandonment of Lawful
Permanent Resident Status as a means
by which an alien may formally record
that they have abandoned LPR status.
The purpose of the form is to create a
record and to ensure that the alien acts
voluntarily and willingly, and is
informed of the right to a hearing before
an Immigration Judge and has
knowingly, willingly, and affirmatively
waived that right.649
Given that it is difficult to assess
whether an alien voluntarily abandoned
his or her lawful permanent resident
status, DHS proposes that an alien may
demonstrate voluntarily relinquishment
of the lawful permanent resident status
for purposes of bond cancellation only
by showing proof that he or she has
submitted Form I–407 to the U.S.
Government.650 In addition to the
advantages of the Form I–407
enumerated above, requiring evidence
of a Form I–407 filing would ensure
consistent adjudication of bond
cancellation requests because officers
have the necessary information and
would not have to otherwise determine
employment abroad, to find that her absence was
not temporary in nature and that she had
abandoned her LPR status); Matter of Kane, 15 I&N
Dec. 258, 265 (BIA 1975) (alien who spent 11
months per year living in her native country
operating a lodging house abandoned her LPR
status; her desire to retain her status, without more,
was not sufficient); Matter of Quijencio, 15 I&N Dec.
95, 97–98 (BIA 1974) (alien’s lawful permanent
resident status considered abandoned after 12 year
absence); Matter of Castro, 14 I&N Dec. 492, 494
(BIA 1973) (alien who severed his ties to the United
States for six years, moved abroad, acquired land,
built a house and obtained steady employment, but
made brief business trips to the United States was
not a returning resident and had abandoned his
status); Matter of Montero, 14 I&N Dec. 399, 400–
01 (BIA 1973) (alien who returned to her native
country to join her husband, children, home,
employment and financial resources without fixed
intent to return within a fixed period had
abandoned her lawful permanent resident status);
cf. Khoshfahm v. Holder, 655 F.3d 1147, 1154 (9th
Cir. 2011) (alien child who was out of the country
for 6 years and prevented from returning due to the
father’s heart condition and the events of September
11 did not abandon his lawful permanent resident
status).
649 See Purpose of Form I–407 and its instructions
at www.uscis.gov/i-407. Even though an alien
completed and submitted Form I–407, the alien
may still challenge the declaration of abandonment
as part of removal proceedings because a
declaration is not dispositive.
650 See proposed 8 CFR 213.1.

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the alien’s intent in regards to the
voluntary abandonment of the lawful
permanent resident status and the
permanent departure. Requesting the
filing of a declaration would also be
consistent with evidence required in the
BIA precedent Matter of De Los Santos,
in which the bond was cancelled after
the alien was required, among other
things, to submit a formal statement
attesting to the desire to abandon
permanent resident status.651 Form I–
407 would not have a fee.

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(c) Bond Cancellation for Lawful
Permanent Residents 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
Currently, 8 CFR 103.6(c)(1) requires
that DHS cancel a public charge bond
submitted for an alien after the fifth
anniversary of admission of the
immigrant, provided that the alien has
filed a request to cancel the bond and
provided that the alien did not become
a public charge prior to the fifth
anniversary.652 The provision was
added in 1984 based on INS’s belief that
the public would be adequately
protected even with such a limitation on
the bond liability.653 INS reasoned that
if an alien is self-sustaining for a fiveyear period, it would not be probable
that the alien becomes a public charge
after five years because the reason for
the becoming a public charge is based
on factors in existence prior to
admission as an immigrant.654
Additionally, INS explained that
limiting the bond liability in this
manner parallels the deportation
liability.655
DHS proposes to continue to cancel
the public charge bond after the fifth
anniversary of the alien’s adjustment of
status to that of a lawful permanent
resident, provided that the alien files a
request to cancel the bond and the alien
has not received any public benefits as
defined in 8 CFR 212.21(b) after
obtaining lawful permanent resident
status or otherwise violated the
conditions of the public charge bond.
Retaining the possibility for this type of
cancellation of the public charge bond
651 Matter of De Los Santos, 11 I&N Dec. 121, 121
(BIA 1965).
652 See 8 CFR 103.6(c)(1).
653 See Powers and Duties of Service Officers,
Availability of Service Records; Public Charge
Bonds, 49 FR 24010, 24011 (June 11, 1984).
654 See 49 FR 24010, 24011.
655 See 49 FR 24010, 24011 (‘‘The Service believes
that the public will be adequately protected by
limiting the duration of liability of public charge
bonds to a five-year period which parallels the
deportation liability.’’)

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is not just consistent with the current
period of time in which an alien may
become removable for receiving public
benefits after entry for causes that
existed prior to entry,656 but is also
consistent with the 5-year ineligibility
period for certain public benefits under
PRWORA.657 Finally, as noted
previously, the public charge bond
statutory provision requires DHS to
cancel the bond upon the alien’s death,
naturalization, or permanent departure
from the United States.658 However,
DHS believes that section 213 of the Act
sets forth the situations when DHS must
cancel the public charge bond, but
leaves to DHS the discretion of
canceling the bond for other reasons.659
Therefore, retaining the cancellation
provision is consistent with the
statutory text and the purpose of this
rule.
In addition, DHS is proposing to not
retain the discretion to cancel a public
charge bond at any time if it
subsequently determines that the alien
is not likely to become a public
charge.660 First, for many aliens who
adjust status in the United States, DHS
is unlikely to make a second public
charge determination under section
212(a)(4) of the Act.661 Second, given
that Congress selected a 5-year
timeframe in related contexts (in the
parallel deportation statue under section
237(a)(5) of the Act, 8 U.S.C. 1227(a)(5),
under PRWORA at 8 U.S.C. 1613, and
as part of naturalization requirements
656 See

INA section 237(a)(5), 8 U.S.C. 1227(a)(5).
8 U.S.C. 1611–1646.
658 See INA section 213, 8 U.S.C. 1183 (‘‘Such
bond or undertaking shall terminate upon the
permanent departure from the United States, the
naturalization, or the death of such alien, and any
sums or other security held to secure performance
thereof, except to the extent forfeited for violation
of the terms thereof, shall be returned to the person
by whom furnished, or to his legal representatives.’’
(emphasis added)).
659 See 8 CFR 103.6(c)(1) (‘‘The district director
may cancel a public charge bond at any time if he/
she finds that the immigrant is not likely to become
a public charge. A bond may also be cancelled in
order to allow substitution of another bond. A
public charge bond shall be cancelled by the district
director upon review following the fifth anniversary
of the admission of the immigrant, provided that
the alien has filed Form I–356, Request for
Cancellation of Public Charge Bond, and the district
director finds that the immigrant did not become a
public charge prior to the fifth anniversary. If Form
I–356 is not filed, the bond shall remain in effect
until the form is filed and the district director
reviews the evidence supporting the form and
renders a decision to breach or cancel the bond.’’).
660 See 8 CFR 103.6(c)(1).
661 See INA section 101(a)(13)(C), 8 U.S.C.
1101(a)(13)(C), under which an LPR would be
considered an applicant for admission only under
specifically outlined circumstances (e.g.. if he or
she has abandoned LPR status, was absent from the
United States continuously longer than 180 days,
has engaged in illegal activity after departing the
United States, etc.).
657 See

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under INA section 316, 8 U.S.C. 1427),
DHS believes that retaining a bond for
at least 5 years is a reasonable timeframe
that will ensure the ability of U.S.
government to recoup the costs of
public benefits that may be received by
aliens before most of them are generally
eligible to naturalize.
Finally, DHS proposes that USCIS
would cancel the public charge bond if
an alien subject to a public charge bond
obtains an immigration status while
present in the United States that is
exempt from public charge grounds of
inadmissibility, as listed in 8 CFR
212.23, following the initial grant of
status as a lawful permanent resident,
provided that the alien or the obligor
has filed a request for cancellation of
public charge bond, on the form
designated by DHS, in accordance with
form instructions, and provided that the
alien has not breached the bond
conditions as described in paragraphs
(h) of proposed 8 CFR 213.1. An
example of when this ground of
cancellation may apply is if an alien
loses or abandons his or her LPR status
but nonetheless qualifies for another
status not subject to public charge
inadmissibility, e.g. asylum. DHS
believes that maintaining the bond in
this situation no longer serves the
intended purpose of the bond if the
population is exempt from public
charge grounds of inadmissibility, as the
purpose of the public charge bond is to
ensure that the alien does not become a
public charge.662 As discussed in the
section on exemptions, most of these
aliens are, at that time, members of a
vulnerable population, and the status
provided to these aliens serves distinct
policy goals separate from the general
immigration system.
As with other bases for bond
cancellation, however, if a request for
cancellation of a public charge bond is
not filed, the bond shall remain in effect
until the form is filed, reviewed, and a
decision is rendered. Additionally, if
these aliens adjust status in the future
on a basis that is subject to section
212(a)(4) of the Act, 8 U.S.C. 1182(a)(4),
they may again be subject to public
charge grounds of inadmissibility and
DHS may assess whether a bond is
appropriate at that time.
(d) Request To Cancel the Bond, and
Adjudication of the Cancelation Request
DHS proposes that USCIS would
cancel the bond upon request by the
alien, following a determination that the
conditions of a bond have been met and
the bond has not been breached, as
outlined in proposed 8 CFR 213.1.
662 See

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Return of the bond amount is ‘‘to the
extent [the bond] has been forfeited for
violation of the terms thereof.’’ 663 DHS
proposes to interpret this authority to
allow DHS to impose, as a condition of
the bond, forfeiture of the entire amount
in the event of a breach. Once USCIS
determines that the alien has violated
the bond conditions by receiving public
benefits, USCIS would declare the bond
breached and collect. The request to
cancel the bond would be submitted on
the form designated by DHS, according
to its instructions, and with any
mandatory fee. USCIS proposes to
designate Form I–356, Request for
Cancellation of Public Charge Bond, to
be used to request cancellation of a
public charge bond. As discussed in
more detail below, DHS is also
proposing an initial processing fee of
$25 to be submitted with the Form I–
356. Given the obligor’s and the alien’s
interest in having the bond cancelled,
the alien, or the obligor or co-obligor,
would be able to submit a request to
cancel the public charge bond to USCIS.
A request to cancel the bond is
necessary because typically, after an
alien obtains an immigration benefit
from USCIS or enters as an immigrant,
USCIS has little interaction with the
alien until he or she seeks another
immigration benefit. In addition, USCIS
is typically not notified if an alien has
permanently departed or died.
Information currently collected by DHS
is insufficient for USCIS to determine
on its own whether the alien intended
a departure to be permanent. Therefore,
as part of the cancellation request, the
alien would need to submit evidence of
naturalization or otherwise having
obtained U.S. citizenship, permanent
departure, or if the person is deceased,
the alien’s executor would submit a
death certificate. Additionally, the alien
or the alien’s executor must also submit
the information requested in Form I–356
regarding receipt of public benefits as
defined in 8 CFR 212.21(b).664 Any
information collected would be in
accordance with relevant privacy laws.
The obligor and the alien would have
the burden to establish, by a
preponderance of the evidence, that the
conditions for cancellation of the public
charge bond have been met.665 If USCIS
finds that the information included in
the request is insufficient to determine
whether cancellation is appropriate,
USCIS may request additional
information in accordance with 8 CFR
part 103.

(e) Decision and Appeal
If USCIS determines that the request
warrants a cancellation of a bond,
USCIS would notify the obligor, and
return the full value of any cash or cash
equivalent, such as a cashier’s check or
money order deposited by the obligor to
secure the bond plus interest, similar to
current practice.666 When the bond is
cancelled, the obligor would be released
from liability.667
If USCIS denies the request to cancel
the bond, it will notify the obligor of the
reasons why and of the right to appeal
in accordance with the requirements of
8 CFR part 103, subpart A.668 A bond
obligor could appeal the denial to
cancel the bond to the Administrative
Appeals Office (AAO) of USCIS by filing
Notice of Appeal or Motion (Form I–
290B) together with the appropriate fee
and required evidence. See 8 CFR 103.1;
103.3. For operational efficiency, DHS
proposes that an obligor may only file
a motion after an unfavorable decision
by the Administrative Appeals Office
(AAO) on appeal. As part of an appeal,
the regulations a 8 CFR 103.3(a)(2)
require the officer rendering the initial
decision to review the initial decision;
if the reviewing officer agrees that the
decision is incorrect, he or she may treat
the appeal as a motion and may enter a
favorable decision.669 USCIS would also
inform the alien and the alien’s
representative (if any) of the denial. The
alien would not be able to appeal a
denial because the bond contract is
between the obligor and the U.S.
government; the alien is not party to the
contract.670
7. Breach of a Public Charge Bond and
Appeal
(a) Breach Conditions and Adjudication
A bond would be considered
breached if the alien has received public
benefits, as defined in proposed 8 CFR
212.21(b), after the alien’s adjustment of
status to that of a lawful permanent
resident and until the public charge
bond is cancelled under 8 CFR 213.1(g).
Consistent with other proposed
regulatory provisions contained in this
NPRM, public benefits received during
periods while an alien is present in the
United States in a status exempt from
the public charge ground of
inadmissibility, as listed in 8 CFR
212.23, following the initial grant of
lawful permanent resident status, would
not be considered when determining
666 See

8 CFR 103.6(c) and proposed 8 CFR 213.1.
proposed 8 CFR 213.1.
668 See proposed 8 CFR 213.1.
669 See 8 CFR 103.3(a)(2)(ii)–(v).
670 See proposed 8 CFR 213.1.
667 See

663 See

INA section 213, 8 U.S.C. 1183.
proposed 8 CFR 213.1.
665 See proposed 8 CFR 213.1.
664 See

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51225

whether the conditions of the bond have
been breached. Additionally, consistent
with the public benefits definition
proposed in this rule, DHS would not
consider as part of a public charge bond
breach determination any public
benefits received by an alien enlisted in
the U.S. armed forces under the
authority of 10 U.S.C. 504(b)(1)(B) or 10
U.S.C. 504(b)(2), serving in active duty
or in the Ready Reserve component of
the U.S. Armed Forces, or if received by
such an individual’s spouse or child as
defined in section 101(b) of the Act, 8
U.S.C. 1101(b), regardless of whether
such receipt occurred prior to the alien
enlisting into the U.S. Armed Forces.
Finally, DHS would not consider public
benefits received after the alien who is
the subject of the public charge bond
obtains U.S. citizenship, as U.S. citizens
are no longer subject to public charge
grounds of inadmissibility, and
therefore, the term of the public charge
bond.
A bond would be considered
breached if any other condition imposed
by USCIS as part of the public charge
bond is breached.671
Under current 8 CFR 103.6, an
immigration bond is considered
breached when there has been a
substantial violation of the stipulated
conditions. The term ‘‘substantial
violation’’ is generally interpreted
according to contractual principles.672
However, public charge bonds have
been distinguished from other
immigration bonds in this regard, given
that the public charge bond’s condition
is that the alien will not become a
public charge.673 Therefore, DHS
proposes to not retain the phrase
‘‘substantial violation’’ in the proposed
public charge bond provision at 8 CFR
213.1. Instead, DHS proposes to
incorporate the substantial violation
standard via incorporating principles
that govern the public charge and public
benefits definitions at proposed 8 CFR
212.21(a) and (b) (defining public charge
and public benefits). Under the
proposed approach, the bond would be
671 See proposed 8 CFR 213.1(d) and 8 CFR
213.1(h)
672 See, e.g., Aguilar v. United States, 124 Fed. Cl.
9, 16 (2015) (substantial violation under 8 CFR
103.6(e) of a delivery immigration bond is a matter
of contract interpretation, in which courts have
looked to four factors: (1) The extent of the breach;
(2) whether the breach was intentional or
accidental; (3) whether the breach was in good
faith; and (4) whether the obligor took steps to make
amends or place himself in compliance).
673 See Matter of Viado, 19 I&N Dec. 252, 253
(BIA 1985) (each of the other types of immigration
bonds provided in the regulation has its own
specific conditions; the public charge bond’s
condition is that the alien will not become a public
charge, and the lack of knowledge or good faith of
the alien did not render the breach insubstantial).

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considered breached if the alien
receives public benefits after the alien’s
adjustment of status to that of a lawful
permanent resident and until the bond
is cancelled pursuant to 8 CFR 213.1(g),
or if the alien breaches any other
condition imposed as part of the
bond.674
If USCIS learns of the breach, and
declares a bond breached based on
information that is not otherwise
protected from the disclosure to the
obligor, USCIS would disclose such
information to the obligor to the extent
permitted by law. For example, USCIS
may learn of an alien’s having received
public benefits, as defined in 8 CFR
212.21(b), if the public benefit-granting
agency notifies USCIS that it provided
a public benefit(s) to the alien who was
admitted on bond.675 Or, USCIS may
learn from the alien, as part of a bond
cancellation request that he or she
received public benefits, as defined in 8
CFR 212.21(b).
If USCIS found that it has insufficient
information to determine whether a
breach occurred, USCIS would request
additional information from the benefits
granting agency, or USCIS would
request additional information from
alien or the obligor as outlined in 8 CFR
part 103. USCIS would also provide the
obligor with the opportunity to respond
and submit rebuttal evidence, including
specifying a deadline for a response.
DHS furthermore proposes that it would
send a copy of any notification to the
obligor or co-obligor regarding the
breach also to the alien and the alien’s
representative (if any).676
(b) Decision and Appeal
After the obligor’s response or after
the deadline for a response has passed,
USCIS would make a breach
determination, and inform the obligor of
the right to appeal in accordance with
the requirements of 8 CFR 103, subpart
A. See proposed 8 CFR 213.1(h). A bond
obligor would have the possibility to
appeal a breach determination to the
Administrative Appeals Office (AAO) of
USCIS by filing a Notice of Appeal or
Motion (Form I–290B) together with the
appropriate fee and required evidence.
See 8 CFR 103.1; 103.3. Under this rule,
DHS proposes that the obligor would
only be able to file a motion under 8
CFR 103.5 as part of the unfavorable
decision on appeal. DHS believes that
such an approach reasonable and
674 See

proposed 8 CFR 213.1(h).
INA section 213, 8 U.S.C. 1183. Receipt
of public benefits, however, is sufficient to cause a
breach of the public charge bond, even in the
absence of a demand for repayment. See Matter of
Viado, 19 I&N Dec. 252, 253 (BIA 1985).
676 See proposed 8 CFR 213.1.
675 See

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operationally efficient; additionally, it
provides clarity as to when a breach
determination becomes administratively
final, as defined in 8 CFR 213.1(h). First,
as part of an appeal, pursuant to 8 CFR
103.3(a)(2), a USCIS officer who made
the initial breach determination must
review the decision before the appeal
can be forwarded to the AAO.677 If the
USCIS agrees with the appealing party
that favorable action may be warranted,
he or she may treat the appeal as a
motion and then take favorable action,
which would resolve the appeal.678
However, the official is also not
precluded from reopening a proceeding
or reconsidering a decision on his or her
own motion under 8 CFR 103.5(a)(5)(i).
If the reviewing official is not inclined
to take a favorable action, the reviewing
official will forward the appeal to the
AAO. Once the AAO issues the
decision, however, an obligor may file a
motion of the AAO’s decision in
accordance with 8 CFR 103.5.679 Thus,
limiting when a motion can be filed is
efficient for both the obligor and USCIS.
Additionally, a breach determination
would be administratively final, among
other instances, if the appeals period to
the AAO expires; filing a motion does
not toll the appeals period stated in 8
CFR 103.3, and if the obligor fails to
appeal, the breach determination would
become administratively final unless the
motion is granted. The denial of a
motion can then be appealed to the
AAO, and the AAO decision itself, if
unfavorable, may be motioned in
accordance with 8 CFR 103.5.
Additionally, USCIS may reopen a
breach determination at any time
pursuant to 8 CFR 103.5, even if an
appeal is pending. For these reasons, it
appears to be more efficient for all
parties if the obligor simply appeals a
breach determination in the first
instance, if review of the initial breach
determination is desired.
If the appeal is dismissed or rejected,
or the obligor fails to appeal, the breach
determination becomes the final agency
determination, and USCIS would issue
a demand for payment, if the bond was
a surety bond, pursuant to 31 CFR
901.2.680 The alien may not appeal the
breach determination or file a motion
because the bond contract is between
677 See 8 CFR 103.3(a)(2); see also Adjudicator’s
Field Manual, Chapter 10.8.
678 See 8 CFR 103.3(a)(2); see also Adjudicator’s
Field Manual, Chapter 10.8.
679 See 8 CFR 103.5; see Administrative Appeal’s
Office Practice Manual, Chapter 4, Motions to
Reopen and Reconsider.
680 See 8 CFR 103.6(e); see proposed 8 CFR 213.1;
see generally United States v. Gonzales & Gonzales
Bonds & Ins. Agency, Inc. 728 F. Supp. 2d 1077,
1089–91 (N.D. Cal. 2010); Safety Nat’l Cas. Corp. v.
DHS, 711 F. Supp. 2d 697, 703–04 (S.D. Tex. 2008).

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the obligor and the U.S. government; the
alien is not party to the contract.681
(c) Consequences of Breach
If USCIS determines that the bond has
been breached, DHS proposes that
USCIS would collect on the bond in
full, meaning the total monetary amount
of the bond as liquidated damages. This
practice appears to differ from the
practice described in legacy INS’
Operating Instructions, which
contemplate forfeiture only of the
amount of public benefits received.682
The total damages to the government go
beyond the simple amount of the
benefits received, and are difficult if not
impossible to calculate with precision.
Liquidated damages are an appropriate
remedy in such situations, and were an
accepted practice in prior immigration
bond cases.683
8. Exhaustion of Administrative
Remedies
A final determination that a bond has
been breached would create a claim in
favor of the United States. The claim in
favor of the United States may not be
released or discharged by an
immigration officer.684
Under the proposed rule, a party must
first exhaust all administrative remedies
and obtain a final decision from USCIS
in accordance with 8 CFR part 103,
before being able to bring suit
challenging USCIS cancellation or bond
breach determination in Federal district
court.685
Although enforcement and suits may
be based on various causes of action,
courts have determined that bond
breach determinations are always
reviewed under the Administrative
Procedure Act (APA) framework.686
681 See proposed 8 CFR 213.1. See also, e.g.,
Matter of Ins. Co. of N. Am., 17 I&N Dec. 251, 251
(BIA 1978) (An immigration bond is a contract
between the Service and the obligor; the obligor and
his or her attorney-in-fact is the proper party to
appeal the service’s decision).
682 See OI 103.6(c) (If it is found that the alien has
become a public charge, the bond shall be breached
in the necessary amount with any remainder
continued in effect).
683 See United States v. Goldberg, 40 F.2d 406 (2d
Cir. 1930); Matta v. Tillinghast, 33 F.2d 64 (1st Cir.
1929); Ill. Surety Co. v. United States, 229 F. 527
(2d Cir. 1916); United States v. Andreano, 36 F.
Supp. 821 (D.R.I. 1941); United States v. Rubin, 227
F. 938 (E.D. Pa. 1915); Matter of B¥, 1 I&N Dec.
121 (BIA 1941).
684 See proposed 8 CFR 213.1.
685 See proposed 8 CFR 213.1(j).
686 See United States v. Gonzales & Gonzales
Bonds & Ins. Agency, Inc., 728 F. Supp. 2d 1077,
1089–90 (N.D. Cal. 2010); Bahramizadeh v. INS,
717 F.2d 1170, 1173 (7th Cir. 1983) (reviewing
bond-breach determinations under the APA
framework); Castaneda v. Dep’t of Justice, 828 F.2d
501, 502 (8th Cir. 1987) (immigration bond-breach
determination reviewed under the APA framework);
Ruiz-Rivera v. Moyer, 70 F.3d 498, 500–01 (7th Cir.

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DHS invites public comments on the
proposed public charge bond and its
procedures, including the public charge
bond type, bond amount, duration,
substitution, cancellation and any other
aspects of a public charge bond.
9. Public Charge Bond Processing Fees
DHS is proposing to charge for the
processing of public charge bonds and
cancellation requests. In this rule, DHS
proposes to charge $25 for the posting
of a public charge bond, $25 for the
posting of a substitute public charge
bond, and $25 when the alien, obligor
or co-obligor requests to cancel the
public charge bond (i.e., when the Form
I–356 is filed). INA section 286(m), 8
U.S.C. 1356(m), authorizes DHS to set
fees for providing adjudication and
naturalization services at a level that
will ensure recovery of the full costs of
providing all such services. USCIS must
expend resources to process public
charge bonds and bond cancellation
requests, including start-up costs to
operationalize a public charge bond
process. USCIS is primarily funded by
immigration and naturalization benefit
request fees charged to applicants and
petitioners. Fees collected from
individuals and entities filing
immigration benefit requests are
deposited into the Immigration
Examinations Fee Account (IEFA) and
used to fund the cost of processing
immigration benefit requests and
providing related services (i.e.,
biometric collections).687 In addition,
DHS complies with the requirements
and principles of the Chief Financial
Officers Act of 1990, 31 U.S.C. 901–03,
(CFO Act), and Office of Management
and Budget (OMB) Circular A–25.
USCIS reviews the fees deposited into
the IEFA biennially and, if necessary,
proposes adjustments to ensure recovery
of costs necessary to meet national
security, customer service, and
adjudicative processing goals. USCIS
typically uses projected volume data
and completion rates (the average time
for adjudication of an immigration
benefit request) to set the fees for
specific immigration benefit requests,
and related services.
The proposed $25 fees will not result
in recovery of the full cost of intake and
adjudication the proposed Forms I–945
and I–356. However, at this time, DHS
is not able to estimate the start-up costs
1995) (determining whether ‘‘INS’ decision that the
bond conditions were substantially violated was
plainly erroneous or inconsistent with 8 CFR
103.6(e)’’); Ahmed v. United States, 480 F.2d 531,
534 (2d Cir. 1973) (analyzing substantial breach, as
required by 8 CFR 103.6).
687 See U.S. Citizenship and Immigration Services
Fee Schedule, 81 FR 26904, 26940 (May 4, 2016).

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for establishing a public charge bond
process, nor the number of public
charge bonds or cancellation requests
that it will receive during any period of
time because both the form and process
are new to USCIS, and USCIS does not
have a reasonable proxy on which to
rely for an estimate. In addition, public
charge bonds are very fact-specific;
USCIS will make a case-by-case
determination on whether to offer the
submission of a bond to an applicant.
Similarly, whether a cancellation
request is submitted will be driven by
the particular circumstances of each
alien by whom or on whose behalf a
bond is posted, depending on whether
conditions for cancellation have been
met. Nevertheless, to recover at least
some of the costs of adjudicating Forms
I–945 and I–356, and avoid other fee
payers having to fund the public charge
bond process entirely, DHS is proposing
a $25 fee for the initial public charge
bond submission, and a $25 fee for the
bond cancellation request, with no
option to request a fee waiver. Once
USCIS implements a public charge bond
process, it will be able to obtain data on
the volume and burden of public charge
bonds and cancellation requests and
adjust these fees to amounts necessary
to recover the relative costs of these
adjudications next time that USCIS
reviews the fees deposited into the
IEFA.
10. Other Technical Changes
In addition to amending 8 CFR 103.6
and 213.1 to update and establish
requirements specific to public charge
bonds, this proposed rule would make
technical changes to 8 CFR 103.6 to
update references to offices and form
names.
11. Concurrent Surety Bond Rulemaking
On June 5, 2018, DHS published a
proposed rule that would set forth
procedures and standards under which
DHS would decline surety immigration
bonds from Treasury-certified
companies.688 The June 5 proposed rule
would also create administrative
exhaustion requirements applicable to
sureties. This public charge proposed
rule is not intended to displace or
otherwise affect the proposed changes to
8 CFR 103.6 in the June 5, 2018
proposed rule, although a final public
charge rule may depart from the June 5
rule with respect to surety bonds breach
determinations, as described above.
688 See Procedures and Standards for Declining
Surety Immigration Bonds and Administrative
Appeal Requirement for Breaches, 83 FR 25951
(June 5, 2018).

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DHS plans to conduct the two
rulemakings concurrently.
VI. Statutory and Regulatory
Requirements
A. 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)
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits,
reducing costs, harmonizing rules, and
promoting flexibility. Executive Order
13771 (Reducing Regulation and
Controlling Regulatory Costs) directs
agencies to reduce regulation and
control regulatory costs.
This proposed rule is designated a
‘‘significant regulatory action’’ that is
economically significant since it is
estimated that the proposed rule would
have an annual effect on the economy
of $100 million or more, under section
3(f)(1) of Executive Order 12866.
Accordingly, OMB has reviewed this
proposed regulation.
1. Summary
As previously discussed, DHS is
proposing to modify its regulations to
add new regulatory provisions for
inadmissibility determinations based on
public charge grounds under the INA.
DHS is proposing to prescribe how it
determines whether an alien is
inadmissible because he or she is likely
at any time to become a public charge
and identify the types of public benefits
that are considered in the public charge
determinations. An alien applying for a
visa, admission at the port of entry, or
adjustment of status generally must
establish that he or she is not likely at
any time to become a public charge.
DHS proposes that certain factors may
be weighed positively or negatively,
depending on how the factor impacts
the immigrant’s likelihood to become a
public charge. DHS is also proposing to
revise existing regulations to clarify
when and how it considers public
charge when adjudicating change of
status and extension of stay
applications. Finally, DHS is proposing
to revise its regulations governing the
Secretary’s discretion to accept a public

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charge bond or similar undertaking
under section 213 of the Act, 8 U.S.C.
1183. Similar to a waiver, a public
charge bond permits an alien deemed
inadmissible on the public charge
ground to obtain adjustment of status, if
otherwise admissible.689
This proposed rule would impose
new costs on the population applying to
adjust status using Form I–485 that are
subject to the public charge grounds on
inadmissibility who would now be
required to file the new Form I–944 as
part of the public charge inadmissibility
determination. DHS would require any
adjustment applicants subject to the
public charge inadmissibility ground to
submit Forms I–944 with their Form I–
485 to demonstrate they are not likely
to become a public charge. In addition,
Form I–129 and Form I–129CW
beneficiaries, and Form I–539 filers may
also incur additional costs should they
receive a RFE to file Form I–944 to
determine inadmissibility based on
public charge grounds under the
provisions of this proposed rule. The
proposed rule would also impose
additional costs for completing Forms I–
485, I–129, I–129CW, and I–539 as the
associated time burden estimate for
completing each of these forms would
increase. Moreover, the proposed rule
would impose new costs associated
with the proposed public charge bond
process, including new costs for
completing and filing Form I–945,
Public Charge Bond, and Form I–356,
Request for Cancellation of Public
Charge Bond. DHS estimates that the
additional total cost of the proposed
rule would range from approximately
$45,313,422 to $129,596,845 annually to
the population applying to adjust status
who also would be required to file Form
I–944, for the opportunity cost of time
associated with the increased time
burden estimates for Forms I–485, I–
129, I–129CW, and I–539, and for
requesting or cancelling a public charge
bond using Form I–944 and Form I–356,
respectively.
Over the first 10 years of
implementation, DHS estimates the total
quantified new direct costs of the
proposed rule would range from about
$453,134,220 to $1,295,968,450
(undiscounted). In addition, DHS
estimates that the 10-year discounted
total direct costs of this proposed rule
would range from about $386,532,679 to
$1,105,487,375 at a 3 percent discount
rate and about $318,262,513 to
689 There is no mention of ‘‘waiver’’ or ‘‘waive’’
in INA section 213, 8 U.S.C. 1183. However, the
BIA has viewed that provision as functioning as a
waiver of the public charge ground of
inadmissibility. See Matter of Ulloa, 22 I&N Dec.
725, 726 (BIA 1999).

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$910,234,008 at a 7 percent discount
rate.
The proposed rule would impose new
costs on the population seeking
extension of stay or change of status
using Form I–129, Form I–129CW, or
Form I–539 since, for any of these
forms, USCIS adjudication officers
would then be able to exercise
discretion in determining whether it
would be necessary to issue a RFE
whereby a Form I–129 or I–129CW
beneficiary or a Form I–539 applicant
may then have to submit Form I–944.
DHS conducted a sensitivity analysis
estimating the potential cost of filing
Form I–129, Form I–129CW, or Form I–
539 for a range of 10 to 100 percent of
beneficiaries or filers, respectively,
receiving a RFE to submit Form I–944.
The costs to Form I–129 beneficiaries
who may receive a RFE to file Form I–
944 range from $6,086,318 to
$60,863,181 annually and the costs to
Form I–129CW beneficiaries who may
receive such a RFE from $114,132 to
$1,141,315 annually. The costs to Form
I–539 applicants who may receive a RFE
to file Form I–944 range from
$3,164,375 to $31,643,752 annually.
The proposed rule would also
potentially impose new costs on
individuals or companies (obligors) if an
alien has been found to be a public
charge, but has been given the
opportunity to submit a public charge
bond, for which USCIS intends to use
the new Form I–945. DHS estimates the
total cost to file Form I–945 would be
at minimum about $34,234 annually.690
Moreover, the proposed rule would
potentially impose new costs on aliens
or obligors (individuals or entities) who
would submit Form I–356 as part of a
request to cancel the public charge
bond. DHS estimates the total cost to file
Form I–356 would be approximately
$825 annually.691
The proposed rule would also result
in a reduction in transfer payments from
the federal government to individuals
who may choose to disenroll from or
forego enrollment in a public benefits
program. Individuals who might choose
to disenroll from or forego future
enrollment in a public benefits program
include foreign-born non-citizens as
well as U.S. citizens who are members
of mixed-status households.692 DHS
690 Calculation: $35.66 (cost per obligor to file
Form I–945) * 960 (estimated annual population
who would file Form I–945) = $34,233.60 = $34,234
(rounded) annual total cost to file Form I–945.
691 Calculation: $33.00 (cost per obligor to file
Form I–356) * 25 (estimated annual population who
would file Form I–356) = $825.00 annual total cost
to file Form I–356.
692 DHS uses the term ‘‘foreign-born non-citizens’’
because it is the term used by the Census Bureau

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estimates that the total reduction in
transfer payments from the federal and
state governments would be
approximately $2.27 billion annually
due to disenrollment or foregone
enrollment in public benefits programs
by foreign-born non-citizens who may
be receiving public benefits. DHS
estimates that the 10-year discounted
federal and state transfer payments
reduction of this proposed rule would
be approximately $19.3 billion at a 3
percent discount rate and about $15.9
billion at a 7 percent discount rate.
However, DHS notes there may be
additional reductions in transfer
payments that we are unable to
quantify. There may also be additional
reductions in transfer payments from
states to individuals who may choose to
disenroll from or forego enrollment in a
public benefits program. Because state
participation in these programs may
vary depending on the type of benefit
provided, DHS was only able to estimate
the impact of state transfers. For
example, the federal government funds
all SNAP food expenses, but only 50
percent of allowable administrative
costs for regular operating expenses.693
Similarly, Federal Medical Assistance
Percentages (FMAP) in some HHS
programs like Medicaid can vary from
between 50 percent to an enhanced rate
of 100 percent in some cases.694
However, assuming that the state share
of federal financial participation (FFP)
is 50 percent, the 10-year discounted
amount of state transfer payments of
this proposed policy would be
approximately $9.65 billion at a 3
percent discount rate and about $7.95
billion at a 7 percent discount rate.
Finally, DHS recognizes that reductions
in federal and state transfers under
federal benefit programs may have
downstream and upstream impacts on
state and local economies, large and
small businesses, and individuals. For
example, the rule might result in
reduced revenues for healthcare
providers participating in Medicaid,
pharmacies that provide prescriptions to
for which much of the data in this analysis is based
on. DHS generally interprets this term to mean alien
in this analysis.
693 Per section 16(a) of the Food and Nutrition Act
of 2008. See also USDA, FNS Handbook 901, p. 41
available at: https://fns-prod.azureedge.net/sites/
default/files/apd/FNS_HB901_v2.2_Internet_
Ready_Format.pdf.
694 See Dept. of Health and Human Services,
‘‘Federal Financial Participation in State Assistance
Expenditures; Federal Matching Shares for
Medicaid, the Children’s Health Insurance Program,
and Aid to Needy Aged, Blind, or Disabled Persons
for October 1, 2016 through September 30, 2017.’’
ASPE FMAP 2017 Report. Dec. 29, 2015. Available
at https://aspe.hhs.gov/basic-report/fy2017-federalmedical-assistance-percentages. Accessed Sept. 13,
2018.

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participants in the Medicare Part D lowincome subsidy (LIS) program,
companies that manufacture medical
supplies or pharmaceuticals, grocery
retailers participating in SNAP,
agricultural producers who grow foods
that are eligible for purchase using
SNAP benefits, or landlords
participating in federally funded
housing programs.
Additionally, the proposed rule
would add new direct and indirect
impacts on various entities and
individuals associated with regulatory
familiarization with the provisions of
the rule. Familiarization costs involve
the time spent reading the details of a
rule to understand its changes. A
foreign-born non-citizen (such as those
contemplating disenrollment or
foregoing enrollment in a public
benefits program) might review the rule
to determine whether they are subject to
the provisions of the proposed rule and
may incur familiarization costs. To the
extent that an individual or entity
directly regulated by the rule incurs
familiarization costs, those
familiarization costs are a direct cost of
the rule. In addition to those individuals
or entities the rule directly regulates, a
wide variety of other entities would
likely choose to read the rule and,
therefore, would incur familiarization

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costs. For example, immigration
lawyers, immigration advocacy groups,
health care providers of all types, nonprofit organizations, non-governmental
organizations, and religious
organizations, among others, may need
or want to become familiar with the
provisions of this proposed rule. DHS
believes such non-profit organizations
and other advocacy groups might
choose to read the rule in order to
provide information to those foreignborn non-citizens that might be affected
by a reduction in federal and state
transfer payments. Familiarization costs
incurred by those not directly regulated
are indirect costs.
DHS estimates the time that would be
necessary to read this proposed rule
would be approximately 8 to 10 hours
per person, resulting in opportunity
costs of time. An entity, such as a nonprofit or advocacy group, may have
more than one person that reads the
rule.
The primary benefit of the proposed
rule would be to help ensure that aliens
who are admitted to the United States,
seek extension of stay or change of
status, or apply for adjustment of status
are not likely to receive public benefits
and will be self-sufficient, i.e.,
individuals will rely on their own
financial resources, as well as the

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financial resources of the family,
sponsors, and private organizations.695
DHS also anticipates that the proposed
rule would produce some benefits from
the elimination of Form I–864W. The
elimination of this form would
potentially reduce the number of forms
USCIS would have to process. DHS
estimates the amount of cost savings
that would accrue from eliminating
Form I–864W would be $35.78 per
petitioner.696 However, DHS notes that
we are unable to determine the annual
number of filings of Form I–864W and,
therefore, we are currently unable to
estimate the total annual cost savings of
this change. Additionally, a public
charge bond process would also provide
benefits to applicants as they potentially
would be given the opportunity to be
adjusted if otherwise admissible, at the
discretion of DHS, after a determination
that he or she is likely to become a
public charge.
Table 36 provides a more detailed
summary of the proposed provisions
and their impacts.
BILLING CODE 4410–10–P
695 8

U.S.C. 1601(2).
of savings from opportunity cost
of time for no longer having to complete and submit
Form I–864W: ($35.78 per hour * 1.0 hours) =
$35.78.
696 Calculation

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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.
Purpose and
applicability of public
charge inadmissibility.

To define the categories of aliens that are
subject to the public charge
determination.

Quantitative:

Adding 8 CFR 212.21.
Definitions.

To establish key definitions, including
public charge, public benefit, likely to
become a public charge, and household.

Adding 8 CFR 212.22.
Public charge
determination.

Clarifies that evaluating public charge is
a prospective determination based on the
totality of the circumstances.

Benefits
• Cost savings of $35.78 per petitioner
from no longer having to complete and
file Form I-864W.
Costs

Adding 8 CFR 212.23.
Exemptions and
waivers for public
charge ground of
inadmissibility.

Outlines exemptions and waivers for
inadmissibility based on public charge
grounds.

Adding 212.24.
Valuation of
monetizable benefits.

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

Adding 8 CFR
214.l(a)(3)(iv) and
amending 8 CFR
214.l(c)(4).
Nonimmigrant general
requirements; and

To provide, with limited exceptions, that
an application for extension of stay or
change of nonimmigrant status will be
denied unless the applicant demonstrates
that he or she has not received, is not
currently receiving, nor is likely to

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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.

Qualitative:
Benefits

•

Better ensure that aliens who are
admitted to the United States or apply for
adjustment of status are self-sufficient
through an improved review process of
the mandatory statutory factors.

Quantitative:
Costs

•

Potential annual costs for those Form I129 beneficiaries range from $6.09
million to $60.9 million depending on

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Outlines minimum and additional factors
considered when evaluating whether an
alien immigrant is inadmissible based on
the public charge ground. Positive and
negative factors are weighed to
determine an individual's likelihood of
becoming a public charge at any time in
the future.

•

Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
amending 8 CFR
248.l(a) and adding 8
CFR 248.l(c)(4).
Change of
nonimmigrant
classification eligibility.

receive, public benefits as defined in
proposed 8 CFR 212.2l(b).

51231

how many beneficiaries are sent a RFE
by USCIS to complete Form I-944.
• Potential annual costs for those Form I129CW beneficiaries range from $0.11
million to $1.14 million depending on
how many beneficiaries are sent a RFE
by USCIS to complete Form I-944.
• Potential annual costs for those Form I539 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

•

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To outline requirements that aliens
submit a declaration of self-sufficiency
on the form designated by DHS and any
other evidence requested by DHS in the
public charge inadmissibility
determination.

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Amending 8 CFR 245.
Adjustment of status to
that of a person
admitted for permanent
residence.

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.
Quantitative:
Direct Costs
• Total annual direct costs of the proposed
rule would range from about $45.3 to
$129.6 million, including:
• $26.0 million to applicants who must
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 I944;
• $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 .

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• 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 federaland 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.

• 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

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Costs

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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
103.6. Public charge
bonds.

To set forth the Secretary's discretion to
approve bonds, cancellation, bond
schedules, and breach of bond, and to
move principles governing public charge
bonds to proposed 8 CFR 213 .1.

Amending 8 CFR
103.7. Fees.

To add fees for new Form 1-945, Public
Charge Bond, and Form 1-356, Request
for Cancellation of Public Charge Bond.

Quantitative:

Costs
• $0.34 million annually to obligors for
submitting Public Charge Bond (Form 1945);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
individual's credit score.
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
213 .1. Admission or
adjustment of status of
aliens on giving of a
public charge bond.

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

In addition to the impacts
summarized above and as required by

OMB Circular A–4, Table 37 presents
the prepared accounting statement

showing the costs associated with this
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.

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

Primary Estimate

BENEFITS
Monetized Benefits

Minimum Estimate

Maximum Estimate

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.

Annualized quantified,
but un-monetized,
benefits
Unquantified Benefits

0
0
0
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.
COSTS
Annualized monetized
costs (discount rate in
parenthesis)

Source
Citation

Preamble

Preamble

Preamble

(3%)
$82,772,721

$45,313,422

$129,596,845
Preamble

(7%)
$82,772,721

$45,313,422

$129,596,845
Preamble

Annualized quantified,
but un-monetized, costs

NIA
Preamble

Qualitative
(unquantified) 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 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.

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

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

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2. Background and Purpose of the Rule
As discussed in the preamble, DHS
seeks to ensure appropriate application
of the public charge ground of
inadmissibility. Under the INA, an alien
who, at the time of application for a
visa, admission, or adjustment of status,
is deemed likely at any time to become
a public charge is inadmissible to the
United States.698
While the INA does not define public
charge, Congress has specified that
when determining if an alien is likely at
any time to become a public charge,
consular and immigration officers must,
at a minimum, consider certain factors
698 See

INA section 212(a)(4); 8 U.S.C. 1182(a)(4).

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51235

including the alien’s age, health, and
family status; assets, resources, and
financial status; and education and
skills.699 Additionally, DHS may
consider any affidavit of support
submitted under section 213A of the
Act, 8 U.S.C. 1183a, on behalf of the
applicant when determining whether
the applicant may become a public
charge.700 For most family-based and
some employment-based immigrant
visas or adjustment of status
applications, applicants must have a
sufficient affidavit of support or they

will be found inadmissible as likely to
become a public charge.701
However, in general, there is a lack of
academic literature and economic
research examining the link between
immigration and public benefits (i.e.,
welfare), and the strength of that
connection.702 It is also difficult to
determine whether immigrants are net
contributors or net users of governmentsupported public assistance programs
since much of the answer depends on
the data source, how the data are used,
and what assumptions are made for

699 See INA section 212(a)(4)(B)(i); 8 U.S.C.
1182(a)(4)(B)(i).
700 See INA section 212(a)(4)(B)(ii). When
required, the applicant must submit Form I-864,
Affidavit of Support Under Section 213A of the
INA.

701 See INA section 212(a)(4)(C) and (D), 8 U.S.C.
1182(a)(4)(C) and (D).
702 See Borjas, G.J. (2016) We wanted workers:
Unraveling the immigration narrative. Chapter 9,
pp. 175–176, 190–191. W.W. Norton & Company,
New York.

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analysis.703 Moreover, DHS also was not
able to estimate potential lost
productivity, health effects, additional
medical expenses due to delayed health
care treatment, or increased disability
insurance claims as a result of this
proposed rule.
Currently, the public charge
inadmissibility ground does not apply
to all applicants seeking a visa,
admission, or adjustment of status.
Several immigrant and nonimmigrant
categories, by law or regulation, are
exempt from the public charge ground
of inadmissibility grounds.704
The costs and benefits for this
proposed rule focus on individuals
applying for adjustment of status using
Form I–485. Such individuals would be
applying from within the United States,
rather than applying for a visa from
outside the United States at a DOS
consulate abroad. In addition, the
impact of this proposed rule on
nonimmigrants who are seeking an
extension of stay or a change of status
are also examined in this analysis.
The new process DHS is proposing for
making a determination of
inadmissibility based on public charge
incorporates a new form—Form I–944—
in the current process to apply for
adjustment of status. Currently, as part
of the requirements for filing Form I–
485, applicants submit biometrics
collection for fingerprints and signature,
and also file Form I–693 which is to be
completed by a designated civil
surgeon. Form I–693 is used to report
results of a medical examination to
USCIS.
Form I–864 (Affidavit of Support
Under Section 213A of the INA) is also
filed to satisfy the requirements of
section 213A of the Act for most familybased immigrants and some
employment-based immigrants to show
that they have adequate means of
financial support and are not likely to
become a public charge. When a
sponsor completes and signs Form I–
864 in support of an intending
immigrant, the sponsor agrees to use his
or her resources, financial or otherwise,
to support the intending immigrant
named in the affidavit, if it becomes
necessary.
Immigrants required to submit Form
I–864 completed by a sponsor to obtain
an immigrant visa overseas or to adjust
status to that of lawful permanent
resident in the United States, include (1)
immediate relatives of U.S. citizens
(spouses, unmarried children under 21
703 See Borjas, G.J. (2016) We wanted workers:
Unraveling the immigration narrative. Chapter 9, p.
175. W.W. Norton & Company, New York.
704 See proposed 8 CFR 212.23(a).

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years of age, and parents of U.S. citizens
21 years of age and older); (2) familybased preference immigrants (unmarried
sons and daughters of U.S. citizens,
spouses and unmarried sons and
daughters of lawful permanent
residents, married sons and daughters of
U.S. citizens, and brothers and sisters of
U.S. citizens 21 years of age and older);
and (3) employment-based preference
immigrants in cases only when a U.S.
citizen, lawful permanent resident, or
U.S. national relative filed the
immigrant visa petition or such relative
has a significant ownership interest (5
percent or more) in the entity that filed
the petition. However, immigrants
seeking certain visa classifications are
exempt from the requirement to submit
a Form I–864 as are intending
immigrants who have earned or can
receive credit for 40 qualifying quarters
(credits) of work in the United States.
Additionally, some sponsors for
intending immigrants may be able to file
an Affidavit of Support Under Section
213A of the INA (Form I–864EZ). Form
I–864EZ is a shorter version of Form I–
864 and is designed for cases that meet
certain criteria. A sponsor may file Form
I–864EZ only if: (1) The sponsor is the
person who filed or is filing a Petition
for Alien Relative (Form I–130) for a
relative being sponsored; (2) the relative
being sponsored is the only person
listed on Form I–130; and (3) the
income the sponsor is using for
qualification is based entirely on salary
or pension and is shown on one or more
Internal Revenue Service (IRS) Form W–
2s provided by employers or former
employers.
Form I–864 includes attachment,
Contract Between Sponsor and
Household Member (Form I–864A),
which may be filed when a sponsor’s
income and assets do not meet the
income requirements of Form I–864 and
the qualifying household member
chooses to combine his or her resources
with the income and/or assets of a
sponsor to meet those requirements. A
sponsor must file a separate Form I–
864A for each household member
whose income and/or assets the sponsor
is using to meet the affidavit of support
income requirements. The Form I–864A
contract must be submitted with Form
I–864. The Form I–864A serves as a
contractual agreement between the
sponsor and household member that,
along with the sponsor, the household
member is responsible for providing
financial and material support to the
sponsored immigrant.
In cases where the petitioning sponsor
cannot meet the income requirements
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status may also meet the affidavit of
support requirement by obtaining a joint
sponsor who is willing to accept joint
and several liability with the petitioning
sponsor as to the obligation to provide
support to the sponsored alien. The
joint sponsor must demonstrate income
or assets that independently meet the
requirements to support the sponsored
immigrant(s) as required under section
213A(f)(2) and (f)(5)(A) of the Act, 8
U.S.C. 1883a(f)(2) and (f)(5)(A). The
joint sponsor’s income and assets may
not be combined with the income/assets
of the petitioning sponsor or the
sponsored immigrant. Both the
petitioning sponsor and the joint
sponsor must each complete a Form I–
864.
Certain classes of immigrants
currently are exempt from the
requirement to file Form I–864 or Form
I–864EZ and therefore must file Form I–
864W. DHS proposes to eliminate Form
I–864W and instead individuals would
now be required to provide the
information previously requested on the
Form I–864W using Form I–485. Based
on the information provided in the
Form I–485, an officer can verify
whether an alien is statutorily required
to file an affidavit of support.
Some applicants seeking adjustment
of status may be eligible for a fee waiver
when filing Form I–485. An applicant
who is unable to pay the filing fees or
biometric services fees for an
application or petition may obtain a fee
waiver by filing a Request for Fee
Waiver (Form I–912). If an applicant’s
Form I–912 is approved, the agency will
waive both the filing fee and biometric
services fee. Therefore, DHS assumes for
the purposes of this economic analysis
that the filing fees and biometric
services fees required for Form I–485 are
waived if an approved Form I–912
accompanies the application.
When filing Form I–485, a fee waiver
is only available if the applicant is
applying for adjustment of status based
on:
• Special Immigrant Status based on
an approved Form I–360 as an Afghan
or Iraqi Interpreter, or Afghan or Iraqi
national employed by or on behalf of the
U.S. Government; or
• An adjustment provision that is
exempt from the public charge grounds
of inadmissibility under section
212(a)(4) of the INA, including but not
limited to the Cuban Adjustment Act,
the Haitian Refugee Immigration
Fairness Act (HRIFA), and the
Nicaraguan Adjustment and Central
American Relief Act (NACARA), or
similar provisions; continuous
residence in the United States since
before January 1, 1972, ‘‘Registry,’’

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Asylum Status under section 209(b) of
the INA, Special Immigrant Juvenile
Status, and Lautenberg parolees.
Additionally, the following
individuals seeking adjustment of status
may apply for a fee waiver for Form I–
485:
• Battered spouses of A, G, E–3, or H
nonimmigrants;
• Battered spouses or children of a
lawful permanent resident or U.S.
citizen under INA section 240A(b)(2);
• T nonimmigrants;
• U nonimmigrants; or
• VAWA self–petitioners.
DHS is proposing to facilitate the
current Form I–485 application process
by creating a new form—Form I–944—
which would collect information to the
extent allowed by relevant laws based
on factors such as age; health; family
status; assets, resources, and financial
status; education and skills; and any
additional financial support through an
affidavit of support, so that DHS could
determine whether an applicant
applying for adjustment of status who is
subject to public charge review would
be inadmissible to the United States
based on public charge grounds. For the
analysis of this proposed rule, DHS
assumes that all individuals who apply
for an adjustment of status using Form
I–485 are required to submit Form I–
944, unless he or she is in a class of
applicants that is exempt from review
for determination of inadmissibility
based on public charge at the time of
adjustment of status according to statute
or regulation.
In addition to those applying for an
adjustment of status, any alien applying
for an extension of stay or change of
status as a nonimmigrant in the United
States would now be required to
demonstrate that he or she is neither
using nor receiving, nor likely to
receive, public benefits as defined in
this proposed rule unless the applicant
is in a class of admission or is seeking
to change to a class of admission that is
exempt from inadmissibility on public
charge grounds.
For applicants seeking adjustment of
status or an immigrant visa who are
likely to become a public charge after
the review for determination of
inadmissibility based on public charge,
DHS is proposing to establish a bond

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process for such aliens. DHS currently
does not have a specific process or
procedure in place to accept public
charge bonds, though it has the
authority to do so. The proposed public
charge bond process would include
DHS acceptance of a public charge bond
posted on an adjustment of status
applicant’s behalf if the adjustment of
status applicant was deemed
inadmissible based on public charge.
The process would also include the
possibility to substitute an existing
bond, the requirement to substitute a
bond before the bond on file with DHS
expires, the DHS determination of
breach of a public charge bond, the
possibility to file an appeal upon a
breach determination, cancellation of a
public charge bond, and the possibility
to submit an appeal upon denial of the
cancellation request.
3. Population
This proposed rule would affect
individuals who are present in the
United States who are seeking an
adjustment of status to that of a lawful
permanent resident. According to
statute, an individual who is seeking
adjustment of status and is at any time
likely to become a public charge is
ineligible for such adjustment.705 The
grounds of inadmissibility set forth in
section 212 of the Act also apply when
certain aliens seek admission to the
United States, whether for a temporary
purpose or permanently. However, the
grounds of public charge inadmissibility
(including ineligibility for adjustment of
status) do not apply to all applicants
since there are various classes of
admission that Congress expressly
exempted from the public charge
inadmissibility ground. Within USCIS,
this proposed rule would affect
individuals who apply for adjustment of
status since these individuals would be
required to be reviewed for a
determination of inadmissibility based
on public charge grounds as long as the
individual is not in a class of admission
that is exempt from review for public
charge. In addition, the proposed rule
would affect individuals applying for an
extension of stay or change of status
705 See

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51237

because these individuals would have to
demonstrate that they have not received,
are not currently receiving, and are not
likely to receive public benefits in the
future, as defined in the proposed rule.
This analysis estimates the populations
from each of these groups that would be
subject to review for receipt of public
benefits. DHS notes that the population
estimates are based on aliens present in
the United States who are applying for
adjustment of status or extension of stay
or change of status, rather than
individuals outside the United States
who must apply for an immigrant visa
through consular processing at a DOS
consulate abroad.
(a) Population Seeking Adjustment of
Status
With this proposed rule, DHS intends
to ensure that aliens who apply for
adjustment of status are self-sufficient
and will rely on their own financial
resources, as well of those of their
families, sponsors, and private
organizations. Therefore, DHS estimates
the population of individuals who are
applying for adjustment of status using
Form I–485.706 Under the proposed rule,
these individuals would undergo review
for determination of inadmissibility
based on public charge grounds, unless
an individual is in a class of admission
that is exempt from review for public
charge determination.
Table 38 shows the total population
in fiscal years 2012 to 2016 that applied
for adjustment of status. In general, the
annual population of individuals who
applied to adjust status was consistent.
Over the 5-year period, the population
of individuals applying for adjustment
of status ranged from a low of 530,802
in fiscal year 2013 to a high of 565,427
in fiscal year 2016. In addition, the
average population of individuals over 5
fiscal years who applied for adjustment
of status over this period was 544,246.
706 Data on the population of individuals who are
applying for adjustment of status and the class of
admission come from U.S. Department of Homeland
Security, Yearbook of Immigration Statistics for
years 2012 to 2016. See U.S. Department of
Homeland Security. Yearbook of Immigration
Statistics. Office of Immigration Statistics. Available
at https://www.dhs.gov/immigration-statistics/
yearbook/ (accessed Jan. 24, 2018).

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DHS welcomes any public comments
on our estimates of the total number of
individuals applying for adjustment of
status in the United States as the
primary basis for developing population
estimates of those who would be subject
to review for determination of

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inadmissibility based on public charge
grounds.
i. Exemptions From Determination of
Inadmissibility Based on Public Charge
Grounds
There are exemptions and waivers for
certain classes of admission that are not
subject to review for determination of

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inadmissibility based on public charge
grounds. Table 39 shows the classes of
applicants for admission, adjustment of
status, or registry according to statute or
regulation that are exempt from
inadmissibility based on public charge
grounds.
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•

Afghan and Iraqi Interpreter, or Afghan or
Iraqi national employed by or on behalf of
the U.S. Govermnent as described in
section 1059(a)(2) of the National Defense
Authorization Act for Fiscal Year 2006
Public Law 109-163 (Jan. 6, 2006), as
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);

•

Cuban and Haitian entrants applying for
adjustment of status under in section 202
of the Immigration Reform and Control
Act of 1986 (IRCA), Public Law 99-603,
100 Stat. 3359 (Nov. 6, 1986), as
amended, 8 U.S.C. 1255a note;

•

Aliens applying for adjustment of status
under the Cuban Adjustment Act, Public
Law 89-732 (Nov. 2, 1966), as amended, 8
U.S.C. 1255 note;

•

Nicaraguans and other Central Americans
applying for adjustment of status under
sections 202(a) and section 203 of the
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
under section 902 of the Haitian Refugee
Immigration Fairness Act of 1998, Public
Law 105-277, ll2 Stat. 2681 (Oct. 21,
1998), as amended, 8 U.S. C. 1255 note;

•

Lautenberg parolees as described in
section 599E of the Foreign Operations,
Export Financing, and Related Programs
Appropriations Act of 1990, Public Law
101-167, 103 Stat. ll95, title V (Nov. 21,
1989), as amended, 8 U.S.C. 1255 note;

•

Special immigrant juveniles as described
in section 245(h) of the Act;

•

Aliens who entered the United States prior
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
Temporary Protected Status as described in
section 244 of the Act in accordance witl1
section 244(c)(2)(A)(ii) of the Act and 8
CFR 244.3(a);

•

A nonimmigrant classified under section
101(a)(15)(T) ofthe Act, in accordance
with section 212(d)(l3)(A) of the Act;

•

An applicant for, or individual who is
granted, nonimmigrant status under section
101(a)(15)(U) of the Act in accordance

•

Nonimmigrants classified under section
101(a)(15)(U) of the Act applying for
adjustment of status under section 245(m)

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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
sections 584 of the Foreign Operations,
Act (refugees) or grant under section 208
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;

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To estimate the annual total
population of individuals seeking to
adjust status who would be subject to
review for inadmissibility based on
public charge grounds, DHS examined
the annual total population of
individuals who applied for adjustment
of status for fiscal years 2012 to 2016.
For each fiscal year, DHS removed
individuals from the population whose
classes of admission are exempt from
public charge review for inadmissibility,

707 Calculation of total estimated population that
would be subject to public charge review: (Total
Population Applying for Adjustment of
Status)¥(Total Population Seeking Adjustment of

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as shown in table 39, leaving the total
population that would be subject to
such review. Further discussion of these
exempt classes of admission can be
found in the preamble.
Table 40 shows the total estimated
population of individuals seeking to
adjust status under a class of admission
that is exempt from review for
inadmissibility based on public charge
grounds for fiscal years 2012 to 2016 as
well as the total estimated population
that would be subject to public charge

review.707 In fiscal year 2016, for
example, the total number of persons
who applied for an adjustment of status
across various classes of admission was
565,427 (see table 38). After removing
individuals from this population whose
classes of admission are exempt from
examination for public charge, DHS
estimates the total population of
adjustment applicants in fiscal year
2016 that would be subject to public
charge review for inadmissibility is
382,769.708

Status that is Exempt from Public Charge Review
for Inadmissibility) = Total Population Subject to
Public Charge Review for Inadmissibility.

708 Calculation of total population subject to
public charge review for inadmissibility for fiscal
year 2016: 565,427¥182,658 = 382,769.

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51241

DHS estimates the projected annual
average total population of adjustment
applicants that would be subject to
public charge review for inadmissibility
by DHS is 382,264. This estimate is
based on the 5-year average of the
annual estimated total population
subject to public charge review for
inadmissibility from fiscal year 2012 to
fiscal year 2016. Over this 5-year period,
the estimated population of individuals
applying for adjustment of status subject
to public charge review ranged from a
low of 366,125 in fiscal year 2015 to a
high of 397,988 in fiscal year 2013.
DHS welcomes any public comments
on our estimates of the total population
of individuals seeking to adjust status
under a class of admission that is
exempt from review for inadmissibility
based on public charge grounds as well
as the total population that would be
subject to public charge review. DHS
notes that the population estimates are
based on immigrants present in the
United States who are applying for
adjustment of status, rather than

immigrants outside the United States
who must apply for an immigrant visa
through consular processing at DOS
consulate abroad.
ii. Exemptions From the Requirement
To Submit an Affidavit of Support
In addition to the exemptions from
inadmissibility based on public charge,
certain classes of admission are exempt
from the requirement to submit an
affidavit of support for applicants for
admission, adjustment of status, or
registry. Certain applicants applying for
adjustment of status are required to
submit an affidavit of support from a
sponsor or otherwise be found
inadmissible as likely to become a
public charge. When an affidavit of
support is submitted, a contract is
established between the sponsor and the
U.S. Government to establish a legally
enforceable obligation to support the
applicant financially.
Table 41 shows the estimated total
population of individuals seeking
adjustment of status who were exempt

from the requirement to submit an
affidavit of support from a sponsor over
the period fiscal year 2012 to fiscal year
2016.709 The table also shows the total
estimated population that was required
to submit an affidavit of support
showing evidence of having adequate
means of financial support so that an
applicant would not be found
inadmissible as likely to become a
public charge for failure to submit a
sufficient affidavit of support. Further
discussion of these exempt classes of
admission can be found in the
preamble. The estimated annual average
population of individuals seeking to
adjust status who were required to
submit a public charge affidavit of
support from a sponsor over the 5-year
period was 257,610. Over this 5-year
period, the estimated population of
individuals required to submit a public
charge affidavit of support from a
sponsor ranged from a low of 247,011 in
fiscal year 2015 to a high of 272,451 in
fiscal year 2016.

709 Data on the population of individuals who are
applying for adjustment of status and the class of
admission come from U.S. Department of Homeland

Security, Yearbook of Immigration Statistics for
years 2012 to 2016. See U.S. Department of
Homeland Security. Yearbook of Immigration

Statistics. Office of Immigration Statistics. Available
at https://www.dhs.gov/immigration-statistics/
yearbook/ (accessed Jan. 24, 2018).

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

DHS estimates the projected annual
average total population that would be
subject to the requirement to submit an
affidavit of support from a sponsor is
257,610. This estimate is based on the
5-year average of the annual estimated
total population of applicants applying
for adjustment of status that would be
subject to the requirement to submit an
affidavit of support from a sponsor from
fiscal year 2012 to fiscal year 2016. Over
this 5-year period, the estimated
population of such individuals applying
for adjustment of status ranged from a
low of 247,011 in fiscal year 2015 to a
high of 272,451 in fiscal year 2016.
DHS welcomes any public comments
on our estimates of the total population
of individuals seeking adjustment of
status who were exempt from the
requirement to submit an affidavit of
support as well as the total population
that was required to submit an affidavit
of support showing evidence of having
adequate means of financial support so
that an applicant would not be found
inadmissible as likely become a public
charge for failure to submit a sufficient
affidavit of support. DHS notes that the
population estimates are based on
immigrants present in the United States
who are applying for adjustment of
status, rather than immigrants outside
the United States who must apply for an
immigrant visa through consular
processing at a U.S. Department of State
consulate abroad.

(b) Population Seeking Extension of
Stay or Change of Status
Nonimmigrants in the United States
may apply for an extension of stay or
change of status by having Form I–129
filed by an employer on his or her
behalf. An employer uses Form I–129 to
petition USCIS for a beneficiary to enter
the United States temporarily as a
nonimmigrant to perform services or
labor, or to receive training. The Form
I–129 can also be used to request an
extension or change in status. In
addition, an employer may use Form I–
129CW to petition USCIS for a foreign
national who is ineligible for another
employment-based nonimmigrant
classification to work as a nonimmigrant
in the Commonwealth of the Northern
Mariana Islands (CNMI) temporarily as
a CW–1, CNMI-Only Transitional
Worker. Moreover, an employer may
also use Form I–129CW to request an
extension of stay or change of status for
a CNMI-Only Transitional Worker.
A nonimmigrant may file Form I–539
so long as the nonimmigrant is currently
in an eligible nonimmigrant category. A
nonimmigrant generally must submit an
application for extension of stay or
change of status before his or her
current authorized stay expires. In
addition to determining inadmissibility
based on public charge for individuals
seeking adjustment of status, DHS is
proposing to conduct reviews of
nonimmigrants who apply for extension

of stay or change of status to determine
whether the applicant has demonstrated
that he or she has not received, is not
receiving, nor is likely to receive, public
benefits, as defined in the proposed
rule.710 However, DHS proposes that
such determinations would not require
applicants seeking extension of stay or
change of status to file Form I–944.
Instead, USCIS officers would be able to
exercise discretion regarding whether it
would be necessary to issue a RFE
whereby an applicant would then have
to submit Form I–944.
Table 42 shows the total estimated
population of beneficiaries seeking
extension of stay or change of status
through an employer petition using
Form I–129 for fiscal years 2012 to 2016.
DHS estimated this population based on
receipts of Form I–129 in each fiscal
year. Over this 5-year period, the
estimated population of individuals
who would be subject to a
determination of inadmissibility on
public charge grounds ranged from a
low of 282,225 in fiscal year 2013 to a
high of 377,221 in fiscal year 2012. The
estimated average population of
individuals seeking extension of stay or
change of status over the five-year
period fiscal year 2012 to 2016 was
336,335. DHS estimates that 336,335 is
the average annual projected population
of beneficiaries seeking extension of
stay or change of status through an
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.

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

51243

therefore subject to the discretionary
RFEs for public charge determination.

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who would be subject to a
determination of inadmissibility on
public charge grounds ranged from a
low of 5,249 in fiscal year 2013 to a high
of 8,273 in fiscal year 2016. The
estimated average population of
individuals seeking extension of stay or
change of status through Form I–129CW
over the five-year period fiscal year

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2012 to 2016 was 6,307. DHS estimates
that 6,307 is the average annual
projected population of beneficiaries
seeking extension of stay or change of
status through an employer petition
using Form I–129CW and therefore
subject to discretionary RFEs for public
charge determination.

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Table 43 shows the total estimated
population of beneficiaries seeking
extension of stay or change of status
through an employer petition using
Form I–129CW for fiscal years 2012 to
2016. DHS estimated this population
based on receipts of Form I–129CW in
each fiscal year. Over this 5-year period,
the estimated population of individuals

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

Table 44 shows the total estimated
population of individuals seeking
extension of stay or change of status
using Form I–539 for fiscal years 2012
to 2016. DHS estimated this population
based on receipts of Form I–539 in each
fiscal year. Over this 5-year period, the
estimated population of individuals

who would be subject to a
determination of inadmissibility on
public charge grounds ranged from a
low of 149,583 in fiscal year 2013 to a
high of 203,695 in fiscal year 2016. The
estimated average population of
individuals seeking extension of stay or
change of status over the 5-year period

from fiscal year 2012 to 2016 was
174,866. DHS estimates that 174,866 is
the average annual projected population
of individuals who would seek an
extension of stay and change of status
using Form I–539 and therefore would
be subject to the discretionary RFEs for
public charge determination.

DHS welcomes any public comments
on our estimates of the total population
of employers filing on behalf of
individuals seeking extension of stay or
change of status using Form I–129 or
Form I–129CW as well as the total of
individuals seeking extension of stay or
change of status using Form I–539,
where DHS proposes that the total
population using each of these forms
would be subject to review on a
discretionary basis for determination of
inadmissibility based on public charge
grounds. DHS notes that the population
estimates are based on nonimmigrants
present in the United States who are
applying for extension of stay or a
change of status, rather than individuals
outside the United States who must
apply for a nonimmigrant visa through
consular processing at a DOS consulate
abroad.

hour ($7.25 federal minimum wage base
plus $3.41 weighted average benefits) as
a reasonable proxy of time valuation to
estimate the opportunity costs of time
for individuals who are applying for
adjustment of status and must be
reviewed for determination of
inadmissibility based on public charge
grounds.711 DHS also uses $10.66 per
hour to estimate the opportunity cost of
time for individuals who cannot or
choose not to participate in the labor
market as these individuals incur
opportunity costs and/or assign
valuation in deciding how to allocate
their time. This analysis uses the federal
minimum wage rate since
approximately 80 percent of the total
number of individuals who obtained
lawful permanent resident status were
in a class of admission under familysponsored preferences and other nonemployment-based classifications such
as diversity, refugees and asylees, and
parolees.712 Therefore, DHS assumes

many of these applicants hold positions
in occupations that are likely to pay
around the federal minimum wage.
The federal minimum wage of $7.25
is an unweighted hourly wage that does
not account for worker benefits. DHS
accounts for worker benefits when
estimating the opportunity cost of time
by calculating a benefits-to-wage
multiplier using the most recent
Department of Labor, BLS report
detailing the average employer costs for
employee compensation for all civilian
workers in major occupational groups
and industries. DHS estimates that the
benefits-to-wage multiplier is 1.47 and,
therefore, is able to estimate the full
opportunity cost per applicant,
including employee wages and salaries
and the full cost of benefits such as paid
leave, insurance, and retirement.713

4. Cost-Benefit Analysis
DHS expects this proposed rule to
produce costs and benefits associated
with the procedures for examining
individuals seeking entry into the
United States for inadmissibility based
on public charge.
For this proposed rule, DHS generally
uses the federal minimum wage plus
weighted average benefits of $10.66 per

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711 See 29 U.S.C. 206—Minimum wage, available
at https://www.gpo.gov/fdsys/pkg/USCODE-2011title29/html/USCODE-2011-title29-chap8sec206.htm (accessed Jan. 24, 2018).
712 See United States Department of Homeland
Security. Yearbook of Immigration Statistics: 2016,
Table 7. Washington, DC, U.S. Department of
Homeland Security, Office of Immigration

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Statistics, 2017. Available at https://www.dhs.gov/
immigration-statistics/yearbook/2016 (accessed Jan.
24, 2018).
713 The benefits-to-wage multiplier is calculated
as follows: (Total Employee Compensation per
hour)/(Wages and Salaries per hour) = $36.32/
$24.77 = 1.466 = 1.47 (rounded). See Economic
News Release, Employer Cost for Employee
Compensation (March 2018), U.S. Dept. of Labor,
BLS, Table 1. Employer costs per hour worked for
employee compensation and costs as a percent of
total compensation: Civilian workers, by major
occupational and industry group. June 8, 2018,

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
DHS notes that there is no requirement
that an individual be employed in order
to file Form I–485 and many applicants
may not be employed. Therefore, in this
proposed rule, DHS calculates the total
rate of compensation for individuals
applying for adjustment of status as
$10.66 per hour in this proposed rule
using the benefits-to-wage multiplier,
where the mean hourly wage is $7.25
per hour worked and average benefits
are $3.41 per hour.714
However, DHS uses the unweighted
mean hourly wage of $24.34 per hour
for all occupations to estimate the
opportunity cost of time for some
populations in this economic analysis,
such as those submitting an affidavit of
support for an immigrant seeking to
adjust status and those requesting
extension of stay or change of status. For
populations such as this, DHS assumes
that individuals are dispersed
throughout the various occupational
groups and industry sectors of the U.S.
economy. For the population submitting
an affidavit of support, therefore, DHS
calculates the average total rate of
compensation as $35.78 per hour, where
the mean hourly wage is $24.34 per

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available at https://www.bls.gov/news.release/
archives/ecec_06082018.pdf (viewed June 20,
2018).
714 The calculation of the weighted federal
minimum hourly wage for applicants: $7.25 per
hour * 1.47 benefits-to-wage multiplier = $10.658
= $10.66 (rounded) per hour.

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hour worked and average benefits are
$11.46 per hour.715 716
DHS welcomes public comments on
its use of $10.66 per hour as the
opportunity cost of time for most
populations of this analysis (individuals
in a class of admission under familysponsored preferences and other nonemployment-based preferences) and
$35.78 per hour as the opportunity cost
of time for other populations, such as
those submitting an affidavit of support
for an immigrant seeking to adjust
status.
(a) Baseline Estimate of Current Costs
The baseline estimate of current costs
is the best assessment of costs and
benefits absent the proposed action. For
this proposed rule, DHS estimates the
baseline according to current operations
and requirements and to that compares
the estimated costs and benefits of the
provisions set forth in the proposed
rule. Therefore, DHS defines the
baseline by assuming ‘‘no change’’ to
DHS regulations to establish an
715 The national mean hourly wage across all
occupations is reported to be $24.34. See
Occupational Employment and Wage Estimates
United States. May 2017. Department of Labor, BLS,
Occupational Employment Statistics program;
available at https://www.bls.gov/oes/2017/may/oes_
nat.htm.
716 The calculation of the weighted mean hourly
wage for applicants: $24.34 per hour * 1.47 =
$35.779 = $35.78 (rounded) per hour.

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51245

appropriate basis for evaluating the
provisions of the proposed rule. DHS
notes that costs detailed as part of the
baseline include all current costs
associated with completing and filing
Form I–485, including required
biometrics collection and medical
examination (Form I–693) as well as any
affidavits of support (Forms I–864, I–
864A, I–864EZ, and I–864W) or
requested fee waivers (Form I–912). As
noted previously in the background
section, the source of additional costs
imposed by this proposed rule would
come from the proposed requirements to
submit Form I–944 detailing
information about an applicant
regarding factors such as age, health,
family status, finances, and education
and skills. These costs are analyzed later
in this economic analysis.
Table 45 shows the estimated
population and annual costs of filing for
adjustment of status and requesting an
extension of stay or change of status for
the proposed rule. These costs primarily
result from the process of applying for
adjustment of status, including filing
Form I–485 and Form I–693 as well as,
if necessary, an affidavit of support and/
or Form I–912. The costs are derived
from the process of applying for
extension of stay or change of status,
including filing Form I–129, Form I–
129CW, or Form I–539.
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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
Table 45. Total Average Annual Baseline (Current) Costs.

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1-485, Application to Register Permanent
Residence or Adjust Status

382,264

z~~1~[~:,~;];~~
r02'~~~~;J
~ . ,~i~I:~;J:~
.. ,
$519,114,512
$435,780,960

Filing Fee
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
$187,309,360

Medical Exam Cost
Opportunity Cost of Time (OCT)

$10,187,336

Postage Costs

$1,433,490

1-912, Request for Fee Waiver

$949,811

58,558

Opportunity Cost of Time (OCT)

$730,218

Postage Costs

$219,593

Affidavit of Support Forms (1-864, 1864A, 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
$11,763,236

Total Baseline Costs
Source: USCIS analysis.

$1,040,053,529

BILLING CODE 4410–10–C

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
i. Determination of Inadmissibility
Based on Public Charge Grounds
a. Form I–485, Application To Register
Permanent Residence or Adjust Status
The basis of the quantitative costs
estimated for this proposed rule is the
cost of filing for adjustment of status
using Form I–485, the opportunity cost
of time for completing this form, any
other required forms, and any other
incidental costs (e.g., travel costs) an
individual must bear that are required
in the filing process. DHS reiterates that
costs examined in this section are not
additional costs that would be imposed
by the proposed rule, but costs that
applicants currently incur as part of the
application process to adjust status. The
current filing fee for Form I–485 is
$1,140. The fee is set at a level to
recover the processing costs to DHS. As
previously discussed in the population
section, the estimated average annual
population of individuals who apply for
adjustment of status using Form I–485 is
382,264. Therefore, DHS estimates that
the annual filing cost associated for
Form I–485 is approximately
$435,780,960.717
DHS estimates the time burden of
completing Form I–485 is 6.25 hours per
response, including the time for
reviewing instructions, gathering the
required documentation and
information, completing the application,
preparing statements, attaching
necessary documentation, and
submitting the application.718 Using the
total rate of compensation for minimum
wage of $10.66 per hour, DHS estimates
the opportunity cost of time for
completing and submitting Form I–485
would be $66.63 per applicant.719
Therefore, using the total population
estimate of 382,264 annual filings for
Form I–485, DHS estimates the total
opportunity cost of time associated with
completing Form I–485 is
approximately $25,470,250 annually.720
USCIS requires applicants who file
Form I–485 to submit biometric
information (fingerprints and signature)

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717 Calculation:

Form I–485 filing fee ($1,140) *
Estimated annual population filing Form I–485
(382,264) = $435,780,960 annual cost for filing
Form I–485.
718 Source: Paperwork Reduction Act (PRA)
Supporting Statement for Form I–485 (OMB control
number 1615–0023). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201706-1615-001.
719 Calculation for opportunity cost of time for
filing Form I–485: ($10.66 per hour * 6.25 hours)
= $66.625 = $66.63 (rounded) per applicant.
720 Calculation: Form I–485 estimated
opportunity cost of time ($66.63) * Estimated
annual population filing Form I–485 (382,264) =
$25,470,250.13 = $25,470,250 (rounded) annual
opportunity cost of time for filing Form I–485.

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by attending a biometrics services
appointment at a designated USCIS
Application Support Center (ASC). The
biometrics services processing fee is
$85.00 per applicant. Therefore, DHS
estimates that the annual cost associated
with biometrics services processing for
the estimated average annual population
of 382,264 individuals applying for
adjustment of status is approximately
$32,492,440.721
In addition to the biometrics services
fee, the applicant would incur the costs
to comply with the biometrics
submission requirement as well as the
opportunity cost of time for traveling to
an ASC, the mileage cost of traveling to
an ASC, and the opportunity cost of
time for submitting his or her
biometrics. While travel times and
distances vary, DHS estimates that an
applicant’s average roundtrip distance
to an ASC is 50 miles and takes 2.5
hours on average to complete the trip.722
Furthermore, DHS estimates that an
applicant waits an average of 1.17 hours
for service and to have his or her
biometrics collected at an ASC, adding
up to a total biometrics-related time
burden of 3.67 hours.723 Using the total
rate of compensation of minimum wage
of $10.66 per hour, DHS estimates the
opportunity cost of time for completing
the biometrics collection requirements
for Form I–485 is $39.12 per
applicant.724 Therefore, using the total
population estimate of 382,264 annual
filings for Form I–485, DHS estimates
the total opportunity cost of time
associated with completing the
biometrics collection requirements for
Form I–485 is approximately
$14,954,168 annually.725
In addition to the opportunity cost of
providing biometrics, applicants would
721 Calculation: Biometrics services processing fee
($85) * Estimated annual population filing Form I–
485 (382,264) = $32,492,440 annual cost for
associated with Form I–485 biometrics services
processing.
722 See ‘‘Employment Authorization for Certain
H–4 Dependent Spouses; Final rule,’’ 80 FR 10284
(25 Feb. 2015); and ‘‘Provisional and Unlawful
Presence Waivers of Inadmissibility for Certain
Immediate Relatives; Final Rule,’’ 78 FR 536, 572
(3 Jan. 2013).
723 Source for biometric time burden estimate:
Paperwork Reduction Act (PRA) Supporting
Statement for Form I–485 (OMB control number
1615–0023). The PRA Supporting Statement can be
found at Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201706-1615-001.
724 Calculation for opportunity cost of time to
comply with biometrics submission for Form I–485:
($10.66 per hour * 3.67 hours) = $39.12 (rounded)
per applicant.
725 Calculation: Estimated opportunity cost of
time to comply with biometrics submission for
Form I–485 ($39.12) * Estimated annual population
filing Form I–485 (382,264) = $14,954,167.68 =
$14,954,168 (rounded) annual opportunity cost of
time for filing Form I–485.

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incur travel costs related to biometrics
collection. The cost of travel related to
biometrics collection would equal
$27.25 per trip, based on the 50-mile
roundtrip distance to an ASC and the
General Services Administration’s
(GSA) travel rate of $0.545 per mile.726
DHS assumes that each applicant would
travel independently to an ASC to
submit his or her biometrics, meaning
that this rule would impose a travel cost
on each of these applicants. Therefore,
DHS estimates that the total annual cost
associated with travel related to
biometrics collection for the estimated
average annual population of 382,264
individuals applying for adjustment of
status is approximately $10,416,694.727
In sum, DHS estimates the total
current annual cost for filing Form I–
485 is $519,114,512. The total current
annual costs include Form I–485 filing
fees, biometrics services fees,
opportunity cost of time for completing
Form I–485 and submitting biometrics
information, and travel cost associated
with biometrics collection.728 DHS
notes that a medical examination is
generally required as part of the
application process to adjust status.
Costs associated with the medical
examination are detailed in the next
section. Moreover, costs associated with
submitting an affidavit of support and
requesting a fee waiver are also detailed
in subsequent sections since such costs
are not required for every individual
applying for an adjustment of status.
b. Form I–693, Report of Medical
Examination and Vaccination Record
USCIS requires most applicants who
file Form I–485 seeking adjustment of
status to submit Form I–693 completed
by a designated civil surgeon. Form I–
693 is used to report results of a medical
examination to USCIS. For this analysis,
DHS assumes that all individuals who
apply for adjustment of status using
Form I–485 are required to submit Form
I–693. DHS reiterates that costs
examined in this section are not
726 See U.S. General Services Administration
website for Privately Owned Vehicle (POV) Mileage
Reimbursement Rates, https://www.gsa.gov/travel/
plan-book/transportation-airfare-rates-pov-ratesetc/privately-owned-vehicle-pov-mileagereimbursement-rates (accessed January 7, 2018).
727 Calculation: (Biometrics collection travel
costs) * (Estimated annual population filing Form
I–485) = $27.25 * 382,264 = $10,416,694 annual
travel costs related to biometrics collection for Form
I–485.
728 Calculation: $435,780,960 (Annual filing fees
for Form I–485) + $25,470,250 (Opportunity cost of
time for filing Form I–485) + $32,492,440
(Biometrics services fees) + $14,954,168
(Opportunity cost of time for biometrics collection
requirements) + $10,416,694 (Travel costs for
biometrics collection) = $519,114,512 total current
annual cost for filing Form I–485.

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additional costs that would be imposed
by the proposed rule, but costs that
applicants currently incur as part of the
application process to adjust status. The
medical examination is required to
establish that an applicant is not
inadmissible to the United States on
health-related grounds. While there is
no filing fee associated with Form I–
693, the applicant is responsible for
paying all costs of the medical
examination, including the cost of any
follow-up tests or treatment that is
required, and must make payments
directly to the civil surgeon or other
health care provider. In addition,
applicants bear the opportunity cost of
time for completing the medical exam
form as well as sitting for the medical
exam and the time waiting to be
examined.
USCIS does not regulate the fees
charged by civil surgeons for the
completion of a medical examination. In
addition, medical examination fees vary
by physician. DHS notes that the cost of
the medical examinations may vary
widely, from as little as $20 to as much
as $1,000 per respondent (including
vaccinations to additional medical
evaluations and testing that may be
required based on the medical
conditions of the applicant).729 DHS
estimates that the average cost for these
activities is $490 and that all applicants
would incur this cost.730 Since DHS
assumes that all applicants who apply
for adjustment of status using Form I–
485 must also submit Form I–693, DHS
estimates that based on the estimated
average annual population of 382,264
the annual cost associated with filing
Form I–693 is $187,309,360.731
DHS estimates the time burden
associated with filing Form I–693 is 2.5
hours per applicant, which includes

understanding and completing the form,
setting an appointment with a civil
surgeon for a medical exam, sitting for
the medical exam, learning about and
understanding the results of medical
tests, allowing the civil surgeon to
report the results of the medical exam
on the form, and submitting the medical
exam report to USCIS.732 DHS estimates
the opportunity cost of time for
completing and submitting Form I–693
is $26.65 per applicant based on the
total rate of compensation of minimum
wage of $10.66 per hour.733 Therefore,
using the total population estimate of
382,264 annual filings for Form I–485,
DHS estimates the total opportunity cost
of time associated with completing and
submitting Form I–693 is approximately
$10,187,336 annually.734
In addition to the cost of a medical
exam and the opportunity cost of time
associated with completing and
submitted Form I–693, applicants must
bear the cost of postage for sending the
Form I–693 package to USCIS. DHS
estimates that each applicant will incur
an estimated average cost of $3.75 in
postage to submit the completed
package to USCIS.735 DHS estimates the
total annual cost in postage based on the
total population estimate of 382,264
annual filings for Form I–693 is
$1,433,490.736
In sum, DHS estimates the total
current annual cost for filing Form I–
693 is $198,930,186. The total current
annual costs include medical exam
costs, the opportunity cost of time for
completing Form I–693, and cost of
postage to mail the Form I–693 package
to USCIS.737
Some applicants seeking an
adjustment of status may be eligible for

a fee waiver when filing Form I–485. An
applicant who is unable to pay the filing
fees or biometric services fees for an
application or petition may be eligible
for a fee waiver by filing Form I–912. If
an applicant’s Form I–912 is approved,
USCIS, as a component of DHS, will
waive both the filing fee and biometric
services fee. Therefore, DHS assumes for
the purposes of this economic analysis
that the filing fees and biometric
services fees required for Form I–485 are
waived if an approved Form I–912
accompanies the application. Filing
Form I–912 is not required for
applications and petitions that do not
have a filing fee. DHS also notes that
costs examined in this section are not
additional costs that would be imposed
by the proposed rule, but costs that
applicants currently could incur as part
of the application process to adjust
status.
Table 46 shows the estimated
population of individuals that requested
a fee waiver (Form I–912), based on
receipts, when applying for adjustment
of status in fiscal years 2012 to 2016, as
well as the number of requests that were
approved or denied each fiscal year.
During this period, the number of
individuals who requested a fee waiver
when applying for adjustment of status
ranged from a low of 42,126 in fiscal
year 2012 to a high of 76,616 in fiscal
year 2016. In addition, the estimated
average population of individuals
applying to adjust status who requested
a fee waiver for Form I–485 over the 5year period fiscal year 2012 to 2016 was
58,558. DHS estimates that 58,558 is the
average annual projected population of
individuals who would request a fee
waiver using Form I–912 when filing
Form I–485 to apply for an adjustment
of status.738

729 Source for medical exam cost range:
Paperwork Reduction Act (PRA) Report of Medical
Examination and Vaccination Record (Form I–693)
(OMB control number 1615–0033). The PRA
Supporting Statement can be found at Question 13
on Reginfo.gov at https://www.reginfo.gov/public/
do/PRAViewDocument?ref_nbr=201609-1615-004.
730 Source for medical exam cost estimate:
Paperwork Reduction Act (PRA) Report of Medical
Examination and Vaccination Record (Form I–693)
(OMB control number 1615–0033). The PRA
Supporting Statement can be found at Question 13
on Reginfo.gov at https://www.reginfo.gov/public/
do/PRAViewDocument?ref_nbr=201609-1615-004.
731 Calculation: (Estimated medical exam cost for
Form I–693) * (Estimated annual population filing
Form I–485) = $490 * 382,264 = $187,309,360
annual estimated medical exam costs for Form I–
693.
732 Source for medical exam time burden
estimate: Paperwork Reduction Act (PRA) Report of

Medical Examination and Vaccination Record
(Form I–693) (OMB control number 1615–0033).
The PRA Supporting Statement can be found at
Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/PRAViewDocument?
ref_nbr=201609-1615-004.
733 Calculation for medical exam opportunity cost
of time: ($10.66 per hour * 2.5 hours) = $26.65 per
applicant.
734 Calculation: (Estimated medical exam
opportunity cost of time for Form I–693) *
(Estimated annual population filing Form I–485) =
$26.65 * 382,264 = $10,187,335.60 = $10,187,336
(rounded) annual opportunity cost of time for filing
Form I–485.
735 Source for medical exam form package postage
cost estimate: Paperwork Reduction Act (PRA)
Report of Medical Examination and Vaccination
Record (Form I–693) (OMB control number 1615–
0033). The PRA Supporting Statement can be found
at Question 13 on Reginfo.gov at https://

www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201609-1615-004.
736 Calculation: (Form I–693 estimated cost of
postage) * (Estimated annual population filing Form
I–693) = $3.75 * 382,264 = $1,433,490 annual cost
in postage for filing Form I–693.
737 Calculation: $187,309,360 (Medical exam
costs) + $10,187,336 (Opportunity cost of time for
Form I–693) + $1,433,490 (Postage costs for
biometrics collection) = $198,930,186 total current
annual cost for filing Form I–693.
738 DHS notes that the estimated population of
individuals who would request a fee waiver for
filing Form I–485 includes all visa classifications
for those applying for adjustment of status. We are
unable to determine the number of fee waiver
requests for filing Form I–485 that are associated
with specific visa classifications that are subject to
public charge review.

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739 Source for fee waiver time burden estimate:
Paperwork Reduction Act (PRA) Request for Fee
Waiver (Form I–912) (OMB control number 1615–
0116). The PRA Supporting Statement can be found
at Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201506-1615-006.
740 Calculation for fee waiver opportunity cost of
time: ($10.66 per hour * 1.17 hours) = $12.47.

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58,558 requests for a fee waiver for
Form I–485, DHS estimates the total
opportunity cost of time associated with
completing and submitting Form I–912
is approximately $730,218 annually.741
In addition to the opportunity cost of
time associated with completing and
submitting Form I–912, applicants must
bear the cost of postage for sending the
Form I–912 package to USCIS. DHS
estimates that each applicant will incur
an estimated average cost of $3.75 in
postage to submit the completed
package to USCIS.742 DHS estimates the
annual cost in postage based on the total
population estimate of 58,558 annual
approved requests for a fee waiver for
Form I–485 is $219,593.743
In sum, DHS estimates the total
current annual cost for filing a fee
waiver request (Form I–912) for Form I–
485 is $949,811. The total current
annual costs include the opportunity
cost of time for completing Form I–912
and cost of postage to mail the Form I–
912 package to USCIS.744
741 Calculation: (Estimated opportunity cost of
time for Form I–912) * (Estimated annual
population of approved Form I–912) = $12.47 *
58,558 = $730,218.26 = $730,218 (rounded) annual
opportunity cost of time for filing Form I–944 that
are approved.
742 Source for fee waiver postage cost estimate:
Paperwork Reduction Act (PRA) Request for Fee
Waiver (Form I–912) (OMB control number 1615–
0116). The PRA Supporting Statement can be found
at Question 13 on Reginfo.gov at https://
www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201506-1615-006.
743 Calculation: (Form I–912 estimated cost of
postage) * (Estimated annual population of
approved Form I–912) = $3.75 * 58,558 =
$219,592.50 = $219,593 (rounded) annual cost in
postage for filing Form I–912 that is approved.
744 Calculation: $730,218 (Opportunity cost of
time for Form I–912) + $219,593 (Postage costs for
biometrics collection) = $949,811 total current
annual cost for filing Form I–912.

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d. Affidavit of Support Forms
As previously discussed, submitting
an affidavit of support using Form I–864
is required for most family-based
immigrants and some employmentbased immigrants to show that they
have adequate means of financial
support and are not likely to become a
public charge. Additionally, Form I–864
includes attachment Form I–864A
which may be filed when a sponsor’s
income and assets do not meet the
income requirements of Form I–864 and
the qualifying household member
chooses to combine his or her resources
with the income and/or assets of a
sponsor to meet those requirements.
Some sponsors for intending immigrants
may be able to file an affidavit of
support using Form I–864EZ, provided
certain criteria are met. Moreover,
certain classes of immigrants currently
are exempt from the requirement to file
Form I–864 or Form I–864EZ and
therefore must file Form I–864W,
Request for Exemption for Intending
Immigrant’s Affidavit of Support.
However, DHS proposes to eliminate
Form I–864W, and instead individuals
would be required to provide the
information previously requested on the
Form I–864W using Form I–485. Based
on the information provided in the
Form I–485, an officer can verify
whether an immigrant is statutorily
required to file an affidavit of support.
There is no filing fee associated with
filing Form I–864 with USCIS. However,
DHS estimates the time burden
associated with a sponsor filing Form I–
864 is 6 hours per petitioner, including
the time for reviewing instructions,
gathering the required documentation
and information, completing the
affidavit, preparing statements,
attaching necessary documentation, and

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To provide a reasonable proxy of time
valuation for applicants, as described
previously, DHS assumes that
applicants requesting a fee waiver for
Form I–485 earn the total rate of
compensation for individuals applying
for adjustment of status as $10.66 per
hour, where the value of $10.66 per
hour represents the federal minimum
wage with an upward adjustment for
benefits. The analysis uses this wage
rate because DHS expects that
applicants who request a fee waiver are
asserting that they are unable to afford
to pay the USCIS filing fee. As a result,
DHS expects such applicants to hold
positions in occupations that have a
wage below the mean hourly wage
across all occupations. DHS also notes
that this proposed rule may reduce the
number of fee waiver requests received,
but, at this time, we cannot determine
the extent to which this will occur.
DHS estimates the time burden
associated with filing Form I–912 is 1
hour and 10 minutes per applicant (1.17
hours), including the time for reviewing
instructions, gathering the required
documentation and information,
completing the request, preparing
statements, attaching necessary
documentation, and submitting the
request.739 Therefore, using $10.66 per
hour as the total rate of compensation,
DHS estimates the opportunity cost of
time for completing and submitting
Form I–912 is $12.47 per applicant.740
Using the total population estimate of

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submitting the affidavit.745 Therefore,
using the average total rate of
compensation of $35.78 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
864 would be $214.68 per petitioner.746
DHS assumes that the average rate of
total compensation used to calculate the
opportunity cost of time for Form I–864
is appropriate since the sponsor of an
immigrant, who is agreeing to provide
financial and material support, is
instructed to complete and submit the
form. Using the estimated annual total
population of 257,610 individuals
seeking to adjust status who are
required to submit an affidavit of
support using Form I–864, DHS
estimates the opportunity cost of time
associated with completing and
submitting Form I–864 is $55,303,715
annually.747 DHS estimates this amount
as the total current annual cost for filing
Form I–864, as required when applying
to adjust status.
There is also no filing fee associated
with filing Form I–864A with USCIS.
However, DHS estimates the time
burden associated with filing Form I–
864A is 1 hour and 45 minutes (1.75
hours) per petitioner, including the time
for reviewing instructions, gathering the
required documentation and
information, completing the contract,
preparing statements, attaching
necessary documentation, and
submitting the contract.748 Therefore,
using the average total rate of
compensation of $35.78 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
864A will be $62.62 per petitioner.749
745 Source for I–864 time burden estimate:
Paperwork Reduction Act (PRA) Affidavit of
Support Under Section 213A of the INA (Forms I–
864, I–864A, I–864EZ, I–864W) (OMB control
number 1615–0075). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201705-1615-004.
746 Calculation opportunity cost of time for
completing and submitting Form I–864, Affidavit of
Support Under Section 213A of the INA: ($35.78
per hour * 6.0 hours) = $214.68 per applicant.
747 Calculation: (Form I–864 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–864) = $214.68 * 257,610
= $55,303,714.80 = $55,303,715 (rounded) total
annual opportunity cost of time for filing Form I–
864.
748 Source for I–864A time burden estimate:
Paperwork Reduction Act (PRA) Affidavit of
Support Under Section 213A of the INA (Forms I–
864, I–864A, I–864EZ, I–864W) (OMB control
number 1615–0075). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201705-1615-004.
749 Calculation opportunity cost of time for
completing and submitting Form I–864A, Contract
Between Sponsor and Household Member: ($35.78
per hour * 1.75 hours) = $62.615 = $62.62
(rounded) per petitioner.

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DHS assumes the average total rate of
compensation used for calculating the
opportunity cost of time for Form I–864
since both the sponsor and another
household member agree to provide
financial support to an immigrant
seeking to adjust status. However, the
household member also may be the
intending immigrant. While Form I–
864A must be filed with Form I–864,
DHS notes that we are unable to
determine the number filings of Form I–
864A since not all individuals filing I–
864 need to file Form I–864A with a
household member.
As with Form I–864, there is no filing
fee associated with filing Form I–864EZ
with USCIS. However, DHS estimates
the time burden associated with filing
Form I–864EZ is 2 hours and 30
minutes (2.5 hours) per petitioner,
including the time for reviewing
instructions, gathering the required
documentation and information,
completing the affidavit, preparing
statements, attaching necessary
documentation, and submitting the
affidavit.750 Therefore, using the average
total rate of compensation of $35.78 per
hour, DHS estimates the opportunity
cost of time for completing and
submitting Form I–864EZ will be $89.45
per petitioner.751 However, DHS notes
that we are unable to determine the
number filings of Form I–864EZ and,
therefore, rely on the annual cost
estimate developed for Form I–864.
There is also no filing fee associated
with filing Form I–864W with USCIS.
However, DHS estimates the time
burden associated with filing this form
is 60 minutes (1 hour) per petitioner,
including the time for reviewing
instructions, gathering the required
documentation and information,
completing the request, preparing
statements, attaching necessary
documentation, and submitting the
request.752 Therefore, using the average
total rate of compensation of $35.78 per
hour, DHS estimates the opportunity
750 Source for I–864EZ time burden estimate:
Paperwork Reduction Act (PRA) Affidavit of
Support Under Section 213A of the INA (Forms I–
864, I–864A, I–864EZ, I–864W) (OMB control
number 1615–0075). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201705-1615-004.
751 Calculation opportunity cost of time for
completing and submitting Form I–864EZ, Affidavit
of Support Under Section 213A of the INA: ($35.78
per hour * 2.5 hours) = $89.45.
752 Source for I–864W time burden estimate:
Paperwork Reduction Act (PRA) Affidavit of
Support Under Section 213A of the INA (Forms I–
864, I–864A, I–864EZ, I–864W) (OMB control
number 1615–0075). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201705-1615-004.

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cost of time for completing and
submitting Form I–864EZ will be $35.78
per petitioner.753 However, DHS notes
that we are unable to determine the
number filings of Form I–864W and,
therefore, rely on the annual cost
estimate developed for Form I–864.
Moreover, the proposed rule would
eliminate Form I–864W as a form for
use in filing an affidavit of support.
Filers who would have been required to
file Form I–864W instead would be
instructed to provide the information
previously requested on the Form I–
864W using Form I–485, as amended by
this proposed rule. Based on the
information provided in the Form I–485,
an officer could verify whether an
immigrant is statutorily required to file
an affidavit of support.
DHS is also proposing to amend the
HHS Poverty Guidelines for Affidavit of
Support (Form I–864P), by removing
certain language describing meanstested public benefits. Form I–864P is
used to determine the minimum level of
income required to sponsor most familybased immigrants and some
employment-based immigrants. These
income requirements are to show that a
sponsor has adequate means of financial
support and is not likely to rely on the
government for financial support. Form
I–864P is for informational purposes
and used for completing Form I–864.
DHS does not anticipate additional costs
or benefits as a result of any proposed
changes to Form I–864P.
ii. Consideration of Receipt, or
Likelihood of Receipt of Public Benefits
Defined in Proposed 212.21(b) for
Applicants Requesting Extension of Stay
or Change of Status
Nonimmigrants in the United States
may apply for extension of stay or
change of status by either having an
employer file Form I–129 or Form I–
129CW, as applicable, on his or her
behalf, or by filing Form I–539, so long
as the nonimmigrant is currently in an
eligible nonimmigrant category. This
proposed rule seeks to require
nonimmigrants who are seeking
extension of stay or change of status to
demonstrate that they have not
previously received, are not currently
receiving, nor are likely to receive
public benefits in the future, as defined
in this rule in 8 CFR 212.21(b. DHS also
notes that costs examined in this section
are not additional costs that would be
imposed by the proposed rule, but costs
that petitioners and applicants currently
would incur as part of the application
753 Calculation opportunity cost of time for
completing and submitting Form I–864W: ($35.78
per hour * 1.0 hours) = $35.78.

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process to request an extension of stay
or change of status.
a. Form I–129, Petition for a
Nonimmigrant Worker

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The current filing fee for Form I–129
is $460.00. The fee is set at a level to
recover the processing costs to DHS. As
previously discussed, the estimated
average annual population of employers
filing on behalf of nonimmigrant
workers seeking EOS/COS using Form
I–129 is 336,335. Therefore, DHS
estimates that the annual cost associated
with filing Form I–129 is approximately
$154,714,100.754
DHS estimates the time burden for
completing Form I–129 is 2 hours and
20 minutes (2.34 hours), including the
time for reviewing instructions,
gathering the required documentation
and information, completing the
request, preparing statements, attaching
necessary documentation, and
submitting the request.755 Using the
average total rate of compensation of
$35.78 per hour, DHS estimates the
opportunity cost of time for completing
and submitting Form I–129 will be
$83.73 per petitioner.756 Therefore,
using the total population estimate of
336,335 annual filings for Form I–129,
DHS estimates the total opportunity cost
of time associated with completing and
submitting Form I–129 is approximately
$28,161,330 annually.757
In addition to the filing fee and the
opportunity cost of time associated with
completing and submitting Form I–129,
applicants must bear the cost of postage
for sending the Form I–129 package to
USCIS. DHS estimates that each
applicant will incur an estimated
average cost of $3.75 in postage to
submit the completed package to
USCIS.758 DHS estimates the total
754 Calculation: (Form I–129 filing fee) *
(Estimated annual population filing Form I–129) =
$460 * 336,335 = $154,714,100 annual estimated
cost for filing Form I–129 seeking an extension of
stay or change of status.
755 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act
(PRA) Petition for Nonimmigrant Worker (Form I–
129) (OMB control number 1615–0009). The PRA
Supporting Statement can be found at Question 12
on Reginfo.gov at https://www.reginfo.gov/public/
do/PRAViewDocument?ref_nbr=201610-1615-001.
756 Calculation for estimated opportunity cost of
time for completing Form I–129: ($35.78 per hour
* 2.34 hours) = $83.725 = $83.73 (rounded) per
applicant.
757 Calculation: (Form I–129 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129) = $83.73 * 336,335
= $28,161,329.55 = $28,161,330 (rounded) annual
estimated opportunity cost of time for filing Form
I–129.
758 Source for petition for nonimmigrant workers
form package postage cost estimate: Paperwork
Reduction Act (PRA) Petition for Nonimmigrant
Worker (Form I–129) (OMB control number 1615–

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annual cost in postage based on the total
population estimate of 336,335 annual
filings for Form I–129 is approximately
$1,261,256.759
In sum, DHS estimates the total
current annual cost for filing Form I–
129 is $184,136,686. The total current
annual costs include Form I–129 filing
fees, opportunity cost of time for
completing Form I–129, and cost of
postage to mail the Form I–129 package
to USCIS.760
b. Form I–129CW, Petition for a CNMIOnly Nonimmigrant Transitional
Worker
The current filing fee for Form I–
129CW is $460.00. The fee is set at a
level to recover the processing costs to
DHS. In addition, an employer filing
Form I–129CW for a CNMI-Only
Nonimmigrant Transitional Worker
must submit an additional $200 for a
supplemental CNMI education fee per
beneficiary, per year and a $50 fee for
fraud prevention and detection with
each petition. Thus, the total fees
associated with filing Form I–129CW is
$710 per beneficiary.761 As previously
discussed, the estimated average annual
population of employers filing on behalf
of nonimmigrant workers seeking EOS/
COS using Form I–129CW is 6,307.
Therefore, DHS estimates that the
annual cost associated with filing Form
I–129 is approximately $4,477,970.762
DHS estimates the time burden for
completing Form I–129CW is 3 hours
(3.0 hours), including the time for
reviewing instructions, gathering the
required documentation and
information, completing the petition,
preparing statements, attaching
necessary documentation, and
submitting the request.763 Using the
0009). The PRA Supporting Statement can be found
at Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/PRAViewDocument?
ref_nbr=201610-1615-001.
759 Calculation: (Form I–129 estimated cost of
postage) * (Estimated annual population filing Form
I–129) = $3.75 * 336,335 = $1,261,256.25 =
$1,261,256 (rounded) annual cost in postage for
filing Form I–129.
760 Calculation: $154,714,100 (Filing fees for
Form I–129) + $28,161,330 (Opportunity cost of
time for Form I–129) + $1,261,256 (Postage costs for
Form I–129) = $184,136,686 total current estimated
annual cost for filing Form I–129.
761 This economic analysis assumes that each
Form I–129CW filed will also be required to include
the additional $200 supplemental CNMI education
fee and the $50 fraud prevention and detection fee.
762 Calculation: (Form I–129CW filing fee) *
(Estimated annual population filing Form I–129CW)
= $710 * 6,307 = $4,477,970 annual estimated cost
for filing Form I–129 seeking an extension of stay
or change of status.
763 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act
(PRA) Petition for CNMI-Only Nonimmigrant
Transition Worker (Form I–129CW) (OMB control
number 1615–0111). The PRA Supporting

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51251

average total rate of compensation of
$35.78 per hour, DHS estimates the
opportunity cost of time for completing
and submitting Form I–129CW will be
$107.34 per petitioner.764 Therefore,
using the total population estimate of
6,307 annual filings for Form I–129CW,
DHS estimates the total opportunity cost
of time associated with completing and
submitting Form I–129CW is
approximately $676,993 annually.765
In sum, DHS estimates the total
current annual cost for filing Form I–
129CW is $5,154,963. The total current
annual costs include Form I–129CW
filing fees and opportunity cost of time
for completing Form I–129.766
c. Form I–539, Application To Extend/
Change Nonimmigrant Status
The current filing fee for Form I–539
is $370 per application.767 The fee is set
at a level to recover the processing costs
to DHS. As previously discussed, the
estimated average annual population
seeking EOS/COS using Form I–539 is
174,866. Therefore, DHS estimates that
the annual cost associated with filing
Form I–539 is approximately
$64,700,420.768
DHS estimates the time burden for
completing Form I–539 is 1 hour and 53
minutes (1.88 hours), including the time
necessary to read all instructions for the
form, gather all documents required to
complete the collection of information,
obtain translated documents if
necessary, obtain the services of a
preparer if necessary, and complete the
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201803-1615-006.
764 Calculation for estimated opportunity cost of
time for completing Form I–129: ($35.78 per hour
* 3.0 hours) = $107.34 per petitioner.
765 Calculation: (Form I–129CW estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129CW) = $107.34 * 6,307
= $676,993.38 = $676,993 (rounded) annual
estimated opportunity cost of time for filing Form
I–129CW.
766 Calculation: $4,477,970 (Filing fees for Form
I–129CW) + $676,993 (Opportunity cost of time for
Form I–129CW) = $5,154,963 total current
estimated annual cost for filing Form I–129CW.
767 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act
(PRA) Application to Extend/Change Nonimmigrant
Status (Form I–539) (OMB control number 1615–
0003). The PRA Supporting Statement can be found
at Question 13 on Reginfo.gov at https://
www.reginfo.gov/public/do/PRAViewDocument?
ref_nbr=201610-1615-006. DHS notes that certain A
and G nonimmigrants are not required to pay a
filing fee for Form I–539. In addition, a biometrics
services fee of $85 is required for V nonimmigrants
and for certain applicants in the CNMI applying for
an initial grant of nonimmigrant status.
768 Calculation: (Form I–539 filing fee) *
(Estimated annual population filing Form I–539) =
$370 * 176,866 = $64,700,420 annual cost for filing
Form I–539.

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form.769 Using the average total rate of
compensation of $35.78 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
539 will be $67.27 per applicant.770
Therefore, using the total population
estimate of 174,866 annual filings for
Form I–539, DHS estimates the total
opportunity cost of time associate with
completing and submitting Form I–539
is approximately $11,763,236
annually.771
In sum, DHS estimates the total
current annual cost for filing Form I–
539 is $76,463,656. The total current
annual costs include Form I–539 filing
fees and the opportunity cost of time for
completing Form I–539.772
(b) Costs of Proposed Regulatory
Changes
The primary source of quantified new
costs for the proposed rule would be
from the creation of Form I–944. This
form would be used to collect
information based on factors such as
age; health; family status; assets,
resources and financial status; and
education and skills, so that USCIS
could determine whether an applicant

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769 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act
(PRA) Application to Extend/Change Nonimmigrant
Status (Form I–539) (OMB control number 1615–
0003). The PRA Supporting Statement can be found
at Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/PRAViewDocument?
ref_nbr=201610-1615-006.
770 Calculation for the opportunity cost of time for
completing Form I–539: ($35.78 per hour * 1.88
hours) = $67.266 = $67.27 (rounded) per applicant.
771 Calculation: (Form I–539 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–539) = $67.27 * 174,866
= $11,763,235.82 = $11,763,236 (rounded) annual
estimated opportunity cost of time for filing Form
I–539.
772 Calculation: $64,700,420 (Filing fees for Form
I–539) + $11,763,236 (Opportunity cost of time for
Form I–539) = $76,463,656 total current annual cost
for filing Form I–539.

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would be inadmissible to the United
States based on public charge grounds.
The proposed rule would require
individuals who are applying for
adjustment of status to complete and
submit the form to establish that they
are not likely to become a public charge.
At the agency’s discretion, Form I–129
and Form I–129CW beneficiaries, and
Form I–539 applicants seeking an
extension of stay or change of status
may be required to submit Form I–944
to be reviewed for public charge
determination.
The proposed rule would also add
costs from an additional 10-minute
increase in the time burden estimate to
complete Form I–485. Additionally, the
proposed rule would add costs from an
additional time burden increase of 30
minutes for completing and filing Form
I–129, Form I–129CW, and Form I–539.
The proposed rule would also impose
new costs by establishing a public
charge bond process. At the agency’s
discretion, certain aliens who are found
likely to become a public charge may be
provided the opportunity to post a
public charge bond. As part of the
proposed public charge bond process,
an individual would have an obligor
submit a public charge bond using a
new Form I–945, Public Charge Bond,
on the alien’s behalf, and the alien or an
acceptable surety (individual or a
company) would use Form I–356,
Request for Cancellation of Public
Charge Bond, as part of a request to
cancel a public charge bond. DHS notes
that if the alien permanently departed
the United States, as defined in
proposed 8 CFR 213.1, and the loss of
LPR status was voluntarily, we would
also require a Form I–407 submission. If
the request for cancellation is denied,
DHS would notify the obligor and
inform the obligor of the possibility to
appeal the determination to the USCIS

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Administrative Appeals Office (AAO)
using Form I–290B, Notice of Appeal or
Motion.773 In addition, upon learning of
a breach of public charge bond, DHS
would notify the obligor that the bond
has been declared breached and inform
the obligor of the possibility to appeal
the determination to the USCIS
Administrative Appeals Office (AAO)
using Form I–290B, Notice of Appeal or
Motion.774
The following costs are new costs that
would be imposed on the population
applying to adjust status using Form I–
485 or on the population that would be
seeking extension of stay or change of
status using Forms I–129, I–129CW, or
I–539. However, individuals seeking
extension of stay or change of status
would only be required to submit Form
I–944 at the discretion of adjudication
officers. Table 47 shows the estimated
annual costs that the proposed rule
would impose on individuals seeking to
adjust status using Form I–485 who also
would be required to file Form I–944.
The table also presents the estimated
new costs the proposed rule would
impose associated with a 10-minute
increase in the time burden estimate for
completing Form I–485, from additional
time burden increases of 30 minutes
each for completing and filing Form I–
129, Form I–129CW, and Form I–539.
The table also shows the range of costs
that Form I–129 and Form I–129CW
beneficiaries, and Form I–539 filers
would incur should they receive a RFE
to file Form I–944 to determine
inadmissibility based on public charge
grounds under the provisions of this
proposed rule. Finally, the table
includes the estimated new cost
associated with the proposed public
charge bond process.
773 See
774 See

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proposed 8 CFR 213.1(g).
proposed 8 CFR 213.1(h).

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51253

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

Form 1-944, Declaration of SelfSufficienc

382,264

$25,963,371
$18,337,204
$7,626,167

Form 1-485, Application to Register
Permanent Residence or Ad ·ust Status
OCT - Additional to Baseline
(Current) Costs
Form 1-129, Petition for a
Nonimmigrant Worker- To Request
Extension of Sta /Chan e of Status
OCT - Additional to Baseline
(Current) Costs
Costs to beneficiaries who receive a
RFE to complete and submit Form 1944, including OCT and credit
re ort/credit score costs.
Form I-129CW, Petition for a CNMIOnly Nonimmigrant Transitional
Worker- To Request Extension of
Sta /Chan e of Status
OCT - Additional to Baseline
(Current) Costs
Costs to beneficiaries who receive a
RFE to complete and submit Form 1944, including OCT and credit
re ort/credit score costs.
Form 1-539, Application to
Extend/Chan e Nonimmi rant Status
OCT - Additional to Baseline
(Current) Costs
Costs to beneficiaries who receive a
RFE to complete and submit Form 1944, including OCT and credit
report/credit score costs.
Form 1-945, Public Char e Bond

382,264

$691,898
$691,898

336,335

$12,103,351 to $66,880,214
$6,017,033

$6,086,318 to $60,863,181

6,307

$227,015 to $1,254,198
$112,883

$114,132 to $1,141,315
174,866

$6,292,728 to $34,772,105
$3,128,353

$3,164,375 to $31,643,752
960

$34,234

Filin Fee

$24,000

OCT
Form 1-356, Request for Cancellation
of Public Char e Bond

$10,234
25

$825
$625

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i. Form I–944, Declaration of SelfSufficiency and Form I–485,
Application To Register Permanent
Residence or Adjust Status
In this proposed rule, DHS is
proposing to create a new form for
collecting information from those
applying for immigration benefits with
USCIS, such as adjustment of status or
extension of stay or change in status, to
demonstrate that the applicant is not
likely to become a public charge under
section 212(a)(4) of the Act. Form I–944
would collect information based on
factors such as age; health; family status;
assets, resources, and financial status;
and education and skills, so that USCIS
could determine whether an applicant
would be inadmissible to the United
States based on public charge grounds.
For the analysis of this proposed rule,
DHS assumes that all individuals who
apply for adjustment of status using
Form I–485 are required to submit Form
I–944, unless the individual is in a class
of applicants that is exempt from review
for determination of inadmissibility
based on public charge at the time of
adjustment of status according to statute
or regulation.
There is currently no filing fee
associated with Form I–944. However,
DHS estimates the time burden
associated with filing Form I–944 is 4
hours and 30 minutes (4.5 hours) per
applicant, including the time for
reviewing instructions, gathering the
required documentation and
information, completing the declaration,
preparing statements, attaching
necessary documentation, and
submitting the declaration. Therefore,
using the total rate of compensation of
minimum wage of $10.66 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
944 would be $47.97 per applicant.775
Using the total population estimate of
382,264 annual filings for Form I–485,
775 Calculation for declaration of self-sufficiency
opportunity cost of time: ($10.66 per hour * 4.5
hours) = $47.97 per applicant.

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DHS estimates the total opportunity cost
of time associated with completing and
submitting Form I–944 is approximately
$18,337,204 annually.776
In addition to the opportunity cost of
time associated with completing and
filing Form I–944, applicants must bear
the cost of obtaining a credit report and
credit score from any one of the three
major credit bureaus in the United
States to be submitted with the
application.777 Consumers may obtain a
free credit report once a year from each
of the three major consumer reporting
agencies (i.e., credit bureaus) under the
Fair Credit Reporting Act (FCRA).778
However, consumers are not necessarily
entitled to a free credit score, for which
consumer reporting agencies may charge
a fair and reasonable fee.779 DHS does
not assume that all applicants are able
to obtain a free credit report under
FCRA specifically for fulfilling the
requirements of filing Form I–944 and
acknowledges that obtaining a credit
score would be an additional cost.
Therefore, DHS assumes that each
applicant would bear the cost of
obtaining a credit report and credit
score from at least one of the three major
credit bureaus. DHS estimates the cost
of obtaining a credit report and credit
score would be $19.95 per applicant, as
776 Calculation:

(Estimated opportunity cost of
time for Form I–944) * (Estimated annual
population filing Form I–485) = $47.97 * 382,264
= $18,337,204.08 = $18,337,204 (rounded) annual
opportunity cost of time for filing Form I–944.
777 The three major credit bureaus are Equifax,
Experian, and TransUnion. Each of these bureaus is
a publicly-traded, for-profit company that is not
owned by the Federal Government. DHS notes that
there may be differences in the information
contained in the credit reports from each of the
three major credit bureaus since one credit bureau
may have unique information on a consumer that
is not captured by the other credit bureaus.
778 See FCRA, Section 612, Charges for Certain
Disclosures. 15 U.S.C. 1681j. Available at https://
www.consumer.ftc.gov/articles/pdf-0111-fair-creditreporting-act.pdf (accessed Jan. 26, 2018).
779 See FCRA, Section 609(f), Disclosures to
Consumers, Disclosure of Credit Scores. 15 U.S.C.
1681g. Available at https://www.consumer.ftc.gov/
articles/pdf-0111-fair-credit-reporting-act.pdf
(accessed Jan. 26, 2018).

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this is the amount that two of the three
major credit bureaus charge.780 DHS
notes that it would be required that all
applicants who apply for adjustment of
status using Form I–485 must also
submit Form I–944 and comply with its
requirements. Therefore, DHS estimates
that based on the estimated average
annual population of 382,264 the total
annual cost associated with obtaining a
credit report and credit score as part of
the requirements for filing Form I–944
would be $7,626,167.781
In sum, DHS estimates that the total
cost to complete and file Form I–944
would be $25,963,371. The total
estimated annual costs include the
opportunity cost of time to complete the
form and the cost to obtain a credit
report and credit score as required for
the total population estimate of 382,264
annual filings for Form I–485.782
The proposed rule would include
additional instructions for filing Form I–
485 and, as a result, applicants would
spend additional time reading the
instructions increasing the estimated
time to complete the form. The current
estimated time to complete Form I–485
is 6 hours and 15 minutes (6.25 hours).
For the proposed rule, DHS estimates
that the time burden for completing
780 Each of the three major credit charge the
following prices for a credit report, including a
credit score:
Experian—$19.95, available at https://
www.experian.com/consumer-products/comparecredit-report-and-score-products.html (accessed Jan.
26, 2018);
Equifax—$19.95, available at https://
www.equifax.com/personal/products/credit/reportand-score (accessed Jan. 26, 2018); and
TransUnion—$11.50, available at https://
disclosure.transunion.com/dc/disclosure/
disclosure.jsp (accessed Jan. 26, 2018).
781 Calculation: (Estimated cost for credit score
and credit report) * (Estimated annual population
filing Form I–485) = $19.95 * 382,264 =
$7,626,166.80 = $7,626,167 (rounded) annual
estimated costs for obtaining a credit report and
credit score as part of the requirements for filing
Form I–944.
782 Calculation: $18,337,204 (Opportunity cost of
time to complete Form I–944) + $7,626,167 (Cost of
credit report and credit score) = $25,963,371 total
estimated cost to complete Form I–944.

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Form I–485 would increase by 10
minutes. Therefore, in the proposed
rule, the time burden to complete Form
I–485 would be 6 hours and 25 minutes
(6.42 hours).
The time burden includes the time for
reviewing instructions, gathering the
required documentation and
information, completing the application,
preparing statements, attaching
necessary documentation, and
submitting the application.783 Using the
total rate of compensation for minimum
wage of $10.66 per hour, DHS currently
estimates the opportunity cost of time
for completing and filing Form I–485
would be $66.63 per applicant.784
Therefore, using the total population
estimate of 382,264 annual filings for
Form I–485, DHS estimates the current
total opportunity cost of time associated
with completing Form I–485 is
approximately $25,470,250 annually.785
For the proposed rule, DHS estimates
that the time burden for completing
Form I–485 is 6.42 hours per response.
Using the total rate of compensation for
minimum wage of $10.66 per hour, DHS
estimates the opportunity cost of time
for completing and filing Form I–485
would be $68.44 per applicant.786
Therefore, using the total population
estimate of 382,264 annual filings for
Form I–485, DHS estimates the
proposed total opportunity cost of time
associated with completing Form I–485
is approximately $26,162,148
annually.787
The new costs imposed by this
proposed rule would be the difference
between the current estimated
opportunity cost of time to complete
Form I–485 and the proposed estimated
opportunity cost of time due to the
increased Form I–485 time burden
estimate. As a result, DHS estimates that
the proposed rule would impose

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783 Source:

Paperwork Reduction Act (PRA)
Supporting Statement for Form I–485 (OMB control
number 1615–0023). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201706-1615-001.
784 Calculation for opportunity cost of time for
filing Form I–485: ($10.66 per hour * 6.25 hours)
= $66.625 = $66.63 (rounded) per applicant.
785 Calculation: Form I–485 estimated
opportunity cost of time ($66.63) * Estimated
annual population filing Form I–485 (382,264) =
$25,470,250.32 = $25,470,250 (rounded) annual
opportunity cost of time for filing Form I–485.
786 Calculation for opportunity cost of time for
filing Form I–485: ($10.66 per hour * 6.42 hours)
= $68.437 = $68.44 (rounded) per applicant.
787 Calculation: Form I–485 estimated
opportunity cost of time ($68.44) * Estimated
annual population filing Form I–485 (382,264) =
$26,162,148.16 = $26,162,148 (rounded) annual
opportunity cost of time for filing Form I–485.

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additional new costs in the amount of
$691,898 to Form I–485 applicants.788
ii. Extension of Stay/Change of Status
Using Form I–129, Petition for a
Nonimmigrant Worker; Form I–129CW,
Petition for a CNMI-Only Nonimmigrant
Transitional Worker; or Form I–539,
Application To Extend/Change
Nonimmigrant Status
The proposed rule would require
petitioners to read additional
instructions and provide additional
information on Form I–129, which
would increase the estimated time to
complete the form. The current
estimated time to complete Form I–129
is 2 hours and 20 minutes (2.34 hours).
For the proposed rule, DHS estimates
that the time burden for completing
Form I–129 would increase by 30
minutes to account for the additional
time petitioners would spend reading
the form and providing additional
information. Therefore, DHS proposes
the time burden to complete Form I–129
to petitioners would be 2 hours and 50
minutes (2.84 hours).
The time burden for Form I–129
includes the time for reviewing
instructions, gathering the required
documentation and information,
completing the request, preparing
statements, attaching necessary
documentation, and submitting the
request.789 Using the average total rate
of compensation of $35.78 per hour,
DHS estimates the current opportunity
cost of time for completing and filing
Form I–129 is currently $83.73 per
petitioner.790 Therefore, using the total
population estimate of 336,335 annual
filings for Form I–129, DHS estimates
the current total opportunity cost of
time associated with completing and
filing Form I–129 is approximately
$28,161,330 annually.791
For the proposed rule, DHS estimates
that the opportunity cost of time for
788 Calculation of estimated new costs for
completing Form I–485: Proposed estimate of
opportunity cost of time to complete Form I–485
($26,162,148)¥Current estimate of opportunity cost
of time to complete Form I–485 ($25,470,250) =
$691,898 estimated new costs of the proposed rule.
789 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act
(PRA) Petition for Nonimmigrant Worker (Form I–
129) (OMB control number 1615–0009). The PRA
Supporting Statement can be found at Question 12
on Reginfo.gov at https://www.reginfo.gov/public/
do/PRAViewDocument?ref_nbr=201610-1615-001.
790 Calculation of estimated opportunity cost of
time for completing Form I–129: ($35.78 per hour
* 2.34 hours) = $83.725 = $83.73 (rounded) per
applicant.
791 Calculation: (Form I–129 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129) = $83.73 * 336,335
= $28,161,329.55 = $28,161,330 (rounded) annual
estimated opportunity cost of time for completing
Form I–129.

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51255

completing and filing Form I–129 would
be $101.62 per petitioner based on the
30-minute increase in the time burden
estimate.792 Therefore, using the total
population estimate of 336,335 annual
filings for Form I–129, DHS estimates
the proposed total opportunity cost of
time associated with completing and
filing Form I–129 is approximately
$34,178,363 annually.793
The new costs imposed by this
proposed rule would be the difference
between the current estimated
opportunity cost of time to complete
Form I–129 and the proposed estimated
opportunity cost of time to complete the
form due to the increased time burden
estimate. As a result, DHS estimates that
the proposed rule would impose
additional new costs of $6,017,033 to
Form I–129 applicants.794
The proposed rule would require
petitioners to read additional
instructions and provide additional
information on Form I–129CW, which
would increase the estimated time to
complete the form. The current
estimated time to complete Form I–
129CW is 3 hours (3.0 hours). For the
proposed rule, DHS estimates that the
time burden for completing Form I–
129CW would increase by 30 minutes to
account for the additional time
petitioners would spend reading the
form and providing additional
information. Therefore, DHS proposes
the time burden to complete Form I–
129CW to petitioners would be 3 hours
and 30 minutes (3.5 hours).
The time burden for Form I–129CW
includes the time for reviewing
instructions, gathering the required
documentation and information,
completing the request, preparing
statements, attaching necessary
documentation, and submitting the
request.795 Using the average total rate
792 Calculation of proposed opportunity cost of
time for completing Form I–129: ($35.78 per hour
* 2.84 hours) = $101.615 = $101.62 (rounded) per
applicant.
793 Calculation: (Proposed Form I–129 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129) = $101.62 * 336,335
= $34,178,362.70 = $34,178,363 (rounded) proposed
annual estimated opportunity cost of time for filing
Form I–129.
794 Calculation of estimated new costs for
completing Form I–129: Proposed estimate of
opportunity cost of time to complete Form I–129
($34,178,363)¥Current estimate of opportunity cost
of time to complete Form I–129 ($28,161,330) =
$6,017,033 estimated new costs of the proposed
rule.
795 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act
(PRA) Petition for CNMI-Only Nonimmigrant
Transition Worker (Form I–129CW) (OMB control
number 1615–0111). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201803-1615-006.

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of compensation of $35.78 per hour,
DHS estimates the current opportunity
cost of time for completing and filing
Form I–129CW is currently $107.34 per
petitioner.796 Therefore, using the total
population estimate of 6,307 annual
filings for Form I–129CW, DHS
estimates the current total opportunity
cost of time associated with completing
and filing Form I–129CW is
approximately $676,993 annually.797
For the proposed rule, DHS estimates
that the opportunity cost of time for
completing and filing Form I–129CW
would be $125.23 per petitioner based
on the 30-minute increase in the time
burden estimate.798 Therefore, using the
total population estimate of 6,307
annual filings for Form I–129CW, DHS
estimates the proposed total opportunity
cost of time associated with completing
and filing Form I–129CW is
approximately $789,826 annually.799
The new costs imposed by this
proposed rule would be the difference
between the current estimated
opportunity cost of time to complete
Form I–129CW and the proposed
estimated opportunity cost of time to
complete the form due to the increased
time burden estimate. As a result, DHS
estimates that the proposed rule would
impose additional new costs of
$112,883 to Form I–129CW
applicants.800
The proposed rule would also include
additional instructions and collection of
information for filing Form I–539,
which would increase the estimated
time to complete the form. Applicants,
therefore, would spend additional time
reading the form instructions and
providing additional information about
the request, use, or receipt of public
benefits. The current estimated time to
completing Form I–539 is 1 hour and 53
minutes (1.88 hours).801 For the
796 Calculation for estimated opportunity cost of
time for completing Form I–129: ($35.78 per hour
* 3.0 hours) = $107.34 per petitioner.
797 Calculation: (Form I–129CW estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129CW) = $107.34 * 6,307
= $676,993.38 = $676,993 (rounded) annual
estimated opportunity cost of time for completing
Form I–129.
798 Calculation of proposed opportunity cost of
time for completing Form I–129: ($35.78 per hour
* 3.5 hours) = $125.23 per applicant.
799 Calculation: (Proposed Form I–129 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129) = $125.23 * 6,307 =
$789,825.61 = $789,826 (rounded) proposed annual
estimated opportunity cost of time for filing Form
I–129.
800 Calculation of estimated new costs for
completing Form I–129CW: Proposed estimate of
opportunity cost of time to complete Form I–129CW
($789,826)¥Current estimate of opportunity cost of
time to complete Form I–129CW ($676,993) =
$112,883 estimated new costs of the proposed rule.
801 Source for petition for nonimmigrant workers
time burden estimate: Paperwork Reduction Act

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proposed rule, DHS estimates that the
time burden for completing Form I–539
would increase by 30 minutes.
Therefore, in the proposed rule, DHS
proposes the time burden for
completing Form I–539 would be 2
hours and 23 minutes (2.38 hours).
The time burden for Form I–539
includes the time necessary to read all
instructions for the form, gather all
documents required to complete the
collection of information, obtain
translated documents if necessary,
obtain the services of a preparer if
necessary, and complete the form.802
Using the average total rate of
compensation of $35.78 per hour, DHS
estimates the opportunity cost of time
for completing and submitting Form I–
539 is currently $67.27 per applicant.803
Therefore, using the total population
estimate of 174,866 annual filings for
Form I–539, DHS estimates the current
total opportunity cost of time associated
with completing and filing Form I–539
is approximately $11,763,236
annually.804
For the proposed rule, DHS estimates
that the opportunity cost of time for
completing and filing Form I–539 would
be $85.16 per applicant based on the 30minute increase in the time burden
estimate.805 Therefore, using the total
population estimate of 174,866 annual
filings for Form I–539, DHS estimates
the proposed total opportunity cost of
time associated with completing and
filing Form I–539 is approximately
$14,891,589.806
The new costs imposed by this
proposed rule would be the difference
between the current estimated
opportunity cost of time to complete
Form I–539 and the proposed estimated
opportunity cost of time to complete the
form due to the increased time burden
(PRA) Application to Extend/Change Nonimmigrant
Status (Form I–539) (OMB control number 1615–
0003). The PRA Supporting Statement can be found
at Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/PRAViewDocument?
ref_nbr=201610-1615-006.
802 See id.
803 Calculation of opportunity cost of time for
completing Form I–539: ($35.78 per hour * 1.88
hours) = $67.266 = $67.27 (rounded) per applicant.
804 Calculation: (Form I–539 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–539) = $67.27 * 174,866
= $11,763,235.82 = $11,763,236 (rounded) annual
estimated opportunity cost of time for filing Form
I–539.
805 Calculation of proposed opportunity cost of
time for completing Form I–539: ($35.78 per hour
* 2.38 hours) = $85.156 = $85.16 (rounded) per
applicant.
806 Calculation: (Proposed Form I–539 estimated
opportunity cost of time per applicant) * (Estimated
annual population filing Form I–539) = $85.16 *
174,866 = $14,891,588.56 = $14,891,589 (rounded)
proposed annual estimated opportunity cost of time
for filing Form I–539.

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estimate. As a result, DHS estimates that
the proposed rule would impose
additional new costs in the amount of
$3,128,353 to Form I–539 applicants.807
While individuals seeking adjustment
of status would be reviewed to
determine inadmissibility based on
public charge grounds under the
provisions of this proposed rule, DHS
proposes to conduct reviews of
nonimmigrants who apply for extension
of stay or change of status to determine
whether they have demonstrated that
they have not received, are not
receiving, or likely to receive public
benefits. Not all nonimmigrants who
apply for extension of stay or change of
status would be required to file Form I–
944 to detail their financial, health, and
education status. Instead, USCIS officers
would be able to exercise discretion
regarding whether it would be necessary
to issue a RFE for the submission of
Form I–944.
As previously noted, there is
currently no fee associated with filing
Form I–944, but DHS estimates the costs
for filing Form I–944 would include the
opportunity cost of time (4.5 hours) and
the cost to obtain credit report and
credit score ($19.95 per beneficiary). In
addition, DHS estimated that the
average annual population that would
request EOS/COS by filing Form I–129
is 336,335, Form I–129CW is 6,307, and
Form I–539 is 174,866.
For Form I–129 petitioners who
receive a RFE for a beneficiary to
complete and submit Form I–944, DHS
estimates the opportunity cost of time
for completing Form I–129 would be
$161.01 per beneficiary using the
average total rate of compensation of
$35.78 per hour.808 In addition, DHS
estimates the cost to obtain a credit
report and credit score is $19.95 per
beneficiary. DHS assumes that while a
petitioner would receive the RFE to file
Form I–944, the beneficiary would be
the individual to complete the form and
provide all required information.
Therefore, based on the total population
estimate of 336,335 annual filings for
Form I–129, DHS estimates the total
annual opportunity cost of time
associated with completing Form I–944
would be approximately $54,153,298
annually and the total cost to obtain a
credit report and credit score would be
807 Calculation of estimated new costs for
completing Form I–539: Proposed estimate of
opportunity cost of time to complete Form I–539
($14,891,589)¥Current estimate of opportunity cost
of time to complete Form I–539 ($11,763,236) =
$3,128,353 estimated new costs of the proposed
rule.
808 Calculation for Form I–129 petition
opportunity cost of time to complete Form I–944:
($35.78 per hour * 4.5 hours) = $161.01.

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about $6,709,883.809 In sum, DHS
estimates that total cost for Form I–129
beneficiaries who receive a RFE to
complete and submit Form I–944 would
be approximately $60,863,181
annually.810
Similarly, for Form I–129CW
petitioners who receive a RFE for a
beneficiary to complete and submit
Form I–944, DHS estimates the
opportunity cost of time for completing
Form I–129CW would be $161.01 per
beneficiary using the average total rate
of compensation of $35.78 per hour.811
In addition, DHS estimates the cost to
obtain a credit report and credit score is
$19.95 per beneficiary. DHS assumes
that while a petitioner would receive
the RFE to file Form I–944, the
beneficiary would be the individual to
complete the form and provide all
required information. Therefore, based
on the total population estimate of 6,307
annual filings for Form I–129CW, DHS
estimates the total annual opportunity
cost of time associated with completing
Form I–944 would be approximately
$1,015,490 annually and the total cost to
obtain a credit report and credit score

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809 Calculation: (Form I–944 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129) = $161.01 * 336,335
= $54,153,298.35 = $54,153,298 (rounded) annual
opportunity cost of time for filing Form I–944.
Calculation: (Cost to obtain a credit report and
credit score) * (Estimated annual population filing
Form I–129) = $19.95 * 336,335 = $6,709,883.25 =
$6,709,883 (rounded) annual cost to obtain a credit
report and credit score.
810 Calculation: (Annual opportunity cost of time
for filing Form I–944) + (Annual cost to obtain a
credit report and credit score for Form I–944) =
$54,153,298 + $6,709,883 = $60,863,181 annual
total cost for Form I–129 beneficiaries who must file
Form I–944.
811 Calculation for Form I–129CW petition
opportunity cost of time to complete Form I–944:
($35.78 per hour * 4.5 hours) = $161.01.

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would be about $125,825.812 In sum,
DHS estimates that total cost for Form
I–129CW beneficiaries who receive a
RFE to complete and submit Form I–944
would be approximately $1,141,315
annually.813
For filers of form I–539 who are
required to complete and submit Form
I–944, DHS estimates the opportunity
cost of time for completing Form I–539
would also be $161.01 per filer using
the average total rate of compensation of
$35.78 per hour. In addition, DHS
estimates the cost to obtain a credit
report and credit score is $19.95 per
applicant. DHS estimates the total
opportunity cost of time associated with
completing Form I–944 would be
approximately $28,155,175 annually
based on the total population estimate
of 174,866 annual filings for Form I–539
and the total cost to obtain a credit
report and credit score would be about
$3,488,577.814 In sum, DHS estimates
812 Calculation: (Form I–944 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–129CW) = $161.01 * 6,307
= $1,015,490.07 = $1,015,490 (rounded) annual
opportunity cost of time for filing Form I–944.
Calculation: (Cost to obtain a credit report and
credit score) * (Estimated annual population filing
Form I–129CW) = $19.95 * 6,307 = $125,824.65 =
$125,825 (rounded) annual cost to obtain a credit
report and credit score.
813 Calculation: (Annual opportunity cost of time
for filing Form I–944) + (Annual cost to obtain a
credit report and credit score for Form I–944) =
$1,015,490 + $125,825 = $1,141,315 annual total
cost for Form I–129CW beneficiaries who must file
Form I–944.
814 Calculation: (Form I–944 estimated
opportunity cost of time) * (Estimated annual
population filing Form I–539) = $161.01 * 174,866
= $28,155,174.66 = $28,155,175 (rounded) annual
opportunity cost of time for filing Form I–944.
Calculation: (Cost to obtain a credit report and
credit score) * (Estimated annual population filing
Form I–539) = $19.95 * 174,866 = $3,488,576.70 =
$3,488,577 (rounded) annual cost to obtain a credit
report and credit score.

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that total cost for Form I–539 applicants
who receive a RFE to complete and
submit Form I–944 would be
approximately $31,643,752 annually.815
DHS is unable to estimate the actual
number of RFEs that adjudication
officers may issue to Form I–129
beneficiaries, Form I–129CW
beneficiaries, and Form I–539 filers to
submit Form I–944 since such RFEs
would be issued on a discretionary
basis. However, we are able to present
a range of RFEs that could be issued
based on total population estimates and
the estimated annual cost associated
with such RFE. Table 48 presents a
range of potential annual costs related to
submission of Form I–944 based on the
percentage of the maximum number of
Form I–129 beneficiaries, Form I–
129CW beneficiaries, and Form I–539
applicants who could be issued a RFE.
DHS estimates the annual cost if all
beneficiaries were issued a RFE for 100
percent of the total population estimate
of 336,335 annual filings for Form I–129
would be about $60.1 million. For the
total population estimate of 6,307
annual filings for Form I–129CW, DHS
estimates the annual cost would be
approximately $1.1 million if all
beneficiaries were issued a RFE.
Moreover, DHS estimates the annual
cost if all applicants were issued a RFE
for 100 percent of the total population
estimate of 336,335 annual filings for
Form I–539 would be about $31.6
million.
815 Calculation: (Annual opportunity cost of time
for filing Form I–944) + (Annual cost to obtain a
credit report and credit score for Form I–944) =
$28,155,175 + $3,488,577 = $31,643,752 annual
total cost for Form I–539 applicants who must file
Form I–944.

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iii. Public Charge Bond
DHS does not currently have a
process or procedure in place to accept
public charge bonds, though it has the
authority to do so. DHS is proposing to
amend its regulations and establish a
bond process for those seeking
adjustment of status to that of a
permanent resident who have been
deemed likely to become a public
charge. A public charge bond may
generally be secured by cash or cash
equivalents such as cashier’s checks or
money orders in the full amount of the
bond, or may be underwritten by a
surety company certified by the
Department of Treasury under 31 U.S.C.
9304–9308.816 DHS approval of the
public charge bond and DHS
determination of whether the bond has
816 See generally 8 CFR 103.6. However, USCIS
plans to initially allow for only surety bonds only.

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been breached would be based on
whether the alien has received public
benefits as defined in the proposed rule
or whether the alien has breached any
other condition imposed as part of the
public charge bond.
As discussed elsewhere in the
preamble, DHS has the broad authority
to prescribe forms of bonds as is deemed
necessary for carrying out the
Secretary’s authority under the
provisions of the Act.817 Additionally,
an alien whom DHS has determined to
be inadmissible based on public charge
grounds may, if otherwise admissible,
be admitted at the discretion of the
Secretary upon giving a suitable and
proper bond.818 The purpose of issuing
a public charge bond is to better ensure
that the alien will not become a public
charge in the future. If an alien receives
817 See
818 See

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INA section 213, 8 U.S.C. 1183.

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public benefits, as defined in proposed
8 CFR 212.21(b), after the alien’s
adjustment of status to that of a lawful
permanent resident, DHS would declare
the bond breached. A bond may also be
breached if the conditions that are
otherwise imposed as part of the public
charge bond are breached.819
DHS is proposing that public charge
bonds would be issued at the Secretary’s
discretion when an alien seeking
adjustment of status has been found to
be inadmissible based on public charge
grounds. DHS may require an alien to
submit a surety bond or cash or cash
equivalent, such as a cashier’s check or
money order, to secure a bond.820 DHS
would notify the alien if he or she is
permitted to post a public charge bond
and of the type of bond that may be
submitted. If DHS accepts a surety bond
819 See

8 CFR 213.1(h).
plans to initially allow surety bonds.

820 USCIS

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as a public charge bond, DHS would
accept only a bond underwritten by
surety companies certified by the
Department of the Treasury, as outlined
in proposed 8 CFR 103.6(b).821 DHS
proposes that the amount of a public
charge bond cannot be less than $10,000
annually adjusted for inflation and
rounded up to the nearest dollar, but the
amount of the bond required would
otherwise be determined at the
discretion of the adjudication officer.
After reviewing an alien’s circumstances
and finding of inadmissibility based on
public charge grounds, an adjudication
officer would notify the alien through
the issuance of a RFE or a Notice of
Intent to Deny (NOID) that a surety bond
may be submitted to USCIS.
An individual or entity would submit
a public charge bond on behalf of the
alien by using the new Public Charge
Bond form (Form I–945), and related
forms. DHS proposes that it would use
Form I–356, Request for Cancellation of
Public Charge Bond, as part of a request
to cancel a public charge bond.
The proposed rule would require that
an alien must complete and submit
Form I–407 when the alien or obligor/
co-obligor seeks to cancel the public
charge bond on account of the alien’s
permanent departure from the United
States. Form I–407 records an alien’s
abandonment of status as a LPR. When
filing Form I–407, an alien abandoning
their LPR status is informed of the right
to a hearing before an immigration judge
who would decide whether the alien
lost his or her lawful permanent
resident status due to abandonment and
that the alien has knowingly, willingly,
and affirmatively waived that right.
Form I–407 is used by lawful permanent
resident aliens who are outside the
United States or at a Port of Entry who
want to abandon LPR status.
A public charge bond would be
considered breached if the alien
receives any public benefits, as defined
in proposed 8 CFR 212.21, after DHS
accepts a public charge bond submitted
on that alien’s behalf. The bond would
also be breached if the alien does not
comply with the conditions that are
otherwise imposed with the public
charge bond.822 Upon learning of a
breach of public charge bond, DHS
would notify the obligor that the bond
821 See 31 U.S.C. 9304–9308. See also Bureau of
the Fiscal Service, U.S. Department of Treasury,
available at https://www.fiscal.treasury.gov/
fsreports/ref/suretyBnd/surety_home.htm. See also
proposed 8 CFR 103.6(b)(1) as proposed by ICE,
Procedures and Standards for Declining Surety
Immigration Bonds and Administrative Appeal
Requirement for Breaches, 83 FR 25951 (June 5,
2018).
822 See proposed 8 CFR 213.1(h).

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has been declared breached and inform
the obligor of the possibility to appeal
the determination to the USCIS
Administrative Appeals Office
(AAO).823 Notice of Appeal or Motion
(Form I–290B) is used to file an appeal
or motion to reopen or reconsider
certain decisions.
Finally, a public charge bond must be
canceled when an alien with a bond
dies, departs the United States
permanently, or is naturalized or
otherwise obtains U.S. citizenship,
provided the individual has not
received public benefits, as defined in
proposed 8 CFR 212.21(c) prior to death,
departure, or naturalization (or
otherwise obtaining U.S. citizenship),
and a request for cancellation has been
filed.824 DHS must also cancel the bond
following the fifth anniversary of the
admission of the lawful permanent
resident provided that he or she files a
request for cancellation of the public
charge bond and provided that the alien
has not received any public benefits, as
defined in 8 CFR 212.21, after the
alien’s adjustment of status to that of a
lawful permanent resident.
Additionally, the public charge bond
must be cancelled if the alien obtains an
immigration status that is exempt from
public charge inadmissibility after the
initial grant of lawful permanent
resident status, provided that a request
for cancellation of the public charge
bond has been filed and provided that
the alien did not breach the bond
conditions.825 To have the public charge
bond cancelled, an obligor (individual
or entity) would request the cancellation
of the public charge and as part of the
request, submit Form I–356. If DHS
determines that the bond cannot be
cancelled, the bond remains in place;
the obligor may appeal the denial to the
AAO by filing Form I–290B.826
Additionally, a public charge bond may
be cancelled by DHS after a suitable
substitute has been submitted for an
unlimited bond or a bond of limited
duration that bears an expiration date.
For this type of cancellation, no request
to cancel the bond must be filed to
allow substitution of another bond, as
outlined in proposed 8 CFR 213.827
When posting a surety bond, an
individual generally pays between 1
percent to 15 percent of the bond
823 See
824 See

proposed 8 CFR 213.1(h).
INA section 213, 8 U.S.C. 1183; see 8 CFR

103.6(c).
825 See proposed 8 CFR 213.1(d)[Conditions of the
bond] and proposed 8 CFR 213.1(h)[Breach].
826 See proposed 8 CFR 213.1(g).
827 See proposed 8 CFR 213.1(f)[Substitution].
Because USCIS does not examine whether the bond
could be breached, the substitution does not have
to be accompanied with a filing of Form I–356.

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51259

amount for a surety company to post a
bond.828 The percentage that an
individual must pay may be dependent
on the individual’s credit score where
those with higher credit scores would be
required to pay a lower percentage of
the bond to be posted. DHS notes that
an individual as another possible option
for securing a public charge bond may
be allowed to submit cash or cash
equivalent, such as a cashier’s check or
money order and agreement.
With the creation of Form I–945, DHS
proposes to charge a filing fee of $25.00
to submit a public charge surety bond,
which would cover administrative costs
of processing the form. DHS estimates
the time burden associated with filing
Form I–945 is 60 minutes (1.0 hour) per
obligor, including the time for reviewing
instructions, gathering the required
documentation and information,
completing the form, preparing
statements, attaching necessary
documentation, and submitting the
form.829 Therefore, using the total rate
of compensation of minimum wage of
$10.66 per hour, DHS estimates the
opportunity cost of time for completing
and submitting Form I–945 would be
$10.66 per applicant.830
In addition to the opportunity cost of
time associated with completing Form
I–945, aliens who may be permitted to
have a public charge bond posted on
their behalf, must secure a surety bond
through a surety bond company that is
certified by the Department of Treasury,
Bureau of Fiscal Service. DHS notes that
the public charge bond amount required
would be determined at the discretion
of an adjudication officer, so long as it
is over the minimum amount. However,
DHS estimates the cost per obligor
would be $35.66 per obligor at
minimum, including $25.00 to file Form
I–945 and $10.66 per obligor for the
opportunity cost of time for completing
the form. In addition, each alien posting
a public charge bond through a surety
company would be required to pay any
fees required by the surety company to
secure a public charge bond. While the
proposed public charge bond process
would be new and historical data are
828 For example, see https://
suretybondauthority.com/frequently-askedquestions/ and https://suretybondauthority.com/
learn-more/. DHS notes that the company cited is
for informational purposes only.
829 Source for immigration bond time burden
estimate: Supporting Statement, Immigration Bond,
ICE Form I–352, (OMB control number 1653–0022).
The PRA Supporting Statement can be found at
Question 12 on Reginfo.gov at https://
www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201705-1653-001.
830 Calculation for public charge surety bond
opportunity cost of time: ($10.66 per hour * 1.0
hour) = $10.66 per applicant.

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not available, DHS estimates that
approximately 960 aliens would be
eligible to file for a public charge bond
annually. Therefore, in sum, DHS
estimates the total cost to file Form I–
945 would be at minimum about
$34,234 annually.831
As noted previously, an obligor
(individual or a company) or the alien
would file Form I–356 as part of a
request to cancel a public charge bond.
With the creation of Form I–356, DHS
proposes to charge a filing fee of $25.00
to request cancellation of a public
charge bond, which would cover
administrative costs of processing the
form. DHS estimates the time burden
associated with filing Form I–356 is 45
minutes (0.75 hours) per obligor or alien
requesting cancellation of a public
charge bond, including the time for
reviewing instructions, searching
existing data sources, gathering and
maintaining data needed, and
completing and reviewing the required
information. Using the total rate of
compensation of minimum wage of
$10.66 per hour, DHS estimates the
opportunity cost of time for completing
and submitting Form I–356 would be
$8.00 per filer.832 Therefore, DHS
estimates the cost per filer would be
$33.00, including $25.00 to file Form I–
356 and $8.00 per obligor or alien for
the opportunity cost of time for
completing the form. While the
proposed public charge bond process
would be new and historical data are
not available, DHS estimates that
approximately 25 aliens would request
to cancel a public charge bond annually.
Therefore, in sum, DHS estimates the
total cost to file Form I–356 would be
approximately $825 annually.833
The filing fee for Form I–290B is $675
per obligor wishing to file an appeal to
challenge the denial of a request to
cancel the public charge bond or the
breach determination. The fee is set at
a level to recover the processing costs to
DHS. However, the fee for Form I–290B
may be waived using Form I–912 if the
party appealing the adverse decision
can provide evidence of an inability to
pay.834 In addition, DHS estimates the
time burden associated with filing Form
I–290B is 1 hour and 30 minutes (1.5
hours) per obligor, including the time
831 Calculation: $35.66 (cost per obligor to file
Form I–945) * 960 (estimated annual population
who would file Form I–945) = $34,233.60 = $34,234
(rounded) annual total cost to file Form I–945.
832 Calculation for opportunity cost of time for
completing Form I–356: ($10.66 per hour * 0.75
hours) = $7.995 = $8.00 (rounded) per applicant.
833 Calculation: $33.00 (cost per obligor to file
Form I–356) * 25 (estimated annual population who
would file Form I–356) = $825.00 annual total cost
to file Form I–356.
834 See 8 CFR 103.7(c).

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for reviewing instructions, gathering the
required documentation and
information, completing the form,
preparing statements, attaching
necessary documentation, and
submitting the form.835 Therefore, using
the total rate of compensation of
minimum wage of $10.66 per hour, DHS
estimates the opportunity cost of time
for completing Form I–290B would be
$15.99 per obligor.836
In addition to the filing fee and the
opportunity cost of time associated with
completing Form I–290B, obligors must
bear the cost of postage for sending the
Form I–290B package to USCIS. DHS
estimates that each obligor will incur an
estimated average cost of $3.75 in
postage to submit the completed
package to USCIS.837
Additionally, the proposed public
charge bond process would be new and
historical data are not available to
predict future estimates. Therefore, DHS
also is not able to estimate the total
annual cost of the proposed public
charge bond process. However, DHS
estimates the total cost per applicant
submitting a bond would be $693.74 for
completing and filing Form I–290B,
excluding the cost of obtaining a
bond.838
Finally, the new DHS requirement in
this proposed rule that an alien must
complete and submit Form I–407 when
seeking to cancel the public charge bond
upon permanent departure from the
United States. However, this proposed
rule would not impose additional new
costs to Form I–407 filers.
(c) Transfer Payments and Indirect
Impacts of Proposed Regulatory Changes
DHS estimates the direct costs of the
proposed rule, but also estimates the
reduction in transfer payments from the
federal and state government to certain
individuals who receive public benefits
and also discusses certain indirect
impacts that would likely occur as a
result of the proposed regulatory
835 Source for notice for appeal or motion time
burden estimate: Supporting Statement for Notice of
Appeal or Motion (Form I–290B) (OMB control
number 1615–0095). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201609-1615-002.
836 Calculation for appeal or motion opportunity
cost of time: ($10.66 per hour * 1.5 hours) = $15.99
per applicant.
837 Source for notice for appeal or motion time
burden estimate: Supporting Statement for Notice of
Appeal or Motion (Form I–290B) (OMB control
number 1615–0095). The PRA Supporting
Statement can be found at Question 13 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201609-1615-002.
838 Calculation: $674 filing fee + $15.99
opportunity cost of time + $3.75 postage cost =
$693.74 per applicant.

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changes. These indirect impacts are
borne by entities that are not
specifically regulated by this rule, but
may incur costs due to changes in
behavior caused by this rule. The
primary sources of the reduction in
transfer payments from the federal
government of this proposed rule would
be the disenrollment or foregone
enrollment of individuals in public
benefits programs. The primary sources
of the consequences and indirect
impacts of the proposed rule would be
costs to various entities that the rule
does not directly regulate, such as
hospital systems, state agencies, and
other organizations that provide public
assistance to aliens and their
households. Indirect costs associated
with this rule include familiarization
with the rule for those entities that are
not directly regulated but still want to
understand the changes in federal and
state transfer payments due to this rule.
Moreover, this rule, if finalized, could
lead to an additional reduction in
transfer payments because some aliens
outside the United States who are likely
to become a public charge in the United
States would not be admitted and
therefore would not receive public
benefits in the United States. For
example, CBP could find that an alien
arriving at a port of entry seeking
admission, either pursuant to a
previously issued visa or as a traveler
for whom visa requirements have been
waived, is likely to become a public
charge if he or she is admitted.
However, DHS is not able to quantify
the number of aliens who would
possibly be denied admission based on
a public charge determination pursuant
to this proposed rule, but is
qualitatively acknowledging this
potential impact.
Under the proposed rule, DHS would
consider past or current receipt of
public benefits, defined in 212.21(b), as
identified a heavily weighed factor for
purposes of public charge
determination. Earlier in the preamble,
DHS provides a list and description of
public benefits programs the proposed
rule identifies for consideration of
public charge inadmissibility. Should
an individual be found to have received
or is currently receiving certain public
benefits identified in the proposed rule,
he or she may be found likely to become
a public charge. Individuals who might
choose to disenroll from or forego future
enrollment in a public benefits program
include foreign-born non-citizens as
well as U.S. citizens who are members
of mixed-status households.
Table 49 shows the estimated
population of public benefits recipients
who are members of households that

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
include foreign-born non-citizens. The
table also shows estimates of the
number of households with at least 1
foreign-born non-citizen family member
that may have received public
benefits.839,840 Based on the number of

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839 See U.S. Census Bureau. American
Community Survey 2016 Subject Definitions.
Available at https://www2.census.gov/programssurveys/acs/tech_docs/subject_definitions/2016_
ACSSubjectDefinitions.pdf. Accessed June 18, 2018.
The foreign-born population includes anyone who
was not a U.S. citizen or a U.S. national at birth,
which includes respondents who indicated they
were a U.S. citizen by naturalization or not a U.S.
citizen. The ACS questionnaires do not ask about
immigration status, but uses responses to determine
the U.S. citizen and non-U.S. citizen populations as
well as to determine the native and foreign-born
populations. The population surveyed includes all
people who indicated that the United States was
their usual place of residence on the survey date.
The foreign-born population includes naturalized
U.S. citizens, lawful permanent residents (i.e.
immigrants), temporary migrants (e.g., foreign
students), humanitarian migrants (e.g., refugees),

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households with foreign-born noncitizen family members, DHS estimated
the number of public benefits recipients
who are members of households that
include foreign-born non-citizens that
may have received benefits using the
U.S. Census Bureau’s estimated average
and unauthorized migrants (i.e. people illegally
present in the United States.
840 To estimate the number of households with at
least 1 foreign-born non-citizen family member that
have received public benefits, DHS calculated the
overall percentage of total U.S. households that are
foreign-born non-citizen as 6.97 percent.
Calculation: [22,214,947 (Foreign-born noncitizens)/318,558,162 (Total U.S. population)] * 100
= 6.97 percent. 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.

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household size for foreign-born
households.841 842
841 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. The
average foreign-born household size is reported as
3.35 persons. DHS multiplied this figure by the
estimated number of households with at least 1
foreign-born non-citizen receiving benefits to
estimate the population of foreign-born non-citizen
receiving benefits.
842 In this analysis, DHS uses the American
Community Survey (ACS) to develop population
estimates along with beneficiary data from each of
the benefits program. DHS recognizes that in other
places in this preamble, the SIPP data is used rather
than the ACS data, which may cause differences in
estimates. DHS notes that the ACS data was used
for the purposes of this analysis because it provided
a cross-sectional survey based on a random sample
of the population each year including current
immigration classifications. Both surveys reflect
substantial reliance by aliens on the public benefits
included in the proposed rule.

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Medicaid 5
Low Income
Subsidy (LIS)
for Medicare
PartD

Assistance
Program
(SNAPf
Temporary
Assistance for
Needy Families
(TANF) 8
Supplemental
Security Income
(SSI) 9

24,349,225

1,697,141

5,685,422

12,100,000

4,583,333

319,458

1,070,185

45,294,831

22,195,369

1,547,017

5,182,508

3,449,124

1,306,486

91,062

305,058

8,302,356

3,144,832

219,195

734,303

5,051,000

352,055

NIA

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

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EP10OC18.075

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Federal Rental
Assistance 10

64,281,954

Consistent data are not available on
the number of individuals receiving
public benefits who are members of
households that include foreign-born
non-citizens. In order to estimate the
economic impact of the proposed rule,
it is necessary to estimate the size of this
population. To arrive at the population
estimates as shown in table 49, DHS
first calculated the average annual
number of people who received benefits
over a 5-year period whenever possible
as reported by the benefits granting
agencies.843 However, data for public
benefits programs do not identify the
nativity status of benefits recipients, i.e.,
foreign-born or U.S. native. Therefore,
DHS estimated the foreign-born noncitizen population by converting the
average annual number of benefits
recipients using the U.S. Census
Bureau’s American Community Survey
(ACS) estimates. First, DHS estimated
the number of households receiving
benefits. Then, DHS estimated the
number of households with at least one
foreign-born non-citizen receiving
benefits based on the percentage of
foreign-born non-citizens compared to
the total U.S. population. Finally, the
number of public benefits recipients
who are members of households that
include foreign-born non-citizens
843 DHS estimated the annual average number of
people who receive public benefits based on 5-year
averages generally over the period fiscal year 2013–
2017, including LIS, SNAP, and SSI. DHS
calculated 5-year averages over the period fiscal
year 2012–2016 for Medicaid and TANF.

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receiving benefits was estimated based
on the average household size of
households with at least one foreignborn individual.
For each of the public benefits
programs analyzed, 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.844
According to the U.S. Census Bureau
population estimates, the foreign-born
non-citizen population is 6.97 percent
of the U.S. total population.845 While
there may be some variation in the
percentage of foreign-born non-citizens
who receive public benefits, including
depending on which public benefits
program one considers, DHS assumes in
this economic analysis that the
percentage holds across the populations
of the various public benefits programs.
Therefore, to estimate the number of
households with at least one foreignborn non-citizen who receives public
benefits, DHS multiplied the estimated
number of households for each public
benefits program by 6.97 percent. This
step may introduce uncertainty into the
844 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.
845 Ibid. Calculation: [22,214,947 (Foreign-born
non-citizens)/318,558,162 (Total U.S. population)] *
100 = 6.97 percent.

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estimate because the percentage of
households with at least one foreignborn non-citizen may be greater or less
than the percentage of foreign-born noncitizens in the population. However, if
foreign-born non-citizens tend to be
grouped together in households, then an
overestimation of households that
include at least one FBNC is more
likely. DHS then estimated the number
of foreign-born non-citizens who
received benefits by multiplying the
estimated number of households with at
least one foreign-born non-citizen who
receives public benefits by the U.S.
Census Bureau’s estimated average
household size of 3.35 for those who are
foreign-born.846
In this analysis, DHS uses the
American Community Survey (ACS) to
develop population estimates along
with beneficiary data from each of the
benefits program. DHS recognizes that
in other places in this preamble, the
SIPP data is used rather than the ACS
data, which may cause differences in
estimates. DHS notes that the ACS data
was used for the purposes of this
analysis because it provided a crosssectional survey based on a random
sample of the population each year
including current immigration
classifications. Both surveys reflect
846 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.

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substantial reliance by aliens on the
public benefits included in the
proposed rule. DHS welcomes
comments on the use of data from the
American Community Survey (ACS) to
develop our estimates, and comments
on whether other data sources would be
useful in these calculations.
In the following analysis, the
population estimate will be adjusted to
reflect the percentage of aliens
intending to apply for adjustment of
status, but not to reflect the possibility
that less than 100 percent of their
household members will be sufficiently
concerned about potential consequences
of the policies proposed in this rule to
disenroll or forgo enrollment in public
benefits. The resulting transfer estimates
will therefore have a tendency toward

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overestimation. DHS welcomes
comment, especially concerning data or
other evidence, that would allow for
refinement of the estimate of the
percentage of household members who
would be dissuaded from public
benefits participation.
DHS anticipates that a number of
individuals would be likely to disenroll
or forego enrollment in a public benefits
program as a result of the proposed rule,
which would result in a reduction of
transfer payments from the federal
government to such individuals.
However, to estimate the economic
impact of disenrollment or foregone
enrollment from public benefits
programs, it is necessary to estimate the
average annual amount of public
benefits a person receives for each

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public benefits program included in this
economic analysis. Therefore, DHS
estimated the average annual benefit
received per person for each public
benefit program in table 50. The average
benefit per person is calculated for each
public benefit program by dividing the
average annual program payments for
on public benefits by the average annual
total number of recipients.847 To the
extent that data are available, these
estimates are based on 5-year averages.

847 DHS notes that the amounts presented may
not account for overhead costs associated with
administering each of these public benefits
programs. The costs presented are based on
amounts recipients have received in benefits as
reported by benefits-granting agencies.

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

Medicaid 2
Low Income Subsidy (LIS) for
Medicare Part D Prescription
3
Dru Covera e

64,281,954

$477,395,691,240

$7,426.59

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 Assistance 7

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/expenditurereports/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/ResearchStatistics-Data-and-Systems/Statistics-Trends-and-Reports/ReportsTrustFunds/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
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 of the Supplemental Security Income
Program, 2017. Table IV.B9-SSI Recipients with Federally Administered Payments in Current-Payment

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Research shows that when eligibility
rules change for public benefits
programs there is evidence of a ‘‘chilling
effect’’ that discourages immigrants
from using public benefits programs for
which they are still eligible. For
example, the U.S. Department of
Agriculture (USDA) published a study
shortly after the Personal Responsibility
and Work Opportunity Act of 1996
(PRWORA) took effect and found that
the number of people receiving food
stamps fell by over 5.9 million between
summer 1994 and summer 1997.848 The
study notes that enrollment in the food
stamps program was falling during this
period, possibly due to strong economic
growth, but the decline in enrollment
was steepest among legal immigrants.
Under PRWORA, legal immigrants were
facing significantly stronger restrictions
through which most would become
ineligible to receive food stamps. The
study also found that enrollment of legal
immigrants in the food stamps program
fell by 54 percent. Moreover, another
study found evidence of a ‘‘chilling
effect’’ due to enactment of PRWORA
where non-citizen enrollment in public
benefits programs declined more steeply
than U.S. citizen enrollment over the
period 1994 to 1997.849 Overall, the

study found that welfare enrollment in
households headed by foreign-born
individuals fell by about 21 percent.
To estimate the total transfer
payments, DHS calculated the number
of individuals who are likely to
disenroll from or forego enrollment in a
public benefit program equal to 2.5
percent of the number of foreign-born
non-citizens previously estimated.
While previous studies examining the
effect of PRWORA in 1996 showed a
reduction in enrollment from 21 to 54
percent, it is unclear how many
individuals would actually disenroll
from or forego enrollment in public
benefits programs due to the proposed
rule. The previous studies had the
benefit of retrospectively analyzing the
chilling effect of PRWORA using actual
enrollment data, instead of being
limited to prospectively estimating the
number of individuals who may
disenroll or forego enrollment in the
affected public benefits programs. This
economic analysis must rely on the
latter. Moreover, PRWORA was directly
changing eligibility requirements,
whereas this proposed rule, if finalized,
would change enrollment incentives.
Therefore, DHS estimates this annual
rate based on the number of foreignborn immigrants seeking to adjust status

as a percentage of the foreign-born noncitizen population in the United States,
under the assumption that the
population likely to disenroll from or
forego enrollment in public benefits
programs would be individuals
intending to apply for adjustment of
status or individuals who have adjusted
status within the past five years. DHS
notes that this is likely an overestimate
since it is unknown how many foreignborn non-citizens adjusting status are
actually using public benefits. For the 5fiscal year period 2012–2016, the
foreign-born non-citizen population was
estimated to be 22,214,947.850 During
the same 5-fiscal year period, 544,246
immigrants adjusted status annually in
the United States on average.851 852
Therefore, DHS assumes a 2.5 percent
rate of disenrollment or foregone
enrollment across each of the public
benefits programs since the individuals
intending to adjust status are most likely
to disenroll from or forego enrollment in
public benefits programs in order to
preserve their chances of adjusting
status.853 Table 51 shows the estimated
population that would be likely to
disenroll or forego enrollment in a
public benefits program as a result of
this proposed rule.

848 See Genser, J. (1999). Who is leaving the Food
Stamps Program: An analysis of Caseload Changes
from 1994 to 1997. Washington, DC: U.S.
Department of Agriculture, Food and Nutrition
Service, Office of Analysis, Nutrition, and
Evaluation. Available at https://www.fns.usda.gov/
snap/who-leaving-food-stamp-program-analysiscaseload-changes-1994-1997. (Accessed June 17,
2018).
849 See Fix, M.E., and Passel, J.S. (1999). Trends
in Noncitizens’ and Citizens’ Use of Public Benefits
Following Welfare Reform: 1994–1997. Washington,
DC: The Urban Institute. Available at https://
www.urban.org/research/publication/trends-

noncitizens-and-citizens-use-public-benefitsfollowing-welfare-reform. (Accessed June 17, 2018).
850 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.
851 See United States Department of Homeland
Security. Yearbook of Immigration Statistics: 2016,
Table 7. Washington, DC, U.S. Department of
Homeland Security, Office of Immigration
Statistics, 2017. Available at https://www.dhs.gov/

immigration-statistics/yearbook/2016 (accessed Jan.
24, 2018).
852 Note that the population seeking extension of
stay or change of status were not included in the
calculation due to the nature of the populations
involved, namely people employed in jobs and their
dependents. DHS assumes that these individuals
generally do not receive public benefits and have
means of supporting themselves and their
dependents.
853 Calculation, based on 5-year averages over the
period fiscal year 2012–2016: (544,246 adjustments
of status/22,214,947 estimated foreign-born noncitizen population) * 100 = 2.45 = 2.5% (rounded).

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51267

Table 52 shows the estimated
population that would be likely to
disenroll from or forego enrollment in
public benefits programs due to the
provisions of the proposed rule and the
total reduction in transfer payments
paid by the federal government to this
population. The table also presents the
previously estimated average annual
benefit per person who received benefits
for each of the public benefits

programs.854 This proposed rule would
result in a reduction of transfer
payments from the federal government
to those foreign-born non-citizens and
associated household members who
choose to disenroll from or forego future
enrollment in a public benefits program.
Transfer payments are payments from
one group to another that do not directly
affect total resources available to
society.855 DHS estimates the total

annual reduction in transfer payments
paid by the federal government to
individuals who may choose to
disenroll from or forego enrollment in
public benefits programs is
approximately $1.51 billion for an
estimated 324,438 individuals and
14,532 households across the public
benefits programs examined.

854 As previously noted, the average annual
benefits per person amounts presented may not
account for overhead costs associated with
administering each of these public benefits
programs since they are based on amounts

recipients have received in benefits as reported by
benefits-granting agencies. Therefore, the costs
presented may underestimate the total amount of
transfer payments to the federal government.

855 See Office of Management and Budget (OMB).
Circular A–4. September 17, 2003. Available at
https://www.whitehouse.gov/sites/whitehouse.gov/
files/omb/circulars/A4/a-4.pdf.

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Based on the rate of disenrollment or
foregone enrollment calculated, DHS
estimated the annual reduction in the
amount of transfer payments paid by the
federal government to foreign-born noncitizens and members of their
households by multiplying the average
annual benefits per person by the
population of foreign-born non-citizens
who are likely to disenroll from or
forego enrollment in a public benefit
program.856
However, DHS notes there may be
additional reductions in transfer
payments that we are unable to
quantify. As these estimates reflect only
federal financial participation in
programs where states may share costs,
856 DHS analyzes federal funds only as we are not
readily able to track down and identify the state
funds.

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there may also be additional reductions
in transfer payments from states to
individuals who may choose to
disenroll from or forego enrollment in a
public benefits program. Because state
participation in these programs may
vary depending on the type of benefit
provided, DHS was unable to quantify
the impact of state transfers. For
example, the federal government funds
all SNAP food expenses, but only 50
percent of allowable administrative
costs for regular operating expenses.857
Similarly, Federal Medical Assistance
Percentages (FMAP) in some HHS
programs like Medicaid can vary from
857 Per section 16(a) of the Food and Nutrition Act
of 2008. See also USDA, FNS Handbook 901, p. 41
available at: https://fns-prod.azureedge.net/sites/
default/files/apd/FNS_HB901_v2.2_internet_
Ready_Format.pdf.

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between 50 percent to an enhanced rate
of 100 percent in some cases. However,
assuming that the state share of federal
financial participation (FFP) is 50
percent, then the 10-year discounted
amount of state transfer payments of
this proposed policy would be
approximately $9.95 billion at a 3
percent discount rate and about $8.2
billion at a 7 percent discount rate.
Finally, DHS recognizes that reductions
in federal and state transfers under
federal benefit programs may have
downstream and upstream impacts on
state and local economies, large and
small businesses, and individuals. For
example, the rule might result in
reduced revenues for healthcare
providers participating in Medicaid,
pharmacies that provide prescriptions to
participants in the Medicare Part D low-

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income subsidy (LIS) program,
companies that manufacture medical
supplies or pharmaceuticals, grocery
retailers participating in SNAP,
agricultural producers who grow foods
that are eligible for purchase using
SNAP benefits, or landlords
participating in federally funded
housing programs.
However, the rate of disenrollment or
foregone enrollment may result in an
underestimate, to the extent that
covered aliens may choose to disenroll
from or forego enrollment in public
benefits programs sooner than in the
same year that the alien applies for
adjustment of status. For instance,
because DHS would consider past
receipt of public benefits within at least
36 months as a heavily weighed factor
under the proposed rule, prospective
adjustment applicants may choose to
disenroll or forego enrollment at least 36
months in advance of such application.
Some aliens and members of their
households may adjust their behavior in
anticipation of eventually applying for
adjustment of status, but not know
exactly when they will submit such
applications. In addition, because the
proposed rule also affects
inadmissibility determinations in
contexts aside from adjustment of
status, some percentage of the alien
population is likely to disenroll from or
forego enrollment in covered programs,

for such non-adjustment-related
purposes as well.
On the other hand, the 2.5 percent
rate of disenrollment or foregone
enrollment estimate may result in an
overestimate, insofar as it does not
correct for those categories of aliens
(such as asylees and refugees) that are
exempt from the public charge ground
of inadmissibility and assumes 100%
are using public benefits which may not
be true. DHS expects that the rule’s
effects on public benefit program
enrollment and disenrollment by such
categories of aliens and their
households would be less pronounced.
Additionally, some prospective
adjustment applicants and associated
household members may not choose to
disenroll or forego public benefits
because they may have other factors that
counterbalance acceptance of public
benefits when looked at in the totality
of circumstances. DHS welcomes
comments on the appropriate
methodology for estimating the rate of
disenrollment or foregone enrollment,
including ways to improve upon the
DHS methodology. DHS welcomes
public comments on the estimation of
the disenrollment or foregone
enrollment rate used in this analysis.
However, in order to examine the
impact if prospective adjustment
applicants chose to disenroll or forego
enrollment in public benefits at least 36
months in advance, DHS conducted a

sensitivity analysis based on this issue
of the proximity of time to a review of
public charge inadmissibility. In such
cases, DHS would consider past receipt
of public benefits within at least 36
months (3 years) as a heavily weighed
negative factor under the proposed rule
and that a prospective adjustment
applicant may choose to disenroll or
forego enrollment for at least 36 months
in advance of such application. Table 53
presents the potential range of the
population who may disenroll from or
forego enrollment in public benefits
programs as well as the potential total
reduction in transfer payments paid by
the federal government to this
population. DHS estimates that the
population range of foreign-born noncitizens who may disenroll from or
forego enrollment in public benefits
programs would range from
approximately 333,239 to 999,717. In
addition, the estimated reduction in
transfer payments paid by the federal
government to this population ranges
from about $1.51 billion to $4.53 billion.
For this economic analysis, the primary
estimate upon which DHS bases its
analysis is the 1-year estimate, as shown
below in the table. However, DHS
welcomes the public to comment on
DHS’s use of the 1-year estimate as its
primary estimate as well as whether
using the 3-years estimate is a more
appropriate estimate to use as the
primary estimate.

DHS presents this range since it is
possible that the number of people who
may disenroll from or forego enrollment
in public benefits programs in one year
could be as many as the combined
three-year total of people who may
disenroll or forego enrollment. Because

DHS plans to heavily weigh the receipt
of public benefits within the past 36
months as a negative factor, individuals
may begin to disenroll or forego
enrollment in public benefits programs
as early as three years prior to applying
for adjustment of status. As a result, the

annual reduction in transfer payments
could range between the three estimates
presented in table 53.
Another source of impacts of the
proposed rule would be costs to various
individuals and other entities associated
with familiarization with the provisions

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of the rule. Familiarization costs involve
the time spent reading the details of a
rule to understand its changes. A
foreign-born non-citizen (such as those
contemplating disenrollment or
foregoing enrollment in a public
benefits program) might review the rule
to determine whether they are subject to
the provisions of the proposed rule. To
the extent an individual or entity that is
directly regulated by the rule incurs
familiarization costs, those
familiarization costs are a direct cost of
the rule. In addition to those being
directly regulated by the rule, a wide
variety of other entities would likely
choose to read the rule and also incur
familiarization costs. For example,
immigration lawyers, immigration
advocacy groups, health care providers
of all types, non-profit organizations,
non-governmental organizations, and
religious organizations, among others,
may want to become familiar with the
provisions of this proposed rule. DHS
believes such non-profit organizations
and other advocacy groups might
choose to read the rule in order to
provide information to those foreignborn non-citizens and associated
households that might be impacted by a
reduction in federal transfer payments.
Familiarization costs incurred by those
not directly regulated are indirect costs.
DHS estimates the time that would be
necessary to read the rule would be
approximately 8 to 10 hours per person,
resulting in opportunity costs of time.
An entity, such as a non-profit or

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advocacy group, may have more than
one person who reads the rule.
In addition, the proposed rule may
impose costs that DHS is unable to
quantify. Many federal agencies, such as
USDA in administering the SNAP
program, may need to update and rewrite guidance documents or would
need to update forms used. Moreover,
there may be additional unquantified
costs that state and local government
may incur associated with similar
activities. At each level of government,
it will also be necessary to prepare
training materials and retrain staff. Such
changes will require staff time and have
associated costs.
There are a number of consequences
that could occur because of follow-on
effects of the reduction in transfer
payments identified in the proposed
rule. DHS is providing a listing of the
primary non-monetized potential
consequences of the proposed rule
below. Disenrollment or foregoing
enrollment in public benefits program
by aliens otherwise eligible for these
programs could lead to:
• 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 method of
primary health care due to delayed
treatment;
• Increased prevalence of
communicable diseases, including

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among members of the U.S. citizen
population who are not vaccinated;
• Increases in uncompensated care in
which a treatment or service is not paid
for by an insurer or patient; and
• Increased rates of poverty and
housing instability; and
• Reduced productivity and
educational attainment.
DHS notes that the proposed rule is
likely to produce various other
unanticipated consequences and
indirect costs. For example, community
based organizations, including small
organizations, may provide charitable
assistance, such as food or housing
assistance, for individuals who forego
enrollment in public benefit programs.
DHS requests comments on other
possible consequences of the rule and
appropriate methodologies for
quantifying these non-monetized
potential impacts.
(d) Discounted Direct Costs and
Reduced Transfer Payments
To compare costs over time, DHS
applied a 3 percent and a 7 percent
discount rate to the total estimated costs
associated with the proposed rule. Table
54 presents a summary of the quantified
direct costs and reduced transfer
payments from the federal government
included in the proposed rule. The
summary table presents costs in
undiscounted dollars as well as dollars
discounted at 3 percent and 7 percent
rates over a 10-year period.

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i. Discounted Direct Costs

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DHS presents the total estimated costs
for filing Form I–944 as part of the
review for determination of

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inadmissibility based on public charge
when applying for adjustment of status
and the opportunity cost of time
associated with the increased time
burden estimate for completing Forms

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51271

I–485, I–129, I–129CW, and I–539. See
table 55. The total estimated costs are
presented in undiscounted dollars, at a
3 percent discount rate, and at a 7
percent discount rate.

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

Form 1-944, Declaration
of Self-Sufficiency

Opportunity cost of
time (OCT) for
completing form

Form 1-485, Application
to Register Permanent
Residence or Adjust
Status

OCT associated with
the increased time
burden for
completing form

Form 1-129, Petition for
a Nonimmigrant Worker

OCT associated with
the increased time
burden for
completing form

Form I-129CW, Petition
for a CNMI-Only
Nonimmigrant
Transitional Worker

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Form 1-539, Application
To Extend/Change
Nonimmigrant Status

Form 1-945, Public
Charge Bond

Costs to beneficiaries
who receive a RFE to
complete and submit
Form 1-944, including
OCT and credit
report/credit score
costs.
OCT associated with
the increased time
burden for
completing form

$25,963,371

$259,633,710

$691,898

$6,918,980

$12,103,351 to
$66,880,214

$121,033,510 to
$668,802,140

$227,015 to
$1,254,198

$2,270,150 to
$12,541,980

$6,292,728 to
$34,772,105

$62,927,280 to
$347,721,050

$34,234

$342,340

Costs to beneficiaries
who receive a RFE to
complete and submit
Form 1-944, including
OCT and credit
report/credit score
costs.
OCT associated with
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
costs.
Filing fee
OCT for completing
form

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

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applying to adjust status subject to
review for public charge determination
and the opportunity cost of time
associated with the increased time
burden estimates for completing Forms
I–485, I–129, I–129CW, and I–539. The
economic analysis also presents the
quantified costs associated with the
proposed public charge bond process,
including costs associated with
completing and filing Forms I–945 and
I–356. DHS reiterates we are unable to
estimate the actual number of Form I–
129 or Form I–129CW petitioners and
Form I–539 filers that adjudication
officers would require through a RFE to
submit Form I–944 since such RFE
would be issued on a discretionary basis
as outlined in the proposed rule.

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However, previously in this economic
analysis, DHS presented a more detailed
range of RFEs that could be issued based
on total population estimates and the
estimated annual cost associated with
such RFEs. DHS welcomes any public
comments on the discounted costs
presented in this proposed rule.
ii. Discounted Reduction in Transfer
Payments
DHS presents the total estimated
quantified reduction in transfer
payments from the federal government
of the proposed rule in table 56. The
total estimated costs are presented in
undiscounted dollars, at a 3 percent
discount rate, and at a 7 percent
discount rate.

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Over the first 10 years of
implementation, DHS estimates the
quantified direct costs of the proposed
rule would range from about
$453,134,220 to $1,295,968,450
(undiscounted). In addition, DHS
estimates that the 10-year discounted
cost of this proposed rule to individuals
applying to adjust status who would be
required to undergo review for
determination of inadmissibility based
on public charge would range from
about $386,532,679 to $1,105,487,375 at
a 3 percent discount rate and about
$318,262,513 to $910,234,008 at a 7
percent discount rate.
This economic analysis presents the
quantified costs of this proposed rule
based on the estimated population

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Over the first 10 years of
implementation, DHS estimates the total
quantified reduction in transfer
payments from the federal government
to foreign-born non-citizens and their
households would be about $22.7
billion (undiscounted). In addition, DHS
estimates that the 10-year discounted
costs of this proposed rule would be
approximately $19.3 billion at a 3
percent discount rate and about $15.9
billion at a 7 percent discount rate due
to disenrollment or foregone enrollment
in various federal public benefits
programs. In addition, DHS assumes
that the state share of federal financial
participation (FFP) is 50 percent and
therefore the 10-year discounted amount
of the state-level share of transfer
payments of this proposed rule would
be approximately $9.65 billion at a 3
percent discount rate and about $7.95
billion at a 7 percent discount rate.
Disenrollment or foregone enrollment in
public benefits programs could occur
whether or not such immigrants are
directly affected by the provisions of the
proposed rule, however, USCIS was
unable to determine the exact
percentage of individuals who would
disenroll or forego enrollment. DHS
notes that there may be a number of
additional sources of transfer payments
that could result from the proposed rule
that DHS is not able to estimate and
quantify at this time. Therefore, DHS
welcomes public comments on
additional sources of transfer payments
that could result from the proposed rule.
(e) Costs to the Federal Government
The INA provides for the collection of
fees at a level that will ensure recovery
of the full costs of providing
adjudication and naturalization
services, including administrative costs
and services provided without charge to
certain applicants and petitioners. See
INA section 286(m), 8 U.S.C. 1356(m).
DHS notes that USCIS establishes its
fees by assigning costs to an
adjudication based on its relative
adjudication burden and use of USCIS
resources. Fees are established at an
amount that is necessary to recover
these assigned costs such as clerical,
officers, and managerial salaries and
benefits, plus an amount to recover
unassigned overhead (e.g., facility rent,
IT equipment and systems among other
expenses) and immigration benefits
provided without a fee charge.
Consequently, since USCIS immigration
fees are based on resource expenditures
related to the benefit in question, USCIS
uses the fee associated with an
information collection as a reasonable
measure of the collection’s costs to
USCIS. Therefore, DHS has established

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the fee for the adjudication of Form I–
485, Application to Register Permanent
Residence or Adjust Status; Form I–129,
Petition for a Nonimmigrant Worker;
Form I–129CW, Petition for a CNMIOnly Nonimmigrant Transitional
Worker; and Form I–539, Application to
Extend/Change Nonimmigrant Status in
accordance with this requirement. Other
forms affected by this proposed rule do
not currently charge a filing fee,
including Form I–693, Medical
Examination and Vaccination Record;
Affidavit of Support forms (Form I–864,
Form I–864A, Form I–864EZ, and I–
864W); Form I–912, Request for Fee
Waiver, and Form I–407, Record of
Abandonment of Lawful Permanent
Resident Status. DHS notes that the time
necessary for USCIS to review the
information submitted with each of
these forms includes the time to
adjudicate the underlying benefit
request. While each of these forms does
not charge a fee, the cost to USCIS is
captured in the fee for the underlying
benefit request form. DHS welcomes
public comments on costs to the
government from this proposed rule.
(f) Benefits of Proposed Regulatory
Changes
The primary benefit of the proposed
rule would be to better ensure that
aliens who are admitted to the United
States or apply for adjustment of status
would not receive one or more public
benefits as defined in the proposed
212.21(b) and instead, will rely on their
financial resource, and those of family
members, sponsors, and private
organizations. As a result, DHS is
establishing a more formal review
process and improving the current
review process to standardize the
determination of inadmissibility based
on public charge grounds. The proposed
process would also help clarify to
applicants the specific criteria that
would be considered as inadmissible
under public charge determinations.
DHS anticipates that the proposed
rule would produce some benefits from
the elimination of Form I–864W for use
in filing an affidavit of support. The
information previously requested on the
Form I–864W would now be captured
using Form I–485. Applicants, therefore,
would not be required to file a form
separate from the Form I–485. As noted
previously, there is no filing fee
associated with filing Form I–864W, but
DHS estimates the time burden
associated with filing this form is 60
minutes (1 hour) per petitioner.858
858 Source for I–864W time burden estimate:
Paperwork Reduction Act (PRA) Affidavit of
Support Under Section 213A of the INA (Forms I–

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Therefore, using the average total rate of
compensation of $35.78 per hour, DHS
estimates the amount of benefits that
would accrue from eliminating Form I–
864W would be $35.78 per petitioner,
which equals the opportunity cost of
time for completing Form I–864W.859
However, DHS notes that we are unable
to determine the annual number filings
of Form I–864W since we do not
currently have information of how many
of these filings are based on public
charge determinations.
In addition, a benefit of establishing
and modifying the public charge bond
process, despite the costs associated
with this process, would potentially
allow an immigrant the opportunity to
be admitted although he or she was
deemed likely to become a public
charge. DHS welcomes any public
comments on the benefits of this
proposed rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(RFA), 5 U.S.C. 601–612, as amended by
the Small Business Regulatory
Enforcement Fairness Act of 1996,
Public Law 104–121 (March 29, 1996),
requires Federal agencies to consider
the potential impact of regulations on
small businesses, small governmental
jurisdictions, and small organizations
during the development of their rules.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, or
governmental jurisdictions with
populations of less than 50,000.860 This
proposed rule would require an
individual applying for a visa, seeking
admission at the port of entry, or
adjusting status to establish that he or
she is not likely at any time to become
a public charge. Most of this rule’s
proposed changes do not fall under the
RFA because they directly regulate
individuals who are not, for purposes of
the RFA, within the definition of small
entities established by 5 U.S.C. 601(6).
However, DHS recognizes that there
may be some provisions of this
proposed rule that would directly
regulate small entities, and, therefore,
864, I–864A, I–864EZ, I–864W) (OMB control
number 1615–0075). The PRA Supporting
Statement can be found at Question 12 on
Reginfo.gov at https://www.reginfo.gov/public/do/
PRAViewDocument?ref_nbr=201705-1615-004.
859 Calculation opportunity cost of time for
completing and submitting Form I–864W: ($35.78
per hour * 1.0 hours) = $35.78.
860 A small business is defined as any
independently owned and operated business not
dominant in its field that qualifies as a small
business per the Small Business Act, 15 U.S.C. 632.

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DHS has examined the impact of this
proposed rule on small entities.
This proposed rule would increase
the time burden by an additional 30
minutes on petitioners who file Form I–
129 or Form I–129CW on behalf of a
beneficiary requesting an extension of
stay or change of status, which would
impose direct costs on these petitioners.
Additionally, the proposed provisions
to establish a public charge bond
process included in this proposed rule
would allow for either an alien or an
obligor (individual or an entity) to
request a cancellation of a public bond.
As a result, this proposed rule could
have direct impacts on small entities
that are obligors. DHS also recognizes
that a Form I–129 or Form I–129CW
beneficiary, for whom a Form I–129 or
Form I–129CW petitioner (i.e., the
employer) sought either an extension of
stay or a change of status, may have to
leave the U.S. if the employer’s request
was denied. In these cases, the
petitioner may lose the beneficiary as an
employee and may incur labor turnover
costs. DHS presents this Initial
Regulatory Flexibility Analysis (IRFA)
to examine these impacts.
Initial Regulatory Flexibility Analysis
The small entities that could be
impacted by this proposed rule are
petitioners who file Form I–129 or Form
I–129CW on behalf of beneficiaries
requesting an extension of stay or
change of status as well as obligors that
would request a cancellation of a public
bond.
1. A description of the reasons why
the action by the agency is being
considered.
DHS seeks to better ensure that
applicants for admission to the United
States and applicants for adjustment of
status to lawful permanent resident who
are subject to the public charge ground
of inadmissibility are self-sufficient, i.e.,
they will rely on their own financial
resources as well as the financial
resources of their family, sponsors, and
private organizations as necessary.861
Under section 212(a)(4) of the Act, 8
U.S.C. 1182(a)(4), an alien is
inadmissible if, at the time of an
application for a visa, admission, or
adjustment of status, he or she is likely
at any time to become a public charge.
The statute requires DHS to consider the
following minimum factors that reflect
the likelihood that an alien will become
a public charge: The alien’s age; health;
family status; assets, resources, and
financial status; and education and
skills. In addition, DHS may consider
any affidavit of support submitted by
861 See

8 U.S.C. 1601(2).

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the alien’s sponsor and any other factors
relevant to the likelihood of the alien
becoming a public charge.
2. A succinct statement of the
objectives of, and legal basis for, the
proposed rule.
DHS objectives and legal authority for
this proposed rule are discussed in the
preamble of the proposed rule.
3. A description and, where feasible,
an estimate of the number of small
entities to which the proposed changes
would apply.
This proposed rule would increase
the time burden by an additional 30
minutes on petitioners who file Form I–
129 or Form I–129CW on behalf of a
beneficiary requesting an extension of
stay or change of status, which would
impose direct costs on these petitioners
and entities.862 As previously discussed
in the E.O. 12866 section of this NPRM,
DHS estimates an annual population of
336,335 beneficiaries seeking extension
of stay or change of status through a
petitioning employer using Form I–129.
In addition, DHS estimates an annual
population of 6,307 beneficiaries
seeking extension of stay or change of
status through a petitioning employer
using Form I–129CW. DHS estimates
that the 30-minute increase in the
estimated time burden for these
populations would increase the
opportunity cost of time for completing
and filing Form I–129 and Form I–
129CW and would result in about $184
million and about $5 million in costs,
respectively. For this population, DHS
is unable to estimate the actual number
of requests for evidence (RFEs) that
adjudication officers may issue to Form
I–129 beneficiaries to complete Form I–
944 to provide evidence that they are
not likely to become a public charge
when they are extending stay or
changing status. Therefore, DHS cannot
determine the number of small entities
that might be impacted by potential
requests to complete the Form I–944 as
part of an RFE.
The proposed provisions on the bond
process included in this rule would
allow a surety company to become an
obligor on a public charge bond
(proposed Form I–945) and, later, to
request a cancellation of such a bond
(proposed Form I–356). Therefore, this
proposed rule could have some impacts
to surety companies, some of which are
small entities. A request for cancellation
of a public bond using Form I–356
includes a time burden of 15 minutes
862 In the context of Form I–129, a petitioner is
typically an employer or the representative of an
employer who files on behalf of a nonimmigrant
worker (or beneficiary) to come to the United States
temporarily to perform services or labor, or to
receive training. See https://www.uscis.gov/i-129.

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per request and a fee to DHS of $25.00.
It is not known the number of surety
bond companies that might complete
and file Forms I–945 and I–356 due to
a lack of historical data and uncertainty
in the number individuals that may be
granted the opportunity to post for
public charge bond. However, DHS
estimates that the filing volume for
Form I–945 might be about 960 and the
filing volume for Form I–356 might be
approximately 25. While DHS cannot
predict the exact number of surety
companies that might be impacted by
this proposed rule, nine out of 273
Treasury-certified surety companies in
fiscal year 2015 posted new immigration
bonds with DHS ICE.863 DHS found that
of the nine surety companies, four
entities were considered ‘‘small’’ based
on the number of employees or revenue
being less than their respective Small
Business Administration size
standard.864 Assuming these nine surety
companies post public charge bonds
with USCIS, we can assume that four
surety companies may be considered as
small entities. However, USCIS cannot
predict the exact impact to these small
entities at this time. We expect that
obligors would be able to pass along the
costs of this rulemaking to the aliens.
DHS welcomes any public comments or
data on the number of small entities that
would be surety companies likely to
post public charge bonds and any direct
impacts on those small surety
companies.
4. 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.
In addition to time burden costs
discussed in Section C of this IFRA,
DHS recognizes that a Form I–129 or
Form I–129CW beneficiary, for whom a
Form I–129 or Form I–129CW petitioner
(i.e., the employer) sought either an
extension of stay or a change of status,
may have to leave the U.S. if the
employer’s request was denied. In these
cases, the petitioner may lose the
beneficiary as an employee and may
incur labor turnover costs. A 2012
report published by the Center for
American Progress surveyed several
863 See DHS, Procedures and Standards for
Declining Surety Immigration Bonds and
Administrative Appeal Requirement for Breaches
NPRM, 83 FR 25951, 25962–25965 (June 5, 2018).
864 U.S. Small Business Administration, Table of
Small Business Size Standards Matched to North
American Industry Classification System (NAICS)
Codes, February 26, 2016. https://www.sba.gov/
sites/default/files/files/Size_Standards_Table.pdf.

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dozen studies that considered both
direct and indirect costs and determined
that turnover costs per employee ranged
from 10 to 30 percent of the salary for
most salaried workers.865 An employer
paid an average of about 20 percent of
the worker’s salary in total labor
turnover costs. Specifically, for workers
earning $50,000 or less, and for workers
earning $75,000 or less, the average
turnover cost was about 20 percent for
both earning levels. According to the
study, these earning levels
corresponded to the 75th and 90th
percentiles of typical earnings,
respectively. Assuming Form I–129 and
Form I–129CW beneficiaries are
employed, DHS believes it is reasonable
to assume an annual mean wage of
$50,620 across all occupations.866
Assuming an average labor turnover cost
of 20 percent of $50,620, on average, an
employer could incur costs of
approximately $10,124 per beneficiary
that would be separated from
employment as a result of a denied
request for an extension of stay or
change of status. However, DHS does
not know the number of small entities
within this population of petitioners
that might incur labor turnover costs.
Additionally, DHS also recognizes
that a Form I–129 or Form I–129CW
beneficiary, for whom a Form I–129 or
Form I–129CW petitioner (i.e., the
employer) sought either an extension of
stay or a change of status and the
request was denied, may still be able to
get a visa and return to the U.S.,
including pursuant to other means. DHS
welcomes any public comments or data
on the impact to the petitioners or
employers of Form I–129 or Form I–
129CW beneficiaries who are denied an
extension of stay or change of status due
to public charge inadmissibility.
DHS does not believe that it would be
necessary for Form I–129 or Form I–
129CW petitioners, or for surety bond
companies (obligors) to acquire
additional types of professional skills as
a result of this proposed rule. These
petitioners and obligors should already
possess the expertise to fill out the
associated forms for this proposed rule.
Additionally, these petitioners and
obligors would be familiar with the
proposed rule and such familiarization
865 See

‘‘There Are Significant Business Costs to
Replacing Employees,’’ by Heather Boushey and
Sarah Jane Glynn (2012), Center for American
Progress, available: https://
www.americanprogress.org/issues/economy/
reports/2012/11/16/44464/there-are-significantbusiness-costs-to-replacing-employees/.
866 Bureau of Labor Statistics, May 2017 National
Occupational Employment and Wage Estimates, All
Occupations, https://www.bls.gov/oes/2017/may/
oes_nat.htm.

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costs are accounted for the in the E.O.
12866 sections.
5. An identification of all relevant
Federal rules, to the extent practical,
that may duplicate, overlap, or conflict
with the proposed rule.
DHS is unaware of any duplicative,
overlapping, or conflicting Federal
rules, but invites any public comment
and information regarding any such
rules. Elsewhere in the preamble to the
proposed rule, DHS addresses the
relationship between this proposed rule
and the standards governing alien
eligibility for public benefits, as
outlined in PRWORA.
6. Description of any significant
alternatives to the proposed rule that
accomplish the stated objectives of
applicable statutes and that minimize
any significant economic impact of the
proposed rule on small entities.
DHS considered a range of potential
alternatives to the proposed rule. First,
under a ‘‘no action’’ alternative, DHS
would continue administering the
public charge ground of inadmissibility
under the 1999 Guidance. For reasons
explained more fully elsewhere in the
preamble to the proposed rule, DHS
determined that this alternative would
not adequately ensure the selfsufficiency of aliens subject to the
public charge ground of inadmissibility.
Second, DHS considered including a
more expansive definition of ‘‘public
benefit,’’ potentially to include a range
of non-cash benefit programs falling in
specific categories (such as programs
that provide assistance for basic food
and nutrition, housing, and medical
care). For reasons explained more fully
elsewhere in the preamble to the
proposed rule, DHS chose the approach
contained in this proposed rule—a more
limited list of high-expenditure noncash benefits. DHS expects that, as
compared to the broader alternative, the
proposed approach may reduce the
overall effect of the rule on transfers, but
enhance its administrability and
predictability. Employers filing Form I–
129 and surety companies would have
a better understanding of the types of
non-cash benefits that may be covered
under this proposed rule than they
would under the broader alternative,
and may realize cost savings as a result.
In addition, certain indirect effects of
the rule may be different as a result of
the decision to reject this alternative.
C. Congressional Review Act
This proposed rule is a major rule as
defined by 5 U.S.C. 804, also known as
the ‘‘Congressional Review Act,’’ as
enacted in section 251 of the Small
Business Regulatory Enforcement
Fairness Act of 1996, Public Law 104–

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121, 110 Stat. 847, 868 et seq.
Accordingly, this rule, if enacted as a
final rule, would be effective at least 60
days after the date on which Congress
receives a report submitted by DHS
under the Congressional Review Act, or
60 days after the final rule’s publication,
whichever is later.
D. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (UMRA) is intended, among
other things, to curb the practice of
imposing unfunded Federal mandates
on State, local, and tribal governments.
Title II of UMRA requires each Federal
agency to prepare a written statement
assessing the effects of any Federal
mandate in a proposed or final agency
rule that may directly result in a $100
million or more expenditure (adjusted
annually for inflation) in any one year
by State, local, and tribal governments,
in the aggregate, or by the private sector.
The inflation-adjusted value of $100
million in 1995 is approximately $161
million in 2017 based on the Consumer
Price Index for All Urban Consumers.867
This proposed rule does not contain
such a mandate. The requirements of
Title II of UMRA, therefore, do not
apply, and DHS has not prepared a
statement under UMRA.
E. Executive Order 13132 (Federalism)
This rule will not have substantial
direct effects on the States, on the
relationship between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. DHS does not
expect that this proposed rule would
impose substantial direct compliance
costs on State and local governments, or
preempt State law. Therefore, in
accordance with section 6 of Executive
Order 13132, it is determined that this
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
F. Executive Order 12988 (Civil Justice
Reform)
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
G. Executive Order 13175 Consultation
and Coordination With Indian Tribal
Governments
This proposed rule does not have
tribal implications under Executive
867 U.S. Bureau of Labor Statistics, Historical
Consumer Price Index for All Urban Consumers
(CPI–U): U.S. City Average, All Items, available at
https://www.bls.gov/cpi/tables/historical-cpi-u201712.pdf (last visited Jan. 31, 2018).

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Order 13175, Consultation and
Coordination with Indian Tribal
Governments, because it would not have
a substantial direct effect on one or
more Indian tribes, on the relationship
between the Federal Government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal Government and Indian tribes.
H. Family Assessment
DHS has reviewed this proposed rule
in line with the requirements of section
654 of the Treasury General
Appropriations Act, 1999, Public Law
105–277. With respect to the criteria
specified in section 654(c)(1), DHS has
determined that the proposed rule may
decrease disposable income and
increase the poverty of certain families
and children, including U.S. citizen
children. For the reasons stated
elsewhere in this preamble, however,
DHS has determined that the benefits of
the action justify the financial impact on
the family. Further, the proposed action
would expand the list of public benefits
that DHS may consider for purposes of
inadmissibility under section 212(a)(4)
of the Act. As a result, the proposed
regulatory action, if finalized, may
increase the number of aliens found
inadmissible under section 212(a)(4) of
the Act. As described under the
SUPPLEMENTARY INFORMATION section of
this rule, DHS has compelling legal and
policy reasons for the proposed
regulatory action, including, but not
limited to, better ensuring the selfsufficiency of aliens admitted or
immigrating to the United States, and
minimizing the financial burden of
aliens on the U.S. social safety net.

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I. National Environmental Policy Act
DHS analyzes actions to determine
whether NEPA applies to them and if so
what degree of analysis is required. DHS
Directive (Dir) 023–01 Rev. 01 and
Instruction (Inst.) 023–01–001 rev. 01
establish the procedures that DHS and
its components use to comply with
NEPA and the Council on
Environmental Quality (CEQ)
regulations for implementing NEPA, 40
CFR parts 1500 through 1508. The CEQ
regulations allow federal agencies to
establish, with CEQ review and
concurrence, categories of actions

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(‘‘categorical exclusions’’) which
experience has shown do not
individually or cumulatively have a
significant effect on the human
environment and, therefore, do not
require an Environmental Assessment
(EA) or Environmental Impact
Statement (EIS). 40 CFR
1507.3(b)(1)(iii), 1508.4. DHS
Instruction 023–01–001 Rev. 01
establishes such Categorical Exclusions
that DHS has found to have no such
effect. Inst. 023–01–001 Rev. 01
Appendix A Table 1. For an action to be
categorically excluded, DHS Inst. 023–
01–001 Rev. 01 requires the action to
satisfy each of the following three
conditions: (1) The entire action clearly
fits within one or more of the
Categorical Exclusions; (2) the action is
not a piece of a larger action; and (3) no
extraordinary circumstances exist that
create the potential for a significant
environmental effect. Inst. 023–01–001
Rev. 01 section V.B(1)–(3).
DHS analyzed this action and has
concluded that NEPA does not apply
due to the excessively speculative
nature of any effort to conduct an
impact analysis. Nevertheless, if NEPA
did apply to this action, the action
clearly would come within our
categorical exclusion A.3(d) as set forth
in DHS Inst. 023–01–001 Rev. 01,
Appendix A, Table 1.
This proposed rule applies to
applicants for admission or adjustment
of status, as long as the individual is
applying for an immigration status that
is subject to the public charge ground of
inadmissibility. In addition, the
proposed rule would potentially affect
individuals applying for an extension of
stay or change of status because these
individuals would have to demonstrate
that they are neither receiving, nor
likely to receive, public benefits as
defined in the proposed rule. As
discussed in detail above, this rule
proposes to establish a definition of
public charge and expand the types of
public benefits that DHS would
consider as part of its public charge
inadmissibility determinations. The rule
also proposes to establish a regulatory
framework based on the statutory factors
that must be considered in public
charge determinations, including

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enhanced evidentiary requirements for
public charge inadmissibility
determinations by USCIS. Finally, the
rule proposes to revise the public charge
bond process. Overall, the proposed
regulatory changes, if finalized, would
require a more in-depth adjudication of
public charge issues and have the
potential to result in more findings of
inadmissibility, ineligibility for
adjustment of status, or denials of
requests for extension of stay or change
of status, on public charge grounds.
Historically, there is a high demand
for both immigrant and nonimmigrant
visas. Even if larger numbers of aliens
were now found to be inadmissible on
public charge grounds as a result of this
rule, there may be some replacement
effect from others who would, in turn,
be considered for the existing visas.
Therefore, DHS cannot estimate with
any degree of certainty to what extent
the potential for increased findings of
inadmissibility on public charge
grounds would result in fewer
individuals being admitted to the
United States. DHS is also unable to
estimate with any degree of certainty
whether the proposed rule would result
in increased denial of applications for
extension of stay or change of status.
DHS does not, however, anticipate that
this proposed rule will cause an
increase in the number of individuals
found to be admissible, or eligible for an
extension of stay, or adjustment or
change of status. Even if DHS could
estimate these numerical effects, any
assessment of derivative environmental
effect at the national level would remain
unduly speculative.
This rule is not part of a larger action
and presents no extraordinary
circumstances creating the potential for
significant environmental effects.
Therefore, if NEPA were determined to
apply, this rule would be categorically
excluded from further NEPA review.
J. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule. Table
57 shows the summary of forms that are
part of this rulemaking.

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Form

Form
Name

New or Updated
Form

General Purpose of
Form

General Categories Filing

Applicability
to Public
Charge

1-129

Petition
for
Nonim
migrant
Worker

Update -adds
questions and
instructions about
receipt of public
benefits

This form is used by an
employer to petition
USCIS for an alien
beneficiary to come
temporarily to the
United States as a
nonimmigrant to
perform services or
labor, or to receive
training. This form is
also used by certain
nonimmigrants to apply
for EOS or COS.

E-2 CNMI -- treaty investor
exclusively in the
Commonwealth of the
N orthem Mariana Islands
(CNMI).
H -lB -- specialty occupation
worker; an alien coming to
perform services of an
exceptional nature that relate
to a U.S. Department of
Defense-administered
project; or a fashion model of
distinguished merit and
ability.
H-2A --temporary
agricultural worker.
H-2B --temporary
nonagricultural worker.
H-3 --trainee.
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.

Non-receipt of
public benefits
and being
unlikely to
receive public
benefits in the
future is a
condition of
US CIS, at its
discretion may
request the
applicant to
file a Form 1944 to
determine
likelihood of
receipt of
public benefits
in the future.

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51279

Table 57. Summary of Forms
Form

Form
Name

New or Updated
Form

General Purpose of
Form

General Categories Filing

Applicability
to Public
Charge

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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.

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Form

Form
Name

New or Updated
Form

1129C

Petition
for a
CNMIOnly
Nonim
migrant
Transiti
onal
Worker

Update- adds
questions and
instructions about
receipt of public
benefits

1-356

Request
for
Cancell
ation of
a Public
Charge
Bond

Update- Previous
ly discontinued

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General Purpose of
Form

This form is used to
request cancellation of
the bond that was
submitted on Form 1945, Public Charge
Bond, on behalf of an
alien.

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General Categories Filing

Applicability
to Public
Charge

This form is used by an
employer to request an
extension of stay or change
of status for a
Commonwealth of the
N orthem Mariana Islands
(CNMI) temporarily to
perform services or labor
as a CW-1, CNMI-Only
Transitional Worker.

Non-receipt of
public benefits
and being
unlikely to
receive public
benefits in the
future is a
condition of
EOS/COS.
EOS/COS
applicants will
be required to
US CIS, at its
discretion may
request the
applicant to
file a Form 1944 to
determine
likelihood of
receipt of
public benefits
in the future.

An obligor who had posted
an 1-945 of the alien's behalf
or an alien has had a Form 1945 posted on his or her
behalf. and who seeks to
cancel the bond (Form 1-945)
because the alien has either
has permanently departed the
United States, naturalized, or
died, or the obligor or the
alien seeks cancellation of
the bond following the
alien's fifth anniversary of
admission to the United
States as a lawful permanent
resident, or the alien,
following the initial grant of
lawful permanent resident
status, obtains an
immigration status that it
exempt from the public
charge ground of
inadmissibility.

After an
obligor has
posted an 1945 on behalf
of the alien, or
an alien on
whose behalf
the 1-945 was
posted, may
request that a
bond to be
cancelled
because the
alien either has
permanently
departed the
United States,
naturalized or
died, or the
obligor or the
alien request
cancellation
following the
fifth
anniversary of
the alien's

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51281

Table 57. Summary of Forms
Form

Form
Name

New or Updated
Form

General Purpose of
Form

General Categories Filing

Applicability
to Public
Charge

I-407

I-407,
Record
of
Abando
nment
of
Lawful
Perman
ent
Residen
t Status

No Changes

This form is used to
record an alien's
abandonment of status
as a lawful permanent
resident in of the United
States.

A lawful permanent resident
who voluntarily abandons his
lawful permanent resident
status in the United States.

I-485

Applica
tion to
Register
Perman
ent
Residen
ce or
Adjust
mentof
Status

Update- clarifies
what categories
need to file Form
I-944 and Form I864

Foreign nationals
present in the United
States to obtain LPR
status

o Immediate relatives
(spouses, children and
parents of U.S. citizens)
o Family-based immigrants
(principal beneficiaries and
their dependents)
o Employment-based
immigrants (principal
beneficiaries and their
dependents)

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If a bond has
been posted on
the alien's
behalf, the
obligor or the
alien may
request that the
bond be
cancelled
because the
alien
permanently
departed the
United States.
The alien
shows this by
filing Form I407 and
physically
departing.
Adjustment of
status
applicants
generally must
be admissible,
including with
regard to the
public charge
inadmissibility
ground

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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.

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Table 57. Summary of Forms
Form
Name

New or Updated
Form

General Purpose of
Form

I-539

Applica
tion To
Extend/
Change
Nonim
migrant
Status

Update- adds
questions and
instructions about
receipt of public
benefits

This form is used by
certain nonimmigrants
to apply for an
extension of stay or
change of status. In
certain circumstances
this form may be used
as an initial
nonimmigrant status, or
reinstatement ofFl or
Ml status (students).

I-693

Report
of
Medical
Examin
ation
and
Vaccina
tion
Record

No Changes

Form I-693 is used to
report results of a
medical examination to
USCIS.

I-864

Affidavi
t of
Support
Under
Section
213A of
the INA

Updatereference to Form
I-864W, which is
being
discontinued, was
removed

Statement/ contract
provided by a sponsor
to show that the
sponsor has adequate
financial resources to
support the alien.

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General Categories Filing

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.
• CNMI residents applying
for an initial grant of status;
• Student (F) and vocational
students (M) applying for
reinstatement; and
• Persons seeking V
nonimmigrant status or an
extension of stay as a V
nonimmigrant (spouse or
child of an LPR who filed a
petition on or before
December 21, 2000)

Generally, adjustment of
status applicants are required
to submit an I-693.
N onimmigrants seeking a
change or extension of status
are generally not required to
submit an I-693,
N onimmigrants seeking a
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-PartEChapter3. html
Generally most family-based
immigrants and some
employment-based
immigrants. See additional
tables for full list.

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Ap1>licability
to Public
Charge

Non-receipt of
public benefits
and being
unlikely to
receive public
benefits in the
future is a
condition of
EOS/COS.
US CIS, at its
discretion may
request the
applicant to
file a Form I944 to
determine
likelihood of
receipt of
public benefits
in the future.
The I-693 is
used as part of
the Health
Factor to
identify
medical
conditions.

The Affidavit
of Support
when required
is a factor in
the public
charge
determination.

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Form

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

51283

Table 57. Summary of Forms
Form

Form
Name

New or Updated
Form

General Purpose of
Form

General Categories Filing

Applicability
to Public
Charge

I864E

Affidavi
t of
Support
Under
Section
213A of
the Act

Updatereference for
Form I-864W,
which is being
discontinued, was
removed

Statement/ contract
provided by a sponsor
to show that the
sponsor has adequate
financial resources to
support the alien. This
is a simpler version of
Form I-864.

The Affidavit
of Support
when required
is a factor in
the public
charge
determination.

I864W

Request
for
Exempti
on for
Intendin
g
Immigr
ant's
Affidavi
t of
Support

Discontinued information
incorporated into
Formi-485

Certain classes of
immigrants are exempt
from the Form I-864 or
Form I-864EZ
requirement and
therefore must
file Form I-864W
instead.

I-912

Request
s for
Fee
Waiver

Update -provides
warning that a
request for a fee
waiver may be a
factor in the
public charge
determination.

This form may be filed
with any USCIS
immigrant benefit form
in order to request a fee
waiver.

1. The sponsor is the person
who filed or is filing Form I130, Petition for Alien
Relative, for a relative being
sponsored;
2. The relative the sponsor is
sponsoring is the only person
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.
Aliens who have earned 40
quarters of SSA coverage.
Children who will become
U.S. citizens upon entry or
adjustment into the United
States under INA 320.
Self-Petitioning Widow(er)
Form I-360, Petition for
Amerasian, Widow( er) or
Special Immigrant; SelfPetitioning battered spouse or
child.
Adjustment of Status (1-485)
- may be filed for eligible
applicants, generally for
those not subject to public
charge and humanitarian
programs.
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.

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Although some
people may be
exempt from
the affidavit of
support
requirement,
the person may
still be subject
to public
charge.

Request of a
Fee Waiver is
a factor in the
determination
of Public
Charge.

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USCIS Form I–944
DHS invites comment on the impact
to the proposed collection of
information. In accordance with the
PRA, the information collection notice
is published in the Federal Register to
obtain comments regarding the
proposed edits to the information
collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–NEW in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the

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validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of information collection:
1. Type of Information Collection:
New Collection.
2. Title of the Form/Collection:
Declaration of Self-Sufficiency and
Public Benefits Worksheet.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: Form I–944;
USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. USCIS will require an
individual applying to adjust status to
lawful permanent residence (Form I–
485) and who is subject to the public

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charge ground of inadmissibility to file
Form I–944. On a case by case basis,
USCIS may request that a nonimmigrant
seeking to extend stay or change status
(Form I–539 or Form I–129) and persons
filing USCIS Form I–129CW to file Form
I–944. The data collected on these forms
will be used by USCIS to determine the
likelihood of a declarant becoming a
public charge based on the factors
regarding health; family status; assets,
resource, and financial status; and
education and skills. The forms serve
the purpose of standardizing public
charge evaluation metrics and ensure
that declarants provide all essential
information required for USCIS to assess
self-sufficiency and adjudicate the
declaration. If USCIS determines that a
declarant is likely to become a public
charge, the declarant may need to
provide additional resources or
evidence to overcome this
determination.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection Form I–944 is 382,264 and

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
the estimated hour burden per response
is 4 hours.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 1,720,188 hours.
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $59,931,350.

daltland on DSKBBV9HB2PROD with PROPOSALS3

USCIS Form I–485
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS invites comment on the impact
to the proposed collection of
information. In accordance with the
PRA, the information collection notice
is published in the Federal Register to
obtain comments regarding the
proposed edits to the information
collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–0023 in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of Information Collection
1. Type of Information Collection:
Revision of a Currently Approved
Collection.

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2. Title of the Form/Collection:
Application to Register Permanent
Residence or Adjust Status.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: Form I–485
and Supplements A and J; USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. The information collected
is used to determine eligibility to adjust
status under section 245 of the
Immigration and Nationality Act.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection Form I–485 is 382,264 and
the estimated hour burden per response
is 6.42 hours; the estimated total
number of respondents for information
collection Supplement A is 36,000
respondents and the estimated hour
burden per response is 1.25 hours; the
estimated total number of respondents
for information collection Supplement J
is 28,309 respondents and the estimated
hour burden per response is 1 hour; the
estimated total number of respondents
for information collection biometrics
processing is 305,811 respondents and
estimated hour burden is 1.17 hours.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 2,885,242 hours.
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is
$131,116,650.
USCIS Forms I–864; I–864A; I–864EZ
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS invites comment on the impact
to the proposed collection of
information. In accordance with the
PRA, the information collection notice
is published in the Federal Register to
obtain comments regarding the
proposed discontinuation of the USCIS
Form I–864W information collection
instrument. The instructions for Form I–
864 and I–864EZ were modified to
remove references to Form I–864W.
There are no changes to the Form I–
864A.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include

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51285

the OMB Control Number 1615–0075 in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of Information Collection
1. Type of Information Collection:
Revision of a Currently Approved
Collection.
2. Title of the Form/Collection:
Affidavit of Support Under Section
213A of the INA; Contract Between
Sponsor and Household Member;
Affidavit of Support under Section 213
of the Act.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–864; I–
864A; I–864EZ; USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. Form I–864: USCIS uses the
data collected on Form I–864 to
determine whether the sponsor has the
ability to support the sponsored alien
under section 213A of the Immigration
and Nationality Act. This form
standardizes evaluation of a sponsor’s
ability to support the sponsored alien
and ensures that basic information
required to assess eligibility is provided
by petitioners.
Form I–864A: Form I–864A is a
contract between the sponsor and the
sponsor’s household members. It is only
required if the sponsor used income of
his or her household members to reach
the required 125 percent of the FPG.
The contract holds these household
members jointly and severally liable for
the support of the sponsored immigrant.

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

The information collection required on
Form I–864A is necessary for public
benefit agencies to enforce the Affidavit
of Support in the event the sponsor used
income of his or her household
members to reach the required income
level and the public benefit agencies are
requesting reimbursement from the
sponsor.
Form I–864EZ: USCIS uses Form I–
864EZ in exactly the same way as Form
I–864; however, USCIS collects less
information from the sponsors as less
information is needed from those who
qualify in order to make a thorough
adjudication.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection I–864 is 453,345 and the
estimated hour burden per response is
6 hours; the estimated total number of
respondents for the information
collection I–864A is 215,800 and the
estimated hour burden per response is
1.75 hours; the estimated total number
of respondents for the information
collection I–864EZ is 100,000 and the
estimated hour burden per response is
2.5 hours.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 3,347,720 hours.
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is
$135,569,525.

daltland on DSKBBV9HB2PROD with PROPOSALS3

USCIS Form I–912
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
Although this rule does not impose any
new reporting or recordkeeping
requirements under the PRA, this rule
will require non-substantive edits to
USCIS Form I–912, Request for Fee
Waiver. These edits make clear to those
who request fee waivers that an
approved fee waiver can negatively
impact eligibility for an immigration
benefit that is subject to the public
charge inadmissibility determination.
Accordingly, USCIS has submitted a
Paperwork Reduction Act Change
Worksheet, Form OMB 83–C, and
amended information collection
instruments to OMB for review and
approval in accordance with the PRA.

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USCIS Form I–945
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS and USCIS invite the general
public and other Federal agencies to
comment on the impact to the proposed
collection of information. In accordance
with the PRA, the information
collection notice is published in the
Federal Register to obtain comments
regarding the proposed edits to the
information collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–NEW in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of Information Collection
1. Type of Information Collection:
New Collection; Revision of a Currently
Approved Collection.
2. Title of the Form/Collection: Public
Charge Bond.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–945; USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Business or other forprofit. In certain instances, a bond can
be posted on behalf of the alien to
guarantee a set of conditions set by the
government concerning an alien, i.e.
that the alien will not become a public

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charge as defined in proposed 8 CFR
212.21(a) because he or she will not
receive public benefits, as defined in 8
CFR 213.21(b) after the alien’s
adjustment of status to that of a lawful
permanent resident. An acceptable
surety is generally any company listed
on the Department of the Treasury’s
Listing of Approved Sureties
(Department Circular 570) in effect on
the date the bond is requested or an
individual or an entity that deposits
cash or a cash equivalent, such as a
cashier’s check or money order for the
full value of the bond.868
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection (Enter form number) is 960
and the estimated hour burden per
response is 1 hour.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 960 hours. (Multiply the
burden for each submission by the
number of respondents.)
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $0 as the
company performing the bond service
receives a fee.
USCIS Form I–356
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS and USCIS invite the general
public and other Federal agencies to
comment on the impact to the proposed
collection of information. In accordance
with the PRA, the information
collection notice is published in the
Federal Register to obtain comments
regarding the proposed edits to the
information collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–NEW in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
868 See

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1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.

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Overview of Information Collection
1. Type of Information Collection:
New Collection.
2. Title of the Form/Collection:
Request for Cancellation of Public
Charge Bond.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–356; USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Aliens (on whose
behalf a public charge bond has been
posted) or the obligor (surety) (who is
the obligor who posted a bond on the
alien’s behalf). The form is used to
request cancellation of the public charge
bond because of the alien’s
naturalization, permanent departure, or
death. The form is also used by the alien
or the obligor to request cancellation of
the public charge bond upon the fifth
anniversary of the alien’s admission to
the United States as a lawful permanent
resident.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection (Enter form number) is 25 and
the estimated hour burden per response
is .75 hours.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 18.75 hours.
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $6,250.

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USCIS Form I–129
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS and USCIS invite the general
public and other Federal agencies to
comment on the impact to the proposed
collection of information. In accordance
with the PRA, the information
collection notice is published in the
Federal Register to obtain comments
regarding the proposed edits to the
information collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–0009 in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of Information Collection
1. Type of Information Collection:
Revision of a Currently Approved
Collection.
2. Title of the Form/Collection:
Petition for Nonimmigrant Worker.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–129; USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Business or other forprofit. USCIS uses the data collected on
this form to determine eligibility for the
requested nonimmigrant petition and/or
requests to extend or change
nonimmigrant status. An employer (or

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51287

agent, where applicable) uses this form
to petition USCIS for an alien to
temporarily enter as a nonimmigrant.
An employer (or agent, where
applicable) also uses this form to
request an extension of stay or change
of status on behalf of the alien worker.
The form serves the purpose of
standardizing requests for
nonimmigrant workers, and ensuring
that basic information required for
assessing eligibility is provided by the
petitioner while requesting that
beneficiaries be classified under certain
nonimmigrant employment categories. It
also assists USCIS in compiling
information required by Congress
annually to assess effectiveness and
utilization of certain nonimmigrant
classifications.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection Form I–129 is 552,000 and
the estimated hour burden per response
is 2.84 hours; the estimated total
number of respondents for the
information collection E–1/E–2
Classification Supplement to Form I–
129 is 4,760 and the estimated hour
burden per response is 0.67; the
estimated total number of respondents
for the information collection Trade
Agreement Supplement to Form I–129 is
3,057 and the estimated hour burden
per response is 0.67; the estimated total
number of respondents for the
information collection H Classification
Supplement to Form I–129 is 255,872
and the estimated hour burden per
response is 2; the estimated total
number of respondents for the
information collection H–1B and H–1B1
Data Collection and Filing Fee
Exemption Supplement is 243,965 and
the estimated hour burden per response
is 1; the estimated total number of
respondents for the information
collection L Classification Supplement
to Form I–129 is 37,831 and the
estimated hour burden per response is
1.34; the estimated total number of
respondents for the information
collection O and P Classifications
Supplement to Form I–129 is 22,710
and the estimated hour burden per
response is 1; the estimated total
number of respondents for the
information collection Q–1
Classification Supplement to Form I–
129 is 155 and the estimated hour
burden per response is 0.34; the
estimated total number of respondents
for the information collection R–1
Classification Supplement to Form I–

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129 is 6,635 and the estimated hour
burden per response is 2.34.
(6) An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 2,417,609 hours.
(7) An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is
$132,368,220.
USCIS Form I–129CW
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS and USCIS invite the general
public and other Federal agencies to
comment on the impact to the proposed
collection of information. In accordance
with the PRA, the information
collection notice is published in the
Federal Register to obtain comments
regarding the proposed edits to the
information collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.
All submissions received must include
the OMB Control Number 1615–0009 in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of Information Collection
1. Type of Information Collection:
Revision of a Currently Approved
Collection.

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2. Title of the Form/Collection: Form
I–129CW, Petition for a CNMI-Only
Nonimmigrant Transitional Worker.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: I–129CW;
USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Business or other forprofit. USCIS uses the data collected on
this form to determine eligibility for the
requested immigration benefits. An
employer uses this form to petition
USCIS for an alien to temporarily enter
as a nonimmigrant into the CNMI to
perform services or labor as a CNMIOnly Transitional Worker (CW–1). An
employer also uses this form to request
an extension of stay or change of status
on behalf of the alien worker. The form
serves the purpose of standardizing
requests for these benefits, and ensuring
that the basic information required to
determine eligibility, is provided by the
petitioners.
USCIS collects biometrics from aliens
present in the CNMI at the time of
requesting initial grant of CW–1 status.
The information is used to verify the
alien’s identity, background information
and ultimately adjudicate their request
for CW–1 status.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection Form I–129CW is 3,749 and
the estimated hour burden per response
is 3.5 hours.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 13,121.5 hours.
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $459,253.
USCIS Form I–539
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule.
DHS invites comment on the impact
to the proposed collection of
information. In accordance with the
PRA, the information collection notice
is published in the Federal Register to
obtain comments regarding the
proposed edits to the information
collection instrument.
Comments are encouraged and will be
accepted for 60 days from the
publication date of the proposed rule.

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All submissions received must include
the OMB Control Number 1615–0003 in
the body of the letter and the agency
name. To avoid duplicate submissions,
please use only one of the methods
under the ADDRESSES and I. Public
Participation section of this rule to
submit comments. Comments on this
information collection should address
one or more of the following four points:
1. Evaluate whether the collection of
information is necessary for the proper
performance of the functions of the
agency, including whether the
information will have practical utility;
2. Evaluate the accuracy of the
agency’s estimate of the burden of the
collection of information, including the
validity of the methodology and
assumptions used;
3. Enhance the quality, utility, and
clarity of the information to be
collected; and
4. Minimize the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology,
e.g., permitting electronic submission of
responses.
Overview of Information Collection
1. Type of Information Collection:
Revision of a Currently Approved
Collection.
2. Title of the Form/Collection:
Application to Extend/Change
Nonimmigrant Status.
3. Agency form number, if any, and
the applicable component of the DHS
sponsoring the collection: Form I–539
and Supplement A; USCIS.
4. Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. This form will be used for
nonimmigrants to apply for an
extension of stay, for a change to
another nonimmigrant classification, or
for obtaining V nonimmigrant
classification.
5. An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: The estimated total number of
respondents for the information
collection Form I–539 is 248,985 and
the estimated hour burden per response
is 2.38 hours; the estimated total
number of respondents for the
information collection Supplement A is
54,375 respondents and the estimated
hour burden per response is .50 hours;
the estimated total number of
respondents for the information
collection biometrics processing is

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
373,477 and the estimated hour burden
is 1.17 hours.
6. An estimate of the total public
burden (in hours) associated with the
collection: The total estimated annual
hour burden associated with this
collection is 1,056,740 hours.
7. An estimate of the total public
burden (in cost) associated with the
collection: The estimated total annual
cost burden associated with this
collection of information is $42,701,050.
USCIS Form I–407
Under the Paperwork Reduction Act
of 1995, Public Law 104–13, all agencies
are required to submit to OMB, for
review and approval, any reporting
requirements inherent in a rule. This
rule requires the use of USCIS Form I–
407 but does not require any changes to
the form or instructions and does not
impact the number of respondents, time
or cost burden. This form has previously
been approved by OMB under the
Paperwork Reduction Act. The OMB
control number(s) for this information
collection is 1615–0130.
List of Subjects and Regulatory
Amendments
8 CFR Part 103
Administrative practice and
procedure, Authority delegations
(Government agencies), Freedom of
information, Immigration, Privacy,
Reporting and recordkeeping
requirements, Surety bonds.
8 CFR Part 212
Administrative practice and
procedure, Aliens, Immigration,
Passports and visas, Reporting and
recordkeeping requirements.
8 CFR Part 213
Immigration, Surety bonds.
8 CFR Part 214
Administrative practice and
procedure, Aliens, Cultural exchange
programs, Employment, Foreign
officials, Health professions, Reporting
and recordkeeping requirements,
Students.

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8 CFR Part 245
Aliens, Immigration, Reporting and
recordkeeping requirements.
8 CFR Part 248
Aliens, Reporting and recordkeeping
requirements.
Accordingly, DHS proposes to amend
chapter I of title 8 of the Code of Federal
Regulations as follows:

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PART 103—IMMIGRATION BENEFITS;
BIOMETRIC REQUIREMENTS;
AVAILABILITY OF RECORDS
1. The authority citation for part 103
continues to read as follows:

■

Authority: 5 U.S.C. 301, 552, 552a; 8 U.S.C.
1101, 1103, 1304, 1356, 1365b; 31 U.S.C.
9701; Public Law 107–296, 116 Stat. 2135 (6
U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874,
15557, 3 CFR, 1982 Comp., p.166; 8 CFR part
2; Pub. L. 112–54.

2. Section 103.6 is amended by:
a. Revising paragraphs (a)(1), (a)(2)(i),
and (c)(1);
■ b. Adding paragraph (d)(3); and
■ c. Revising paragraph (e)
The revisions and additions read as
follows:
■
■

§ 103.6

Surety bonds.

(a) * * *
(1) Extension agreements; consent of
surety; collateral security. All surety
bonds posted in immigration cases must
be executed on the forms designated by
DHS, a copy of which, and any rider
attached thereto, must be furnished to
the obligor. DHS is authorized to
approve a bond, a formal agreement for
the extension of liability of surety, a
request for delivery of collateral security
to a duly appointed and undischarged
administrator or executor of the estate of
a deceased depositor, and a power of
attorney executed on the form
designated by DHS, if any. All other
matters relating to bonds, including a
power of attorney not executed on the
form designated by DHS and a request
for delivery of collateral security to
other than the depositor or his or her
approved attorney in fact, will be
forwarded to the appropriate office for
approval.
(2) Bond riders—(i) General. A bond
rider must be prepared on the form(s)
designated by DHS, and submitted with
the bond. If a condition to be included
in a bond is not on the original bond,
a rider containing the condition must be
executed.
*
*
*
*
*
(c) * * *
(1) Public charge bonds. Special rules
for the cancellation of public charge
bonds are described in 8 CFR 213.1.
*
*
*
*
*
(d) * * *
(3) Public charge bonds. The
threshold bond amount for public
charge bonds is set forth in 8 CFR 213.1.
(e) Breach of bond. Breach of public
charge bonds is governed by 8 CFR
213.1. For other immigration bonds, a
bond is breached when there has been
a substantial violation of the stipulated
conditions. A final determination that a

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51289

bond has been breached creates a claim
in favor of the United States which may
not be released by the officer. DHS will
determine whether a bond has been
breached. If DHS determines that a bond
has been breached, it will notify the
obligor of the decision, the reasons
therefor, and inform the obligor of the
right to appeal the decision in
accordance with the provisions of this
part.
*
*
*
*
*
■ 3. Section 103.7 is amended by adding
paragraphs (b)(1)(i)(LLL) and (MMM) to
read as follows:
§ 103.7

Fees.

*

*
*
*
*
(b) * * *
(1) * * *
(i) * * *
(LLL) Public Charge Bond, Form I–
945. $25.
(MMM) Request for Cancellation of
Public Charge Bond, Form I–356. $25.
PART 212—DOCUMENTARY
REQUIREMENTS: NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN
INADMISSIBLE ALIENS; PAROLE
4. The authority citation for part 212
continues to read as follows:

■

Authority: 6 U.S.C. 111, 202(4) and 271; 8
U.S.C. 1101 and note, 1102, 1103, 1182 and
note, 1184, 1185 note (section 7209 of Pub.
L. 108–458), 1187, 1223, 1225, 1226, 1227,
1255, 1359; 8 CFR part 2.

5. Add §§ 212.20 through 212.24 to
read as follows:

■

§ 212.20 Applicability of public charge
inadmissibility.

8 CFR 212.20 through 212.24 address
the public charge ground of
inadmissibility under section 212(a)(4)
of the Act. Unless the alien requesting
the immigration benefit or classification
has been exempted from section
212(a)(4) of the Act as listed in 8 CFR
212.23(a), the provisions of §§ 212.20
through 212.24 of this part apply to an
applicant for admission or adjustment of
status to lawful permanent resident.
§ 212.21

Definitions for public charge.

For the purposes of 8 CFR 212.20
through 212.24, the following
definitions apply:
(a) Public Charge. Public charge
means an alien who receives one or
more public benefit, as defined in
paragraph (b) of this section.
(b) Public benefit. Public benefit
means:
(1) Any of the following monetizable
benefits, where the cumulative value of
one or more of the listed benefits
exceeds 15 percent of the Federal

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Poverty Guidelines (FPG) for a
household of one within any period of
12 consecutive months, based on the
per-month FPG for the months during
which the benefits are received.
(i) Any Federal, State, local, or tribal
cash assistance for income maintenance,
including:
(A) Supplemental Security Income
(SSI), 42 U.S.C. 1381 et seq.;
(B) Temporary Assistance for Needy
Families (TANF), 42 U.S.C. 601 et seq.;
or
(C) Federal, State or local cash benefit
programs for income maintenance (often
called ‘‘General Assistance’’ in the State
context, but which may exist under
other names); and
(ii) Non-cash benefits, monetized as
set forth in 8 CFR 212.24:
(A) Supplemental Nutrition
Assistance Program (SNAP, formerly
called ‘‘Food Stamps’’), 7 U.S.C. 2011 to
2036c;
(B) Section 8 Housing Assistance
under the Housing Choice Voucher
Program, as administered by HUD under
24 CFR part 984; 42 U.S.C. 1437f and
1437u;
(C) Section 8 Project-Based Rental
Assistance (including Moderate
Rehabilitation) under 24 CFR parts 5,
402, 880 through 884 and 886; and
(2) Any of one or more of the
following non-monetizable benefits if
received for more than 12 months in the
aggregate within a 36 month period
(such that, for instance, receipt of two
non-monetizable benefits in one month
counts as two months):
(i) Medicaid, 42 U.S.C. 1396 et seq.,
except for:
(A) Benefits paid for an emergency
medical condition as described in
section 1903(v) of Title XIX of the Social
Security Act, 42 U.S.C. 1396b(v), 42
CFR 440.255(c);
(B) Services or benefits funded by
Medicaid but provided under the
Individuals with Disabilities Education
Act (IDEA) 20 U.S.C. 1400 et seq.;
(C) School-based benefits provided to
children who are at or below the oldest
age of children eligible for secondary
education as determined under State
law;
(D) Medicaid benefits received by
children of U.S. citizens whose lawful
admission for permanent residence and
subsequent residence in the legal and
physical custody of their U.S. citizen
parent will result automatically in the
child’s acquisition of citizenship or
whose lawful admission for permanent
residence will result automatically in
the child’s acquisition of citizenship
upon finalization of adoption in the
United States by the U.S. citizen
parent(s) or, once meeting other

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eligibility criteria as required by the
Child Citizenship Act of 2000, Public
Law 106–395 (section 320(a)–(b) of the
Act, 8 U.S.C. 1431(a)–(b)), in accordance
with 8 CFR part 320;
(E) Medicaid benefits received by the
children of U.S. citizens who are
entering the United States for the
primary purpose of attending an
interview under the Child Citizenship
Act of 2000, Public Law 106–395
(section 322 of the Act, 8 U.S.C. 1433),
in accordance with 8 CFR part 322.
(ii) Any benefit provided for
institutionalization for long-term care at
government expense;
(iii) Premium and Cost Sharing
Subsidies for Medicare Part D, 42 U.S.C.
1395w–114;
(iv) Subsidized Housing under the
Housing Act of 1937, 42 U.S.C. 1437 et
seq.
(3) The receipt of a combination of
monetizable benefits under paragraph
(b)(1) of this section where the
cumulative value of such benefits is
equal to or less than 15 percent of the
Federal Poverty Guidelines for a
household size of one within any period
of 12 consecutive based on the permonth FPG for the months during
which the benefits are received, together
with one or more non-monetizable
benefits under paragraph (b)(2) of this
section if such non-monetizable benefits
are received for more than 9 months in
the aggregate within a 36 month period
(such that, for instance, receipt of two
non-monetizable benefits in one month
counts as two months);
(4) DHS will not consider any
benefits, as defined in paragraphs (b)(1)
through (b)(3) of this section, received
by an alien who, at the time of receipt,
filing, or adjudication, is enlisted in the
U.S. armed forces under the authority of
10 U.S.C. 504(b)(1)(B) or 10 U.S.C.
504(b)(2), serving in active duty or in
the Ready Reserve component of the
U.S. Armed Forces, or if received by
such an individual’s spouse or child as
defined in section 101(b) of the Act, in
the public charge inadmissibility
determination.
(c) Likely at any time to become a
public charge. Likely at any time to
become a public charge means likely at
any time in the future to receive one or
more public benefit as defined in
paragraph (b) of this section based on
the totality of the alien’s circumstances.
(d) Alien’s household. For purposes of
public charge inadmissibility
determinations under section 212(a)(4)
of the Act:
(1) If the alien is 21 years of age or
older, or under the age of 21 and
married, the alien’s household includes:
(i) The alien;

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(ii) The alien’s spouse, if physically
residing with the alien;
(iii) The alien’s children, as defined in
101(b)(1) of the Act, physically residing
with the alien;
(iv) The alien’s other children, as
defined in section 101(b)(1) of the Act,
not physically residing with the alien
for whom the alien provides or is
required to provide at least 50 percent
of the children’s financial support, as
evidenced by a child support order or
agreement a custody order or agreement,
or any other order or agreement
specifying the amount of financial
support to be provided by the alien;
(v) Any other individuals (including a
spouse not physically residing with the
alien) to whom the alien provides, or is
required to provide, at least 50 percent
of the individual’s financial support or
who are listed as dependents on the
alien’s federal income tax return; and
(vi) Any individual who provides to
the alien at least 50 percent of the
alien’s financial support, or who lists
the alien as a dependent on his or her
federal income tax return.
(2) If the alien is a child as defined in
section 101(b)(1) of the Act, the alien’s
household includes the following
individuals:
(i) The alien;
(ii) The alien’s children as defined in
section 101(b)(1) of the Act physically
residing with the alien;
(iii) The alien’s other children as
defined in section 101(b)(1) of the Act
not physically residing with the alien
for whom the alien provides or is
required to provide at least 50 percent
of the children’s financial support, as
evidenced by a child support order or
agreement, a custody order or
agreement, or any other order or
agreement specifying the amount of
financial support to be provided by the
alien;
(iv) The alien’s parents, legal
guardians, or any other individual
providing or required to provide at least
50 percent of the alien’s financial
support to the alien as evidenced by a
child support order or agreement, a
custody order or agreement, or any other
order or agreement specifying the
amount of financial support to be
provided to the alien;
(v) The parents’ or legal guardians’
other children as defined in section
101(b)(1) of the Act physically residing
with the alien;
(vi) The alien’s parents’ or legal
guardians’ other children as defined in
section 101(b)(1) of the Act, not
physically residing with the alien for
whom the parent or legal guardian
provides or is required to provide at
least 50 percent of the other children’s

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financial support, as evidenced by a
child support order or agreement, a
custody order or agreement, or any other
order or agreement specifying the
amount of financial support to be
provided by the parents or legal
guardians; and
(vii) Any other individuals to whom
the alien’s parents or legal guardians
provide, or are required to provide at
least 50 percent of the individuals’
financial support or who are listed as a
dependent on the parent’s or legal
guardian’s federal income tax return.

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§ 212.22 Public Charge inadmissibility
determination.

This section relates to the public
charge ground of inadmissibility under
section 212(a)(4) of the Act.
(a) Prospective determination based
on the totality of circumstances. The
determination of an alien’s likelihood of
becoming a public charge must be based
on the totality of the alien’s
circumstances by weighing all factors
that make the alien more or less likely
at any time in the future to become a
public charge, as outlined in this
section.
(b) Minimum factors to consider. A
public charge inadmissibility
determination must entail consideration
of the alien’s age; health; family status;
education and skills; and assets,
resources, and financial status, as
follows:
(1) The alien’s age—(i) Standard.
When considering an alien’s age, DHS
will consider whether the alien is
between the age of 18 and the minimum
‘‘early retirement age’’ for Social
Security set forth in 42 U.S.C. 416(l)(2),
and whether the alien’s age otherwise
makes the alien more or less likely to
become a public charge, such as by
impacting the alien’s ability to work.
(ii) [Reserved]
(2) The alien’s health—(i) Standard.
DHS will consider whether the alien’s
health makes the alien more or less
likely to become a public charge,
including whether the alien has been
diagnosed with a medical condition that
is likely to require extensive medical
treatment or institutionalization or that
will interfere with the alien’s ability to
provide and care for him- or herself, to
attend school, or to work upon
admission or adjustment of status.
(ii) Evidence. USCIS’ consideration
includes but is not limited to the
following:
(A) A report of an immigration
medical examination performed by a
civil surgeon or panel physician where
such examination is required; or
(B) Evidence of a medical condition
that is likely to require extensive

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medical treatment or institutionalization
after arrival or that will interfere with
the alien’s ability to provide and care for
him or herself, to attend school, or to
work upon admission or adjustment of
status.
(3) The alien’s family status—(i)
Standard. When considering an alien’s
family status, DHS will consider the
alien’s household size, as defined in 8
CFR 212.21(d), and whether the alien’s
household size makes the alien more or
less likely to become a public charge.
(ii) [Reserved]
(4) The alien’s assets, resources and
financial status—(i) Standard. When
considering an alien’s assets, resources,
and financial status, DHS will consider
whether:
(A) The alien’s household’s annual
gross income is at least 125 percent of
the most recent Federal Poverty
Guidelines based on the alien’s
household size as defined by
§ 212.21(d), or if the alien’s household’s
annual gross income is under 125
percent of the recent Federal Poverty
Guidelines, whether the total value of
the alien’s household assets and
resources is at least 5 times the
difference between the alien’s
household’s gross annual income and
the Federal Poverty Guideline for the
alien’s household size;
(B) The alien has sufficient household
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, to
attend school, or to work; and
(C) The alien has any financial
liabilities or past receipt of public
benefits as defined in 8 CFR 212.21(b)
that make the alien more or less likely
to become a public charge.
(ii) Evidence. USCIS’ consideration
includes but is not limited to the
following:
(A) The alien’s annual gross
household income excluding any
income from public benefits as defined
in 8 CFR 212.21(b);
(B) 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 by the alien to meet the
standard at 8 CFR 212.22(b)(4)(i);
(C) Any additional income provided
to the alien by another person or source
not included in the alien’s household on
a continuing monthly or yearly basis for
the most recent calendar year excluding
any income from public benefits as
defined in 8 CFR 212.21(b);

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(D) The household’s cash assets and
resources, including as reflected in
checking and savings account
statements covering 12 months prior to
filing the application;
(E) The household’s non-cash assets
and resources that can be converted into
cash within 12 months, such as net cash
value of real estate holdings minus the
sum of all loans secured by a mortgage,
trust deed, or other lien on the home;
annuities; securities; retirement and
educational accounts; and any other
assets that can easily be converted into
cash;
(F) Whether the alien has:
(1) Applied for or received any public
benefit, as defined in 8 CFR 212.21(b),
on or after [DATE 60 DAYS FROM
DATE OF PUBLICATION OF THE
FINAL RULE]; or
(2) Been certified or approved to
receive public benefits, as defined in 8
CFR 212.21(b), on or after [DATE 60
DAYS FROM DATE OF PUBLICATION
OF THE FINAL RULE];
(G) Whether the alien has applied for
or has received a fee waiver for an
immigration benefit request on or after
[DATE 60 DAYS FROM DATE OF
PUBLICATION OF THE FINAL RULE];
(H) The alien’s credit history and
credit score; and
(I) Whether the alien has private
health insurance or the 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;
(5) The alien’s education and skills.
(i) Standard. When considering an
alien’s education and skills, DHS will
consider whether the alien has adequate
education and skills to either obtain or
maintain employment sufficient to
avoid becoming a public charge, if
authorized for employment.
(ii) Evidence. USCIS’ consideration
includes but is not limited to the
following:
(A) The alien’s history of
employment;
(B) Whether the alien has a high
school degree (or its equivalent) or
higher education;
(C) Whether the alien has any
occupational skills, certifications, or
licenses; and
(D) Whether the alien is proficient in
English or proficient in other languages
in addition to English.
(6) The alien’s prospective
immigration status and expected period
of admission. (i) Standard. The
immigration status that the alien seeks

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and the expected period of admission as
it relates to the alien’s ability to
financially support for himself or herself
during the duration of their stay,
including:
(A) Whether the alien is applying for
adjustment of status or admission in a
nonimmigrant or immigrant
classification; and
(B) If the alien is seeking admission as
a nonimmigrant, the nonimmigrant
classification and the anticipated period
of temporary stay.
(ii) [Reserved];
(7) An affidavit of support, when
required under section 212(a)(4) of the
Act, that meets the requirements of
section 213A of the Act and 8 CFR
213a—(i) Standard. A sufficient
affidavit of support must meet the
sponsorship and income requirements
of section 213A of the Act and comply
with 8 CFR 213a.
(A) Evidence. USCIS’ consideration
includes but is not limited to the
following:
(1) The sponsor’s annual income,
assets, and resources;
(2) The sponsor’s relationship to the
applicant; and
(3) The likelihood that the sponsor
would actually provide the statutorilyrequired amount of financial support to
the alien, and any other related
considerations.
(c) Heavily weighed factors. The
factors below will generally weigh
heavily in a public charge
inadmissibility determination. The mere
presence of any one enumerated
circumstance is not, alone,
determinative.
(1) Heavily weighed negative factors.
The following factors will generally
weigh heavily in favor of a finding that
an alien is likely to become a public
charge:
(i) The alien is not a full-time student
and is authorized to work, but is unable
to demonstrate current employment,
recent employment history or no
reasonable prospect of future
employment;
(ii) The alien is currently receiving or
is currently certified or approved to
receive one or more public benefit, as
defined in 212.21(b);
(iii) The alien has received one or
more public benefit, as defined in
212.21(b), within the 36 months
immediately preceding the alien’s
application for a visa, admission, or
adjustment of status;
(iv)(A) 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

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provide for him- or herself, attend
school, or work; and
(B) The alien is uninsured and has
neither the prospect of obtaining private
health insurance, or the financial
resources to pay for reasonably
foreseeable medical costs related to a
the medical condition; or
(v) The alien had previously been
found inadmissible or deportable on
public charge grounds.
(2) Heavily weighed positive factors.
The following factors will generally
weigh heavily in favor of a finding that
an alien is not likely to become a public
charge:
(i) The alien’s household has financial
assets, resources, and support of at least
250 percent of the Federal Poverty
Guidelines for a household of the alien’s
household size; or
(ii) The alien is authorized to work
and is currently employed with an
annual income of at least 250 percent of
the Federal Poverty Guidelines for a
household of the alien’s household size.
(d) Benefits received before [DATE 60
DAYS FROM DATE OF PUBLICATION
OF THE FINAL RULE]. For purposes of
this regulation, DHS will consider as a
negative factor any amount of cash
assistance for income maintenance,
including Supplemental Security
Income (SSI), Temporary Assistance for
Needy Families (TANF), State and local
cash assistance programs that provide
benefits for income maintenance (often
called ‘‘General Assistance’’ programs),
and programs (including Medicaid)
supporting aliens who are
institutionalized for long-term care,
received, or certified for receipt, before
[DATE 60 DAYS FROM DATE OF
PUBLICATION OF THE FINAL RULE],
as provided under the 1999 Interim
Field Guidance, also known as the 1999
Field Guidance on Deportability and
Inadmissibility on Public Charge
Grounds. DHS does not consider any
other public benefits received, or
certified for receipt, before such date.
§ 212.23 Exemptions and waivers for
public charge ground of inadmissibility.

(a) Exemptions. The public charge
ground of inadmissibility does not
apply, based on statutory or regulatory
authority, to the following categories of
aliens:
(1) Refugees at the time of admission
under section 207 of the Act and at the
time of adjustment of status to lawful
permanent resident under section 209 of
the Act;
(2) Asylees at the time of grant under
section 208 of the Act and at the time
of adjustment of status to lawful
permanent resident under section 209 of
the Act;

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(3) Amerasian immigrants at the time
of application for admission as
described in sections 584 of the Foreign
Operations, Export Financing, and
Related Programs Appropriations Act of
1988, Public Law 100–202, 101 Stat.
1329–183, section 101(e) (Dec. 22,
1987), as amended, 8 U.S.C. 1101 note;
(4) Afghan and Iraqi Interpreter, or
Afghan or Iraqi national employed by or
on behalf of the U.S. Government as
described in section 1059(a)(2) of the
National Defense Authorization Act for
Fiscal Year 2006 Public Law 109–163
(Jan. 6, 2006), as amended, and section
602(b) of the Afghan Allies Protection
Act of 2009, Public Law 111–8, title VI
(Mar. 11, 2009), as amended, 8 U.S.C.
1101 note, and section 1244(g) of the
National Defense Authorization Act for
Fiscal Year 2008, as amended Public
Law 110–181 (Jan. 28, 2008);
(5) Cuban and Haitian entrants
applying for adjustment of status under
in section 202 of the Immigration
Reform and Control Act of 1986 (IRCA),
Public Law 99–603, 100 Stat. 3359 (Nov.
6, 1986), as amended, 8 U.S.C. 1255a
note;
(6) Aliens applying for adjustment of
status under the Cuban Adjustment Act,
Public Law 89–732 (Nov. 2, 1966), as
amended, 8 U.S.C. 1255 note;
(7) Nicaraguans and other Central
Americans applying for adjustment of
status under sections 202(a) and section
203 of the Nicaraguan Adjustment and
Central American Relief Act (NACARA),
Public Law 105–100, 111 Stat. 2193
(Nov. 19, 1997), as amended, 8 U.S.C.
1255 note;
(8) Haitians applying for adjustment
of status under section 902 of the
Haitian Refugee Immigration Fairness
Act of 1998, Public Law 105–277, 112
Stat. 2681 (Oct. 21, 1998), as amended,
8 U.S.C. 1255 note;
(9) Lautenberg parolees as described
in section 599E of the Foreign
Operations, Export Financing, and
Related Programs Appropriations Act of
1990, Public Law 101–167, 103 Stat.
1195, title V (Nov. 21, 1989), as
amended, 8 U.S.C. 1255 note;
(10) Special immigrant juveniles as
described in section 245(h) of the Act;
(11) Aliens who entered the United
States prior 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);
(12) Aliens applying for or reregistering for Temporary Protected
Status as described in section 244 of the
Act under section 244(c)(2)(A)(ii) of the
Act and 8 CFR 244.3(a);
(13) A nonimmigrant described in
section 101(a)(15)(A)(i) and (A)(ii) of the

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
Act (Ambassador, Public Minister,
Career Diplomat or Consular Officer, or
Immediate Family or Other Foreign
Government Official or Employee, or
Immediate Family), pursuant to section
102 of the Act, and 22 CFR 41.21(d);
(14) A nonimmigrant classifiable as
C–2 (alien in transit to U.N.
Headquarters) or C–3 (foreign
government official), 22 CFR 41.21(d);
(15) A nonimmigrant described in
section 101(a)(15)(G)(i), (G)(ii), (G)(iii),
and (G)(iv), of the Act (Principal
Resident Representative of Recognized
Foreign Government to International
Organization, and related categories),
pursuant to section 102 of the Act
pursuant to 22 CFR 41.21(d);
(16) A nonimmigrant classifiable as
NATO–1, NATO–2, NATO–3, NATO–4
(NATO representatives), and NATO–6
pursuant to 22 CFR 41.21(d);
(17) A nonimmigrant classified under
section 101(a)(15)(T) of the Act, in
accordance with section 212(d)(13)(A)
of the Act;
(18) An applicant for, or individual
who is granted, nonimmigrant status
under section 101(a)(15)(U) of the Act in
accordance with section 212(a)(4)(E)(ii)
of the Act;
(19) Nonimmigrants classified under
section 101(a)(15)(U) of the Act
applying for adjustment of status under
section 245(m) of the Act and 8 CFR
245.24;
(20) An alien who is a VAWA selfpetitioner under section 212(a)(4)(E)(i)
of the Act;
(21) A qualified alien described in
section 431(c) of the Personal
Responsibility and Work Opportunity
Reconciliation Act of 1996, 8 U.S.C.
1641(c), under section 212(a)(4)(E)(iii) of
the Act;
(22) Applicants adjusting status who
qualify for a benefit under section 1703
of the National Defense Authorization
Act, Public Law 108–136, 117 Stat. 1392
(Nov. 24, 2003), 8 U.S.C. 1151 note
(posthumous benefits to surviving
spouses, children, and parents);
(23) American Indians born in Canada
determined to fall under section 289 of
the Act;
(24) Texas Band of Kickapoo Indians
of the Kickapoo Tribe of Oklahoma,
Public Law 97–429 (Jan. 8, 1983);
(25) Nationals of Vietnam, Cambodia,
and Laos applying for adjustment of
status under section 586 of Public Law
106–429 under 8 CFR 245.21;
(26) Polish and Hungarian Parolees
who were paroled into the United States
from November 1, 1989 to December 31,
1991 under section 646(b) of the Illegal
Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA),
Public Law 104–208, Div. C, Title VI,

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Subtitle D (Sept. 30, 1996), 8 U.S.C.
1255 note; and
(27) Any other categories of aliens
exempt under any other law from the
public charge ground of inadmissibility
provisions under section 212(a)(4) of the
Act.
(b) Waiver. A waiver for the public
charge ground of inadmissibility may be
authorized based on statutory or
regulatory authority, for the following
categories of aliens:
(1) Nonimmigrants who were
admitted under section 101(a)(15)(T) of
the Act applying for adjustment of
status under section 245(l)(2)(A) of the
Act;
(2) Applicants for admission as
nonimmigrants under 101(a)(15)(S) of
the Act;
(3) Nonimmigrants admitted under
section 101(a)(15)(S) of the Act applying
for adjustment of status under section
245(j) of the Act (witnesses or
informants); and
(4) Any waiver of public charge
inadmissibility that is authorized under
law or regulation.
§ 212.24

Valuation of monetizable benefits.

In determining the cumulative value
of one or more monetizable benefits
listed in 8 CFR 212.21(b)(1)(ii) for
purposes of a public charge
inadmissibility determination under 8
CFR 212.22, DHS will rely on benefitspecific methodology as follows:
(a) With respect to the Supplemental
Nutrition Assistance Program (SNAP,
formerly called ‘‘Food Stamps’’), 7
U.S.C. 2011 to 2036c, DHS will
calculate the value of the benefit
attributable to the alien in proportion to
the total number of people covered by
the benefit, based on the amount(s)
deposited within the applicable period
of 12 consecutive months in which the
benefits are received in the Electronic
Benefits Transfer (EBT) card account;
(b) With respect to the Section 8
Housing Assistance under the Housing
Choice Voucher Program, as
administered by HUD under 24 CFR
part 984; 42 U.S.C. 1437f and 1437u,
DHS will calculate value of the voucher
attributable to the alien in proportion to
the total number of people covered by
the benefit, based on the amount(s)
within the applicable period of 12
consecutive months in which the
benefits are received;
(c) With respect to Section 8 ProjectBased Rental Assistance (including
Moderate Rehabilitation) under 24 CFR
parts 5, 402, 880–884 and 886, DHS will
calculate the value of the rental
assistance attributable to the alien in
proportion to the total number of people
covered by the benefit, based on the

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amount(s) received within the
applicable period of 12 consecutive
months in which the benefits are
received; and
(d) With respect to any cash benefit
received by the alien on a household
(rather than individual) basis, DHS will
calculate the value of the benefit
attributable to the alien in proportion to
the total number of people covered by
the benefit, based on the amount(s)
received within the applicable period of
12 consecutive months in which the
benefit is received.
PART 213—PUBLIC CHARGE BONDS
6. The authority citation for part 213
is revised to read as follows:

■

Authority: 8 U.S.C. 1103; 1183; 8 CFR part
2.

7. Revise the part heading to read as
set forth above.
■ 8. Revise § 213.1 to read as follows:
■

§ 213.1 Adjustment of status of aliens on
submission of a public charge bond.

(a) Inadmissible aliens. In accordance
with section 213 of the Act, after an
alien seeking adjustment of status has
been found inadmissible as likely to
become a public charge under section
212(a)(4) of the Act, DHS may allow the
alien to submit a public charge bond, if
the alien is otherwise admissible, in
accordance with the requirements of 8
CFR 103.6 and this section. The public
charge bond submitted on the alien’s
behalf must meet the conditions set
forth in 8 CFR 103.6 and this section.
(b) Discretion. The decision to allow
an alien inadmissible under section
212(a)(4) of the Act to submit a public
charge bond is in DHS’s discretion. If an
alien has one or more heavily weighed
negative factors as defined in 8 CFR
212.22 present in his or her case, DHS
generally will not favorably exercise
discretion to allow submission of a
public charge bond.
(c) Public Charge Bonds. (1) Types.
DHS may require an alien to submit a
surety bond, or cash or any cash
equivalent, as listed in 8 CFR 103.6, and
agreement, to secure a bond. DHS will
notify the alien of the type of bond that
may be submitted. All bonds, and
agreements covering cash or cash
equivalents, as listed in 8 CFR 103.6, to
secure a bond, must be executed on a
form designated by DHS and in
accordance with form instructions.
When a surety bond is accepted, the
bond must comply with requirements
applicable to surety bonds in 8 CFR
103.6 and this section. If cash or a cash
equivalent, as listed in 8 CFR 103.6, is
being provided to secure a bond, DHS

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must issue a receipt on a form
designated by DHS.
(2) Amount. Any public charge bond,
or agreements to secure a public charge
bond on cash or cash equivalents, as
listed in 8 CFR 103.6, must be in an
amount decided by DHS, not less than
$10,000, annually adjusted for inflation
based on the Consumer Price Index for
All Urban Consumers (CPI–U), and
rounded up to the nearest dollar. The
bond amount may not be appealed by
the alien or the obligor.
(d) Conditions of the bond. A public
charge bond must remain in effect until
the alien naturalizes or otherwise
obtains U.S. citizenship, permanently
departs the United States, or dies, the
alien requests cancellation after 5 years
of being a lawful permanent resident,
the alien changes immigration status to
one not subject to public charge ground
of inadmissibility, and the bond is
cancelled in accordance with paragraph
(g) of this section. An alien on whose
behalf a public charge bond has been
submitted may not receive any public
benefits, as defined in 8 CFR 212.21(b),
after the alien’s adjustment of status to
that of a lawful permanent resident,
until the bond is cancelled in
accordance with paragraph (g) of this
section. An alien must also comply with
any other conditions imposed as part of
the bond.
(e) Submission. A public charge bond
may be submitted on the alien’s behalf
only after DHS notifies the alien and the
alien’s representative, if any, that a bond
may be submitted. The bond must be
submitted to DHS in accordance with
the instructions of the form designated
by DHS for this purpose, with the fee
prescribed in 8 CFR 103.7(b), and any
procedures contained in the DHS
notification to the alien. DHS will
specify the bond amount and duration,
as well as any other conditions, as
appropriate for the alien and the
immigration benefit being sought.
USCIS will notify the alien and the
alien’s representative, if any, that the
bond has been accepted, and will
provide a copy to the alien and the
alien’s representative, if any, of any
communication between the obligor and
the U.S. government. An obligor must
notify DHS within 30 days of any
change in the obligor’s or the alien’s
physical and mailing address.
(f) Substitution. A bond not eligible
for cancellation under paragraph (g) of
this section must be substituted prior to
the expiration of the validity of the bond
previously submitted to DHS.
(1) Substitution Process. Either the
obligor of the bond previously
submitted to DHS or a new obligor may
submit a substitute bond on the alien’s

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behalf. If the bond previously submitted
to DHS is a limited duration bond
because it expires on a date certain, the
substitute bond must be submitted no
later than 180 days before the bond
previously submitted to USCIS expires
and the substitute bond must be valid
and effective on or before the day the
bond previously submitted to DHS
expires. If the bond previously
submitted to DHS is a bond of unlimited
duration because it does not bear a
specific end date, the substitute bond
must specify an effective date. The
substitute bond must meet all of the
requirements applicable to the initial
bond as required by this section and 8
CFR 103.6, and if the obligor is different
from the original obligor, the new
obligor must assume all liabilities of the
initial obligor. The substitute bond must
also cover any breach of the bond
conditions which occurred before DHS
accepted the substitute bond, in the
event DHS did not learn of the breach
until after the expiration or cancellation
of the bond previously submitted to
DHS.
(2) Acceptance. Upon submission of
the substitute bond, DHS will review
the substitute bond for sufficiency. If the
bond on file has not yet expired, DHS
will cancel the bond previously
submitted to DHS, and replace it with
the substitute bond, provided the
substitute bond is sufficient. If the
substitute bond was submitted before
the previously submitted bond expired,
but is insufficient, DHS will notify the
obligor of the substitute bond to correct
the deficiency within the timeframe
specified in the notice. If the deficiency
is not corrected within the timeframe
specified, and the previously submitted
bond has not yet expired, the previously
submitted bond will remain in effect.
(g) Cancellation of the Public Charge
Bond. (1) An alien or obligor may
request that DHS cancel a public charge
bond if the alien:
(i) Naturalized or otherwise obtained
United States citizenship;
(ii) Permanently departed the United
States;
(iii) Died;
(iv) Reached his or her 5-year
anniversary since becoming a lawful
permanent resident; or
(v) Obtained a different immigration
status not subject to public charge
inadmissibility, as listed in 8 CFR
212.23, following the grant of lawful
permanent resident status associated
with the public charge bond.
(2) Permanent Departure Defined. For
purposes of this section, permanent
departure means that the alien lost or
abandoned his or her lawful permanent
resident status, whether by operation of

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law or voluntarily, and physically
departed the United States. An alien is
only deemed to have voluntarily lost
lawful permanent resident status when
the alien has submitted a record of
abandonment of lawful permanent
resident status, on the form prescribed
by DHS, in accordance with the form’s
instructions.
(3) Cancellation Request. An alien
must request that a public charge bond
be cancelled by submitting a form
designated by DHS, in accordance with
that form’s instructions and the fee
prescribed in 8 CFR 103.7(b). If a
request for cancellation of a public
charge bond is not filed, the bond shall
remain in effect until the form is filed,
reviewed, and a decision is rendered.
(4) Adjudication and Burden of Proof.
The alien and the obligor have the
burden to establish, by a preponderance
of the evidence, that one of the
conditions for cancellation of the public
charge bond listed in paragraph (g)(1) of
this section has been met. If DHS
determines that the information
included in the cancellation request is
insufficient to determine whether
cancellation is appropriate, DHS may
request additional information as
outlined in 8 CFR 103.2(b)(8). DHS must
cancel a public charge bond if DHS
determines that the conditions of the
bond have been met, and that the bond
was not breached, in accordance with
paragraph (h) of this section. For
cancellations under paragraph (g)(1)(iv)
of this section, the alien or the obligor
must establish that the public charge
bond has not been breached during the
5-year period preceding the alien’s fifth
anniversary of becoming a lawful
permanent resident.
(5) Decision. DHS will notify the
obligor, the alien, and the alien’s
representative, if any, of its decision
regarding the request to cancel the
public charge bond. When the public
charge bond is cancelled, the obligor is
released from liability. If the public
charge bond has been secured by a cash
deposit or a cash equivalent, DHS will
refund the cash deposit to the obligor.
If DHS denies the request to cancel the
bond, DHS will notify the obligor and
the alien, and the alien’s representative,
if any, of the reasons why, and of the
right of the obligor to appeal in
accordance with the requirements of 8
CFR part 103, subpart A. An obligor
may file a motion pursuant to 8 CFR
103.5 after an unfavorable decision on
appeal. Neither the alien nor the alien’s
representative may appeal a denial to
cancel the public charge bond or file a
motion.
(h) Breach—(1) Breach and Claim in
Favor of the United States. An

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Federal Register / Vol. 83, No. 196 / Wednesday, October 10, 2018 / Proposed Rules
administratively final determination
that a bond has been breached creates a
claim in favor of the United States. Such
claim may not be released or discharged
by an immigration officer. A breach
determination is administratively final
when the time to file an appeal with the
Administrative Appeals Office (AAO)
pursuant to 8 CFR part 103, subpart A,
has expired or when the appeal is
dismissed or rejected.
(2) Breach of Bond Conditions. (i) The
conditions of the bond are breached if
the alien has received public benefits, as
defined in 8 CFR 212.21(b), after the
alien’s adjustment of status to that of a
lawful permanent resident and before
the bond is cancelled under paragraph
(g) of this section. Public benefits, as
defined in 8 CFR 212.21(b), received
during periods while an alien is present
in the United States in a category that
is exempt from the public charge ground
of inadmissibility, as set forth in 8 CFR
212.23, following the initial grant of
status as a lawful permanent resident,
and public benefits received after the
alien obtained U.S. citizenship, may not
be considered when determining
whether the conditions of the bond have
been breached. DHS will not consider
any benefits, as defined in 8 CFR 212.21
(b)(1) through (b)(3), received by an
alien who, at the time of receipt filing,
adjudication or bond breach or
cancellation determination, is enlisted
in the U.S. armed forces under the
authority of 10 U.S.C. 504(b)(1)(B) or 10
U.S.C. 504(b)(2), serving in active duty
or in the Ready Reserve component of
the U.S. Armed Forces, or if received by
such an individual’s spouse or child as
defined in section 101(b) of the Act.; or
(ii) The conditions of the bond
otherwise imposed by DHS as part of
the public charge bond are breached.
(3) Adjudication. DHS will determine
whether the conditions of the bond have
been breached. If DHS determines that
it has insufficient information from the
benefit granting agency to determine
whether a breach occurred, DHS may
request additional information from the
benefit granting agency. If DHS
determines that it has insufficient
information from the alien or the
obligor, it may request additional
information as outlined in 8 CFR part
103 before making a breach
determination. If DHS intends to declare
a bond breached based on information
that is not otherwise protected from
disclosure to the obligor, DHS will
disclose such information to the obligor
to the extent permitted by law, and
provide the obligor with an opportunity
to respond and submit rebuttal
evidence, including specifying a
deadline for a response. DHS will send

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a copy of this notification to the alien
and the alien’s representative, if any.
After the obligor’s response, or after the
specified deadline has passed, DHS will
make a breach determination.
(4) Decision. DHS will notify the
obligor and the alien, and the alien’s
representative, if any, of the breach
determination. If DHS determines that a
bond has been breached, DHS will
inform the obligor of the right to appeal
in accordance with the requirements of
8 CFR part 103, subpart A. The obligor
may only file a motion in accordance
with 8 CFR 103.5 of an unfavorable
decision on appeal. The alien or the
alien’s representative, if any, may not
appeal the breach determination or file
a motion.
(5) Demand for Payment. Demands for
amounts due under the terms of the
bond will be sent to the obligor or any
agent/co-obligor after a declaration of
breach becomes administratively final.
(6) Amount of Bond Breach and Effect
on Bond. The bond must be considered
breached in the full amount of the bond.
(i) Exhaustion of administrative
remedies. Unless administrative appeal
is precluded by regulation, a party has
not exhausted the administrative
remedies available with respect to a
public charge bond under this section
until the party has obtained a final
decision in an administrative appeal
under 8 CFR part 103, subpart A.
(ii) [Reserved]
PART 214—NONIMMIGRANT CLASSES
9. The authority citation for part 214
continues to read as follows:

■

Authority: 6 U.S.C. 202, 236; 8 U.S.C.
1101, 1102, 1103, 1182, 1184, 1186a, 1187,
1221, 1281, 1282, 1301–1305 and 1372; sec.
643, Pub. L. 104–208, 110 Stat. 3009–708;
Public Law 106–386, 114 Stat. 1477–1480;
section 141 of the Compacts of Free
Association with the Federated States of
Micronesia and the Republic of the Marshall
Islands, and with the Government of Palau,
48 U.S.C. 1901 note, and 1931 note,
respectively; 48 U.S.C. 1806; 8 CFR part 2.

10. Section 214.1 is amended by:
a. Adding paragraph (a)(3)(iv),
b. Removing the term, ‘‘and’’ in
paragraph (c)(4)(iii);
■ c. Redesignating paragraph (c)(4)(iv)
as paragraph (c)(4)(v); and
■ d. Adding a new paragraph (c)(4)(iv).
The additions read as follows:
■
■
■

§ 214.1 Requirements for admission,
extension, and maintenance of status.

(a) * * *
(3) * * *
(iv) Except where the nonimmigrant
classification for which the alien
applies, or seeks to extend, is exempt
from section 212(a)(4) of the Act or that

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51295

section has been waived, as a condition
for approval of extension of status, the
alien must demonstrate that he or she
has not received since obtaining the
nonimmigrant status he or she seeks to
extend, is not receiving, nor is likely to
receive, a public benefit as defined in 8
CFR 212.21(b). For the purposes of this
determination, DHS will consider such
public benefits received on or after
[DATE 60 DAYS FROM DATE OF
PUBLICATION OF THE FINAL RULE].
In assessing whether the alien has met
his or her burden, DHS will consider the
nonimmigrant classification the alien is
seeking to extend, the reasons for
seeking the extension of stay and the
expected period of stay. For purposes of
this determination, DHS may require the
submission of a declaration of selfsufficiency on a form designated by
DHS, in accordance with form
instructions.
*
*
*
*
*
(c) * * *
(4) * * *
(iv) As set forth in 8 CFR
214.1(a)(3)(iv), except where the alien’s
nonimmigrant classification is
exempted by law from section 212(a)(4)
of the Act, the alien has not received
since obtaining the nonimmigrant status
for which he or she seeks to extend, is
not currently receiving, nor is likely to
receive, public benefits as described in
in 8 CFR 212.21(b). For the purposes of
this determination, DHS will consider
public benefits received on or after
[DATE 60 DAYS FROM DATE OF
PUBLICATION OF THE FINAL RULE];
and
*
*
*
*
*
PART 245—ADJUSTMENT OF STATUS
TO THAT OF A PERSON ADMITTED
FOR PERMANENT RESIDENCE
11. The authority citation for part 245
continues to read as follows:

■

Authority: 8 U.S.C. 1101, 1103, 1182, 1255;
Pub. L. 105–100, section 202, 111 Stat. 2160,
2193; Pub. L. 105–277, section 902, 112 Stat.
2681; Pub. L. 110–229, tit. VII, 122 Stat. 754;
8 CFR part 2.

12. Section 245.4 is amended by
redesignating the undesignated text as
paragraph (a) and adding paragraph (b)
to read as follows:

■

§ 245.4

Documentary requirements.

*

*
*
*
*
(b) For purposes of public charge
determinations under section 212(a)(4)
of the Act and 8 CFR 212.22, an alien
who is seeking adjustment of status
under this part must submit a
declaration of self-sufficiency on a form
designated by DHS, in accordance with
form instructions.

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

PART 248—CHANGE OF
NONIMMIGRANT CLASSIFICATION
13. The authority citation for part 248
continues to read as follows:

■

Authority: 8 U.S.C. 1101, 1103, 1184,
1258; 8 CFR part 2.

14. Section 248.1 is amended by:
a. Revising paragraph (a);
b. Redesignating paragraphs (b)
through (e) as paragraphs (c) through (f),
respectively; and
■ c. Adding a new paragraph (b); and
■ d. Revising newly redesignated
paragraph (c)(4).
The revisions and additions read as
follows:
■
■
■

§ 248.1

Eligibility.

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(a) General. Except for those classes
enumerated in § 248.2 of this part, any
alien lawfully admitted to the United
States as a nonimmigrant, including an
alien who acquired such status in
accordance with section 247 of the Act,
8 U.S.C. 1257, who is continuing to
maintain his or her nonimmigrant
status, may apply to have his or her
nonimmigrant classification changed to
any nonimmigrant classification other
than that of a spouse or fiance(e), or the
child of such alien, under section
101(a)(15)(K) of the Act, 8 U.S.C.

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1101(a)(15)(K), or as an alien in transit
under section 101(a)(15)(C) of the Act, 8
U.S.C. 1101(a)(15)(C). Except where the
nonimmigrant classification to which
the alien seeks to change is exempted by
law from section 212(a)(4) of the Act, as
a condition for approval of a change of
nonimmigrant status, the alien must
demonstrate that he or she has not
received since obtaining the
nonimmigrant status from which he or
she seeks to change, is not currently
receiving, nor is likely to receive, public
benefits as described in 8 CFR 212.21(b).
DHS will consider public benefits
received on or after [DATE 60 DAYS
FROM DATE OF PUBLICATION OF
THE FINAL RULE]. An alien defined by
section 101(a)(15)(V), or 101(a)(15)(U) of
the Act, 8 U.S.C. 1101(a)(15)(V) or 8
U.S.C. 1101(a)(15)(U), may be accorded
nonimmigrant status in the United
States by following the procedures set
forth in 8 CFR 214.15(f) and 214.14,
respectively.
(b) Decision in change of status
proceedings. Where an applicant or
petitioner demonstrates eligibility for a
requested change of status, it may be
granted at the discretion of DHS. There
is no appeal from the denial of an
application for change of status.

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(c) * * *
(4) As a condition for approval, an
alien seeking to change nonimmigrant
classification must demonstrate that he
or she has not received since obtaining
the nonimmigrant status from which he
or she seeks to change, is not receiving,
nor is likely to receive, a public benefit
as defined in 8 CFR 212.21(b). For
purposes of this determination, DHS
will consider such benefits received on
or after [DATE 60 DAYS FROM DATE
OF PUBLICATION OF THE FINAL
RULE]. In assessing whether the alien
has met his or her burden, DHS will
consider the prospective nonimmigrant
classification, the reasons for seeking
the change of status, and the expected
period of stay. DHS may require the
submission of a declaration of selfsufficiency on a form designated by
DHS, in accordance with form
instructions. This provision does not
apply to classes of nonimmigrants who
are explicitly exempt by law from
section 212(a)(4) of the Act.
*
*
*
*
*
Kirstjen M. Nielsen,
Secretary.
[FR Doc. 2018–21106 Filed 10–5–18; 8:45 am]
BILLING CODE 4410–10–P

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