9111-97 DEPARTMENT OF HOMELAND SECURITY 8 CFR Parts …

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9111-97 DEPARTMENT OF HOMELAND SECURITY

8 CFR Parts 103, 212, 213, 214, 245 and 248 [CIS No. 2637-19; DHS Docket No. USCIS-2010-0012]

RIN 1615-AA22 Inadmissibility on Public Charge Grounds AGENCY: U.S. Citizenship and Immigration Services, DHS. ACTION: Final rule. SUMMARY: This final rule amends DHS regulations by prescribing how DHS will determine whether an alien applying for admission or adjustment of status is inadmissible to the United States under section 212(a)(4) of the Immigration and Nationality Act (INA or the Act), because he or she is likely at any time to become a public charge. The final rule includes definitions of certain terms critical to the public charge determination, such as "public charge" and "public benefit," which are not defined in the statute, and explains the factors DHS will consider in the totality of the circumstances when making a public charge inadmissibility determination. The final rule also addresses USCIS' authority to issue public charge bonds under section 213 of the Act in the context of applications for adjustment of status. Finally, this rule includes a requirement that aliens seeking an extension of stay or change of status demonstrate that they have not, since obtaining the nonimmigrant status they seek to extend or change, received public benefits over the designated threshold, as defined in this rule. This rule does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from

the public charge ground of inadmissibility. This rule does not apply to U.S. citizens, even if the U.S. citizen is related to an alien subject to the public charge ground of inadmissibility. The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility (such as asylees, refugees, or other vulnerable populations listed as exempt in this final rule). Nor does this rule apply to aliens for whom DHS has statutory discretion to waive this ground of inadmissibility, if DHS has exercised such discretion.

In addition, this includes special provisions for how DHS will consider the receipt of public benefits, as defined in this rule, by certain members of the U.S. Armed Forces and their families; certain international adoptees; and receipt of Medicaid in certain contexts, especially by aliens under the age of 21, pregnant women (and women for up to 60 days after giving birth), and for certain services funded by Medicaid under the Individuals with Disabilities Education Act (IDEA) or in a school setting. Aliens who might qualify for these exemptions should study the rule carefully to understand how the exemptions work.

This final rule also clarifies that DHS will only consider public benefits received directly by the alien for the alien's own benefit, or where the alien is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another. DHS also will not attribute receipt of a public benefit by one or more members of the alien's household to the alien unless the alien is also a listed beneficiary of the public benefit. This final rule supersedes the 1999 Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds.

DATES: This final rule is effective at 12:00 a.m. Eastern Time on [INSERT

DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].

DHS will apply this rule only to applications and petitions postmarked (or, if applicable,

submitted electronically) on or after the effective date. Applications and petitions already

pending with USCIS on the effective date of the rule (i.e. were postmarked before the

effective date of the rule and were accepted by USCIS) will not be subject to the rule.

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. Executive Summary A. Purpose of the Regulatory Action B. Legal Authority C. Summary of the Proposed Rule D. Summary of Changes in the Final Rule 1. Definitions 2. Public Benefits 3. Applicability to Nonimmigrants 4. Totality of the Circumstances Determination 5. Public Charge Bond for Adjustment of Status Applicants 6. Other Changes E. Summary of Costs and Benefits

II. Background A. Public Charge Inadmissibility and Public Charge Bonds B. Current Public Charge Standards C. Final Rule

III. Public Comments on the Proposed Rule A. Summary of Public Comments

B. Requests to Extend Comment Period C. Comments Expressing General Support for the NPRM D. Comments Expressing General Opposition to the NPRM

1. Purpose of the Rule and Self Sufficiency 2. Requests for Reconsideration and Withdrawal of NPRM 3. Alternatives to the Public Charge Rule 4. Discrimination and Disparate Impact 5. Potential Disenrollment Impacts

Choice Between Public Benefits and Immigration Status General Assertions as to Effects Housing Benefit-Related Effects Food and Nutrition Benefit-Related Effects Health Benefit-Related Effects Effects on Vulnerable Populations Effects on U.S. Citizens Increased Costs to Health Care Providers, States, and Localities 6. Inconsistent with American Values and Historic Commitment to Immigrants 7. Contributions to American Society and Consideration of Self-Sufficiency 8. Adjudication and Processing 9. Privacy Concerns E. General Comments Regarding Legal Authority and Statutory Provisions 1. Lack of Statutory Authority/Inconsistent with Congressional Intent 2. Additional Legal Arguments a. Allegations that the Rule is Arbitrary and Capricious b. Alternatives c. Retroactivity d. Due Process/Vagueness and Equal Protection e. Coordination with other Federal Agencies f. International Law and Related Issues g. Contract Law F. Applicability of the Public Charge Ground of Inadmissibility, and the Public Benefit Condition to Extension of Stay and Change of Status 1. Applicability of the Public Charge Ground of Inadmissibility Generally 2. Applicability and Content of the Public Benefits Condition

a. Nonimmigrant Students and Exchange Visitors

b. Workers

d. Compact of Free Association Migrants

3. Exemptions and Waivers with Respect to the Rule Generally

a. General Comments

b. Special Immigrant Juvenile

c. Certain Employment Based Preference Categories, or National Interest Waiver

d. Violence Against Women Act, T, and U

4. Summary of Applicability, Exemptions, and Waivers

G. Definitions 1. Public Charge

a. Threshold Standard

"Primarily dependent" Based on Cash Public Benefit Receipt or Long-Term Institutionalization at Government Expense b. Standards for Monetizable and Non-Monetizable Benefits

Numerical Percentage Threshold Valuation Alternatives to the Duration Standard Combination Standard 2. Public Benefits

a. Specific Groups and Public Benefits

Individuals with Disabilities Vulnerable Populations Receipt of Public Benefits by Children b. Supplemental Security Income

c. Temporary Assistance for Needy Families

d. State, Local and Tribal Cash Assistance

e. Supplemental Nutrition Assistance Program

CalFresh f. Housing

g. Institutionalization

h. Medicaid

Individuals with Disabilities Education Act Emergency Services Exclusion Vaccinations Substance Abuse i. Medicare, Medicare Part D Low Income Subsidy

j. Additional Considerations

Exhaustive List Additional Programs Dependents Tax credits Special Supplemental Nutrition Program for Women, Infants, and Children School Breakfast/Lunch Programs State and Local Benefits Head Start Healthy Start, The Emergency Food Assistance Program, and Similar Programs Pell grants Children's Health Insurance Program Disaster Supplemental Nutrition Assistance Social Security Disability Insurance 3. Likely at Any Time to Become a Public Charge

4. Household

H. Public Charge Inadmissibility Determination Based on Totality of Circumstances I. Age

1. Standard

2. Age Discrimination

J. Health 1. Standard

2. Health and Disability Discrimination

K. Family Status L. Assets, Resources, and Financial Status

1. Income Standard

2. Evidence of Assets and Resources

3. Public Benefits

4. Fee Waivers for Immigration Benefits

5. Credit Report and Score

6. Financial Means to Pay for Medical Costs

M. Education and Skills 1. Education

2. Language Proficiency

3. Skills

4. Employment

N. Affidavit of Support O. Additional Factors to Consider

P. Heavily Weighted Factors General Comments Q. Heavily Weighted Negative Factors

1. Lack of Employability 2. Current Receipt of One of More Public Benefit 3. Receipt of Public Benefits within 36 Months Before Filing 4. Financial Means to Pay for Medical Costs 5. Alien Previously Found Inadmissible or Deportable Based on Public Charge R. Heavily Weighted Positive Factors 1. Proposed Standard 2. Additional Positive Heavily Weighted Factors

a. Affidavit of Support b. Family Relationships c. English Ability d. Education e. Private Health Insurance f. Work History g. Receipt of Grants, Contracts, and Licensures h. Caregivers i. Ability to Work in the Future S. Public Charge Bonds for Adjustment of Status Applicants 1. Standard 2. Bond Amount 3. Public Charge Bond Cancellation 4. Breach of Public Charge Bond T. Effective Date(s) Benefits Received Before Effective Date and Previously Excluded Benefits U. Other Comments V. Public Comments and Responses to the NPRM's Statutory and Regulatory Requirements Section 1. Comments on Costs and Benefits a. Population Seeking Extension of Stay or Change of Status b. Other Comments on Affected Population c. Determination of Inadmissibility Based on Public Charge Grounds d. Other Comments on Baseline Estimates e. Costs to Applicants to Adjust Status

f. Lack of Clarity g. Other Comments on Costs to Applicants h. Costs Related to Public Charge Bond i. Costs Related to Program Changes and Public Inquiries j. Costs Related to States and Local Governments, and Public Benefit-Granting Agencies k. Regulatory Familiarization Costs l. Costs to the Federal Government m. Costs to Non-Citizens and Their Communities n. Healthcare-Related Costs o. Housing and Homelessness-Related Costs p. Economic Costs r. Economic Impact and Job Loss s. Economic Impact on Healthcare System t. Impact on U.S. Workforce u. Economic Impacts Related to Nutrition Programs v. Other Economic Impacts w. DHS Estimates of Discounted Direct Costs and Reduced Transfer Payments x. Benefits of Proposed Regulatory Changes y. Cost Benefit Analysis Issues 2. Federalism Comments 3. Family Assessment Comments 4. Paperwork Reduction Act Comments IV. 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) 1. Summary B. Regulatory Flexibility Act 1. Final Regulatory Flexibility Analysis a. A Statement of the Need for, and Objectives of, the Rule b. A statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments.

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