Read the Trump administration’s draft proposal penalizing immigrants who accept almost any public benefit

A rule change by the Department of Homeland Security would require immigration caseworkers to consider a much wider range of factors when evaluating whether someone is likely to be dependent on public assistance. In addition to forms of cash welfare assistance already used in such cases, it would add the “non-cash” benefits used by more than one-fifth of the U.S. population, both foreign- and native-born. DHS officials said the proposal is not yet final, but the administration is eager to ensure “that foreign nationals seeking to enter or remain in the U.S are self-sufficient.” Trump proposal would penalize immigrants who use tax credits and other benefits.

DEPARTMENT OF HOMELAND SECURITY
8 CFR Parts 103, 212, 213, 214, [237], and 248
[CIS No. 2499-10; DHS Docket No. USCIS-2010-0012]
RIN 1615-AA22
Inadmissibility on Public Charge Grounds
AGENCY: U.S. Citizenship and Immigration Services, DHS.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Department of Homeland Security (DHS) proposes to change how it
determines whether an alien is inadmissible to the United States because he or she is
likely at any time to become a public charge consistent with section 212(a)(4) of the
Immigration and Nationality Act (INA). Aliens who are seeking adjustment of status or
an immigrant visa, or who are applicants for admission, must all establish that they are
not likely at any time to become a public charge. Moreover, DHS will require aliens
seeking an extension of stay or change of status demonstrate that they are not using or
receiving, nor likely to use or receive, public benefits.
DHS proposes to define the term public charge as the term is used in section
212(a)(4) of the INA. DHS also proposes to define the types of public benefits that are
considered in public charge inadmissibility determinations. DHS proposes to clarify that
it will make public charge determinations based on the totality of an alienas
circumstances. DHS also proposes to clarify when an alien seeking adjustment of status
or immigrant visa, who is inadmissible under section 212(a)(4) of the INA, may be
admitted in the discretion of DHS upon the giving of public charge bond. With the
publication of this proposed rule, DHS withdraws the proposed regulation on public

1

charge that former Immigration and Naturalization Service (INS) published on May 26,
1999.
DATES: Written comments and related material to this proposed rule must be submitted
to the online docket via www.regulations.gov, on or before [INSERT DATE 60 DAYS
FROM DATE OF PUBLICATION IN THE FEDERAL REGISTER].
ADDRESSES: You may submit comments on this proposed rule, including the
proposed information collection requirements, identified by DHS Docket No. USCIS2010-0012, by any one of the following methods:
aC/

Federal eRulemaking Portal (preferred): www.regulations.gov. Follow the website

instructions for submitting comments.
aC/

Mail: Samantha L. 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
III. Purpose of the Proposed Rule
A. Self-Sufficiency

2

B. Providing Direction and Guidance on Public Charge Inadmissibility
IV. Background
A. Legal Authority
B. Immigration to the United States
C. Extension of Stay and Change of Status
D. Public Charge Inadmissibility
V. Discussion of Proposed Rule
A. Applicability, Exemptions and Waivers
1. Applicants for Admission and Adjustment of Status
2. Extension of Stay and Change of Status Applicants
3. Adjustment of Status Applicants
4. Exemptions
B. Definition of Public Charge and Related Terms
1. Public Charge
2. Dependent
3. Public Benefit
4. Government
5. Subsidized Health Insurance
C. Public Charge Inadmissibility Determination
1. Prospective Determination
2. Absence of a Required Affidavit of Support
3. Totality of Circumstances
D. Age
E. Health
1. USCIS Evidentiary Requirements
(i) Medical Conditions Identified in Medical Examination
(ii) Non-Subsidized Health Insurance
F. Family Status
G. Assets and Resources
1. USCIS Evidentiary Requirements
(i) Public Benefits
H. Financial Status
1. USCIS Evidentiary Requirements
(i) Public Benefits
(ii) Fee Waivers for Immigration Benefits
(iii) Credit report and Score
I. Education and Skills
1. USCIS Evidentiary Requirements
J. Sponsorship
1. General Consideration of Sponsorship and Affidavits of Support
2. Proposal to Consider Required Affidavits of Support
K. Heavily Weighed Factors
1. Heavily Weighed Negative Factors
(i) Lack of Employability
(ii) Receipt of Use of One of More Public Benefit

3

(iii) Medical Condition(s) without Non-Subsidized Health Insurance
(iv) Alien Previously Found Inadmissible or Deportable Based on Public Charge
2. Heavily Weighed Positive Factors
M. Public Benefits Considered for Public Charge Purposes
1. Benefits Not Considered
(i) Benefits Paid for or Earned
(ii) De Minimis Amount of Public Benefits
(iii) Public Education
(iv) Non-Refundable Tax Credits and Deductions
(v) Certain Benefits under PRWORA
O. Public Charge Bonds for Adjustment of Status and Immigrant Visa
Applicants
1. Overview of Immigration Bonds Generally
2. Overview of Public Charge Bonds
3. Permission to Post a Public Charge Bond
4. Bond Amount and Submission of a Public Charge Bond
5. Bond Cancellation
6. Breach of a Public Charge Bond and Appeal
7. Suit on the Bond
8. Exhaustion of Administrative Remedies
9. Other Technical Changes
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)
1. Summary
2. Background and Purpose of the Rule
3. Population
(i) Population Seeking Adjustment of Status
a. Exemptions from Determination of Inadmissibility Based on Public Charge
Grounds
b. Exemptions from the Requirement to Submit an Affidavit of Support
(ii) Population Seeking Extension of Stay of Change of Status
4. Cost-Benefit Analysis
(i) Baseline Estimates of Current Costs
a. 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
b. Consideration of Use or Receipt, or Likelihood of Use or Receipt of Public
Benefits for Applicants Requesting Extension of Stay or Change of Status
(a) Form I-129, Petition for a Nonimmigrant Worker
(b) Form I-539, Application to Extend/Change Nonimmigrant Status
(ii) Costs of Proposed Regulatory Changes

4

a. Form I-944, Declaration of Self-Sufficiency
b. Extension of Stay/Change of Status Using Form I-129, Petition for a
Nonimmigrant Worker, or Form I-539, Application to Extend/Change
Nonimmigrant Status
c. Public Charge Bond
(iii) Discounted Costs
(iv) Costs to the Federal Government
(v) Benefits of Proposed Regulatory Changes
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act of 1996
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
VI. List of Subjects and Regulatory Amendments
Table of Abbreviations
ACA a Patient Protection and Affordable Care Act
AFM a Adjudicatoras Field Manual
ASEC a Annual Social and Economic Supplement of the Current Population Survey
BIA a Board of Immigration Appeals
BLS a U.S. Bureau of Labor Statistics
CDC a Centers for Disease Control and Prevention
CBP a U.S. Customs and Border Protection
CFR a Code of Federal Regulations
CHIP a Childrenas Health Insurance Program
DHS a U.S. Department of Homeland Security
DOS a U.S. Department of State
FAM a Foreign Affairs Manual
FCRA a Fair Credit Reporting Act
FPG a Federal Poverty Guidelines
FPL a Federal Poverty Level
Form DS-2054 a Medical Examination For Immigrant or Refugee Applicant
Form I-129 a Petition for a Nonimmigrant Worker
Form I-130 a Petition for Alien Relative
Form I-134 a Affidavit of Support
Form I-140 a Immigrant Petition for Alien Worker
Form I-290B a Notice of Appeal or Motion
Form I-356, Request for Cancellation of Public Charge Bond
Form I-485 a Application to Register Permanent Residence or Adjust Status
Form I-539 a Application to Extend/Change Nonimmigrant Status

5

Form I-693 a Report of Medical Examination and Vaccination Record
Form I-864 a Affidavit of Support Under Section 213A of the INA
Form I-864A a Contract Between Sponsor and Household Member
Form I-864EZ a Affidavit of Support Under Section 213A of the INA
Form I-864P a HHS Poverty Guidelines for Affidavit of Support
Form I-864W a Request for Exemption for Intending Immigrantas Affidavit of Support
Form I-912 a Request for Fee Waiver
Form I-94 a Arrival/Departure Record
Form I-944 a Declaration of Self-Sufficiency
Form I-945 a Public Charge Bond
GAa General Assistance
GAO a U.S. Government Accountability Office
HHS a U.S. Department of Health and Human Services
ICE a U.S. Immigration and Customs Enforcement
IIRIRA a Illegal Immigration Reform and Immigrant Responsibility Act of 1996
INA a Immigration and Nationality Act
INS a Immigration and Naturalization Service
IRCA a Immigration Reform and Control Act of 1986
NHE a National Health Expenditure
PRA a Paperwork Reduction Act
PRWORA a Personal Responsibility and Work Opportunity Reconciliation Act
RFE a Request for Evidence
SAVE a Systematic Alien Verification for Entitlements
Secretary a Secretary of Homeland Security
SIPP a Survey of Income and Program Participation
SNAP a Supplemental Nutrition Assistance Program
SSA a Social Security Administration
SSI a Supplemental Security Income
TANF a Temporary Assistance for Needy Families
USDA a U.S. Department of Agriculture
U.S.C. a United States Code
USCIS a U.S. Citizenship and Immigration Services
WIC a 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, 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

6

the 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
http://www.regulations.gov.
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

1

See Inadmissibility and Deportability on Public Charge Grounds, 64 FR 28676 (May 26, 1999).

7

submit new comments in response to this notice of proposed rulemaking.
II. Executive Summary
DHS seeks to advance self-sufficiency for aliens subject to public charge
inadmissibility grounds through this rulemaking. DHS proposes to define the term public
charge by regulation and to identify the types of public benefits that would be considered
in the 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 an intending immigrant, or adjustment of status, is
likely at any time to become a public charge under section 212(a)(4) of the INA, 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 an additional form, Declaration of Self-Sufficiency
(Form I-944), related to public charge considerations. This form would not generally be
required at ports of entry.
DHS also proposes amending the extension of stay and change of status
regulations to permit USCIS to consider whether the applicant is using or receiving, or
likely to use or receive public benefits as defined in the proposed rule in extension of stay
and change of status adjudications unless the nonimmigrant status that is being extended
or to which the applicant seeks to change is explicitly exempt from consideration of
inadmissibility under section 212(a)(4) of the INA. Finally, DHS proposes to revise its
regulations governing the discretion of the Secretary of Homeland Security (Secretary) to

8

accept a public charge bond under section 213 of the INA, 8 U.S.C. 1183 for those
seeking immigrant visas and adjustment of status.
A. Major Provisions of the Regulatory Action
DHS proposes to include the following major changes:
aC/

Amending 8 CFR 103.6, Surety bonds. The amendments to this section set forth

DHSas discretion to approve public charge bonds for immigrant visa and adjustment of
status applications, specify acceptable sureties, cancellation, bond schedules, and breach
of bond and move principles governing public charge bonds to proposed 8 CFR 213.1.
aC/

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.
aC/

Adding 212.21, Definitions. This section establishes key regulatory definitions,

including public charge, public benefit, dependent, government, and subsidized health
insurance.
aC/

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 greater detail on how the statuteas
mandatory factors would be considered when making a public charge inadmissibility
determination.
aC/

Adding 212.23, Public benefits considered for purposes of public charge

inadmissibility. This section provides guiding principles and a list of public benefits to
be considered when making a public charge inadmissibility determination.

9

aC/

Adding 212.24, Public benefits not considered for purposes of public charge

inadmissibility. This section provides general principles and a list of public benefits that
an officer cannot consider when making a public charge inadmissibility determination.
aC/

Adding 212.25, Exemptions and waivers for the public charge ground of

inadmissibility. This section provides a list of exemptions and waivers for
inadmissibility based on public charge.
aC/

Amending 8 CFR 213.1, Admission or adjustment of status of aliens on giving 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 individuals who are seeking an
immigrant visa or adjustment of status, including the discretionary review and the
minimum amount for a public charge bond.
aC/

Amending 8 CFR 214.1, Nonimmigrant general requirements. These amendments

provide that with limited exceptions, an applicant for extension of nonimmigrant status
must demonstrate that he or she is not using or receiving, nor likely to use or receive,
public benefits as defined in proposed 8 CFR 212.21(d), before the applicant can be
granted. Where section 212(a)(4) of the INA does not apply to the nonimmigrant
category that the alien seeks to extend, or where extension of status cannot be denied as a
matter of discretion, this provision does not apply.
aC/

Amending 8 CFR 245.4 Documentary requirements. These amendments require

applicants for adjustment of status to file new USCIS Form I-944, Declaration of SelfSufficiency, to facilitate USCISa public charge inadmissibility determination.
aC/

Amending 8 CFR 248.1, Change of nonimmigrant classification eligibility.

10

This section provides that with limited exceptions, an applicant for change of
nonimmigrant status must demonstrate that he or she is not using or receiving, nor likely
to use or receive, public benefits as defined in proposed 8 CFR 212.21(d), before the
applicant can be granted. Where section 212(a)(4) of the INA does not apply to the
nonimmigrant category to which the alien requests a change of status, or where change of
status may not be denied as a matter of discretion, 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 who would now be
required to file the new Form I-944 as part of the public charge inadmissibility
determination. This general requirement would only apply in the adjustment of status
context.
DHS estimates that the total annual cost on the population applying to adjust
status who would be required to file Form I-944 would be $25.8 million. Over the first
10 years of implementation, DHS estimates the total quantified new costs of the proposed
rule would be as much as $258,448,690 (undiscounted) for filing Form I-944 as part of
the review for determination of inadmissibility based on public charge when applying for
adjustment of status. DHS estimates that the 10-year discounted total costs of this
proposed rule would be $220,461,975 at a 3 percent discount rate and $181,523,545 at a
7 percent discount rate.

11

Simultaneously, DHS is proposing to eliminate the use and consideration of the
Request for Exemption for Intending Immigrantas Affidavit of Support (Form I-864W),
currently applicable to certain classes of aliens.
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
Public Charge Bond form (Form I-945). DHS estimates the cost to file Form I-945
would be $5.30 per obligor.2
In addition, the proposed rule would potentially impose new costs on the
population seeking extension of stay or change of status using Petition for a
Nonimmigrant Worker (Form I-129) or the Application to Extend/Change Nonimmigrant
Status (Form I-539). For either of these forms, USCIS officers would be able to exercise
discretion regarding whether it would be necessary to issue a request for evidence (RFE)
requesting an applicant to submit Form I-944. The costs to Form I-129 beneficiaries who
may receive a RFE to file Form I-944 range from $444,914 to $52,730,601 annually.
The costs to Form I-539 applicants who may receive a RFE to file Form I-944 range from
$231,318 to $27,415,491 annually.
The primary benefit of the proposed rule would be to help ensure that aliens who
apply for admission to the United States, seek extension or change of status, or apply for
adjustment of status are self-sufficient. DHS also anticipates that the proposed rule
would produce some benefits from the elimination of Form I-864W. The elimination of
these forms would potentially reduce the number of forms USCIS would have to process,

2

An obligor is a person who is bound to another by contract or other legal procedure.

12

although it likely would not reduce overall processing burden. DHS estimates the
amount of benefits that would accrue from eliminating Form I-864W would be $34.84
per petitioner.3 However, DHS notes that we are unable to determine the annual number
of filings of Form I-864W and therefore currently unable to estimate the total annual
benefits. Additionally, a public charge bond process would also provide benefits to
applicants as they potentially would allow an alien to be admitted if otherwise admissible,
in the discretion of DHS, after a determination that he or she is likely to become a public
charge.
Table 1 provides a more detailed summary of the proposed provisions and their
impacts.
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 determination.

Quantitative:

Adding 8 CFR
212.21. Definitions.

To establish key definitions,
including public charge, public
benefit, dependent, government,
and subsidized health insurance.

Costs:
aC/ DHS anticipates a likely increase in the
number of denials for adjustment of
status applicants based on public charge

3

Benefits
aC/ $34.84 per petitioner opportunity cost of
time for eliminating Form I-864W.

Calculation opportunity cost of time for completing and submitting Form I-864W: ($34.84 per hour * 1.0
hours) = $34.84.

13

Adding 8 CFR
212.22. Public
charge
determination.

Clarifies that evaluating public
charge is a prospective
determination based on the
totality of the circumstances.
Outlines minimum and additional
factors considered when
evaluating whether an immigrant
is inadmissible based on public
charge. Factors are weighed,
positively and negatively, to
determine an individualas
likelihood of becoming a public
charge.

Adding 8 CFR
212.23. Public
benefits considered
for purposes of
public charge
inadmissibility.

Outlines public benefits that, if
alien used, received, currently
uses or receives, or is likely to
use or receive, constitute a
negative factor in the public
charge determination.

Adding 8 CFR
212.24. Public
benefits not
considered for
purposes of public
charge
inadmissibility.

Outlines public benefits that
cannot be considered when
evaluating whether an alien is
likely to become inadmissible
based on public charge.

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

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

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

To provide, with limited
exceptions, that an applicant for
extension of nonimmigrant status
must demonstrate that he or she
is not using or receiving, nor
likely to use or receive, public
benefits as defined in proposed 8
CFR 212.21(d), before the
applicant can be granted.

Amending 8 CFR
248.1(a) and adding
8 CFR 248.1(c)(4).
Change of
nonimmigrant
classification
eligibility.

14

determinations due to formalizing and
standardizing the criteria and process for
public charge determination.
Qualitative:
Benefits
aC/ Ensure that aliens who are admitted to
the United States or apply for
adjustment of status are self-sufficient
and would not use or receive one or
more public benefits through an
improved review process.
aC/ Potential to improve the efficiency for
USCIS in the review process for public
charge.

Quantitative:
aC/ None
Qualitative:
Benefits
aC/ Ensure that nonimmigrants seeking to
extend their stay or change their
nonimmigrant status are self-sufficient
and are not using or receiving, nor
likely to use or receive one or more
public benefits through an improved
review process.

aC/ Potential to improve the efficiency for
USCIS in the review process for public
charge.

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

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.

Quantitative:
Costs
aC/ Total costs over 10-year period to
applicants applying to adjust status who
must file Form I-944 are:
aC/ $258.4 million for undiscounted
costs;
aC/ $220.5 million at a 3% discount rate;
and
aC/ $181.5 million at a 7% discount rate.
aC/ Range of potential annual costs for those
filing Form I-129 from $0.44 million to
$52.7 million depending on how many
applicants are sent a RFE by USCIS.
aC/ Range of potential annual costs for those
filing Form I-539 from $0.23 million to
$ 27.4 million depending on how many
applicants are sent a RFE by USCIS.
.
Qualitative:
aC/ None

Public Charge Bond Provisions

15

Amending 8 CFR
103.6(c). Surety
bonds.

To set forth the Secretaryas
discretion to approve bonds,
specify acceptable sureties,
cancellation, bond schedules, and
breach of bond and move
principles governing public
charge bonds to proposed 8 CFR
213.1.

Quantitative:
Costs
aC/ $15.89 per applicant opportunity cost of
time for completing Public Charge Bond
(Form I-945).
aC/ $2.65 per applicant opportunity cost of
time for completing Request for
Cancellation of Public Charge Bond
(Form I-356).
aC/ Fees paid by applicants to surety bond
companies to secure a public charge
bond could range from 1 a 15 percent of
the public charge bond amount based on
an individualas credit score.

Amending 8 CFR
213.1. Admission or
adjustment of status
of aliens on giving of
a public charge bond.

To change the title of this section
and add specifics to the public
charge bond provision for
individuals who are seeking an
immigrant visa or adjustment of
status, including the discretionary
review and the minimum amount
required for a public charge
bond.

Qualitative:
Costs
aC/ Potentially enable an alien who was
found inadmissible on public charge
grounds to be admitted by posting a
public charge bond with DHS.

Source: USCIS analysis.

III. Purpose of the Proposed Rule
A. Self-Sufficiency
DHS seeks to ensure that aliens who are subject to the public charge
inadmissibility ground and who are admitted to the United States or who adjust their
status to that of a lawful permanent resident are self-sufficient. Under section 212(a)(4)
of the INA, 8 U.S.C. 1182(a)(4), any 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. Aliens subject to public charge inadmissibility include: immediate
relatives of U.S. citizens, fiancA(c)(e)s, family-preference immigrants, most employmentbased immigrants, diversity visa immigrants, and certain nonimmigrants. Immediate
relatives of U.S. citizens, fiancA(c)(e)s, most family-preference immigrants, and some
16

employment-based immigrants require a sponsor and a legally binding affidavit of
support under section 213A of the INA showing that these sponsored immigrants have
adequate means of financial support and are not likely to become a public charge. Most
employment-based immigrants are coming to work for their petitioning employers. They
should have adequate income and resources to support themselves and their dependents.
Nonimmigrants should have sufficient financial means to support themselves for the
duration of their authorized admission and stay. The following congressional policy
statements relating to public benefits and immigration are relevant to aliens subject to
public charge inadmissibility.
(1) Self-sufficiency has been a basic principle of United States immigration law since
this countryas earliest immigration statutes.
(2) It continues to be the immigration policy of the United States thata
(A) Aliens within the Nationas 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. 4
Generally, aliens in the United States who receive or use public benefits are
dependent on Federal, State, and local governments for support. The receipt or use of
public benefits by aliens subject to public charge inadmissibility is contrary to section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), and to policy statements made in 8 U.S.C.

4

See 8 U.S.C. 1601.

17

1601. Accordingly, DHS is proposing new regulations that align with the statute and
congressional intent.
B. Public Charge Inadmissibility Determinations
DHS also seeks to interpret the term apublic chargea for purposes of making
public charge inadmissibility determinations. Congress codified minimum mandatory
factors that must be considered as part of the public charge determination under section
212(a)(4) of the INA, 8 U.S.C. 1182(a)(4): age, health, family status, assets, resources,
financial status, education, and skills.5 In addition to these minimum factors, the statute
states that any affidavit of support under section 213A of the INA may also be
considered.6 In fact, family-sponsored aliens and certain employment-sponsored aliens
are generally inadmissible as likely to become a public charge if they do not submit such
a satisfactory affidavit of support.7
Although INS8 issued a proposed rule and interim guidance in 1999, neither the
proposed rule nor interim guidance sufficiently described the mandatory factors or
explained how to weigh these factors in the public charge determination.9 The 1999
interim guidance focused on the receipt of cash public benefits over non-cash public
benefits and the relationship of such benefits to the guidanceas definition of apublic
charge.a This proposed rule better aligns public charge policies with the statutory text by
providing clarification and guidance on the mandatory factors, including how these

5

See INA section 212(a)(4)(B)(ii); 8 U.S.C. 1182(a)(4)(B)(ii).
See INA section 212(a)(4)(B)(iii); 8 U.S.C. 1182(a)(4)(B)(iii).
7
See INA section 212(a)(4)(C); 8 U.S.C. 1182(a)(4)(C).
8
On March 1, 2003, INS functions were transferred from the Department of Justice to DHS. See Homeland
Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135, 2178, 2192 (Nov. 25, 2002).
9
See Inadmissibility and Deportability on Public Charge Grounds, 64 FR 28676 (May 26, 1999), and Field
Guidance on Deportability and Inadmissibility on Public Charge Grounds, 64 FR 28689 (May 26, 1999).
6

18

factors would be evaluated in relation to the new proposed definition of apublic chargea
and in making a public charge inadmissibility determination.10
IV. Background
Congress and administrative policymakers have wrestled with three principal
issues11 that 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 and use of public benefits;
and (3) The consideration of a sponsoras affidavit of support within public charge
determinations.
A. Legal Authority
DHSas 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 (Public Law 107-296, 116 Stat. 2135), 6 U.S.C. 112, and section

10

Moreover, 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-attorney-generalsecretary-homeland-security.
11
See, e.g., Report of the Committee of the Judiciary Pursuant to S. Res. 137, S. Rep. 81-1515, 346-350
(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 alienas behalf. The committee noted that
there was no definition of the term alikely to become a public chargea 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 and decisions rendered by the courts
and in public charge determinations made by consular and immigration officers. The committee advised
against defining public charge in law. 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 that the use of a bond or
suitable undertaking over the practice of using affidavits of support.

19

103 of the INA, 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 Secretaryas general authority for the administration and enforcement
of immigration laws, section 103 of the INA enumerates various related authorities
including the Secretaryas authority to establish regulations and prescribe such forms of
bond as are necessary for carrying out her authority. Section 212 of the INA, 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
INA also establishes the affidavit of support requirement as applicable to certain familybased 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 INA, 8 U.S.C. 1183, provides the Secretary with discretion to admit into
United States an alien (who is otherwise admissible), but is found inadmissible as a
public charge under section 212(a)(4) of the INA 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 INA sets out requirements for the sponsoras affidavit of
support, including reimbursement of government expenses where the sponsored alien
received means-tested public benefits. Section 214 of the INA 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

20

under section 248 of the INA depart if they violate their nonimmigrant status or after
such status expires. Section 248 of the INA authorizes the Secretary to prescribe
conditions under which an alien 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.12 The INA establishes separate processes for aliens seeking a visa, admission,
extension of stay, 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
Department of State (DOS) and thereafter seek admission in the appropriate immigrant or
nonimmigrant 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 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 such a limited purpose, like
business or tourism.13 Applicants for admission are inspected at or, when encountered,
between the port of entry. They are inspected by immigration officers at that time in a
timeframe and setting distinct from the adjudication process. If the alien is present in the

12

See, e.g., INA section 212(a), 8 U.S.C. 1182(a) (listing grounds of inadmissibility).
Certain nonimmigrant classifications are subject to petition requirements. 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.
13

21

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. Where an
alien is subject to a ground of inadmissibility, if a waiver is unavailable under the INA,
the alien does not meet the statutory requirements for the waiver, or the alien does not
warrant the waiver in any authorized exercise of discretion, DHS cannot approve the
benefit sought.
C. Extension of Stay and Change of Status
Section 214 of the INA, 8 U.S.C. 1184, permits DHS to allow certain
nonimmigrants to remain in the United States beyond the initial period of stay authorized
to continue the same activities permitted when the nonimmigrant was first admitted to the
United States. 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.14
Additionally, for some extension of stay applications, the applicantas financial status is
part of the eligibility determination.15
DHS has the authority to set conditions in determining whether to grant the
extension of stay request.16 The decision to grant an extension of stay application, with
certain limited exceptions, is discretionary.17
Section 248 of the INA, 8 U.S.C. 1258, allows 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

14

See 8 CFR 214.1(a)(3)(i).
See, e.g., 8 CFR 214.2(f)(1)(i)(B).
16
See INA section 214(a)(1), 8 USC 1184(a)(1); 8 CFR 214.1(a)(3)(i).
17
See 8 CFR 214.1(c)(5).
15

22

status and is not inadmissible under section 212(a)(9)(B)(i) of the INA, 8 U.S.C.
1182(a)(9)(B)(i).18 An applicantas financial status is currently part of the determination
for changes to certain nonimmigrant classifications.19
Like extensions of stay, change of status adjudications are discretionary
determinations, and DHS has the authority to set conditions that would apply for a
nonimmigrant to change his status.20
D. Public Charge Inadmissibility
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4) deems an alien applicant for a
visa, admission, or adjustment of status inadmissible if he or she is likely at any time to
become a public charge. The public charge ground of inadmissibility, therefore, only
applies to any alien applying for a visa to come to the United States temporarily or
permanently, for admission into the United States, or for adjustment of status to that of a
lawful permanent resident.21
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 certain factors including the
alienas age, health, family status, assets, resources, financial status, and education and
skills.22
Some immigrant and nonimmigrant immigrant categories are exempt from public
charge inadmissibility. DHS proposes to list these categories in regulation. In addition,

18

See INA section 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a)
See e.g., Adjudicatoras Field Manual (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.)
20
See INA section 248(a), 8 U.S.C. 1258(a); 8 CFR 248.1(a).
21
See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
22
See INA section 212(a)(4)(B)(i); 8 U.S.C. 1182(a)(4)(B)(i).
19

23

DHS proposes to list in the regulation the applicants that the law permits to apply for a
waiver of the public charge inadmissibility ground.23
Additionally, section 212(a)(4) of the INA, 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 INA, 8 U.S.C. 1183a, on the applicantas behalf when
determining whether the applicant may become a public charge.24 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 they will be found inadmissible as likely to
become a public charge.25 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.26 The purpose of issuing a public charge bond is
to ensure that the alien will not become a public charge in the future.27 Since the
introduction of enforceable affidavits of support in section 213A of the INA, the use of
public charge bonds has decreased significantly.28 This rule would outline a process
under which USCIS could, in its discretion, offer public charge bonds to applicants for an
immigrant visa or adjustment of status who are inadmissible only on public charge
grounds.

23

See proposed 8 CFR 245.4(b).
See INA section 212(a)(4)(B)(ii). When required, the applicant must submit an Affidavit of Support
Under Section 213A of the INA (Form I-864).
25
See INA section 212)(a)(4)(C) and (D); 8 U.S.C. 1182(a)(4)(C) and (D).
26
See INA section 213, 8 U.S.C. 1183.
27
See Matter of Viado, 19 I&N Dec. 252 (BIA 1985).
28
See AFM Ch. 61.1(b).
24

24

Since at least 1882, the United States has denied admission to aliens on public
charge grounds.29 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 Attorney General at
the time of application for admission, are likely at any time to become public charges. 30
The Attorney General has long interpreted the words ain the opinion ofa as evincing the
discretionary nature of the determination.31
A series of administrative decisions after passage of the INA clarified that a
totality of the circumstances review was the proper framework for making public charge
determinations. In Matter of Martinez-Lopez, the Attorney General opined that the
statute arequired more than a showing of a possibility that the alien would 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 was likely to be cast on
the public, must be present. A healthy person in the prime of life could not ordinarily be
considered likely to become a public charge, especially if 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.a32 In Matter of Perez, the Board of Immigration Appeals (BIA) held
that a[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

29

See sections 1-2 of the Immigration Act of 1882, ch. 376, 22 Stat. 214 (Aug. 3, 1882). 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. See id., section 11.
30
See sections 212(a)(15) of the INA of 1952, Pub. L. No. 414-477, 66 Stat. 163, 182 (Jun. 27, 1952).
31
See Matter of Harutunian, 14 I&N Dec. 583, 588, (R.C. 1974); cf. U.S. ex rel. Dolenz v. Shaughnessy,
206 F.2d 392, (2d Cir. 1953).
32
See 10 I&N Dec. 409, 421-423 (A.G. 1964).

25

been on welfare does not, by itself, establish that he or she is likely to become a public
charge.a33 Instead, as stated in Matter of Harutunian,34 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 self-support, 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 determinations was
codified in relation to one class of aliens in the 1980s. In 1986, Congress passed the
Immigration Reform and Control Act (IRCA) providing lawful status to certain aliens
who had resided in the United States continuously prior to January 1, 1982.35 No
changes were made to the language of the public charge exclusion ground under section
212 of the INA, but IRCA contained special public charge rules for aliens seeking
legalization under 245A of the INA. Although IRCA provided otherwise qualified aliens
an exemption or waiver for some grounds of excludability, they generally remained
excludable on public charge grounds.36 Under IRCA, however, if an applicant
demonstrated a history of self-support through employment and without receiving public
cash assistance, an applicant was not ineligible for adjustment of status.37 In addition,
aliens who were aaged, blind or disableda as defined in section 1614(a)(1) of the Social
Security Act, could obtain a waiver from the public charge provision.38
33

See 15 I&N Dec. 136, 137 (BIA 1974).
See14 I&N. Dec. 586, 589 (R.C. 1974).
35
See IRCA of 1986, Pub. L. 99a603, 100 Stat. 3445 (Nov. 6, 1986).
36
See INA section 245A(d)(2)(B)(ii)(IV), 8 U.S.C. 1255(d)(2)(B)(ii)(IV).
37
See INA section 245A(d)(2)(B)(iii), 8 U.S.C. 1255(d)(2)(B)(iii).
38
See INA section 245A(d)(2)(B)(ii); see also 42 U.S.C.1381. DHS does not propose to apply the
proposed public charge rule to legalization applications filed pursuant section 245A of the INA or
otherwise amend the regulations at 8 CFR Part 245a. Any legalization applications that are pending with
USCIS are subject to the provisions of the settlement agreements in Catholic Social Services, Inc. v. Meese,
vacated sub nom, Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), League of United Latin
American Citizens v. INS, vacated sub nom. Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), and
NWIRP v. USCIS, which require USCIS to adjudicate the application under the laws and policies INS
34

26

INS published 8 CFR 245a.3,39 which established that immigration officers would
make public charge determinations by examining the atotality of the alienas
circumstances at the time of his or her application for legalization.a40 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.41 Further, the
regulation established that the determination is a aprospective evaluation based on the
alienas age, health, income, and vocation.a42 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.43 Finally, an alienas past receipt of
public cash assistance would be a significant factor in a context that also considers the
alienas consistent past employment.44 In Matter of A---,45INS again pursued a totality of
circumstances approach in public charge determinations. aEven though the test is
prospective,a INS aconsidered evidence of receipt of prior public assistance as a factor in
making public charge determinations.a INS also considered an alienas work history, age,
capacity to earn a living, health, family situation, affidavits of support, and other relevant
factors in their totality.46
The administrative practices surrounding public charge determinations began to
crystalize into legislative changes in the 1990s. The Immigration Act of 1990

followed in adjudicating applications timely filed during the initial IRCA application period. This includes
the application of the special public charge rule, where appropriate, and the public charge waiver for the
aged, blind, and disabled under INA section 245A(d)(2)(B)(ii)(IV) and 8 CFR 245a.
39
See Adjustment of Status for Certain Aliens, 54 FR 29442 (Jul. 12, 1989).
40
See 8 CFR 245a.3(g)(4)(i).
41
See id.
42
See id.
43
See id.
44
See id.
45
See 19 I&N Dec. 867 (Commar 1988).
46
See id. at 869.

27

reorganized section 212(a) of the INA and re-designated the public charge provision as
section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).47 In 1996, the Personal Responsibility
and Work Opportunity Reconciliation Act (PRWORA) and the Illegal Immigration
Reform and Immigrant Responsibility Act (IIRIRA) altered the legislative landscape of
public charge considerably.48 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 through PRWORA, which is commonly known as the
1996 welfare reform law.49 Congress created section 213A of the INA and made a
sponsoras affidavit of support for an alien beneficiary legally enforceable.50 The affidavit
of support provides an mechanism for public benefit granting agencies to seek
reimbursement in the event a sponsored alien received means-tested public benefits.51
PRWORA also significantly restricted alien eligibility for many Federal, State,
and local public benefits.52 With certain exceptions, Congress defined the term aFederal
public benefita broadly as:
(A) 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

47

See Immigration Act of 1990, Pub. L. 101a649, 104 Stat. 4978 (Nov. 29, 1990).
See Pub. L. 104-208, 110 Stat 3009 (Sep. 30, 1996). In 1990, Congress reorganized INA section 212(a),
redesignated the public charge provision as INA 212(a)(4), and eliminated the exclusion of paupers,
beggars and vagrants as it was considered that these grounds were sufficiently covered under the public
charge provision. See Immigration Act of 1990, Pub. L. 101a649, 104 Stat. 4978 (Nov. 29, 1990).
49
See Title IV of Pub. L. 104-193, 110 Stat. 2260 (Aug. 22, 1996), 8 U.S.C. 1601.
50
See Title IV of Pub. L. 104-193, 110 Stat. 2105, 2260 (Aug. 22, 1996). See 8 U.S.C. 1601-46. See also
INA section 213A; 8 U.S.C. 1183a. The provision was further amended with the passage of IIRIRA.
51
See INA section 213A(b).
52
See 8 U.S.C. 1601-1646, as amended.
48

28

(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.53
Congress permitted certain qualified aliens to remain eligible for at least some
forms of Federal public benefits, particularly medical and nutritional benefits such as
Medicaid and Food Stamps.54 Congress defined aqualified aliena as:55
aC/

An alien who is lawfully admitted for permanent residence under the INA;

aC/

An alien who is granted asylum under section 208 of the INA;

aC/

A refugee who is admitted to the United States under section 207 of the INA;

aC/

An alien who is paroled into the United States under section 212(d)(5) of the INA for

a period of at least 1 year;
aC/

An alien whose deportation is being withheld under section 243(h) of the INA;56 or

aC/

An alien who is granted conditional entry under section 203(a)(7) of the INA as in

effect before April 1, 1980; or

53

See Title IV of Pub. L. 104a193, section 401, 110 Stat. 2262 (Aug. 22, 1996) (codified at 8 U.S.C.
1611(c)). Congress noted that such term shall not applya
(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 99a239 or 99a658 (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).
54
See Title IV of PRWORA, Pub. L. 104-193, 110 Stat. 2105 (Aug. 22, 1996).
55
See section 431 of Pub. L. 104-193, 110 Stat. 2274 (Aug. 22, 1996) (codified at 8 U.S.C. 1641).
56
As in effect immediately before the effective date of section 307 of division C of Pub. L. 104a208; or
section 241(b)(3) of the INA as amended by section 305(a) of division C of Pub. L. 104a208.

29

aC/

An alien who is a Cuban and Haitian entrant as defined in section 501(e) of the

Refugee Education Assistance Act of 1980.
With certain exceptions, aliens who were not aqualified aliens,a including
nonimmigrants and unauthorized aliens, were barred from obtaining Federal benefits.57
Congress chose not to restrict eligibility for certain benefits including emergency medical
assistance; short-term, in-kind, non-cash emergency disaster relief; and public health
assistance related to immunizations and treatment of the symptoms of a communicable
disease.58
Congress defined the term aState or local public benefita in similar broad terms
except where the term encroached upon the definition of Federal public benefit.59 With
certain exceptions for qualified aliens, nonimmigrants, or parolees, Congress also limited
aliensa ability to obtain certain State and local public benefits.60 Congress also allowed
states to enact their own legislation to provide public benefits to certain aliens not
57

See Title IV of PRWORA, Pub. L. 104-193, section 401(a), 110 Stat. 2261 (Aug. 22, 1996).
See 8 U.S.C. 1611(b)(1); see also 64 FR 28676 (May 26, 1999).
59
See 8 U.S.C. 1621(c). aState or local public benefita is defined as:
(1) Except as provided in paragraphs (2) and (3), for purposes of this subchapter the term aState or local
public benefita meansa
(A) any grant, contract, loan, professional license, or commercial license provided by an agency of a State
or local government or by appropriated funds of a State or local government; 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 a State or local government
or by appropriated funds of a State or local government.
(2) Such term shall not applya
(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 99a239 or 99a658 (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 Secretary of State, after consultation with the Attorney General; 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.
(3) Such term does not include any Federal public benefit under section 1611(c) of this title.
60
See 8 U.S.C. 1621.
58

30

lawfully present in the United States.61 PRWORA also provided that a State that chooses
to follow the Federal aqualified aliena classification in determining aliensa eligibility for
public assistance ashall 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.a62 Still, some States and localities have
funded public benefits (particularly medical and nutrition benefits) that aliens may be not
eligible for federally.63
Under IIRIRA,64 the public charge inadmissibility text changed significantly.
IIRIRA codified the following minimum factors that must be considered when making
public charge determinations:65
aC/

Age;

aC/

Health;

aC/

Family status;

aC/

Assets, resources, and financial status; and

aC/

Education and skills.66
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,67 except in certain cases.68 The law requires affidavits of support for

61

See 8 U.S.C. 1621(d).
See 8 U.S.C. 1601(7).
63
See Overview of Immigrants Eligible for SNAP, TANF, Medicaid and CHIP, U.S. Department of Health
and Human Services, Office of the Assistant Secretary for Planning and Evaluation (Mar. 2012), available
at http://aspe.hhs.gov/hsp/11/ImmigrantAccess/Eligibility/ib.shtml.
64
See Div. C, Title V of Pub. L. 104-208, 110 Stat. 3009, 670 (Sep. 30, 1996).
65
See INA section 212(a)(4); 8 U.S.C. 1182(a)(4). See Div. C, Title V, Section 531 of Pub. L. 104-208,
110 Stat. 3009, 674 (Sept. 30, 1996).
66
See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
67
See INA section 212(a)(4)(B)(ii), 8 U.S.C. 1182(a)(4)(B)(ii).
68 See INA sections 212(a)(4), 8 U.S.C. 1182(a)(4) and INA 213A; 8 U.S.C. 1183A.
62

31

most family-sponsored immigrants and certain employment-based immigrants and
provided that these aliens are inadmissible unless a satisfactory affidavit of support is
filed on his or her behalf.69 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.70 The report indicated that self-reliance is one of
the fundamental principles of immigration law and aliens should have affidavits of
support executed.71
On May 20, 1999, INS issued interim Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds.72 This guidance identified how the
agencywould determine if a person is likely to become a public charge as required under
section 212(a)(4) of the INA, 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 INA, 8 U.S.C. 1227(a)(5).73 The INS proposed promulgating these policies as
regulations in a proposed rule issued on May 26, 1999.74 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.75 USCIS has continued to
follow the 1999 public charge guidance in its adjudications and DOS continued following
the public charge guidance set forth in the FAM.76

69

See INA section 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).
See H.R. Rep. 104-828, at 240-41 (1996) (Conf. Rep.); see also H.R. Rep. 104-469(I), at 143-45 (1996).
71
See H.R. Rep. 104-828, at 241 (1996).
72
See 64 FR 28689 (May 26, 1999).
73
See 64 FR 28689 (May 26, 1999).
74
See 64 FR 28676 (May 26, 1999).
75
See id. at 28680.
76
See section 214 of the Childrenas Health Insurance Program Reauthorization Act of 2009, Pub. L. 111-3,
123 Stat. 8, 56 (Feb. 4, 2009).
70

32

In the 1999 proposed rule, INS proposed to aalleviate growing public confusion
over the meaning of the currently undefined term apublic chargea in immigration law and
its relationship to the receipt of Federal, State, or local public benefits.a77 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.78 To address the publicas concerns about
immigrant 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. INS also sought to
stem the fears that were causing non-citizens not to accept limited public benefits, such as
transportation vouchers and child care assistance, so that they could get to and retain
employment and move to self-sufficiency.79
INS defined public charge in its proposed rule and interim guidance to mean athe
likelihood of a foreign national becoming primarily dependent80 on the government for
subsistence, as demonstrated by either:
aC/

Receipt of public cash assistance for income maintenance; or

aC/

Institutionalization for long-term care at government expense.a 81
When developing the proposed rule, INS consulted with Federal benefit-granting

agencies such as the Department of Health and Human Services (HHS), the Social
77

See 64 FR at 28676.
See 64 FR at 28676-77.
79
See 64 FR 28676, 28677 (May 26, 1999).
80
Former INS defined aprimarily dependenta as athe majoritya or amore than 50 percent.a
81
Through its long-standing policy, legacy INS, DHS, and agency partners have been focused on
promoting the public health of the United States as a whole by helping to ensure immigrants obtain
essential medical and nutrition care.
78

33

Security Administration (SSA), and the Department of Agriculture (USDA) to determine
what public benefits would be considered to be primarily dependent on the government.
HHS, which administers Temporary Assistance for Needy Families (TANF), Medicaid,
the Childrenas 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 receipt of public cash benefits for income maintenance purposes or
institutionalization for long-term care at government expense.82 The USDA,83 SSA,84
and other benefit-granting agencies concurred with the HHS advice that receipt of cash
assistance for income maintenance is the best evidence of primary dependence on the
government.85 INS provided that non-cash, supplemental and certain limited cash,
special purpose benefits should not be considered for public charge purposes, in light of
INSas decision to define public charge by reference to primary dependence on public
benefits. Ultimately, despite INSas efforts to define public charge, to establish a
framework for public charge determinations, and to clarify the role of affidavits of
support in public charge determinations, these issues were never settled and finalized
through rulemaking.
V. Discussion of Proposed Rule
DHS seeks to address these issues, among others, through this rulemaking. DHS
intends to establish the proper nexus between public charge and receipt and use of public
benefits by defining the terms apublic chargea and apublic benefita among other terms.

82

See 64 FR 28676, 28686-87 (May 26, 1999); Letter from HHS Deputy Secretary Kevin Thurm to INS
Commissioner Doris Meissner (Mar. 25, 1999).
83
The USDA administers Food Stamps (now called Supplemental Nutrition Assistance Program or SNAP),
WIC, and other nutrition assistance programs.
84
The SSA administers SSI and other programs.
85
See 64 FR 28676, 28688 (May 26, 1999); Letter from USDA Under Secretary for Food, Nutrition, and
Consumer Services Shirley R. Watkins to INS Commissioner Doris Meissner (Apr. 15, 1999).

34

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 to become a public charge.
DHS also proposes to clarify the role of a sponsoras affidavit of support within public
charge determinations.
DHS also 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.86 The purpose of assigning 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 the establishment of a public charge bond process in the immigrant visa and
adjustment of status context, and proposes to clarify DHSas use of discretion in
nonimmigrant extension of stay and change of status applications.
A. Applicability, Exemptions, and Waivers
This rule would apply to any alien subject to section 212(a)(4) of the INA, 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.87 Because the processes for
aliens seeking a visa, admission, extension of stay, change of status, and adjustment of

86
87

See proposed 8 CFR 212.22(c).
See proposed 8 CFR 212.20.

35

status differ, DHS proposes public charge processes appropriate to the context in which
the issue presents itself. For instance, aliens seeking adjustment of status undergo a
different process than a temporary visitor for pleasure from Canada. The length and
nature of the stay of these two subsets of aliens differs, as does the type and frequency of
entry. Accordingly, this rule would apply different processes and evidentiary
requirements to these groups of aliens. 1. Applicants for Admission
Under section 212(a)(4) of the INA, 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 then return to his or her country. A nonimmigrant typically
applies directly to the U.S. consulate or embassy abroad for a visa to enter for such a
limited purpose, like business or tourism. Applicants for admission are inspected at or,
when encountered, between the port of entry. They are inspected by immigration officers
at that time in a timeframe and setting distinct from the adjudication process.
In addition to nonimmigrants, an alien who is the beneficiary of an approved
immigrant visa petition and has an immigrant visa number immediately available may
apply to a DOS consulate abroad for an immigrant visa to come to the United States.88
As part of the immigrant visa process, DOS reviews required affidavits of support
submitted under section 213A of the INA, 8 U.S.C. 1183a, and makes public charge
determinations. Under this proposed rule, DOS would continue to review affidavits of
support and screen aliens for public charge inadmissibility in accordance with its own

88

See INA sections 221 and 222, 8 USC 1201 and 1202; 8 CFR 204.

36

regulations and instructions prior to the alien undergoing inspection and applying for
admission at a pre-inspection location or port-of-entry.
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 then return to his or her country. However, the regulations permit the discretionary
extension of the nonimmigrant status or change of nonimmigrant status from one
classification to another.89 Both the INA and the current regulations give DHS the
discretion 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 demonstrate that he or she is not using or receiving, nor likely to use or
receive, public benefits as defined in this proposed rule.
Although applicants for extension of stay and change of status are not subject to the
public charge inadmissibility ground in section 212(a)(4) of the INA, which only applies
to applicants for visas, admission, and adjustment of status, the governmentas interest in a
nonimmigrant alienas ability to maintain self-sufficiency does not end with his or her
admission as a nonimmigrant. The government has an interest in ensuring that aliens
present in the United States do not depend on public benefits to meet their needs.90 This
government interest is evidenced by the fact that DHS already considers the financial
status in adjudicating some extension of stay and change of status applications.91 These

89

INA sections 214 and 248, 8 U.S.C. 1184 and 1258.
See 8 USC 1601(2)(A).
91
8 CFR 214.2(f)(1)(i)(B); AFM Ch. 30.2(c)(2)(F) (aStudents seeking reinstatement must submit evidence
of eligibility, including financial information . . . .a); 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.).
90

37

amendments better reflect the governmentas interest to prevent the presence of aliens who
are using or receiving, or who are likely to use or receive, public benefits, while
remaining in the United States temporarily.
3. Adjustment of Status Applicants
In general, an alien who is physically present in the United States may apply for
adjustment of status 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 of the
application.92 As part of the adjustment process, USCIS is responsible for reviewing any
required affidavits of support and making public charge determinations. This rule
includes specific evidentiary requirements for the adjustment of status context, which
may also apply on a case-by-case basis in other contexts, such as change of status or
extension of stay.
4. Exemptions
The public charge inadmissibility ground does not apply to all applicants who are
seeking a visa, admission, or adjustment of status.93 Based on various public laws and
regulations, the following categories of aliens are exempt from inadmissibility based on
public charge:
aC/

Refugees and asylees at the time of admission and adjustment of status to lawful

permanent resident according to sections 207(c)(3) and 209(c) of the INA;
aC/

Amerasian immigrants at admission as described in sections 101(e) [Title V, ASS584]

of the Foreign Operations, Export Financing, and Related Programs Appropriations Act

92
93

See INA section 245.
See proposed 8 CFR 212.25(a).

38

of 1988, Public Law 100-202, 101 Stat. 1329-183 (1987) (as amended), 8 U.S.C. 1101
note 5;
aC/

Afghan and Iraqi Special immigrants serving as translators with United States Armed

Forces according to section 1059(a)(2) of the National Defense Authorization Act for
Fiscal Year 2006 Public Law 109a163 (Jan. 6, 2006) and section 602(b) of the Afghan
Allies Protection Act of 2009, as amended Public Law 111a8 (Mar. 11, 2009);
aC/

Cuban and Haitian entrants at adjustment as described in section 202 of the

Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat.
3359 (1986) (as amended), 8 U.S.C. 1255a, note;
aC/

Aliens applying for adjustment of status as described in the Cuban Adjustment Act,

Public Law 89-732 (Nov. 2, 1966) as amended; 8 U.S.C. 1255, note;
aC/

Nicaraguans and other Central Americans who are adjusting status as described in

section 202(a) and section 203 of the Nicaraguan Adjustment and Central American
Relief Act (NACARA), Public Law 105-100, 111 Stat. 2193 (1997) (as amended), 8
U.S.C. 1255 note;
aC/

Haitians who are adjusting status as described in 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;
aC/

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 (Nov. 21, 1989), 8 U.S.C.A. 1255 note;
aC/

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

aC/

Aliens who entered the United States prior to January 1, 1972, and who meet the

39

other conditions for being granted lawful permanent residence under section 249 of the
INA and 8 CFR part 249;
aC/

Aliens applying for Temporary Protected Status as described in section 244 of the

INA who receive a blanket regulatory waiver of the public charge ground of
inadmissibility under 8 CFR 244.3(a);
aC/

A nonimmigrant described in section 101(a)(15)(T) of the INA, under section

212(d)(13)(A) of the INA at time of admission;
aC/

An applicant for, or who is granted, nonimmigrant status under section 101(a)(15)(U)

of the INA under section 212(a)(4)(E)(ii) of the INA;
aC/

Nonimmigrants who were admitted under section 101(a)(15)(U) of the INA at the

time of their adjustment of status under section 245(m) of the INA and 8 CFR 245.24;
aC/

An alien who is a VAWA self-petitioner under section 212(a)(4)(E)(i) of the INA;

aC/

A qualified alien described in section 431(c) of the PRWORA of 1996 (8 U.S.C.

1641(c)) under section 212(a)(4)(E)(iii) of the INA;
aC/

Applicants adjusting status under section Authorization Act of 2004, Public Law 108-

136, 117 Stat. 1392 (Nov. 24, 2003) (posthumous benefits to surviving spouses, children,
and parents);
aC/

American Indians Born in Canada under section 289 of the INA; and

aC/

Nationals of Vietnam, Cambodia, and Laos adjusting status under section 586 of

Public Law 106-429.
In general, the aforementioned classes of aliens are vulnerable populations of
immigrants and nonimmigrants. Some have been persecuted or victimized. Others have
little to no private support network in the United States. They tend to require government

40

protection and support and do not have family, friends, and employers sponsoring them.
Other legal provisions may exempt other categories of aliens from the public charge
provisions under section 212(a)(4) of the INA.
5. Waivers
The proposed regulation at 8 CFR 212.25(b) lists the following categories of
applicants who may apply for waivers:
aC/

Nonimmigrants who were admitted under section 101(a)(15)(T) of the INA at the

time of their adjustment of status under section 245(l)(2)(A) of the INA;
aC/

S nonimmigrants seeking adjustment of status under section 245(j) and 8 CFR

245.11(c);
aC/

Applicants for admission and adjustment of status under section 245(j) of the INA

(witnesses or informants); and
aC/

Other categories of aliens made eligible by law for a waiver of the public charge

provisions in section 212(a)(4) of the INA.
B. Definitions of Public Charge and Related Terms
DHS proposes to add several definitions that apply to public charge
inadmissibility determinations.
1. Public Charge
Under section 212(a)(4) of the INA, 8 U.S.C. 212(a)(4), an alien who is alikely at
any time to become a public charge is inadmissible.a Public charge is not defined in the
statute. DHS is proposing to define public charge as a person who uses or receives one or
more public benefits as defined in this rule.94

94

See proposed 8 CFR 212.21(a) and (d).

41

When developing the proposed definition, DHS considered proposing or
finalizing the definition of public charge found in the interim policy guidance of May 20,
1999 and the proposed rule on May 26, 1999.95 INS defined a public charge as one who
is likely to become (for admission/adjustment purposes) primarily dependent on the
government for subsistence as demonstrated by either (i) the receipt of public cash
assistance for income maintenance or (ii) institutionalization for long-term care at
government expense.96 DHS contemplated the advantages and challenges of retaining the
50 percent threshold or lowering the threshold to some percentage less than 50 percent.
One of the principal problems with the current definition of public charge is the
use of the aprimarily dependent on the governmenta standard. Primary dependence
entails a finding that an applicant for admission or adjustment of status is 50 percent or
more dependent on the government. DHS does not believe that an alien must be 50
percent or more dependent on the government to be considered a public charge. DHS
looked at the common meaning of public charge as contained in various dictionaries.97
The current edition of the Merriam-Webster Dictionary defines public charge as aone that
is supported at public expense.a98 Another dictionary defines public charge as aa person
who is in economic distress and is supported at government expense.a99 Blackas Law
Dictionary (6thth ed.) defines public charge as aan indigent; a person whom it is necessary
to support at public expense by reason of poverty alone or illness and poverty.a100 These

95

See 64 FR 28676 (May 26, 1999) and 64 FR 28689 (May 26, 1999).
See Id.
97
See e.g., Smith v. United States, 508 U.S. 223, 228 (1993) (awhen a word is not defined by statute, we
normally construe it in accord with its ordinary or natural meaning.a).
98
See https://www.merriam-webster.com/dictionary/public%20charge. See also Leo M. Alpert. The Alien
And The Public Charge Clauses, 49 Yale L. J. 18 (1939)
99
Available at: http://www.dictionary.com/browse/public-charge.
100
Available at: http://www.republicsg.info/dictionaries/1990_black's-law-dictionary-edition-6.pdf.
96

42

definitions generally suggest that a public charge is one who is supported at public
expense, i.e., one who uses or receives public benefits.
Legislative history also links public charge to use or receipt of public benefits.
According to a 1950 Senate Judiciary Committee report, which preceded the passing of
the 1952 Act, the Senate subcommittee discussed the concern of aliens receiving public
benefits.101
Before passing IIRIRA in 1996, debates on public charge exclusion and
deportation involved an alienas use of public benefits and self-sufficiency.102 One
Senator opined that immigrants upon seeking admission make a apromise to the
American people that they will not become a burden on the taxpayers,a103 and he did not
abelieve it is 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.a104
Finally, courts have tied public charge determinations to use and receipt of public
benefits. For example, the court in Ex parte Kichmiriantz opined that the words apublic
chargea should be interpreted according to their ordinary meaning, aa money charge
upon, or an expense to, the public for support and care.a105 In addition, the BIA advised

101

See The 1950 Omnibus Report of the Senate Judiciary Committee, S.Rep. 1515, 349, 81st Cong., 2d
Sess. (Apr. 20, 1950) (an immigration inspector raised the issue that it is unjust that elderly parents of U.S.
citizens can qualify for old age assistance after only a few years in the country, thereby being supported for
the rest of their lives at taxpayer expense).
102
See, Statement from Sen. Byrd, 142 Cong. Rec. 59, page S4609 (May 2, 1996) (aself-sufficiency will be
the watchword for those coming to the United States. By making noncitizens ineligible for Federal meanstested programs, and by aadeemingaa a sponsoras income attributable to an immigrant, the American
taxpayer will no longer be financially responsible for new arrivalsa).
available at https://www.congress.gov/crec/1996/05/02/CREC-1996-05-02-pt1-PgS4592.pdf.
103
See Statement from Sen. Simon, 142 Cong. Rec. 59, page S4495 (May 1, 1996), available at
https://www.congress.gov/crec/1996/05/01/CREC-1996-05-01-pt1-PgS4457.pdf.
104
See Id.
105
See 283 F. 697, 698 (N.D. Cal. 1922).

43

that an alien likely to become a public charge is an alien awho for some cause is about to
be supported at public expense aby reason of poverty, insanity and poverty, disease and
poverty, idiocy and poverty...aa106 DHSas definition of public charge, which focuses on
the dependence on the government for public benefits, is based on the ordinary meaning
of public charge, legislative history, and case law.
2. Dependent
For purposes of public charge inadmissibility determinations under INA section
212(a)(4), DHS proposes to consider the alienas support to dependents, and whether the
alien is a dependent of another. Dependent relationships have an effect on the alienas
resources, and in many cases will influence the likelihood that an alien may become a
public charge. DHS would define a dependent as a person listed as a dependent on the
alienas most recent tax return; any other individual whom the alien is legally required to
support; or any other individual who lives with the alien, and who is being cared for or
provided for by the alien, and benefits from but does not contribute to the alienas income
or financial resources, to the extent such person is not claimed on the alienas tax return.107
This may include but is not limited to the alienas spouse, parent, child, legal ward or
person who is under a legal guardianship.
This definition is similar to how USCIS interprets dependent for purposes of
determining the income threshold for demonstrating fee waiver eligibility, as well as how
dependents are counted on the Form I-864 for purposes of a sponsoras household size, but
it does not necessarily include the sponsor or the sponsoras family members. In
proposing this definition, DHS aims to account both for the persons the alien is

106
107

See Matter of Harutunian, 14 I & N Dec. at 587-588.
See proposed 8 CFR 212.21(b).

44

supporting, as well as those he or she has a legal obligation to support, and those who
have such relationships to the alien. These types of relationships between the alien and
other people are relevant to DHSas consideration of the alienas assets, resources, and
financial status, and frequently family status as well.
3. Public Benefit
DHS is also proposing to define apublic benefita within the context of public
charge determinations.108 Specifically, DHS is proposing to define public benefit as any
government assistance in the form of cash, checks or other forms of money transfers, or
instruments and non-cash government assistance in the form of aid, services, or other
relief, that is means-tested or intended to help the individual meet basic living
requirements such as housing, food, utilities, or medical care. This includes certain noncash as well as cash public assistance.109 For example, consideration of some refundable
income tax credits, such as the earned income tax credit (EITC), would be relevant to the
determination of public charge inadmissibility.110 The EITC is a abenefit for working
people with low to moderate income.a111 A refundable income tax credit for low-income
people is similar to other public assistance benefits for low-income individuals because
such a credit can result in a payment from the government to the individual, and is
intended to help the individual meet basic living requirements.112
108

See proposed 8 CFR 212.21(d).
See id
110
See proposed 8 CFR 212.23(o).
111
See Internal Revenue Service (IRS), Earned Income Tax Credit (EITC), available at
https://www.irs.gov/credits-deductions/individuals/earned-income-tax-credit.
112
See IRS Pub. 596, Cat. No. 15173A, Earned Income Credit (EIC) (Jan. 16, 2018); Spreng, J., When
aWelfarea Becomes aWork Supporta: Exempting Earned Income Tax Credit Payments in Consumer
Bankruptcy, 78 Am. Bankr. L.J. 279, 281 (2004). See also, e.g., In re Hardy, 787 F.3d 1189, 1194-96 (8th
Cir. 2015) (discussing the federal aAdditional Child Tax Credit,a 26 U.S.C. 24(d)); The Earned Income
Tax Credit (EITC): Administrative and Compliance Challenges, CRS Report for Congress, 2015 WL
188021 (April 9 2015); The Earned Income Tax Credit: A Growing Form of Aid to Low-Income Work,
CRS 93-384 EPW, 1993 WL 739665 (Oct. 20, 1993).
109

45

In formulating the proposed definition of public benefits, DHS contemplated the
definition of public benefits in PRWORA and the exclusion of certain public benefits
under current public charge inadmissibility policy. In 1996, PRWORA, with certain
exceptions, defined Federal public benefits as aany 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.a113 Despite this broad
definition of public benefits, DHS currently focuses on only on public benefits that
involve the receipt of public cash assistance for income maintenance or
institutionalization for long-term care at government expense.114 DHSas current policy
excludes non-cash, supplemental, and certain limited cash, special purpose benefits
entirely from the public charge determination.
DHS believes the definition of public benefits as stated in PRWORA is in some
respects too broad for public charge purposes, but DHS also believes that current
consideration of only public cash assistance for income maintenance or
institutionalization for long-term care at government expense is too narrow. As
explained above, the ordinary meaning of public charge focuses on the alienas ability to
support him or herself and any dependents. Considering public charge, the BIA
expanded on this point by differentiating aindividualized public support to the needya

113
114

See 8 U.S.C. 1611(c)(1) and (2).
See 64 FR 28689 (May 26, 1999).

46

from essentially supplementary benefits that are available to athe general welfare of the
public as a whole.a115 The proposed definition of apublic benefitsa therefore focuses on
individual receipt of benefits based on means-testing or with the intention of fulfilling
basic human needs, rather than forms of government assistance that are provided to the
public more generally.
Since 1999, cash assistance for income maintenance has explicitly been
considered as part of the public charge inadmissibility determination, but non-cash public
benefits have been excluded from the determination.116 Consideration of non-cash public
benefits, however, is also relevant to the definition of public charge and to public charge
determinations. 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.117 The results suggest that receipt of certain non-cash
public benefits is generally more prevalent than receipt of cash benefits, and that use or
receipt of non-cash benefits therefore should be considered in public charge
determinations.118 When parsed by nativity and citizenship status, the results also suggest

115

See Matter of Harutunian, 14 I&N Dec. at 589.
See 64 FR 28689 (May 26, 1999).
117
The 2014 Panel represents the most recent full year of data, and may not represent current participation
rates.
118
The SIPP is a longitudinal survey providing detailed information about public benefit receipt and the
economic status of the U.S. civilian non-institutionalized population residing in households or group
quarters. See U.S. Census Bureau, Survey of Income and Program Participation: 2014 Panel Usersa Guide
(2016), available at
https://www.census.gov/content/dam/Census/programs-surveys/sipp/methodology/2014-SIPP-Panel-UsersGuide.pdf (last visited Feb. 3, 2018). 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: Release Notes: 2014 SIPP Wave 1, https://www2.census.gov/programs-surveys/sipp/techdocumentation/2014/2014-wave1-releasenotes.pdf. The 2014 Panel may be used for estimates
representative of any month in calendar year 2013. In Tables 1 through 22, below, 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 aType 2a people in SIPP documentation).
See id.; see also Memorandum from James B. Treat, Chief, Demographic Statistical Methods Division, to
Jason Fields, Survey Director, Source and Accuracy Statement for Wave 1 Public Use Files (S&A-20)
116

47

comparable levels of program participation by foreign-born and native-born individuals.
DHS recognizes that the SIPP Panel provides data based on nativity and citizenship
status, but does not provide data based on immigration classification. As a result, the
SIPP data do not align precisely with the populations covered by this rule a 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.
Notwithstanding this limitation, DHS believes the SIPP data on foreign-born
participation is instructive with respect to the use of non-cash benefits by this population
on the whole. DHS welcomes comments on its use of this data, and whether alternative
reliable data sources are available.
Table 2 shows public benefit participation, by nativity, in 2013. The total
population studied was 310,867,000. The data show that the rate of receipt for non-cash
public benefits was almost 19 percentage points higher than the receipt of cash public
benefits among the total population of people receiving public benefits. Specifically, 3.5
percent (10,799,000) of the total population receiving public benefits received cash
benefits and 22.3 percent (69,303,000) received non-cash benefits.119

(Apr. 7, 2017) (hereinafter Source and Accuracy Statement), available at
https://www2.census.gov/programs-surveys/sipp/tech-documentation/source-accuracystatements/2014/sipp-2014-source-and-accuracy-statement.pdf (last visited Deb. 3, 2018).
119
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 themselves are estimates, and were calculated
using design effects described in the Source and Accuracy Statement (U.S. Census Bureau, 2017).
Participation in Supplemental Nutrition Assistance Program (SNAP), Special Supplemental Nutrition
Program for Women, Infants, and Children (WIC), Temporary Assistance for Needy Families (TANF), and
General Assistance (GA) for a given month are 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 recipiency 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. Monthly data for energy assistance and

48

Table 2 also shows a comparison between public benefit participation among
native-born and foreign-born120 individuals.121 The data show that participation rates
were generally comparable for these populations. For example, 3.4 percent of nativeborn individuals (9,285,000) and 3.7 percent of foreign-born individuals (1,514,000)
participated in some form of cash benefit program. Similarly, 22.1 percent of native-born
individuals (59,578,000) and 22.7 percent of foreign-born individuals (9,408,000)
participated in some form of non-cash benefit program. Among non-cash benefits
programs, participation rates were highest for Medicaid and the Supplementary Nutrition
Assistance Program (SNAP) for both the native and foreign-born populations. Medicaid
participation rates were 16.1 percent (43,301,000) among native-born individuals and

indicators of whether gas vouchers for transportation were received is not available. The indicator of
energy assistance identifies households that received assistance in any month of the year, and receipt of gas
vouchers identifies households for which an individual present in the household was eligible for and
received assistance in the last month of the reference period. The housing benefit is an indicator of receipt
of housing vouchers for the given month. For general reference, see the following publications, in addition
to the cited sources in the preceding footnotes: Carmen DeNavas-Walt and Bernadette D. Proctor, U.S.
Census Bureau, Current Population Reports: Income and Poverty in the United States: 2013, No. P60-249
(2014); Kayla Fontenot, Lewis H. Warren, and Abinash Mohanty, U.S. Census Bureau, Current Population
Reports: Monthly and Average Monthly Poverty Rates by Selected Demographic Characteristics: 2013,
No. P70BR-145 (2017).
120
The U.S. Census Bureau uses the terms native and native-born to refer to anyone born in the United
States, Puerto Rico, a U.S. Island Area (American Samoa, Guam, the Commonwealth of the Northern
Mariana Islands, or the U.S. Virgin Islands), or abroad of a U.S. citizen parent or parents. The foreign-born
population includes anyone who is not a U.S. citizen at birth. This includes naturalized U.S. citizens, lawful
permanent residents (immigrants), temporary migrants (such as foreign students), humanitarian migrants
(such as refugees and asylees), and unauthorized migrants. The U.S. Census Bureau collects data from all
foreign-born who participate in its censuses and surveys, regardless of legal status. Status on the public-use
files is limited to foreign-born status, U.S. citizenship, naturalization status, and an indicator of lawful
permanent resident status at entry, year of entry, and region of birth. Further status classification, such as
visa type, refugee and asylee status, and country of birth, are unavailable. See U.S. Census Bureau, About
Foreign-Born Population, https://www.census.gov/topics/population/foreign-born/about.html (last visited
Feb. 3, 2018).
121
Throughout this preamble, DHS cites studies, surveys, and its own data analysis of public benefits
programs, participation rates, poverty levels, and other variables. The purpose of this discussion is to
demonstrate how variables such as cash benefits, non-cash benefits, age, health, family considerations,
income, education, and skills are relevant to poverty levels, public benefit participation rates, and
ultimately prospective public charge determinations. In citing studies, surveys, and data analysis that
compare native-born to foreign-born individuals and households, DHS does not argue or infer that either
native-born or foreign-born individuals are more or less healthy, financially secure, impoverished,
educated, or skilled than each other.

49

15.1 percent (6,272,000) among foreign-born persons, while participation rates in SNAP
among native-born and foreign-born populations are 11.6 percent (31,308,000) and 8.7
percent (3,605,000), respectively. 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 Nationas social safety net, including with
respect to the foreign-born population generally.
Table 2: Public Benefit Participation by Nativity, 2013 (in thousands)122
Total population

Native-born

Foreign-born

Population
310,867
Total
Pct.
10,799
3.5%

S.E.
0.1%

% of Total
Population Population
269,413
86.7%
Total
Rate S.E.
9,285
3.4% 0.1%

% of Total
Population
Population
41,454
13.3%
Total
Rate
S.E.
1,514
3.7%
0.3%

7,906
2,254
947

2.5%
0.7%
0.3%

0.1%
0.0%
0.0%

6,590
2,124
844

2.4%
0.8%
0.3%

0.1%
0.0%
0.0%

1,316
130
*103

3.2%
0.3%
*0.2%

0.3%
0.1%
0.1%

Non-cash
ben.
Medicaid

68,987

0.2%

59,578

9,408

22.7%

0.7%

0.2%

43,301

0.2%

6,272

15.1%

0.6%

34,913

0.2%

31,308

0.2%

3,605

8.7%

0.4%

WIC
Housing
Rent
Subsidy
Energy
Assist.

6,449
4,932
12,431

0.1%
0.1%
0.1%

5,848
4,215
10,455

22.1
%
16.1
%
11.6
%
2.2%
1.6%
3.9%

0.2%

SNAP

22.2
%
15.9
%
11.2
%
2.1%
1.6%
4.0%

0.1%
0.1%
0.1%

601
718
1,976

1.4%
1.7%
4.8%

0.2%
0.2%
0.3%

14,922

4.8%

0.1%

13,244

4.9%

0.1%

1,679

4.1%

0.3%

Program
Cash
benefits
SSI
TANF
GA

49,573

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

Tables 3 and 4 show a more detailed analysis of the welfare participation data for
foreign-born persons. Although the definition of foreign-born includes naturalized
citizens and lawful permanent residents, for these groups, the data evince a similar
pattern: greater non-cash program participation than cash program participation. Table 3
122

Public Benefit program acronyms highlighted in this table and those that follow include Supplemental
Security Income (SSI), Temporary Assistance for Needy Families (TANF), General Assistance (GA),
Supplemental Nutrition Assistance Program (SNAP), and Special Supplemental Nutrition Program for
Women, Infants, and Children (WIC).

50

also reflects that naturalized citizens were less likely to receive non-cash benefits (20.6
percent) compared to foreign-born who had not naturalized (24.9 percent) and were more
likely to receive cash benefits (5.4 percent) than those who had not naturalized (1.8
percent).
Table 3: Public Benefit Participation of Foreign-Born, by
Citizenship, 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits
SSI

Naturalized
% of Total
Population Population
21,291
6.8%
Total
Rate
S.E.
1,144
5.4%
0.5%

Not naturalized
% of Total
Population
Population
20,163
6.5%
Total
Rate
S.E.
370
1.8%
0.3
%
254
1.3%
0.2
%
73
0.4%
0.1
%
47
0.2%
0.1
%

1,062

5.0%

0.5%

TANF

57

0.3%

0.1%

GA

56

0.3%

0.1%

4,377

20.6%

0.9%

5,031

24.9%

Medicaid

3,142

14.8%

0.8%

3,130

15.5%

SNAP

1,776

8.3%

0.6%

1,828

9.1%

WIC

151

0.7%

0.2%

450

2.2%

Housing

431

2.0%

0.3%

287

1.4%

1,107

5.2%

0.5%

869

4.3%

Non-cash ben.

Rent Subsidy

Energy
910
4.3%
0.5%
769
3.8%
Assist.
Source: USCIS analysis of Wave 1 of the 2014 SIPP.
* Estimate is considered unreliable due to a high relative standard error.
- Estimate of zero

0.9
%
0.8
%
0.6
%
0.3
%
0.3
%
0.4
%
0.4
%

Table 4 reflects that foreign-born lawful permanent residents showed comparable
rates of program participation as the native-born population and overall foreign-born
population. For example, 3.8 percent of lawful permanent residents received cash
benefits and 23.1 percent received non-cash benefits. These results cover both
naturalized citizens and other foreign-born individuals.

51

Table 4: Pubic Benefit Participation of Foreign-Born, by
Class of Admission to the U.S. (Lawful Permanent Resident
or Other), 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

LPR
% of Total
Population Population
26,170
8.4%
Total
Rate
S.E.
1,004
3.8%
0.4%

SSI

854

3.3%

0.3%

TANF

109

0.4%

0.1%

GA

69

0.3%

0.1%

6,041

23.1%

0.8%

Non-cash ben.

Other
% of Total
Population
Population
15,283
Total
Rate
S.E.
510
3.3%
0.4
%
462
3.0%
0.4
%
21
0.1%
0.1
%
35
0.2%
0.1
%
3,367

22.0%

1.0
%
Medicaid
4,116
15.7% 0.7%
2,155
14.1%
0.9
%
SNAP
2,292
8.8%
0.6%
1,313
8.6%
0.7
%
WIC
336
1.3%
0.2%
265
1.7%
0.3
%
Housing
453
1.7%
0.3%
264
1.7%
0.3
%
Rent Subsidy
1,274
4.9%
0.4%
702
4.6%
0.5
%
Energy
1,167
4.5%
0.4%
512
3.4%
0.4
Assist.
%
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

In short, the data from Tables 2 through 4 show that for native-born and foreignborn populations alike, non-cash public benefits play a significant role in many peoplesa
lives. DHS does not believe it is appropriate to set aside such benefits in its public charge
analyses. DHS, therefore, proposes to consider cash and non-cash public benefits that are
means-tested or otherwise used to meet basic living requirements.

52

4. Government
DHS is proposing to define agovernmenta as any U.S. Federal, State, Territorial,
tribal, or local government entity or entities.123 The term government is generally used in
the regulation to refer to the source of public benefits. Specifically, DHS may review any
public benefits from any government entity, as permitted by law.
5. Subsidized Health Insurance
DHS is also proposing to define subsidized health insurance for the purposes of
public charge determinations. DHS proposes to define subsidized health insurance as any
health insurance for which the premiums are partially or fully paid by a government
agency, on a non-earned basis, including but not limited to, advanced premium tax
credits, tax credits, or other forms of reimbursement.124 Subsidized health insurance may
include non-emergency benefits under Medicaid, CHIP, and health insurance under the
Patient Protection and Affordable Care Act (ACA) that has a premium tax credit or costsharing subsidy.125
C. Public Charge Inadmissibility Determination
DHS proposes codifying the public charge inadmissibility determination as a
prospective determination. Except for the absence of a required affidavit of support, DHS
intends to base a public charge inadmissibility determination on the totality of an alienas
circumstances at the time the determination is made.
1. Prospective Determination

123

See proposed 8 CFR 212.21(c).
See generally, Health Care.gov, Subsidized Coverage, available at
www.healthcare.gov/glossary/subsidized-coverage.
125
See section V. Discussion, subsection E, Health. Information on whether the health insurance has a
subsidy is available through Form 1095-A, Health Insurance Marketplace Statement.
124

53

Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), uses the words alikely at any
time.a126 It is consistent with the plain language of the statute that the review is forward
looking. DHSas review, then, would be predictive: an assessment of an alienas likelihood
at any time in the future to become a public charge.127
2. Absence of a Required Affidavit of Support
The absence of a statutorily required affidavit of support under section 213A of
the INA, 8 U.S.C. 1183a, conclusively establishes an alienas inadmissibility on public
charge grounds.128 Family-sponsored immigrants and employment-based immigrants
petitioned by a relative are subject to such a requirement.129
Section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), also permits DHS to consider
any submitted affidavit of support under 213A of the INA, 8 U.S.C. 1183a, in public
charge inadmissibility determinations. Other than failure to submit an affidavit of
support when required under section 213A of the INA, 8 U.S.C. 1183a, DHS would not
make a public charge determination based on any single factor.130
3. Totality of Circumstances
DHS proposes to codify the totality of the circumstances standard.131 Since
IIRIRA, a public charge inadmissibility determination has entailed consideration of the
following statutory factors: an alienas age, health, family status, assets, resources,
financial status, education, skills, and sponsorship.132 Courts previously considered

See id. The alikelya language in the public charge inadmissibility provision also appeared in the initial
codification in the INA of 1952. See Pub. L. 4-14, 66 Stat. 163, 183 (June 27, 1952).
127
See Matter of Perez, 15 I&N Dec. 136 (BIA 1974)
128
See INA section 212(a)(4)(C), 8 U.S.C. 1182(a)(4)(C); 8 CFR 213a.2.
129
See INA section 212(a)(4), 8 U.S.C. 1182(a)(4), and INA section 213A, 8 U.S.C. 1183a.
130
See generally Matter of Martinez-Lopez, 10 I&N 409, 421-422 (A.G. 1964).
131
See proposed 8 CFR 212.22(a) and 212.22(b).
132
See Pub. L. 104a208 (September 30, 1996). See also INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).
126

54

similar factors when evaluating the likelihood of an alien to become a public charge.133
INS and DHS have consistently reviewed the totality of the circumstances in determining
whether an alien is likely to become a public charge.134
DHSas proposed standard would involve weighing all the positive and negative
considerations related to an alienas age, health, family status, assets and resources,
financial status, education and skills, any required affidavit of support, and any other
factor or circumstance that may warrant consideration in the determination. 135 DHS
would also consider the alienas immigration status as part of this determination.
DHS proposes that certain factors and circumstances would carry heavy weight,
as discussed below. Otherwise, the weight given to an individual factor would depend on
the particular facts and circumstances of each case and the relationship of the factor to
other factors in the analysis. For negative factors, some facts and circumstances may be
mitigating while other facts and circumstances may be aggravating. Any factor or
circumstance that decreases the likelihood of an applicant becoming dependent on public
benefits is mitigating. Similarly, any factor or circumstance that increases the likelihood
of an applicant becoming dependent on public benefits is aggravating. Multiple factors
operating together may be weighed more heavily since those factors in tandem may show
that that the alien may already be a public charge, he or she is likely to become a public
charge, or he or she is not likely to be public charge.
For example, an alienas assets, resources, and financial status together would

133

See, e.g., Matter of Perez, 15 I&N Dec. 136 (BIA 1974). See also, Zambrano v. INS, 972 F.2d 1122 (9th
Cir. 1992), judgment vacated on other grounds, 509 U.S. 918 (1993). See also, 64 FR 28689 (May 26 1999;
Matter of Martinez-Lopez, 10 I&N at 421-422.
134
See Matter of A-, 19 I&N Dec. 867, 869 (BIA 1988) (citing Matter of Perez, 15 I&N Dec. at 137.)
135
See proposed 8 CFR 212.22.

55

frequently carry the most weight, because they are the most tangible factors to consider in
public charge determinations. An alienas assets, resources, and financial status examined
together may show that the alien is not likely to be a public charge despite concerns about
the alienas age, education, skills, and health. At the same time, an alienas assets,
resources, and financial status examined together may show that the alien is likely to
become a public charge despite positive attributes associated with the alienas education,
skills, health, family status, age, and sponsorship.
Ultimately, if the positive factors and circumstances outweigh the negative factors
and circumstances, then DHS would find that the alien is not likely to become a public
charge. If the negative factors and circumstances outweigh the positive factors and
circumstances, then DHS would conclude that the applicant is likely to become a public
charge.
D. Age
An alienas age is a mandatory factor that must be considered when making a
public charge determination.136 As discussed below, a personas age may impact his or
her ability to legally or physically work or otherwise be self-sufficient, and is therefore
relevant to the public charge determination. Accordingly, DHS proposes to consider the
alienas age in relation to employment primarily, and other factors as relevant to the public
charge determination. Specifically, DHS proposes to assess whether the alien is between
the minimum age for full-time employment (see, e.g., 29 U.S.C. 213(c)) and the
minimum aearly retirement agea for social security purposes (see 42 U.S.C. 416(l)(2))
(between 18 and 61 as of 2017), and whether the alienas age otherwise makes the alien

136

See proposed 8 CFR 212.22(b)(1). See INA section 212(a)(4)(B), 8 U.S.C. 1182(a)(4)(B).

56

more or less likely to become a public charge, such as by impacting alienas ability to
work.
The 18 through 61 age range is based on the age at which 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.137 At one end of the
spectrum, children under the age of 18 years generally face difficulties working full
time.138 In general, the Fair Labor Standards Act generally sets 14 years of age as the
minimum age for employment, and limits the number of hours worked by children until
the age of 16.139 Most children under the age of 18 are full-time students and most States
require children to attend school.140
At the other end of the age range, full retirement is the age at which a person may
receive full retirement benefits from Social Security.141 The minimum age for retirement
is generally 62.142 Under the Social Security program, a U.S. worker is generally eligible
for Social Security benefits if he or she has paid social security taxes after having worked
at least 10 years during which he or she has earned 40 quarters of credit for income. In
addition, as people age, they may become eligible for other earned or paid for benefits,
including Medicare and benefits from an employer pension or retirement benefit.
Other age-related considerations may also be relevant to public charge

137

See proposed 8 CFR 212.22(b)(1). See 29 U.S.C. 213(c) and 42 U.S.C. 416(l)(2).
See 29 U.S.C. 213(c), and 29 CFR Part 570. See also Department of Labor, Table of Employment/Age
Certification Issuance Practice Under State Child Labor Laws,
https://www.dol.gov/whd/state/certification.htm (last visited Feb. 3, 2018).
139
See id.
140
See National Center for Education 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.
141
See 42 U.S.C. 417(l). See also SSA, Retirement Planner: Benefits By Year of Birth, available at
https://www.ssa.gov/planners/retire/agereduction.html.
142
See id.
138

57

inadmissibility determinations, in individual circumstances. Individuals under the age of
18 may be more susceptible to and more likely to use and receive public benefits. The
U.S. Census Bureau reported that 18 percent of persons under the age of 18 (13,253,000)
lived below the poverty level in 2016.143 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. In an average month during 2012, 39.2 percent of children received
some type of means-tested benefit.144 Some benefits may only be available for people
under the age of 18. For example, children are the primary beneficiaries of CHIP, which
provides low-cost health coverage for children in families that earn too much money to
qualify for Medicaid.145

143

See U.S. Census Bureau, Income and Poverty in the United States: 2016, Table 3. People in Poverty by
Selected Characteristics: 2015 and 2016, available at
https://www.census.gov/content/dam/Census/library/publications/2017/demo/P60-259.pdf (last visited Feb.
3, 2018).
144
According to U.S. Census, persons under the age of 18 were more likely to receive means-tested
benefits than all other age groups. In an average month during 2012, 39.2 percent of children received
some type of means-tested benefit, See Shelley K. Irving and Tracy A. Loveless, U.S. Census Bureau,
Household Economic Studies, Dynamics of Economic Well-Being: Participation in Government Programs,
2009a2012: Who Gets Assistance?, at 6 (May 2015), available at
https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf (last visited Feb.
3, 2018). 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) https://www.census.gov/newsroom/pressreleases/2015/cb15-97.html (last visited Feb. 3, 2018).
145
See 42 CFR Part 457; see also U.S. Centers for Medicare & Medicaid, The Children's Health Insurance
Program (CHIP), https://www.healthcare.gov/medicaid-chip/childrens-health-insurance-program (last
visited Feb. 3, 2018).

58

The relationship between advanced age and receipt of public benefits, however, is much
less clear. DHSa analysis of SIPP data in Tables 4 and 5 shows foreign-born individuals
age 62 and older were more likely to receive or use cash benefits than individuals in
other age groups in 2013. 15.4 percent of foreign-born persons age 62 and older received
or used some form of cash benefit in 2013 compared to 1 to 2 percent of foreign-born in
other age groups. Among foreign-born persons, the receipt of non-cash benefits was
much more pronounced among individuals over the age of 61 (29.9 percent) than
individuals aged 18-61 (19.7 percent), particularly with respect to Medicaid and SNAP
participation rates.Table 5 Public Benefit Participation Among Native-Born by Age,
2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

0-17
% of Total
Population Population
67,885
21.8%
Total
Pct.
S.E.
2,707
4.0%
0.2%

18-61
% of Total
Population Population
151,990
48.9%
Total
Rate
S.E.
5,018
3.3%
0.1%

62+
% of Total
Population
Population
49,538
15.9%
Total
Rate
S.E.
1,561
3.2%
0.2
%
1,480
3.0%
0.2
%
11
0.0%
0.0
%
123
0.2%
0.1
%

SSI

1,005

1.5%

0.1%

4,105

2.7%

0.1%

TANF

1,556

2.3%

0.2%

558

0.4%

0.0%

240

0.4%

0.1%

480

0.3%

0.0%

28,129

41.4%

0.5%

25,835

17.0%

0.3%

5,614

11.3%

Medicaid

24,927

36.7%

0.5%

15,348

10.1%

0.2%

3,025

6.1%

SNAP

14,043

20.7%

0.4%

14,793

9.7%

0.2%

2,473

5.0%

WIC

4,184

6.2%

0.3%

1,663

1.1%

0.1%

1

0.0%

Housing

1,777

2.6%

0.2%

2,108

1.4%

0.1%

330

0.7%

Rent Subsidy

3,857

5.7%

0.3%

5,173

3.4%

0.1%

1,425

2.9%

GA

Non-cash ben.

Energy
4,863
7.2%
0.3%
6,526
4.3%
0.2%
1,855
3.7%
Assist.
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

0.4
%
0.3
%
0.3
%
0.0
%
0.1
%
0.2
%
0.2
%

Table 6 Public Benefit Participation among Foreign-Born by Age, 2013 (in
thousands)
Total
Population
310,867

0-17
% of Total
Population Population
2,509
0.8%

18-61
% of Total
Population Population
32,074
10.3%

59

62+
Population
6,871

% of Total
Population
2.2%

Program
Cash benefits

Total
37

Pct.
1.5%

S.E.
0.7%

Total
419

Rate
1.3%

S.E.
0.2%

Total
1,057

Rate
15.4%

-

-

-

281

0.9%

0.2%

1,035

15.1%

37
-

1.5%
-

0.7%
-

93
59

0.3%
0.2%

0.1%
0.1%

44

0.6%

1,039

41.4%

2.9%

6,314

19.7%

0.7%

2,055

29.9%

Medicaid

890

35.5%

2.8%

3,859

12.0%

0.6%

1,522

22.2%

SNAP

373

14.9%

2.1%

2,284

7.1%

0.5%

947

13.8%

WIC

40

1.6%

0.7%

556

1.7%

0.2%

6

0.1%

Housing

75

3.0%

1.0%

397

1.2%

0.2%

246

3.6%

Rent Subsidy

163

6.5%

1.5%

1,128

3.5%

0.3%

685

10.0%

155

6.2%

1.4%

1,144

3.6%

0.3%

380

5.5%

SSI
TANF
GA

Non-cash ben.

Energy
Assist.

S.E.
1.4
%
1.4
%
0.3
%
1.8
%
1.6
%
1.3
%
0.1
%
0.7
%
1.1
%
0.9
%

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

Regardless of age, DHS recognizes that an alien may have financial assets,
resources, earned benefits or support that decrease his or her likelihood of becoming a
public charge.146
E. Health
An alienas health is a factor that must be considered when making a public charge
determination.147 Prior to Congress establishing health as a factor for the public charge
determination, courts, the BIA and INS had also held that a personas physical and mental
condition was of major significance to the public charge determination, generally in

For example, a person or the personas spouse may have sufficient income, or savings, investments, or
other resources. In addition, as people age, they may become eligible for certain earned benefits including
Social Security benefits, Old Age, Survivors, and Disability Insurance benefits, health insurance from
Medicare, and benefits from an employer pension or retirement benefit.
147
See proposed 8 CFR 212.22(b)(2). See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
146

60

relation to the ability to earn a living.148 Accordingly, DHS proposes that when
considering an alienas health, DHS will consider whether the alien has any medical
condition, and whether such condition makes it more or less likely that the alien will
become a public charge, including whether the alienas ability to work is affected by the
medical condition, or has non-subsidized health insurance or the assets and resources to
pay for medical costs. The mere presence of a medical condition would not necessarily
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 alienas
ability to work, as well as whether the alien has unsubsidized health insurance or the
financial resources to pay for the medical costs, among other relevant considerations.
Research and data establish 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 2015.149 Medicaid spending,
which is 17 percent of the total NHE, grew by 3.9 percent to $565.5 billion. 150 The
Federal Government (28.3 percent) and households (28.1 percent) paid the largest shares
of total health spending.151
An alienas medical conditions may impose costs that a person is unable to afford,
and may also reduce that personas ability to work or financially support him or herself.
Such medical conditions may also increase the likelihood that the alien could need

148

See, e.g., Matter of Martinez-Lopez, 10 I&N Dec. at 421a423; see also Matter of A-, 19 I&N Dec. at
869 (citing Matter of Harutunian, 14 I&N Dec. 583 (R.C. 1974); Matter of Vindman, 16 I&N Dec. 131
(R.C. 1977)).
149
See U.S. Centers for Medicare & Medicaid Services, NHE Fact Sheet, available at
https://www.cms.gov/research-statistics-data-and-systems/statistics-trends-andreports/nationalhealthexpenddata/nhe-fact-sheet.html (last visited Feb. 3, 2018).
150
See id.
151
See id.

61

Medicaid or other government funded health insurance programs. However, DHS
recognizes that regardless of the alienas health status, the alien may have financial assets,
resources, or support, including private health insurance, that allows him or her to be selfsufficient.152
DHS also recognizes that the Rehabilitation Act of 1973 and other laws prevent
discrimination by employers and others against individuals with disabilities.153 In
another context, Congress has stated that a[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.a154
Individuals and aliens with disabilities make substantial contributions to the American
economy. In addition, while some disabilities are related to medical conditions that
require ongoing medical care, others conditions may not require ongoing medical care.
Nevertheless, an alienas inability to work due to a medical condition could keep
the alien from being self-sufficient, and failure to maintain health insurance could make it
particularly difficult for aliens with medical conditions to remain self-sufficient. In
addition, long-term health care expenses could decrease an individualas available
financial resources.

152

For example, a person may have savings, investments or trust funds.
Rehabilitation Act of 1974, Pub. L. 93-112, ASS 504, codified as amended at 29 U.S.C. ASS 794 (prohibiting
employment discrimination solely on the basis of disability in Federal and federally-funded programs and
activities); Americans with Disabilities Act of 1990, Pub. L. 101-336, ASS 102, 104 Stat. 331, codified as
amended at 42 U.S.C. ASS 12112 (prohibiting several forms of disability discrimination in hiring for covered
entities). In addition, State and Federal law prohibiting many forms of discrimination against persons with
disabilities in the workplace helps ensure that mere disability, on its own, does not represent an adverse
factor in predicting an individualas ability to earn a sufficient income to support himself or herself and any
dependents.
154
See 29 U.S.C. 701.
153

62

1. USCIS Evidentiary Requirements
DHS also proposes that USCIS will consider the following types of evidence, at a
minimum, as part of the health factor: (1) any Report of Medical Examination and
Vaccination Record (Form I-693) or Medical Examination For Immigrant or Refugee
Applicant (Form DS-2054) submitted in support of the application for the diagnosis of
any medical conditions; (2) evidence of non-subsidized health insurance; and (3)
evidence of assets and resources.
(i) Medical Conditions Identified in Medical Examination
DHS proposes that USCIS would assess the alienas health for purposes of the
public charge determination based on a civil surgeonas findings in a Form I-693 or a
panel physicianas findings in a Form DS-2054 and any related documents, where such
forms are otherwise required for the immigration benefit that the person seeks.155
Requiring USCIS to base its public charge inadmissibility determination on these forms
would help standardize USCISas application of this factor.
Civil surgeons and panel physicians test for Class A156 and Class B157 medical
conditions, and report the findings on the appropriate medical examination form. Class A
medical conditions as defined in HHS regulations include the following:158

155

Most applicants need a medical examination and vaccination record with their immigrant visa or
adjustment of status application to establish that they are not inadmissible under section 212(a)(1) of the
INA. 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. 155 Class A and Class
B medical conditions are defined in the HHS regulations. See 42 CFR 34.2.
156
The alien would be inadmissible for health-related grounds under section 212(a)(1) of the INA, 8 U.S.C.
1182(a)(1).
157
Class B medical conditions do not make an alien inadmissible on health-related grounds under section
212(a)(1) of the INA, 8 U.S.C. 1182(a)(1), but are relevant to the public charge determination.
158
See 42 CFR 34.2(d). The alien would be inadmissible based on health-related grounds under section
212(a)(1) of the INA, 8 U.S.C. 1182(a)(1). However, these health conditions are also considered as part of
the public charge inadmissibility determination.

63

aC/

Communicable disease of public health significance, including gonorrhea, leprosy
(infectious), syphilis (infectious stage), and active tuberculosis;159

aC/

Failure to meet vaccination requirements;160

aC/

Present or past physical or mental disorders with associated harmful behavior or
harmful behavior that is likely to recur;161 and

aC/

Drug abuse or addiction.162
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.163 Because Class A medical
conditions are part of the immigration medical examination and may also be waived,
DHS proposes to consider Class A medical conditions as part of the alienas health factor
in the totality of the circumstances.
A Class B medical condition is defined as: a physical or mental disorder that,
although 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
personas ability to care for him- or herself, to attend school or work, or that may require
extensive medical treatment or institutionalization in the future.164 The civil surgeon or
panel physician must indicate if the alien has a Class B medical condition that amounts to

159

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).
See 42 CFR 34.2(d). See also, INA section 212(a)(1)(ii), 8 U.S.C. 1182(a)(1)(ii).
161
See 42 CFR 34.2(d). See also, INA section 212(a)(1)(iii), 8 U.S.C. 1182(a)(1)(iii).
162
See 42 CFR 34.2(d), (h), (i). See also, INA section 212(a)(1)(iv), 8 U.S.C. 1182(a)(1)(iv).
163
See INA section 212(g)(1), 8 U.S.C. 1182(g)(1); INA section 212(a)(1)(A)(i), 8 U.S.C.
1182(a)(1)(A)(i). 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.
164
See also Technical Instructions for Panel Physicians and Civil Surgeons, available at
https://www.cdc.gov/immigrantrefugeehealth/exams/ti/civil/technical-instructions/civil-surgeons/medicalhistory-physical-examination.html. See also, 42 CFR 34.2.
160

64

a substantial departure from normal well-being.165 Further, the civil surgeon or panel
physician must indicate the likelihood, that because of the condition, the alien will
require extensive medical care or institutionalization.166
Because Class A and Class B medical conditions are part of the immigration
medical examination and may decrease an alienas ability to work, DHS proposes to
consider these conditions as part of the alienas health factor in the totality of the
circumstances. The diagnosis on Form I-693 or DS-2054 of a Class A medical condition
and other Class B medical conditions may be considered in the totality of the
circumstances but would not serve as the sole factor considered in a public charge
inadmissibility determination. Absence of a diagnosis of either a Class A or Class B
medical condition is a positive factor.
A person with a medical condition may have increased costs associated with
medical care; these costs can strain assets and resources and increase the likelihood that
the person will require public benefits such as Medicaid or other subsidized health
insurance.167
Accordingly, DHS proposes to utilize any findings in the Form I-693 or Form DS2054, specifically Class A or Class B medical conditions, to evaluate health in the totality
of the circumstances. The presence or absence of a medical condition will not receive
any particular weight, except insofar as it pertains to estimated ability to work or to
estimated health care needs. Conversely, DHS proposes that the absence of any Class A
or Class B medical conditions would generally be a positive factor in the totality of the

165

See 42 CFR 34.2(b)(2).
See 42 CFR 34.2(c).
167
In addition, a person may be eligible for Supplemental Security Income (SSI).
166

65

circumstances. DHS also proposes to take into consideration any additional medical
records or related information provided by the alien to clarify any health condition or
health risk included on the medical form or other information that may outweigh any
negative factors. Documentation may include proof of health insurance, sufficient funds
to cover the costs of medical treatment, and a licensed doctor's attestation of prognosis
and treatment of a health issue.
(ii) Non-Subsidized Health Insurance
DHS also proposes that USCIS would consider evidence of whether an alien has
health insurance as part of the health factor for public charge inadmissibility
determinations. Health insurance helps cover the cost of health care. Absent other
considerations, a person who has medical conditions or disabilities and lacks
unsubsidized health insurance is more likely to need public benefits to cover health costs.
Therefore, absent financial resources to cover the costs of medical care and treatment, the
lack of unsubsidized health insurance is a negative factor in the totality of the
circumstances, while having unsubsidized health insurance is a positive factor.168
Subsidized health insurance, as defined in proposed 8 CFR 212.21, may include
non-emergency benefits under Medicaid, CHIP, and health insurance under the ACA that
has a premium tax credit or cost-sharing subsidy. Some aliens are currently able to
obtain subsidized health insurance.169 The ACA also provides a Basic Health Program

168

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). See HHS, Office of the Assistant Secretary for Planning and 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-1immigration-status (last visited Feb. 20, 2018).
169
See U.S. Census Bureau, Health Insurance Coverage in the United States: 2016 Current Population
Reports (Sept. 2017), available at

66

coverage option for lawfully present non-citizens who do not qualify for Medicaid, CHIP,
or other minimum essential coverage, but who have an income between 133 and 200
percent of the federal poverty level (FPL).170 In addition, certain aliens are eligible for
Medicaid or CHIP coverage or for exchange subsidies under the ACA and are permitted
to purchase unsubsidized coverage through the exchange.171 While having health
insurance is generally a positive factor in the totality of the circumstances, having
subsidized insurance will generally be considered a heavily weighed negative factor.
Health insurance helps cover the cost of health care. Therefore, DHS proposes
that USCIS would consider whether an alien has non-subsidized health insurance as part
of the health factor for public charge determinations. Lack of health insurance would be
a negative factor in the totality of the circumstances for any person, while having nonsubsidized health insurance would be a positive factor for a person with a medical
condition.

F. Family Status

An applicantas family status is a factor that must be

considered when an immigration officer is making a public charge determination.172
DHS proposes that when considering this factor, DHS will consider whether the alien
being a dependent or having dependent(s), as defined in 8 CFR 212.21, makes it more or
less likely that the alien will become a public charge. DHS notes that it would frequently

https://www.census.gov/content/dam/Census/library/publications/2017/demo/p60-260.pdf (last visited Feb.
20, 2018).
170
See generally U.S. Centers for Medicare and Medicaid Services, Basic Health Program Funding
Methodology Final Notice CMS.gov Centers for Medicare & Medicaid Services (Feb. 19, 2015), available
at https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2015-Fact-sheets-items/Archived2015-Fact-sheets-items/2015-02-19-Old.html (last visited Feb. 20, 2018).
171
See HHS, Office of The Assistant Secretary for Planning and Evaluation, The Affordable Care Act:
Coverage Implications and Issues for Immigrant Families (Apr. 30, 2012), available at
https://aspe.hhs.gov/pdf-report/affordable-care-act-coverage-implications-and-issues-immigrant-families
(last visited Feb. 20, 2018). See also U.S. Centers for Medicare and Medicaid Services, Serving Special
Populations: Immigrants Fast Facts for Agents & Brokers (undated) available at
https://www.cms.gov/CCIIO/Programs-and-Initiatives/Health-InsuranceMarketplaces/Downloads/Immigration-Fact-Sheet.pdf (last visited Feb. 20, 2018).
172
See proposed 8 CFR 212.22. See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).

67

view family status in connection with the alienas assets and resources, because the
amount of assets and resources necessary to support a larger number of dependents is
generally greater. Thus, as described in the Assets and Resources section below, DHSas
proposed standard for evaluating assets and resources requires DHS to consider whether
the alien can support him or herself and any dependents as defined in 8 CFR 212.21, at
the level of at least 125 percent of the most recent Federal Poverty Guidelines (FPG)
based on the household size.
The FPG do not define who should be part of the household as different agencies
and programs have different requirements.173 For the purposes of the FPG, the apoverty
thresholda is the original federal poverty measure as defined by the U.S. Census
Bureau.174 The poverty threshold is adjusted to take into account family size, number of
children, and age of the family householder (head of household) or unrelated
individual.175
For the purpose of public charge inadmissibility determinations, the household an
alien would need to support includes the alien plus any dependents as provided in the
DHS proposed definition.176 An alien who has no dependents will have a household of 1
and only has to support him or herself.177 The research and data below discuss how the
number of dependents may affect the receipt of public benefits.

173

See Annual Update of the HHS Poverty Guidelines, 83 FR 2642 (Jan 18, 2018).
See U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal
Programs, available at https://aspe.hhs.gov/poverty-guidelines.
175
See Current Population Survey 2017 Annual Social and Economic (ASEC) Supplement, available at
https://www2.census.gov/programs-surveys/cps/techdocs/cpsmar17.pdf.
176
See proposed 8 CFR 212.21(b).
177
An alien who is someone elseas dependent will have to demonstrate that the alienas head of household or
a sponsor can support the alien.
174

68

The FPG do not define who should be part of the household as different agencies
and programs have different requirements.178 For the purposes of the FPG, the apoverty
thresholda is the original federal poverty measure as defined by the U.S. Census
Bureau.179 The poverty threshold is adjusted to take into account family size, number of
children, and age of the family householder (head of household) or unrelated
individual.180
For the purpose of public charge inadmissibility determinations, the household an
alien would need to support includes the alien plus any dependents as provided in the
DHS proposed definition.181 An alien who has no dependents will have a household of 1
and only has to support him or herself.182 The research and data below discuss how the
number of dependents may affect the receipt of public benefits.
Tables 7 and Table 8 show that among both the native-born and foreign-born
populations, the receipt of non-cash benefits tended to increase as family size increased in
2013. Among the native-born population, individuals in families with 3 or 4 persons
were more likely to receive non-cash benefits compared to families of 2, while families
of 5 or more were over twice as likely to receive non-cash benefits. Among the foreignborn in families with 3 or 4 people, about 20 percent received non-cash assistance, while
about 30 percent of foreign-born families of 5 or more received non-cash benefits.

178

See Annual Update of the HHS Poverty Guidelines, 83 FR 2642 (Jan. 18, 2018).
See U.S. Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal
Programs, available at https://aspe.hhs.gov/poverty-guidelines.
180
See Current Population Survey 2017 Annual Social and Economic (ASEC) Supplement, available at
https://www2.census.gov/programs-surveys/cps/techdocs/cpsmar17.pdf.
181
See proposed 8 CFR 212.21(b).
182
An alien who is someone elseas dependent will have to demonstrate that the alienas head of household or
a sponsor can support the alien.
179

69

Table 7. Public Benefit Participation of Native-Bborn, by Family Size, 2013 (in
thousands)
Total
Population
310,867
Program
Cash benefits
SSI

Household of 1
% of Total
Population Population
55,887
18.0%
Total
Pct.
S.E.
2,743
4.9%
0.3%

Household of 2
% of Total
Population Population
71,080
22.9%
Total
Rate
S.E.
1,848
2.6%
0.2%

Household of 3
% of Total
Population
Population
47,282
15.2%
Total
Rate
S.E.
1,802
3.8%
0.3
%
1,156
2.4%
0.2
%
530
1.1%
0.1
%
185
0.4%
0.1
%

2,479

4.4%

0.3%

1,427

2.0%

0.2%

TANF

80

0.1%

0.0%

269

0.4%

0.1%

GA

261

0.5%

0.1%

192

0.3%

0.1%

10,894

19.5%

0.5%

9,615

13.5%

0.4%

11,080

23.4%

Medicaid

6,088

10.9%

0.4%

6,436

9.1%

0.3%

8,386

17.7%

SNAP

5,709

10.2%

0.4%

4,865

6.8%

0.3%

5,885

12.4%

WIC

247

0.4%

0.1%

780

1.1%

0.1%

1,219

2.6%

Housing

927

1.7%

0.2%

611

0.9%

0.1%

883

1.9%

3,125

5.6%

0.3%

1,842

2.6%

0.2%

1,908

4.0%

2,882

5.2%

0.3%

2,540

3.6%

0.2%

2,455

5.2%

Non-cash ben.

Rent Subsidy
Energy
Assist.
Total
Population
310,867
Program
Cash benefits
SSI
TANF
GA
Non-cash ben.
Medicaid
SNAP
WIC
Housing
Rent Subsidy
Energy
Assist.

Household of 4
% of Total
Population Population
49,861
16.0%
Total
Pct.
S.E.
1,253
2.5%
0.2%
633
1.3%
0.1%
579
1.2%
0.1%
80
0.2%
0.1%

Household of 5+
% of Total
Population Population
45,303
14.6%
Total
Rate
S.E.
1,639
3.6%
0.3%
894
2.0%
0.2%
665
1.5%
0.2%
124
0.3%
0.1%

11,161
8,882
5,667
1,459
742
1,567
2,176

16,829
13,510
9,182
2,143
1,052
2,013
3,190

22.4%
17.8%
11.4%
2.9%
1.5%
3.1%
4.4%

0.5%
0.5%
0.4%
0.2%
0.2%
0.2%
0.3%

70

37.1%
29.8%
20.3%
4.7%
2.3%
4.4%
7.0%

0.6%
0.6%
0.5%
0.3%
0.2%
0.3%
0.3%

0.6
%
0.5
%
0.4
%
0.2
%
0.2
%
0.3
%
0.3
%

Table 8. Public Benefit Participation of Foreign-Born, by Family Size, 2013 (in
thousands)
Total
Population
310,867
Program
Cash benefits
SSI

Household of 1
% of Total
Population Population
6,959
2.2%
Total
Pct.
S.E.
425
6.1%
0.9%

Household of 2
% of Total
Population Population
8,681
2.8%
Total
Rate
S.E.
454
5.2%
0.8%

Household of 3
% of Total
Population
Population
7,646
2.5%
Total
Rate
S.E.
233
3.0%
0.6
%
195
2.6%
0.6
%
21
0.3%
0.2
%
17
0.2%
0.2
%

394

5.7%

0.9%

424

4.9%

0.7%

TANF

7

0.1%

0.1%

25

0.3%

0.2%

GA

32

0.5%

0.3%

34

0.4%

0.2%

1,384

19.9%

1.5%

1,621

18.7%

1.4%

1,653

21.6%

Medicaid

838

12.0%

1.2%

1,044

12.0%

1.1%

1,081

14.1%

SNAP

611

8.8%

1.1%

581

6.7%

0.9%

509

6.7%

WIC

36

0.5%

0.3%

91

1.0%

0.4%

141

1.8%

Housing

128

1.8%

0.5%

205

2.4%

0.5%

104

1.4%

Rent Subsidy

541

7.8%

1.0%

537

6.2%

0.8%

280

3.7%

290

4.2%

0.7%

296

3.4%

0.6%

324

4.2%

Non-cash ben.

Energy
Assist.
Total
Population
310,867
Program
Cash benefits
SSI
TANF
GA

Household of 4
% of Total
Population Population
8,079
2.6%
Total
Pct.
S.E.
141
1.7%
0.5%
117
1.5%
0.4%
21
0.3%
0.2%
2
0.0%
0.1%

Household of 5+
% of Total
Population Population
10,090
3.2%
Total
Rate
S.E.
261
2.6%
0.5%
185
1.8%
0.4%
56
0.6%
0.2%
19
0.2%
0.1%

Non-cash ben.
1,638
20.3% 1.4%
3,112
30.8% 1.4%
Medicaid
1,160
14.4% 1.2%
2,149
21.3% 1.2%
SNAP
571
7.1%
0.9%
1,332
13.2% 1.0%
WIC
112
1.4%
0.4%
221
2.2%
0.4%
Housing
99
1.2%
0.4%
182
1.8%
0.4%
Rent Subsidy
212
2.6%
0.6%
406
4.0%
0.6%
Energy
330
4.1%
0.7%
439
4.3%
0.6%
Assist.
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

71

1.5
%
1.3
%
0.9
%
0.5
%
0.4
%
0.7
%
0.7
%

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 whether the alien being a
dependent or having dependent(s), as defined in 8 CFR 212.21, makes it more or less
likely that the alien will become a public charge.
G. Assets and Resources
An applicantas assets and resources must be considered in the public charge
inadmissibility determination.183 The more assets and resources an alien has, the more
self-sufficient the alien is able to be, and the less likely to use or receive public benefits.
Conversely, an alienas lack of assets, resources, or income may make an alien more likely
to use or receive public benefits. Accordingly, DHS proposes that when considering an
alienas assets and resources, DHS will consider whether the alien can support him or
herself and any dependents as defined in 8 CFR 212.21, at the level of at least 125
percent of the most recent Federal Poverty Guidelines based on the household size.
Assets and resources including through employment income is an important factor
in determining whether a person may use or receive public benefits in the future. Public
benefits, as defined in this proposed rule, are benefits that are either means-tested (i.e.,
dependent on assets, resources, and/or income) or intended to help the individual
beneficiary meet basic living requirements, such as housing, food, utilities, and medical
care. By definition, the alienas assets and resources are relevant to the alienas likelihood
to use or receive public benefits.

183

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

72

At a minimum, an alien should be able to support him or herself and any
dependents with assets, resources, or annual income equal to at least at 125 percent of the
FPG based on the household size.184 The proposed 125 percent of the FPG standard is
consistent with the affidavit of support requirement under section 213A of the INA, and
therefore serves as a touchpoint for public charge inadmissibility determinations.185 As
of February 2018, within the contiguous United States, 125 percent of FPG ranges from
approximately $20,300 for a family of two, through $51,650 for a family of eight.
1. USCIS Evidentiary Requirements
DHS also proposes that USCIS will consider certain types of evidence, at a
minimum, when reviewing this factor. USCIS consideration of an alienas assets and
resources would include review of such information as the alienas annual gross income
(i.e., all sources of income before deductions), any additional income or support to the
alien from another person or source during the most recent full year (for example, income
of a dependent or a spouse who is not a dependent); the alienas cash assets and resources,
including as reflected in checking and savings account statements; and the alienas noncash assets and resources that can be converted into cash within 12 months. Such noncash assets may include real estate holdings, securities, and retirement and educational
accounts, as well as any other assets that can be easily converted into cash. All of this
information is potentially relevant to a determination of the alienas assets and resources,
and likelihood of becoming a public charge.

184
185

See proposed 8 CFR 212.22(b).
See INA section 213A(f)(1)(E), 8 U.S.C. 1183a(f)(1)(E).

73

H. Financial Status
An applicantas financial status must be considered in the public charge
determination.186 A person with a stable financial status may be less likely to use or
receive public benefits. Accordingly, DHS proposes that when considering an alienas
financial status, DHS will consider whether any aspect of the alienas financial status other
than the alienas assets and resources, such as the alienas liabilities or past reliance on
public benefits, makes the alien more or less likely to become a public charge.
1. USCIS Evidentiary Requirements
DHS also proposes that USCIS will consider certain types of evidence, at a
minimum, when reviewing this factor. USCISas review would include the alienas and
any dependentas past request or receipt of public benefits, receipt of fee waivers for
immigration purposes, and credit reports and scores.187 The following discussion
addresses each consideration. (i) Public Benefits
Use or receipt of public benefits, as defined in the proposed regulation, suggests
that the alienas overall financial status is so weak that he or she is unable to fully support
him or herself or any dependents without government assistance. DHS, therefore,
proposes to consider receipt or use of public benefits as a negative factor in the totality of
the circumstances, because it is indicative of a weak financial status and likelihood that
the alien will become a public charge. In addition, DHS is proposing to consider request,
receipt, or use of public benefits by any dependents, including U.S. citizen children.
According to the U.S. Census Bureau, in 2012 approximately 52.2 million (or
21.3 percent) people in the United States participated in major means-tested government

186
187

See INA section 212(a)(4), 8 U.S.C. 1182(a)(4).
See proposed 8 CFR 212.22.

74

assistance programs each month.188 In addition, among those with family income below
the poverty level189 an average of 61.3 percent participated in at least one major means
tested benefit.190 Participation rates were highest for Medicaid (15.3 percent) and SNAP
(13.4 percent).191 The largest share of participants (43.0 percent) who benefited from one
or more means-tested assistance programs between January 2009 and December 2012
stayed in the programs between 37 and 48 months.192
Whether a person may be qualified for public benefits frequently depends on
where the personas household income falls with respect to the FPG.193 Federal, State, and
local public benefit granting agencies frequently use the FPG to determine eligibility for
public benefits.194 Some major means-tested programs, however, do not use the FPG.195
In addition, as noted above, DHS proposes that USCIS would consider evidence
of request or receipt of public benefits by any dependents, including U.S. citizen children,

188

See Shelley K. Irving and Tracy A. Loveless, U.S. Census Bureau, Dynamics of Economic Well-Being:
Participation in Government Programs, 2009a2012: Who Gets Assistance? (May 2015), available at
https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf (last visited Feb.
20, 2018). 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. See id.
189
See id. Note that the Census reports uses the term income to poverty ratioa. A ratio of less than 1
indicates a personas income is below the poverty level. The census report refers to average monthly
participation rates.
190
See id. 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.
191
See id.
192
See id.
193
The poverty guidelines are updated periodically in the Federal Register by HHS. The U.S. Census
Bureau definition of family and family household is available at https://www2.census.gov/programssurveys/cps/techdocs/cpsmar17.pdf.
194
Different Federal programs use different percentages of the FPG such as 125 percent, 150 percent, or
185 percent. However, some major means-tested programs do not use the poverty guidelines but use their
own standards. See HHS ASPE, Frequently Asked Questions Related to the Poverty Guidelines and
Poverty, What Programs Use the Federal Poverty Guidelines, available at https://aspe.hhs.gov/frequentlyasked-questions-related-poverty-guidelines-and-poverty#collapseExample9.
195
See id.

75

as part of this factor. Self-sufficiency also includes an ability to support any dependents.
According to U.S. Census Bureau Current Population Survey, U.S.-Is born children of
foreign-born parents also receive public benefits.196 As discussed above, the data from
Tables 2 through 4 show that for native-born and foreign-born populations alike, noncash public benefits play a significant role in many peoplesa lives. The Annual Social
and Economic Supplement of the Current Population Survey (ASEC) Table C8 provides
data on poverty and receipt of public assistance based on where the childrenas parents
were born.197 The data show a non-trivial degree of use and receipt of public benefits by
persons in the United States, including foreign-born persons and their dependents. For
example, for native-born child who have a foreign-born parent, 3,373,000 children
received food stamps (SNAP), and 392,000 received public assistance.198 This usage
tends to be correlated to the individualas financial status.
DHS would consider past request, receipt, or use of public benefits in the totality
of the circumstances. For example, an alien who previously requested public benefits
may be able to establish that he or she sought the benefits for a short time period while
unemployed but that he or she is currently working and has sufficient income to no
longer require such public benefits.
(ii) Fee Waivers for Immigration Benefits
As noted above, DHS is also proposing that USCIS would consider past request
or receipt of a fee waiver as part of the financial status factor. Requesting or receiving a

196

See U.S. Census Bureau, Table C8. Poverty Status, Food Stamp Receipt, and Public Assistance for
Children Under 18 Years by Selected Characteristics: 2016, , available at
https://www2.census.gov/programs-surveys/demo/tables/families/2016/cps-2016/tabc8-all.xls.,.
197
See U.S. Census Bureau, Table C8. Poverty Status, Food Stamp Receipt, and Public Assistance for
Children Under 18 Years by Selected Characteristics: 2016, available at
https://www2.census.gov/programs-surveys/demo/tables/families/2016/cps-2016/tabc8-all.xls.
198
See id.

76

fee waiver for an immigration benefit suggests a weak financial status. In general, a fee
waiver is granted based on an alienas inability to pay to the fee. An inability to pay a fee
for an immigration benefit suggests an inability to be self-sufficient.
In addition, the Senate Appropriations Report, Senate Report 114-264,199 which
accompanies the FY 2017 Department of Homeland Security Appropriations Act (Public
Law 115-31), expresses concern about the increased use of fee waivers, as those paying
fees are forced to absorb costs for which they receive no benefit. The committee
specifically expressed concern that those unable to pay fees are less likely to live in the
United States independent of government assistance.200
(iii) Credit Report and Score
As also noted above, DHS is also proposing that USCIS would consider an alienas
credit report and score as part of the financial status factor. Not everyone has a credit
history or may be able to transfer credit history from country to country. Nevertheless, a
good credit score is a positive factor that indicates a person is likely to be self-sufficient
and support any dependents. Conversely, a lower credit score or negative credit history
may indicate that a personas assets and resources are limited and may not be selfsufficient. Credit reports contain information about a person's bill payment history,
loans, current debt, and other financial information.201 Credit reports may also provide
information about work and residences, lawsuits, arrests, and bankruptcies.202
A credit score is a number that rates a personas credit risk at one point in time.203

199

Available at https://www.congress.gov/congressional-report/114th-congress/senate-report/264/1.
See Senate Appropriations Report, S. Rept. 114-264, available at
https://www.congress.gov/congressional-report/114th-congress/senate-report/264/1.
201
See Credit Reports and Scores, available at https://www.usa.gov/credit-reports.
202
See id.
203
See id.
200

77

It can help creditors determine whether to give the person credit, decide the terms the
person is offered, or determine the rate the person will pay for the loan.204 Banks and
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.205 Because credit reports and scores provide information on a personas
financial status, DHS is proposing that USCIS would review any available credit reports
as part of its public charge inadmissibility determinations. USCIS would generally
consider a credit score as a positive factor if the score is characterized as afaira or better,
depending on the reporting agency and weighed in the totality of the circumstances.
DHS recognizes that not everyone has a credit report. The absence of an
established credit history would not be an adverse factor when evaluating public charge
in the totality of the circumstances. Absent a 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 continued payment of bills, and limited
balances. In addition, USCIS would not consider any error on a credit score in the public
charge determination that has been verified by the credit agency.
I. Education and Skills
An applicantas education and skills are mandatory factors that must be considered
in the public charge determination.206 In general, an alien with educational credentials
and skills is more employable and less likely to become a public charge. DHS, therefore,

204

See id.
See Federal Trade Commission, Consumer Information: Credit Scores, available at
https://www.consumer.ftc.gov/articles/0152-credit-scores#how.
206
See section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4).
205

78

proposes that when considering this factor, DHS would consider whether the alien has
sufficient education and skills to obtain or maintain full-time employment, if authorized
for employment.207
Various studies and data support the concept that a personas education and skills
are positive factors for self-sufficiency. The U.S. Bureau of Labor Statistics (BLS)
observed in 2016 that there was a correlation between the educational level and
unemployment rate.208 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.209 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 18.210 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.211
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

207

The level of education may be an indicator for continued employment. See BLS, Employment
Projections, Unemployment Rates and Earnings by educational Attainment, 2016, available at
https://www.bls.gov/emp/ep_chart_001.htm.
208
See BLS, Employment Projections, Unemployment Rates and Earnings by Educational Attainment,
2016, Data Table, available at https://www.bls.gov/emp/ep_chart_001.htm.
209
See BLS, Employment Projections, Unemployment Rates and Earnings by Educational Attainment,
2016, available at https://www.bls.gov/emp/ep_table_001.htm.
210
See Shelley K. Irving and Tracy A. Loveless, Dynamics of Economic Well-Being: Participation in
Government Programs, 2009a2012: Who Gets Assistance? (May 2015), available at
https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf.
211
See Shelley K. Irving and Tracy A. Loveless, Dynamics of Economic Well-Being: Participation in
Government Programs, 2009a2012: Who Gets Assistance? (May 2015), available at
https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf.

79

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.212 The National Center for Education Statistics found that a[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
bacheloras or higher degree (4 percent).a213 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 DHSas analysis of the SIPP data also show a relationship between
education level and self-sufficiency. Tables 9 and 10 indicate a strong correlation
between education level and welfare participation rates among both the native-born and
foreign-born populations in 2013. Native-born and foreign-born individuals with a high
school education or less were more likely to participate in both cash and non-cash welfare
programs compared to native-born and foreign-born individuals with some college-level
education or higher. For example, 38.3 percent of the native-born population and 33.3
percent of the foreign-born population with less than a high school education received
non-cash benefits. Comparably, only 5.0 percent of native-born and 12.9 percent of the
foreign-born populations with a bacheloras degree received non-cash assistance.

212

See Shelley K. Irving and Tracy A. Loveless, Dynamics of Economic Well-Being: Participation in
Government Programs, 2009a2012: Who Gets Assistance? (May 2015), available at
https://www.census.gov/content/dam/Census/library/publications/2015/demo/p70-141.pdf.
213
See National Center for Education Statistics, Characteristics of Childrenas Families, (last updated: May
2017); available at https://nces.ed.gov/programs/coe/indicator_cce.asp#.

80

Table 9. Public Benefit Participation of Native-Born Age 18+, by Education Level,
2013 (in thousands)
Less than High School
Total
Population
310,867
Program
Cash benefits

High School graduate

Some college/Associate's
degree
% of Total
Population
Population
62,401
20.1%
Total
Rate
S.E.
1,342
2.2%
0.2
%
1,087
1.7%
0.2
%
130
0.2%
0.1
%
148
0.2%
0.1
%

% of Total
Population Population
19,542
6.3%
Total
Pct.
S.E.
2,270
11.6% 0.6%

% of Total
Population Population
60,845
19.6%
Total
Rate
S.E.
2,600
4.3%
0.2%

SSI

1,960

10.0%

0.6%

2,217

3.6%

0.2%

TANF

188

1.0%

0.2%

229

0.4%

0.1%

GA

202

1.0%

0.2%

228

0.4%

0.1%

7,488

38.3%

0.9%

12,452

20.5%

0.5%

9,044

14.5%

Medicaid

4,815

24.6%

0.8%

7,414

12.2%

0.4%

4,951

7.9%

SNAP

4,585

23.5%

0.8%

6,957

11.4%

0.4%

4,745

7.6%

WIC

276

1.4%

0.2%

686

1.1%

0.1%

577

0.9%

Housing

601

3.1%

0.3%

903

1.5%

0.1%

770

1.2%

Rent Subsidy

1,760

9.0%

0.5%

2,471

4.1%

0.2%

1,820

2.9%

1,979

10.1%

0.6%

3,286

5.4%

0.3%

2,525

4.0%

Non-cash ben.

Energy
Assist.

Bachelor's degree
Total
Population
310,867
Program
Cash benefits
SSI
TANF
GA

% of Total
Population Population
37,764
12.1%
Total
Pct.
S.E.
233
0.6%
0.1%
206
0.5%
0.1%
2
0.0%
0.0%
25
0.1%
0.0%

Graduate degree
% of Total
Population Population
20,976
6.7%
Total
Rate
S.E.
133
0.6%
0.2%
115
0.5%
0.2%
19
0.1%
0.1%
-

Non-cash ben.
Medicaid
SNAP
WIC
Housing
Rent Subsidy
Energy
Assist.

1,895
904
707
112
137
435
449

572
289
271
14
27
113
141

5.0%
2.4%
1.9%
0.3%
0.4%
1.2%
1.2%

0.4%
0.2%
0.2%
0.1%
0.1%
0.2%
0.2%

81

2.7%
1.4%
1.3%
0.1%
0.1%
0.5%
0.7%

0.3%
0.3%
0.2%
0.1%
0.1%
0.2%
0.2%

0.4
%
0.3
%
0.3
%
0.1
%
0.1
%
0.2
%
0.2
%

Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program Participation (SIPP).
*Estimate is considered unreliable due to a high relative standard error.
- Estimate of zero

Table 10. Public Benefit Participation of Foreign-Born Age 18+, by Education
Level, 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

Less than High School
% of Total
Population Population
10,479
3.4%
Total
Pct.
S.E.
805
7.7%
0.8%

High School graduate
% of Total
Population Population
9,212
3.0%
Total
Rate
S.E.
287
3.1%
0.6%

Some college/Associate's
degree
% of Total
Population
Population
7,486
2.4%
Total
Rate
S.E.
133
1.8%
0.5
%
112
1.5%
0.5
%
15
0.2%
0.2
%
19
0.3%
0.2
%

SSI

729

7.0%

0.7%

255

2.8%

0.5%

TANF

31

0.3%

0.2%

32

0.3%

0.2%

GA

60

0.6%

0.2%

-

-

-

3,491

33.3%

1.4%

2,282

24.8%

1.4%

1,387

18.5%

Medicaid

2,357

22.5%

1.2%

1,398

15.2%

1.2%

865

11.6%

SNAP

1,447

13.8%

1.0%

930

10.1%

1.0%

478

6.4%

WIC

199

1.9%

0.4%

207

2.2%

0.5%

97

1.3%

Housing

325

3.1%

0.5%

157

1.7%

0.4%

75

1.0%

Rent Subsidy

781

7.4%

0.8%

457

5.0%

0.7%

292

3.9%

659

6.3%

0.7%

372

4.0%

0.6%

224

3.0%

Non-cash ben.

Energy
Assist.
Total
Population
310,867

Bachelor's degree
% of Total
Population Population
7,164
2.3%

Graduate degree
% of Total
Population Population
4,603
1.5%

82

1.4
%
1.2
%
0.9
%
0.4
%
0.4
%
0.7
%
0.6
%

Program
Cash benefits
SSI
TANF
GA

Total
193
164
15
21

Pct.
2.7%
2.3%
0.2%
0.3%

S.E.
0.6%
0.6%
0.2%
0.2%

Total
58
56
2

Rate
1.3%
1.2%
0.0%

S.E.
0.6%
0.5%
0.1%

Non-cash ben.
928
12.9% 1.3%
282
6.1%
1.2%
Medicaid
593
8.3%
1.1%
168
3.7%
0.9%
SNAP
292
4.1%
0.8%
84
1.8%
0.7%
WIC
57
0.8%
0.3%
2
0.0%
0.1%
Housing
78
1.1%
0.4%
8
0.2%
0.2%
Rent Subsidy
203
2.8%
0.7%
80
1.7%
0.6%
Energy
184
2.6%
0.6%
86
1.9%
0.7%
Assist.
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

Moreover, according to National Center for Education Statistics, increased
education is associated with increased employment productivity and increased
earnings.214 The unemployment rate decreases with the increase in skills gained through
education.215 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 bacheloras degree, and 16 percent
required more than a bacheloras degree).216
Tables 11 and 12 below show that among the native-born and foreign-born
populations, individuals holding professional certificates or licenses had lower rates of
cash and non-cash means-tested public benefits participation compared to their respective
overall populations in 2013. For example, 9.8 percent of the native-born population with

214

See National Center for Education Statistics, Education and the Economy: An Indicators Report (Mar.
1997), available at https://nces.ed.gov/pubs97/web/97939.asp.
215
See BLS, Employment Projections, Unemployment Rates and Earnings by educational Attainment,
2016, available at https://www.bls.gov/emp/ep_chart_001.htm.
216
See BLS, Education level and jobs: Opportunities by state, available at
https://www.bls.gov/careeroutlook/2014/article/education-level-and-jobs.htm.

83

professional certificates or licenses received non-cash benefits compared to 22.1 percent
of the overall native-born population. Similarly, 13.2 percent of the foreign-born
population with professional certificates or licenses received non-cash benefits compared
to 22.7 percent of the overall foreign-born populations. In addition, both foreign and
native-born persons with a professional certificate or license were also less likely to
receive non-cash assistance compared to those with a high-school degree or less. Nativeborn individuals with a professional certificate or licenses are also much less like to
receive cash assistance compared to those with a high school degree or less. Only 1.3
percent of native-born individuals with a professional certificate or license received cash
assistance compared to 3.1 percent of native-born high school graduates and 7.7 percent
of native-born individuals with less than a high school degree.
Table 11. Public Benefit Participation of Native-Born
Overall, and with a Professional Certification or License,
2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

Native-born
% of Total
Population Population
269,413
86.7%
Total
Rate
S.E.
9,285
3.4%
0.1%

Native-born with prof. cert.
% of Total
Population
Population
29,417
9.5%
Total
Rate
S.E.
644
1.3%
0.2
%
493
1.0%
0.1
%
76
0.2%
0.1
%
91
0.2%
0.1
%

SSI

6,590

2.4%

0.1%

TANF

2,124

0.8%

0.0%

844

0.3%

0.0%

59,578

22.1%

0.2%

4,709

9.8%

Medicaid

43,301

16.1%

0.2%

2,473

5.2%

SNAP

31,308

11.6%

0.2%

2,427

5.1%

WIC

5,848

2.2%

0.1%

324

0.7%

Housing

4,215

1.6%

0.1%

343

0.7%

GA

Non-cash ben.

84

0.4
%
0.3
%
0.3
%
0.1
%
0.1
%

Rent Subsidy

10,455

3.9%

0.1%

944

2.0%

0.2
%
Energy
13,244
4.9%
0.1%
1,410
2.9%
0.2
Assist.
%
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 12. Public Benefit Participation of Foreign-Born
Overall, and with Professional Certification or License, 2013
(in thousands)
Total
Population
310,867
Program
Cash benefits
SSI
TANF
GA

Non-cash ben.

Foreign-born
% of Total
Population Population
41,454
13.3%
Total
Rate
S.E.
1,514
3.7%
0.3%
1,316

3.2%

0.3%

130
103

0.3%
0.2%

0.1%
0.1%

9,408

22.7%

0.7%

Foreign-born with prof.
cert.
% of Total
Population
Population
6,552
2.1%
Total
Rate
S.E.
88
1.3%
0.5
%
86
1.3%
0.5
%
2
0.0%
0.1
%
865

13.2%

1.4
%
Medicaid
6,272
15.1% 0.6%
532
8.1%
1.1
%
SNAP
3,605
8.7%
0.4%
215
3.3%
0.7
%
WIC
601
1.4%
0.2%
60
0.9%
0.4
%
Housing
718
1.7%
0.2%
55
0.8%
0.4
%
Rent Subsidy
1,976
4.8%
0.3%
153
2.3%
0.6
%
Energy
1,679
4.1%
0.3%
227
3.5%
0.7
Assist.
%
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

Similar to those holding professional certificates or licenses, the rates of cash and
non-cash participation among the native-born and foreign-born populations were lower
for those having an educational certificate compared to their respective overall
populations in 2013, as highlighted in Tables 13 and 14. For example, among nativeborn, the participation rate for cash benefits was 2.4 percent for those having an

85

educational certificate compared to 3.4 percent overall, and the rate of non-cash benefits
was 14.7 percent for those with an educational certificate compare to 22.1 percent
overall. Among the foreign-born, the participation rate for non-cash benefits was 16.0
percent among those having an educational certificate compared to 22.7 percent overall.
Table 13. Public Benefit Participation of Native-Born
Overall, and with an Educational Certificate from a College,
University, or Trade School, 2013 (in thousands)
Native-born
Total
Population
310,867
Program
Cash benefits

% of Total
Population Population
269,413
86.7%
Total
Rate
S.E.
9,285
3.4%
0.1%

SSI

6,590

2.4%

0.1%

TANF

2,124

0.8%

0.0%

844

0.3%

0.0%

59,578

22.1%

0.2%

GA

Non-cash ben.

Native-born with ed.
certificate
% of Total
Population
Population
29,417
9.5%
Total
Rate
S.E.
699
2.4%
0.3
%
565
1.9%
0.2
%
68
0.2%
0.1
%
82
0.3%
0.1
%
4,337

0.6
%
Medicaid
43,301
16.1% 0.2%
2,257
7.7%
0.5
%
SNAP
31,308
11.6% 0.2%
2,461
8.4%
0.5
%
WIC
5,848
2.2%
0.1%
248
0.8%
0.2
%
Housing
4,215
1.6%
0.1%
415
1.4%
0.2
%
Rent Subsidy 10,455
3.9%
0.1%
950
3.2%
0.3
%
Energy
13,244
4.9%
0.1%
1,419
4.8%
0.4
Assist.
%
Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program Participation (SIPP).217

217

14.7%

The SIPP includes questions on professional certification and licenses developed by the Interagency
Working Group on Expanded Measures of Enrollment and Attainment (GEMEnA). See National Center for
Education Statistics, Working definitions of Non-Degree Credentials, available at
https://nces.ed.gov/surveys/gemena/definitions.asp. See also BLS, Adding questions on certifications and
licenses to the Current Population Survey, available at
https://www.bls.gov/opub/mlr/2016/article/pdf/adding-questions-on-certifications-and-licenses-to-thecurrent-population-survey.pdf. They developed working definitions that categorize certification as a
credential awarded by a non-governmental body, and involving successfully passing an examination. A
license is awarded by a government agency and provides legal authority to do a specific job. Both

86

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

Table 14. Public Benefit Participation of Foreign-Born
Overall, and with an Educational Certificate from a College,
University, or Trade School, 2013 (in thousands)
Foreign-born
Total
Population
310,867
Program
Cash benefits
SSI

% of Total
Population Population
41,454
13.3%
Total
Rate
S.E.
1,514
3.7%
0.3%
1,316

3.2%

0.3%

TANF

130

0.3%

0.1%

GA

103

0.2%

0.1%

9,408

22.7%

0.7%

Non-cash ben.

Foreign-born with ed.
certificate
% of Total
Population
Population
3,829
1.2%
Total
Rate
S.E.
74
1.9%
0.7
%
67
1.8%
0.7
%
7
0.2%
0.2
%
3
0.1%
0.2
%
614

16.0%

1.9
%
Medicaid
6,272
15.1% 0.6%
354
9.2%
1.5
%
SNAP
3,605
8.7%
0.4%
182
4.7%
1.1
%
WIC
601
1.4%
0.2%
55
1.4%
0.6
%
Housing
718
1.7%
0.2%
31
0.8%
0.5
%
Rent Subsidy
1,976
4.8%
0.3%
112
2.9%
0.9
%
Energy
1,679
4.1%
0.3%
184
4.8%
1.1
Assist.
%
Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program Participation (SIPP). 218
* Estimate is considered unreliable due to a high relative standard error.
- Estimate of zero

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 Id.
218
The SIPP includes questions on professional certification and licenses developed by the Interagency
Working Group on Expanded Measures of Enrollment and Attainment (GEMEnA). See National Center for
Education Statistics, Working definitions of Non-Degree Credentials, available at
https://nces.ed.gov/surveys/gemena/definitions.asp. See also BLS, Adding questions on certifications and
licenses to the Current Population Survey, available at
https://www.bls.gov/opub/mlr/2016/article/pdf/adding-questions-on-certifications-and-licenses-to-thecurrent-population-survey.pdf. They developed working definitions that categorize certification as a
credential awarded by a non-governmental body, and involving successfully passing an examination. A
license is awarded by a government agency and provides legal authority to 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 Id.

87

English language proficiency is also relevant to the public charge determination.
An inability to speak and understand English may adversely affect whether an alien can
obtain employment.219 Aliens may not be able 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.
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 full-time work when
employed.220 In addition, people who spoke a language other than English at home who
found full-time employment, experience lower median earnings than those who spoke
only English at home.221 In a 2005 study, aon average, workers who spoke only English
earned $5,600 more than people who spoke another language,a222 however, between the
people avery wella and people who only spoke English the difference was only $966.223
People who spoke English avery wella had hiligher earnings than people who spoke
English awella a an earning different of $7,000.224 DHS may also consider an applicantas

219

See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census Bureau, How Does Ability to Speak
English Affect Earnings?, available at
https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf.
220
See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census Bureau, How Does Ability to Speak
English Affect Earnings?, available at
https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf.
221
See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census Bureau, How Does Ability to Speak
English Affect Earnings?, available at
https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf
222
See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census Bureau, How Does Ability to Speak
English Affect Earnings?, available at
https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf; See id. at 7.
223
See id.
224
See Jennifer Cheeseman Day and Hyon B. Shin, U.S. Census Bureau, How Does Ability to Speak
English Affect Earnings?, available at
https://www.census.gov/hhes/socdemo/language/data/acs/PAA_2005_AbilityandEarnings.pdf. The
differences in earnings between those who spoke English at the highest ability avery wella from Englishonly speakers was relatively small ($966). See id. at 7.

88

proficiency in other languages, in addition to English proficiency, when reviewing the
education and skills factor.
Table 13 highlights a relationship between English language proficiency and
welfare participation in 2013. Among the foreign-born 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 lowest rates of coverage of cash
and non-cash benefits were among those who spoke English very well (1.6 percent and
16.2 percent, respectively) and the highest rates were among those who could not speak
English (16.4 percent and 43.0 percent, respectively).
Table 13: Public Benefit Participation of Foreign-Born Age
18+ who Speak a Language other than English at Home, by
How Well English is Spoken, 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

Very well
% of Total
Population Population
11,451
3.7%
Total
Rate
S.E.
188
1.6%
0.4%

Well
% of Total
Population
Population
5,878
1.9%
Total
Rate
S.E.
138
2.3%
0.6
%
113
1.9%
0.6
%
23
0.4%
0.3
%
9
0.2%
0.2
%

SSI

148

1.3%

0.3%

TANF

28

0.2%

0.1%

GA

13

0.1%

0.1%

1,851

16.2%

1.1%

1,252

21.3%

1,075

9.4%

0.9%

816

13.9%

SNAP

597

5.2%

0.7%

514

8.7%

WIC

119

1.0%

0.3%

105

1.8%

Housing

97

0.8%

0.3%

119

2.0%

Non-cash ben.
Medicaid

89

1.7
%
1.4
%
1.1
%
0.5
%
0.6
%

Rent Subsidy
Energy
Assist.
Total
Population
310,867
Program
Cash benefits

294

2.6%

0.5%

262

4.5%

370

3.2%

0.5%

239

4.1%

Not well
% of Total
Population Population
5,069
1.6%
Total
Rate
S.E.
333
6.6%
1.0%

SSI

297

5.9%

1.0%

TANF
GA

20
23

0.4%
0.5%

0.3%
0.3%

1,604

31.6%

2.0%

Non-cash ben.

0.8
%
0.8
%

Not at all
% of Total
Population
Population
2,080
0.7%
Total
Rate
S.E.
340
16.4%
2.4
%
330
15.9%
2.4
%
20
1.0%
0.6
%
895

43.0%

3.2
%
Medicaid
1,049
20.7% 1.7%
651
31.3%
3.0
%
SNAP
591
11.7% 1.3%
349
16.8%
2.4
%
WIC
129
2.5%
0.7%
43
2.1%
0.9
%
Housing
120
2.4%
0.6%
80
3.9%
1.3
%
Rent Subsidy
397
7.8%
1.1%
214
10.3%
2.0
%
Energy
341
6.7%
1.1%
142
6.8%
1.6
Assist.
%
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

Additionally, numerous studies have shown that immigrantsa English language
proficiency or ability to acquire English proficiency directly correlate to a newcomeras
economic assimilation into the United States.225
1. USCIS Evidentiary Requirements

225

Chiswick, B., & Miller, P. (2002). Immigrant earnings: Language skills, linguistic concentrations and
the business cycle. Journal of Population Economics, 15(1), 31-57; Dustmann, C. (1994). Fluency, writing
fluency, and earnings of migrants. Journal of Populations Economics, 7, 133-156; Ingo E. Isphording,
Disadvantages of Linguistic Origin: Evidence from Immigrant Literacy Scores (The Institute for the Study
of Labor and Ruhr University Bochum, 2013), available at http://ftp.iza.org/dp7360.pdf; and
OECD/European Union, Indicators of Immigrant Integration 2015: Settling In (Paris: OECD Publishing,
2015) http://www.oecd.org/els/mig/Indicators-of-Immigrant-Integration-2015.pdf.

90

DHS proposes that USCIS will consider certain types of evidence, at a minimum,
when reviewing this factor. For the reasons expressed above, USCISa review would
include evidence of the alienas history of employment; the alienas high school degree or
higher education; the alienas occupational skills, certifications, or licenses; and the alienas
proficiency in English or another language as relevant to working full-time.
J. Sponsorship
Failure to submit a required affidavit of support when required under section
212(a)(4)(C) or section 212(a)(4)(D) of the INA statutorily results in a determination of
inadmissibility based on public charge grounds without review of any other factors.226
For aliens who submit an affidavit of support, the statute allows DHS to consider any
affidavit of support under section 213A of the INA in public charge inadmissibility
determinations.227 DHS, therefore, proposes to consider any required affidavit of
support228 as part of the totality of the circumstances.
1. General Consideration of Sponsorship and Affidavits of Support
DHS would consider a sponsoras sufficient affidavit of support a positive factor,
but a sufficient affidavit of support alone would not carry presumptive weight to
demonstrate that an applicant is not inadmissible on public charge grounds. Despite
efforts to strengthen sponsorship requirements over the years, DHS has concerns about
relying on sponsors to ensure that aliens will not become a public charge.
With the passage of PRWORA and IIRIRA, amendments to the INA set forth
requirements for submitting what would be an enforceable affidavit of support, i.e.,

226

Certain applicants are exempt from filing the affidavit of support under INA 213A.
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).
228
See INA section 212(a)(4)(C), (a)(4)(D).
227

91

current Form I-864.229 Approximately 1 month after PRWORA was enacted, Congress
amended the public charge inadmissibility ground in IIRIRA to require certain applicants
for lawful permanent resident status to submit an affidavit of support under INA section
213A.230 An Affidavit of Support under Section 213A of the INA (Form I-864),231 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 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.232 By creating these requirements in section 213A of the INA,
Congress intended to ensure that affidavits of support were enforceable and that public
benefit-granting agencies could be reimbursed for certain aid provided to the sponsored
alien.233
In practice, sponsorship may have limited value in ensuring that sponsored aliens
do not use or receive public benefits. As part of PRWORA and IIRIRA, 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 meets the eligibility
requirements.234 This is called aincome deeming.a Public benefits agencies, however,
have encountered challenges obtaining information about the sponsoras income when
determining the alienas eligibility for public benefits. A U.S. Government Accountability

229

INA sections 212(a)(4) and 213A, 8 U.S.C. 1182(a)(4) and 1183a.
See section 531(b) of IIRIRA, Pub. L. No. 104-208, 1001 Stat. 3009 (September 30, 1996).
231
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.
232
See INA 213A, 8 U.S.C. 1183a.
233
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. 104-651.
234
This process is known as asponsor deeming.a See 423 of PRWORA, Pub. L. 104-193, 11 Stat. 2105
(Aug. 22, 1996).
230

92

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.235 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
ofHHS, 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.236 aLegal 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.a237
The report also indicates that some immigrant families with incomes below twice the
poverty level238 received food stamps, TANF or Medicaid from 1999-2000.239 For
example, in Los Angeles 13 percent and in New York City 22 percent of noncitizen
families with income below twice the poverty level received food stamps (SNAP).240
2. Proposal to Consider Required Affidavits of Support
Certain aliens are required to submit an affidavit of support. With certain
exceptions, the requirement to submit an affidavit of support applies to immediate

235

See GAO, Sponsored Noncitizens and Public Benefits (May 2009), available at
https://www.gao.gov/products/GAO-09-375.
236
See Randy Capps, Leighton Ku and Michael Fix.et al, How Are Immigrants Faring After Welfare
Reform? Preliminary Evidence from Los Angeles and New York City, The Urban Institute (March 4, 2002),
available at https://aspe.hhs.gov/system/files/pdf/72691/report.pdf.
237
Id.
238
The report describes these families as low-income families.
239
Randy Capps, Leighton Ku and Michael Fix.et al., How Are Immigrants Faring After Welfare Reform?
Preliminary Evidence from Los Angeles and New York City, The Urban Institute (March 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.
240
Id.

93

relatives (including orphans), family-preference immigrants, and those employmentbased immigrants who will work for a relative or for a firm in which a U.S. citizen or
lawful permanent resident relative holds a significant ownership interest.241 Immigrants
seeking admission or adjustment of status in these categories are inadmissible under
subparagraphs (C) and (D) of section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4)(C) and
(D), respectively, unless an appropriate sponsor has completed and filed a sufficient
affidavit of support.242
When determining the weight to give an enforceable affidavit of support (Form I864) in the totality of the circumstances, USCIS would assess the sponsoras annual
income, assets, resources, and financial status, relationship to applicant, and any other
related considerations. Because, for the reasons cited above, DHS does not believe that
an affidavit of support guarantees that the alien will not use or receive public benefits.
DHS expects that a sponsoras signed agreement would not be an outcome-determinative
factor in most cases. The inability or unwillingness of the sponsor to support the alien,
however, may be viewed as a negative factor in the totality of the circumstances. In this
instance, USCIS would request additional information from a sponsor or interview a
sponsor to determine whether the sponsor is willing and able to support the alien on a
long-term basis.

241

See INA sections 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).
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 https://www.uscis.gov/ilink/docView/AFM/HTML/AFM/0-0-0-1/00-0-2872/0-0-0-3055.html .
242

94

K. Heavily Weighed Factors
DHS proposes a number of factors or factual circumstances that it has determined
would generally weigh heavily in a public charge determination.243 The mere presence of
a heavily weighed factor would not, alone, create a presumption in favor of or against a
public charge determination. Such a 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.
(i) Lack of Employability
As long an alien is not a full-time student and is authorized to work, DHS
proposes that the absence of current employment, employment history, and reasonable
prospect of future employment will be a heavily weighed negative factor.244 Selfsufficiency 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 and does not
work may not be able to be self-sufficient. DHS, however, recognizes that not everyone
authorized to work needs to work. Some aliens may have sufficient assets and resources

243

See proposed 8 CFR 212.22.
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, the lack of employment or employment history is not counted as a heavily
weighed negative factor. 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.
244

95

that may overcome any negative factor related to lack of employment. DHS would take
those considerations into account in the totality of the circumstances.
(ii) Receipt or Use of One or More Public Benefits
DHS proposes that current receipt or use of one or more public benefits or past
receipt of one or more public benefits within the last 36 months would be a heavily
weighed negative factor in a public charge inadmissibility determination.245 Past or
current use or receipt of public benefits, alone, would not justify a finding of
inadmissibility on public charge grounds. An alienas current receipt or use of one or
more public benefits indicates that the alien is currently a public charge as defined under
proposed 8 CFR 212.21, and suggests a high probability that the alien will be a public
charge in the future. An alienas past use or receipt of public benefits within the last 36
months of his or her application carries similar weight in determining whether the alien is
likely to become a public charge. The weight to give this factor will depend on whether
such receipt or use of public benefits is ongoing or occurred recently.246 Because of
research indicating that the largest share of participants (43.0 percent) who benefited
from one or more means-tested assistance programs between January 2009 and
December 2012 stayed in the programs between 37 and 48 months,247 DHS believes that
the period of 36 months before an alien applies for admission or adjustment of status is a
justifiable period to examine.
Absent heavily weighed positive factors, DHS would view past or current receipt

245

See proposed 8 CFR 212.22(c)(1)(ii) and (iii).
This proposed policy is generally consistent with longstanding policy affording less weight to benefits
that were used or received longer ago in the past. See 64 FR 2867896 (May 26, 1999).
247
See 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/pressreleases/2015/cb15-97.html.
246

96

of public benefits a strong indicator that an alien will continue to receive or use public
benefits and become a public charge.
(iii) Medical Condition(s) without Non-Subsidized Health Insurance
An alien is a high risk of becoming a public charge if he or she has a medical
condition and is unable to show evidence of unsubsidized health insurance, the prospect
of obtaining unsubsidized health insurance, or other non-governmental means of paying
for treatment. DHS proposes this factual circumstance as a heavily weighed negative
factor in 8 CFR 212.22(c)(1)(iv). Certain chronic health conditions can be costly to
treat.248 Certain conditions may adversely affect an applicantas ability and capacity to
obtain and retain gainful employment and adequate health care. 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,249 86 percent of the nationas $2.7 trillion annual health care
expenditures were for individuals with chronic and mental health conditions.250 The
Centers for Disease Control and Prevention (CDC) has listed the five most expensive
health conditions as heart disease, cancer, trauma, mental disorders, and pulmonary

248

See HHS, The High Concentration of U.S. Health Care Expenditures, Research in Action, Issue #19
(Jun. 2006); available at https://archive.ahrq.gov/research/findings/factsheets/costs/expriach. See also
Centers for Medicare & Medicaid Services, NHE Fact Sheet, available at https://www.cms.gov/researchstatistics-data-and-systems/statistics-trends-and-reports/nationalhealthexpenddata/nhe-fact-sheet.html (in
2016, NHE grew to $3.3 trillion). For a discussion of expenditures see generally NHE data available at
https://www.cms.gov/Research-Statistics-Data-and-Systems/Statistics-Trends-andReports/NationalHealthExpendData.
See also the CDC, Chronic Disease Prevention and Health Promotion; available at
https://www.cdc.gov/chronicdisease/stats/index.htm. 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 available at https://www.cdc.gov/chronicdisease/overview/.
249
As cited by the CDC. See CDC, Chronic Disease Prevention and Health Promotion, The Cost of
Chronic Disease and Health Risk Behaviors, available at https://www.cdc.gov/chronicdisease/overview.
250
See CDC, Chronic Disease Prevention and Health Promotion, The Cost of Chronic Disease and Health
Risk Behaviors, available at https://www.cdc.gov/chronicdisease/overview.

97

conditions.251 These are all classified as costly medical conditions.252 In the United
States, chronic diseases and conditions that cause them account for most of the health
care costs.253
aC/

From 2012 to 2013, the total annual direct medical costs for cardiovascular disease

was $189.7 billion;254
aC/

Cancer care cost $157 billion in 2010 dollars;255 and

aC/

In 2012, the total estimated direct medical costs for diagnosed diabetes was $176

billion.256
Individuals in poor to fair health may be more likely to access public benefits to
treat their health condition. Tables 14 and 15 do not necessarily show a strong
relationship between all categories of self-reported health status and public benefits
among native-born and foreign-born persons in 2013. In some cases, individuals may
have had to access public benefit programs like Medicaid and SNAP because of their
compromised health. In other instances, the health of certain individuals may have
improved because of their access to these programs.

251

See, HHS, The High Concentration of U.S. Health Care Expenditures, Mark W. Stanton, Research in
Action, Issue #19 (Jun. 2006), available at
https://archive.ahrq.gov/research/findings/factsheets/costs/expriach/. See CDC, Chronic Disease Overview,
available at: https://www.cdc.gov/chronicdisease/overview. See also generally the Centers for Disease
Control and Prevention (CDC) statistics on Chronic Disease Prevention and Health Promotion, The CDC
collects large amounts of data on numerous major chronic diseases, available at
https://www.cdc.gov/chronicdisease/stats/index.htm . See also generally, CDC, Chronic Disease Cost
Calculator Version 2, available at https://www.cdc.gov/chronicdisease/calculator.
252
See Id.
253
See CDC, Chronic Disease Prevention and Health Promotion, The Cost of Chronic Disease and Health
Risk Behaviors, available at https://www.cdc.gov/chronicdisease/overview/index.htm. (Data available from
2002).
254
See id.
255
See National Cancer Institute, Cancer Prevalence and Cost of Care Projections,
http://costprojections.cancer.gov/ (last visited Feb. 22, 2018)
256
See CDC, Chronic Disease Prevention and Health Promotion, The Cost of Chronic Disease and Health
Risk Behaviors, available at https://www.cdc.gov/chronicdisease/overview/index.htm. (Data available from
2002).

98

A relationship, nonetheless, appears to exist between health and receipt of public
benefits among individuals who reported their health as poor or fair irrespective of their
native-born or foreign-born status. To illustrate, 15.7 percent of native-born persons and
25.9 percent of foreign-born individuals who described their health as poor received
some form of cash public benefit, which was predominantly SSI. Moreover, 40.5 percent
of native-born persons and 50.4 percent of foreign-born individuals who reported their
health as poor participated in at least one type of non-case benefit program in 2013. This
included 27.5 percent of native-born individuals and 38 percent of foreign-born persons
receiving Medicaid and 24.3 percent of native-born persons and 26 percent of foreignborn persons receiving SNAP benefits. 9.5 percent of native-born persons and 11.7
percent of foreign-born individuals who described their health as fair received some form
of cash public benefit, which was predominantly SSI. Moreover, 32.7 percent of nativeborn persons and 36.7 percent of foreign-born individuals who reported their health as
fair participated in at least one type of non-case benefit program in 2013. This included
21.2 percent of native-born individuals and 26.3 percent of foreign-born persons
receiving Medicaid and 19.9 percent of native-born persons and 16.7 percent of foreignborn persons receiving SNAP benefits.
Table 14: Public Benefit Participation of Native-Born, by Health Status, 2013 (in
thousands)
Total
Population
310,867

Excellent
% of Total
Population Population
94,134
30.3%

Very good
% of Total
Population Population
79,686
25.6%

99

Good
% of Total
Population
Population
60,504
19.5%

Program
Cash benefits

Total
1,591

Pct.
1.7%

S.E.
0.1%

Total
1,510

Rate
1.9%

S.E.
0.1%

Total
2,214

Rate
3.7%

SSI

540

0.6%

0.1%

865

1.1%

0.1%

1,693

2.8%

TANF

910

1.0%

0.1%

535

0.7%

0.1%

448

0.7%

GA

194

0.2%

0.0%

124

0.2%

0.0%

168

0.3%

20,199

21.5%

0.4%

14,094

17.7%

0.4%

13,013

21.5%

Medicaid

15,944

16.9%

0.4%

10,365

13.0%

0.4%

8,919

14.7%

SNAP

9,669

10.3%

0.3%

7,130

8.9%

0.3%

7,071

11.7%

WIC

3,012

3.2%

0.2%

1,452

1.8%

0.1%

994

1.6%

Housing

1,293

1.4%

0.1%

1,009

1.3%

0.1%

982

1.6%

Rent Subsidy

2,952

3.1%

0.2%

2,428

3.0%

0.2%

2,382

3.9%

3,425

3.6%

0.2%

3,139

3.9%

0.2%

3,186

5.3%

Non-cash ben.

Energy
Assist.
Total
Population
310,867
Program
Cash benefits
SSI
TANF
GA

Fair
% of Total
Population Population
24,881
8.0%
Total
Pct.
S.E.
2,367
9.5%
0.5%
2,079
8.4%
0.5%
182
0.7%
0.1%
176
0.7%
0.1%

S.E.
0.2
%
0.2
%
0.1
%
0.1
%
0.5
%
0.4
%
0.4
%
0.1
%
0.1
%
0.2
%
0.3
%

Poor
% of Total
Population Population
10,209
3.3%
Total
Rate
S.E.
1,603
15.7% 1.0%
1,412
13.8% 0.9%
49
0.5%
0.2%
181
1.8%
0.3%

Non-cash ben.
8,135
32.7% 0.8%
4,137
40.5% 1.3%
Medicaid
5,267
21.2% 0.7%
2,806
27.5% 1.2%
SNAP
4,957
19.9% 0.7%
2,480
24.3% 1.1%
WIC
364
1.5%
0.2%
26
0.3%
0.1%
Housing
618
2.5%
0.3%
312
3.1%
0.5%
Rent Subsidy
1,730
7.0%
0.4%
963
9.4%
0.8%
Energy
2,220
8.9%
0.5%
1,273
12.5% 0.9%
Assist.
Source: USCIS analysis of Wave 1 of the 2014 Survey of Income 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 enrollment in those categories. 257
* Estimate is considered unreliable due to a high relative standard error.
- Estimate of zero

See: Finkelstein, A., et al., aThe Oregon Health Insurance Experiment: Evidence from the First Year,a
National Bureau of Economic Research Working Paper Series No. 17190.
http://www.nber.org/papers/w17190.pdf
257

100

Table 15. Public benefit Participation of Foreign-Born, by Health Status, 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

Excellent
% of Total
Population Population
12,335
4.0%
Total
Pct.
S.E.
107
0.9%
0.3%

Very good
% of Total
Population Population
11,584
3.7%
Total
Rate
S.E.
151
1.3%
0.3%

Good
% of Total
Population
Population
11,464
3.7%
Total
Rate
S.E.
313
2.7%
0.5
%
273
2.4%
0.4
%
23
0.2%
0.1
%
31
0.3%
0.2
%

SSI

57

0.5%

0.2%

97

0.8%

0.3%

TANF

43

0.3%

0.2%

38

0.3%

0.2%

GA

8

0.1%

0.1%

16

0.1%

0.1%

2,146

17.4%

1.1%

2,134

18.4%

1.1%

2,678

23.4%

1,391

11.3%

0.9%

1,363

11.8%

0.9%

1,731

15.1%

SNAP

712

5.8%

0.7%

762

6.6%

0.7%

968

8.4%

WIC

177

1.4%

0.3%

181

1.6%

0.4%

211

1.8%

Housing

162

1.3%

0.3%

131

1.1%

0.3%

186

1.6%

Rent Subsidy

410

3.3%

0.5%

384

3.3%

0.5%

499

4.4%

356

2.9%

0.5%

310

2.7%

0.5%

522

4.6%

Non-cash ben.
Medicaid

Energy
Assist.
Total
Population
310,867
Program
Cash benefits
SSI
TANF
GA
Non-cash ben.
Medicaid
SNAP
WIC
Housing
Rent Subsidy
Energy
Assist.

Fair
% of Total
Population Population
4,455
1.4%
Total
Pct.
S.E.
523
11.7% 1.5%
495
11.1% 1.5%
11
0.3%
0.2%
32
0.7%
0.4%
1,637
1,173
744
28
155
458
293

36.7%
26.3%
16.7%
0.6%
3.5%
10.3%
6.6%

2.2%
2.0%
1.7%
0.4%
0.9%
1.4%
1.2%

Poor
% of Total
Population Population
1,615
0.5%
Total
Rate
S.E.
418
25.9% 3.4%
394
24.4% 3.3%
15
0.9%
0.7%
17
1.1%
0.8%
814
614
419
3
83
225
198

101

50.4%
38.0%
26.0%
0.2%
5.1%
13.9%
12.3%

3.9%
3.8%
3.4%
0.4%
1.7%
2.7%
2.5%

1.2
%
1.0
%
0.8
%
0.4
%
0.4
%
0.6
%
0.6
%

Source: USCIS analysis of Wave 1 of the 2014 Survey of Income 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 enrollment in those categories. See: Finkelstein, A.,
et al., aThe Oregon Health Insurance Experiment: Evidence from the First Year,a National Bureau of
Economic Research Working Paper Series No. 17190. http://www.nber.org/papers/w17190.pdf
* Estimate is considered unreliable 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. USCIS would consider it a heavily
weighed negative factor if the panel physician or civil surgeon reports a medical
condition and the alien is unable to show evidence of non-subsidized health insurance,
the prospect of obtaining non-subsidized health insurance, or other non-governmental
means of paying for treatment.
(iv) 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. See proposed 8 CFR 212.22(c)(1)(v). Absent countervailing positive
factors and evidence to show that current circumstances have outweigh the conditions
that supported the finding of inadmissibility or deportability, the previous finding will
carry heavy weight in determining that an alien is likely to be a public charge again.
2. Heavily Weighed Positive Factors
Significant income, assets, and resources and play a major role in being selfsufficient. In addition, as described above, Tables 16 and 17 show a strong correlation
between the FPL and welfare participation rates among both native-born and foreignborn households in both cash and non-cash benefit types in 2013. The percentage of
people receiving public benefits goes down as the income percentage goes higher.

102

Specifically, the native-born living below 125 percent of the FPL were about twice as
likely to be covered by cash and non-cash benefits compared to persons living between
125 and 250 percent of the FPL. For example, among the native-born population about
10 percent of persons below 125 percent of the FPL received cash benefits compared to
4.2 percent of the population between 125 and 250 percent of the FPL. Foreign-born
participation rates in non-cash benefit programs among those living below 125 percent of
the FPL were similar to rates among the native-born. Because many welfare benefit
programs determine eligibility based on the FPL, person living above 250 percent of the
FPL may be less likely to use or receive public benefits. For these reasons, and based on
the data that follow, 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.
The SIPP data provide estimates of the rates at which individuals participate in
various welfare programs.258 Tables 16and 17 show a strong correlation between the FPL
and welfare participation rates among both native-born and foreign-born households in
both cash and non-cash benefit types in 2013.259 Receipt of public benefits tends to be
inversely correlated with income.

258

The annual average poverty estimates using SIPP data for calendar year 2013 are higher than the official
estimates derived from the Annual Social and Economic Supplement of the Current Population Survey
(ASEC). For example, the official estimate of poverty was 13.5 percent whereas the SIPP annual average
was 17 percent. For each month in 2013, a household was identified as having received a benefit if any
person in that household received the benefit.
259
The following tables are annual averages of twelve monthly estimates from calendar year 2013, using
data from Wave 1 of the 2014 Panel of the Survey of Income and Program Participation (SIPP), a
longitudinal household survey that is sponsored and conducted by the U.S. Census Bureau.

103

Table 16. Public Benefit Participation of Native-Born, by Federal Poverty Level
(FPL), 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

0-125% FPL
% of Total
Population Population
55,820
18.0%
Total
Pct.
S.E.
5,571
10.0% 0.3%

>125-250% FPL
% of Total
Population Population
58,045
18.7%
Total
Rate
S.E.
2,428
4.2%
0.2%

>250% FPL
% of Total
Population
Population
155,548
50.0%
Total
Rate
S.E.
1,286
0.8%
0.1
%
1,119
0.7%
0.1
%
107
0.1%
0.0
%
90
0.1%
0.0
%

SSI

3,582

6.4%

0.3%

1,889

3.3%

0.2%

TANF

1,664

3.0%

0.2%

353

0.6%

0.1%

459

0.8%

0.1%

294

0.5%

0.1%

32,984

59.1%

0.6%

18,207

31.4%

0.5%

8,387

5.4%

Medicaid

25,638

45.9%

0.6%

12,193

21.0%

0.5%

5,470

3.5%

SNAP

21,651

38.8%

0.6%

7,367

12.7%

0.4%

2,290

1.5%

WIC

3,613

6.5%

0.3%

1,593

2.7%

0.2%

642

0.4%

Housing

3,135

5.6%

0.3%

764

1.3%

0.1%

316

0.2%

Rent Subsidy

7,159

12.8%

0.4%

2,443

4.2%

0.2%

853

0.5%

GA

Non-cash ben.

Energy
7,934
14.2% 0.4%
3,964
6.8%
0.3%
1,346
0.9%
Assist.
Source: USCIS analysis of Wave 1 of the 2014 Survey of Income and Program Participation (SIPP). 260
*Estimate is considered unreliable due to a high relative standard error.
- Estimate of zero

260

0.2
%
0.1
%
0.1
%
0.0
%
0.0
%
0.1
%
0.1
%

Estimates of poverty use the income cutoff for the family (RFPOV) within the poverty universe, which
excludes children under the age of 15 who are not related to anyone in the household above age 15. This
approach to defining poverty is consistent with the SIPP poverty estimates reported by the U.S. Census
Bureau, although slight differences from our estimates may occur due either to changes made on the publicuse files to avoid the risk of disclosure of survey respondents, or to differences in the approach to
estimating an annual average. The estimated poverty rate using our methods is 16.8 percent, compared to
the U.S. Census Bureauas estimate of 17.1 percent (See: Monthly and Average Monthly Poverty Rates by
Selected Demographic Characteristics: 2013, available at
https://www.census.gov/content/dam/Census/library/publications/2017/demo/p70br-145.pdf). Both of
these are higher than the official estimate of poverty for 2013 of 14.5 percent, which is based on the Annual
Social and Economic Supplement of the Current Population Survey (See: Income and Poverty in the United
States: 2013, available at
https://www.census.gov/content/dam/Census/library/publications/2014/demo/p60-249.pdf). Estimates are
presented in terms of percentage of the FPL, which is 100 times the ratio of the total family income to the
poverty threshold, so poverty may also be described as having an income no greater than 100 percent of the
FPL.

104

Table 17. Public Benefit Participation of Foreign-Born, by Federal Poverty Level
(FPL), 2013 (in thousands)
Total
Population
310,867
Program
Cash benefits

0-125% FPL
% of Total
Population Population
10,698
3.4%
Total
Pct.
S.E.
812
7.6%
0.8%

>125-250% FPL
% of Total
Population Population
10,911
3.5%
Total
Rate
S.E.
367
3.4%
0.5%

>250% FPL
% of Total
Population
Population
19,845
6.4%
Total
Rate
S.E.
334
1.7%
0.3
%
294
1.5%
0.3
%
20
0.1%
0.1
%
26
0.1%
0.1
%

SSI

673

6.3%

0.7%

349

3.2%

0.5%

TANF

110

1.0%

0.3%

-

-

-

GA

53

0.5%

0.2%

25

0.2%

0.1%

4,846

45.3%

1.4%

2,977

27.3%

1.3%

1,585

8.0%

Medicaid

3,478

32.5%

1.3%

1,873

17.2%

1.1%

921

4.6%

SNAP

2,386

22.3%

1.2%

869

8.0%

0.8%

350

1.8%

WIC

386

3.6%

0.5%

146

1.3%

0.3%

69

0.3%

Housing

457

4.3%

0.6%

211

1.9%

0.4%

50

0.3%

1,251

11.7%

0.9%

487

4.5%

0.6%

238

1.2%

Non-cash ben.

Rent Subsidy

Energy
831
7.8%
0.8%
564
5.2%
0.6%
284
1.4%
Assist.
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

0.6
%
0.5
%
0.3
%
0.1
%
0.1
%
0.3
%
0.3
%

M. Public Benefits Considered for Public Charge Purposes
DHS proposes to consider certain public benefits for the purpose of a public
charge inadmissibility determination.261 In addition, DHS is proposing to exclude certain
public benefits, such as benefits paid for or earned by a person, public benefits when a
minimal amount was received, and public education. 262 Below, DHS outlines the
benefits that it proposes to include and exclude from consideration, respectively.

261
262

See proposed 8 CFR 212.23.
See proposed 8 CFR 212.24.

105

1. Benefits Considered
DHS proposes to consider certain public benefits as part of the public charge
inadmissibility determination.263 The receipt or use of these public benefits indicates a
person is relying on the government for support to meet basic living requirements such as
housing, food, utilities, and medical care. Therefore, DHS proposes to consider receipt or
use of any of these benefits as a negative factor in the totality of the circumstances. The
following is a non-exhaustive list of public benefits that DHS would consider:264
aC/

Supplemental Security Income (SSI) under 42 U.S.C. 1381, et seq;

aC/

Temporary Assistance to Needy Families (TANF), 42 U.S.C. 601;

aC/

State or local cash benefit programs for income maintenance (often called State

"General Assistance," but which may exist under other names);
aC/

Any other Federal public benefits for purposes of maintaining the applicantas income,

such as public cash assistance for income maintenance;
aC/

Nonemergency benefits under the Medicaid Program, 42 U.S.C. 1396 to 1396w-5;

aC/

Government-subsidized health insurance;

aC/

Supplemental Nutrition Assistance Program (SNAP) (formerly called aFood

Stampsa), 7 U.S.C. 2011 - 2036c;
aC/

Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) 42

U.S.C. 1786;
aC/

State Childrenas Health Insurance Program (CHIP or SCHIP), 42 U.S.C. 1397aa et

seq.;

263
264

See proposed 8 CFR 212.23.
See proposed 8 CFR 212.23.

106

aC/

Housing assistance under the McKinney-Vento Homeless Assistance Act, 42 U.S.C.

11401; Housing Choice Voucher Program (section 8), U.S. Housing Act of 1937 (42
U.S.C. 1437u), 24 CFR part 984;
aC/

Means-tested energy benefits such as the Low Income Home Energy Assistance

Program (LIHEAP), 42 U.S.C. 8621 to 8630;
aC/

Institutionalization for both long-term and short-term care at government expense;

aC/

Refundable income tax credits such as the earned income tax credit when the credit

exceeds the tax liability; and
aC/

Any other public benefit as described in proposed 8 CFR 212.21(d), except for those

public benefits excluded in proposed 8 CFR 212.24.265
1. Benefits Not Considered (i) Benefits Paid for or Earned
DHS proposes to exclude a number of benefits from public charge consideration,
as proposed in 8 CFR 212.24. DHS proposes to exclude such benefits because they are
granted primarily because of the alienas past or current employment or contribution to the
benefit system, rather than because the alien is unable to support him or herself.266 These
benefits may include, but are not limited to, the following:
aC/

Federal Old-Age, Survivors, and Disability Insurance benefits;

aC/

Veteranas benefits;

aC/

Government pension benefits;

aC/

Government employee health insurance;

aC/

Government employee transportation benefits;

265
266

See proposed 8 CFR 212.24.
See proposed 8 CFR 212.24(a).

107

aC/

Unemployment benefits;

aC/

Workeras compensation;

aC/

Medicare benefits, unless the premiums are partially or fully paid by a government

agency; and
aC/

State disability insurance.
Similarly, there are certain benefits that involve payments from the person, such

as loans provided by the government that require repayment; and in-state college tuition,
and any subsidized or unsubsidized government student loans, including, but not limited
to loan under the Williams D. Ford Federal Direct Loan Program, 34 CFR 685, and the
Federal Perkins Loan Program, 34 CFR 674.
(ii) De Minimis Amount of Public Benefits
DHS proposes to exclude public benefits received where the total annual value in
any 1 year does not exceed 3 percent of the total FPG threshold based on the household
size.267 For example, for a family of four, this amount (based on 2018 FPL268) would
equal to approximately $753 annually or approximately $63 monthly. This exclusion is
intended to ensure that small amounts of public benefits received or used by otherwise
self-sufficient aliens are not negatively weighed in the totality of the circumstances.
While DHS believes that 3 percent of the annual FPL is an appropriate threshold that will
delineate individuals who relied on public benefits for support from those who generally
do not need public benefits to meet their financial obligations, DHS is specifically
soliciting public comments on the 3 percent threshold amount, and whether it should even

267

See proposed 8 CFR 212.24(b).
See, HHS Poverty Guidelines for 2018, available at https://aspe.hhs.gov/poverty-guidelines (Last visited
Feb. 11, 2018).
268

108

establish a numerical threshold. To the extent a numerical threshold is established, DHS
seeks comments on (1) whether 3 percent is too low or too high, (2) whether this
threshold should only be permitted for the initial year or two after the rule takes effect,
and (3) whether this 3 percent exclusion should only apply where the public benefits are
not received frequently or on a regular basis.
(iii) Public Education
DHS proposes to exclude elementary and secondary public education (Pre-K
through 12th grade) as permitted under the law269 including benefits under the Head Start
Act.270 Although public education may be considered a public benefit, public schools
obtain funding as a whole for the number of children enrolled regardless of their income
level or immigration status. In addition, states are prohibited from denying enrollment
for alien children including children who were not legally admitted into the United
States.271 Therefore, DHS is proposing to exclude attendance of public schools from the
public charge determination. The exclusion of public school attendance from the list of
public benefits considered for public charge inadmissibility determinations in no way
alters limitations on the attendance of public schools otherwise imposed by the INA or
other law or regulation. For example, under section 214(m) of the INA as part of the
nonimmigrant conditions to maintain status, an alien may not attend public school unless
the aggregate attendance does not exceed 12 months and the alien demonstrates that he or
she has reimbursed the school for the full, unsubsidized per capita cost of providing

269

See proposed 8 CFR 212.24(c).

270

See 42 U.S.C. section 9801 et seq.
See Plyler v. Doe, 457 U.S. 202 (1981).

271

109

education for the attendance.272 Similarly, 8 CFR 214.2(b)(7) prohibits an alien who is
admitted as, changes status to, or extends stay in B-1 or B-2 nonimmigrant status from
enrolling in a course of study.
(iv) Non-Refundable Tax Credits and Deductions
In addition, DHS proposes to exempt certain tax credits and deductions available
for the general public which are non-refundable. Tax credits reduce the amount of tax
owed by a person and a nonrefundable tax credit is a reduction in the tax liability for
which a person does not get a refund of any remainder if the tax liability is less than
zero.273 A tax deduction is reduced amount of tax liability.274
(v) Certain Benefits under PRWORA
DHS also proposes to exclude any benefit as defined in 8 U.S.C. 1611(b) and 8
USC 1611(c)(2), including those benefits further defined as disaster relief under 42 U.S.C
Ch. 68. During debates on PRWORA, 275 some senators emphasized that immigrants
should have access to assistance in limited situations that concern the public health or
similar overriding public interest including emergency medical care, immunization, and
treatment for infectious diseases.276 Congressional Reports for IIRIRA, specifically
indicated that a[t]he immigration reforms in this bill will reduce access to public
assistance by illegal immigrants. Illegal immigrants should have access to assistance
only in limited situations, where the public health or similar overriding public interest

272

See INA 214(m).
See IRS, Credits & Deductions for Individuals, available at https://www.irs.gov/credits-deductions-forindividuals.
274
See Id.
275
See 8 U.S.C. 1611(b).
276
See 142 Cong. Rec. 47, page S3276 (Apr. 15, 1996), available at
https://www.congress.gov/crec/1996/04/15/CREC-1996-04-15-pt1-PgS3276.pdf. See also generally 8
U.S.C. 1611(b)(1).
273

110

clearly requires ita.277 Congress, under IIRIRA, ultimately exempted these programs
from the prohibition of aliens receiving public benefits.278 Furthermore, DHS proposes
exempting any benefit under 8 U.S.C. 1611(c)(2), because these benefits are excluded
from the definition of Federal public benefit. In exempting these benefits in the public
charge determination, DHS is ensuring consistency with congressional intent.
(vi) Benefits under the Individuals with Disabilities Education Act
The Rehabilitation Act of 1974,279 prohibits employment discrimination solely on
the basis of disability in Federal and federally-funded programs and activities.
Furthermore, the Americans with Disabilities Act of 1990,280 prohibits several forms of
disability discrimination in hiring for covered entities. The Individuals with Disabilities
Education Act,281 protects educational opportunities for all students with disabilities
which provides services. Therefore, DHS is proposing to exempt all services related that
preventing the discrimination of people with disabilities.
Effective Date
DHS is also proposing to establish an effective date for the consideration of
public benefits. See proposed 8 CFR 212.22(e). Specifically, for public benefits that
were previously excluded from consideration under the public charge guidance published
in the Federal Register at 64 FR 28689, 28693 (May 26, 1999), DHS is proposing to
consider those public benefits only if the alien or alienas dependent child or household
member received or used such benefits on or after the effective date of the final rule.

277

See Immigration Control And Financial Responsibility Act Of 1996, Congressional Records Issue and
Section: April 15, 1996 - Senate (Vol. 142, No. 47) at S3282, available at
https://www.congress.gov/crec/1996/04/15/CREC-1996-04-15-pt1-PgS3276.pdf .
278
See also generally 8 U.S.C. 1611(b)(1).
279
See Pub. L. 93-112, section 504, codified as amended at 29 U.S.C. section 794.
280
See Pub. L. 101-336, section 102, 104 Stat. 331, codified as amended at 42 U.S.C. section 12112.
281
See 20 U.S.C. sections 1400 to 1482.

111

Receiving or using such benefits be considered along with all other relevant factors in the
totality of the circumstances analysis when determining whether an alien is inadmissible
for being more likely than not to become a public charge. The effective date may provide
an opportunity for public benefit granting agencies to communicate the consequences of
receiving public benefits, to the extent they deem appropriate. In addition, this gives
aliens time to stop accepting public benefits and obtain other means of support before
filing for immigration benefits. DHS welcomes any public comments on additional
public benefits that should be excluded from the public charge consideration.
O. Public Charge Bond for Adjustment of Status and Immigrant Visa
Applicants
DHS has the broad authority to prescribe forms of bonds as is deemed necessary
for carrying out the Secretaryas authority under the provisions of the INA.282
Additionally, an alien who 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.283 Currently, the regulatory authority
for posting a public charge bond can be found in 8 CFR 103.6 and 8 CFR 213.
1. Overview of Immigration Bonds Generally
Immigration bonds may generally be secured by cashieras checks or money
orders, or may be underwritten by a surety company certified by the Department of
Treasury under 31 U.S.C. 9304-9308.284 A bond, including a surety bond, is a contract
between the United States (the obligee) and an individual or a company (obligor) who

282

See section 103(a)(3) of the INA, 8 U.S.C. 1103(a)(3).
See section 213 of the INA, 8 U.S.C. 1183.
284
See generally 8 CFR 103.6.
283

112

pledges a sum of money to guarantee a set of conditions set by the government
concerning an alien.285 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 when the bond is
breached.286
2. Overview of Public Charge Bonds
Public charge bonds are a unique form of bond intended to hold the United States
and all states, territories, counties, towns, municipalities and districts harmless against
aliens becoming a public charge.287 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 typically admits the alien despite having found the
alien inadmissible as likely to become a public charge.
If an alien admitted on a public charge bond becomes a public charge, the bond is
breached and forfeited. The public entity that provided the assistance underlying the
breach may be reimbursed based on the public charge bond posted, regardless of whether
a demand for payment of the public expense has been made otherwise, as reflected
below.288
Although DHS has the authority to require public charge bonds, the authority has
rarely been exercised since the passage of IIRIRA in 1996. 289 Consequently, USCIS does

285

See, e.g., Matter of Allied Fidelity Insurance Company, 19 I&N Dec. 124 (BIA 1984) (discussing the
contractual nature of delivery bonds submitted under 8 CFR 103.6); see aBonda, Merriam-Webster (2018),
available at https://www.merriam-webster.com/dictionary/bond.
286
See 8 CFR 103.6(e).
287
See section 213 of the INA, 8 U.S.C. 1183.
288
Section 213 of the INA, 8 U.S.C. 1183; see also Matter of Viado, 19 I&N Dec. 252 (BIA 1985).
See AFM, Chapter 61.1: a(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
289

113

not have a process in place to accept public charge bonds regularly. In this rule, DHS
proposes to clarify when an alien seeking adjustment of status or an immigrant visa will
be permitted to post a public charge bond under DHSas authority outlined in sections 103
and 213 of the INA, 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), limit the circumstances in which a public charge bond will be cancelled, as
well as establish specific conditions under which a public charge bond will be breached.
See proposed 8 CFR 213.1. 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.
3. Permission to Post a Public Charge Bond
First, the proposed regulation clarifies that accepting the public bond is within
DHSas discretion. See proposed 8 CFR 213.1. It is within DHSas discretion to allow an
alien to post a public charge bond if the alien is otherwise admissible. Therefore, DHS
proposes that in circumstances in which USCIS determines after a finding of
inadmissibility on public charge grounds, that a favorable exercise of discretion is
warranted, USCIS will notify the alien of the bond amount and conditions and direct an
alien to submit a bond on an appropriate form. DHS proposes that a public charge bond
would only be submitted 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 weigh in favor of finding a person likely to become a public
charge will generally weigh in favor of setting a higher bond amount. Ultimately, the
purpose of the bond is to allow DHS to appropriately admit an alien who is inadmissible

Reform and Immigrant Responsibility Act of 1996 (IIRIRA) which created the enforceable affidavit of
support (see Chapter 20.5 of this field manual).a

114

due to the public charge ground of inadmissibility, but who warrants a favorable exercise
of discretion. DHS believes that offering a public charge bond in the immigrant visa or
adjustment of status adjudication context would only be warranted in limited
circumstances in which the alien has no heavily weighed negative factors. As a matter of
discretion DHS may take into account any of a range of considerations, such as whether
allowing the alien to become a lawful permanent resident would offer benefits to national
security, or would be justified for exceptional humanitarian reasons.
4. Bond Amount and Submission of a Public Charge Bond
DHS is proposing that a 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), and rounded up to the nearest dollar.
Predicting an average amount sufficient for a public charge bond based on
historical public benefit data (per person or household) is difficult, because the amount
of average public benefit costs paid to a person or household depends on the program(s)
the person or household uses and how long the person or household uses the program.
The broad range of public assistance programs available to individuals on the Federal,
State, and local level, but not necessarily to immigrants, render such a determination even
more complex.
DHS proposes to set the base amount of the public charge bond at $10,000 based
on data showing the median of public benefits received in 2013 by household size in
Table 18 below. In 2013, the median amount of public benefit benefits received (taking a
consideration SSI, TANF, GA, SNAP, and WIC) ranged between $2,160 (for 1 person) to
$4,538 (for 5 or more persons). Given the prospective nature of the public charge

115

determination, and the statutory conditions on the public charge bond a the bond may be
cancelled if the alien naturalizes (generally no earlier than 5 years after obtaining lawful
permanent resident status), dies, or permanently departs a DHS considered a general 5year timeframe290 as an objective multiplier for the base bond amount.
According to the U.S. Census Bureau, depending on the type of public benefit, the
duration that individuals receive public benefit varies from 1 to 12 months for 35.6
percent of Medicaid recipients and between 37 and 48 months for another 35.3 percent of
recipients.291 The duration of participation for SNAP and housing assistance benefits
varied from 37 to 48 months for 38.6 percent and 49.4 percent of participants,
respectively. Additionally, the duration of participation of TANF ranged from 1 to 12
months for almost 63 percent of participants. While, as discussed above, the duration of
public benefit receipt may last between 1 to 48 months, many aliens do not naturalize
within 5 years, and may receive public benefit benefits at different times over the course
of their lawful permanent resident status. Therefore the amount of benefits received
based on 2013 data could be between $10,800 to $22,690. 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 and refund the cost of public benefits received by
the alien.

Table 18. Median Family Public Benefit Amount per Year Among
those Receiving the Benefits, by Family Size (2013)
290

INA section 316(a), 8 U.S.C. 1427(a); 8 CFR 316.2(a)(3)
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/pressreleases/2015/cb15-97.html (accessed Feb. 22, 2018).
291

116

Household
of 1

Household
of 2

Household
of 3

Household
of 4

Household
of 5+

Program
Any benefit

$2,160

$2,533

$2,940

$3,192

$4,538

SSI

$6,444

$7,212

$7,200

$6,480

$8,450

TANF

$1,600

$2,140

$1,952

$3,216

$3,600

GA

$2,400

$1,800

$2,856

$2,740

$4,368

SNAP

$1,380

$2,100

$2,408

$3,150

$4,080

WIC

$345

$429

$519

$519

$639

In addition, DHS requested information from Federal benefits-granting agencies
regarding the amounts of money collected through affidavits of support sponsors. [ADD
TO DISCUSSION FOLLOWING CONSULTATION WITH BENEFITS-GRANTING
AGENCIES.]
If USCIS determines that the alien 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.292
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. While the proposed rule retains the options for a surety bond, or a cashieras
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.293 DHS
proposes to use new USCIS Form I-945, Public Charge Bond for this purpose.
For all public charge surety bonds, USCIS will require that the bond be
underwritten by a surety company certified by the Department of the Treasury, as

292
293

See proposed 8 CFR 213.1(b).
See proposed 8 CFR 213.1(b)(1).

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provided for in proposed 8 CFR 103.6. This requirement is consistent with existing DHS
requirements for other immigration bonds.294 Treasury-certified sureties have agents
throughout the United States from whom aliens could seek assistance in procuring an
appropriate bond.295 The Department of the Treasury certifies companies only after
having evaluated a surety companyas 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 alienas application for adjustment of status and will grant such application
if all eligibility criteria are met. However, 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 alienas application. And as
noted above, in addition to processing public charge bonds in adjustment of status cases,
DHS proposes that USCIS process public charge bonds for immigrant visa applicants
upon the request of a consular officer. Given the complexity of a bond process, DHS
plans to issue separate guidance addressing the specifics of public charge bond
submission.
5. Bond Cancellation

294
295

See 8 CFR 103.6(b).
See Department of the Treasuryas Listing of Approved Sureties (Department Circular 570).

118

A public charge bond must remain in effect until the alien naturalizes,
permanently departs the United States, or dies, or until the bond is substituted with
another bond.296 During this period, as a condition of the bond, an alien on whose behalf
a public charge bond has been accepted agrees to not use or receive any public benefits,
as defined in 8 CFR 212.21, after the date of submission of such a bond.
DHS proposes that USCIS would cancel the bond upon request, following a
determination that the conditions of a bond have been met and the bond has not been
breached.297 A request 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. USCIS is typically not
notified if an alien dies. Also, in many circumstances, USCIS would be unaware that an
alien permanently departed. Information currently collected by DHS is insufficient for
USCIS to determine on its own whether the alien intended a departure to be permanent.
As part of the cancellation request, USCIS would collect evidence that supports a
finding that the bond conditions have been met. For example, DHS would require
additional information of the alienas permanent departure.298 In addition, USCIS would

296

See INA section 213, 8 U.S.C. 1183; see also proposed 8 CFR 213.1.
Return of the bond amount is unavailable ato the extent [the bond] has been forfeited for violation of the
terms thereof.a See section 213 of the INA, 8 U.S.C. 1183. DHS proposes to interpret this authority to
allow DHS to impose, as a condition of the bond, forfeiture of the entire bond amount in the event of a
breach. This interpretation allows DHS to ensure that USCIS has adequate recourse in the aftermath of a
bond breach, given the operational context in which USCIS makes bond cancellation determinations.
USCIS often lacks full information regarding the alienas use of public benefits at the Federal, State, local,
Tribal, or territorial level; once USCIS determines that the alien has violated the bond conditions by using
or receiving public benefits, USCIS cannot responsibly reimburse a portion of the breached bond to the
obligor.
297

298

See, e.g., Matter of De Los Santos, 11 I&N Dec. 121 (BIA 1965) (cancellation of public charge bond
upon permanent departure). Departure verification is not new to the DHS processes. Aliens who depart, for
example, under a grant of Voluntary Departure under section 240B of the INA, 8 U.S.C. 1229c, must
submit proof of departure. DHS envisions that, together with the request to cancel the public charge bond, a
an alien could submit information such as Record of Abandonment of Lawful Permanent Resident Status

119

collect the necessary information, to the extent possible and in accordance with relevant
privacy laws, to ascertain whether an alien used or received public benefits as defined in
8 CFR 212.21. See proposed 8 CFR 213.1.
This constitutes a change from current regulations which allow for public charge
bond cancellation after 5 years from the date of the alienas admission, or at any time if it
is determined that an alien is not likely to become a public charge.299 These changes are
necessary because the 5-year timeframe in current regulations, although generally
consistent with the 5-year period in the public charge ground of deportability under
section 237(a)(5) of the Act, 8 U.S.C. 1227(a)(5), suggests that DHS will assume that the
statutory conditions for bond cancellation have been met. Because not all aliens would
naturalize within 5 years of admission or adjustment of status, this may not be the case.
In cases in which USCIS determines that the request warrants a cancellation of a
bond, USCIS would notify the obligor, and return the full value of any cashieras check or
money order deposited by the obligor to secure the bond plus interest, similar to current
practice. See 8 CFR 103.6(c) and proposed 8 CFR 213.1. 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. See proposed 8 CFR
213.1. When the bond is cancelled, the obligor is released from liability. See proposed 8
CFR 213.1.

(Form I-407) evidencing that the alien permanently abandoned his or her residence status (green card
status).
299
See 8 CFR 103.6(c)(1).

120

DHS invites public comments on the proposed amount, duration of a surety bond,
and any other aspects of a public charge bond.
6. Breach of a Public Charge Bond and Appeal
A bond is considered breached if the alien uses or receives any public benefit (as
defined in proposed 8 CFR 212.21) or if the obligor fails to timely substitute a bond of
limited duration with another valid bond. See proposed 8 CFR 213.1. If USCIS learns of
the breach, USCIS would notify the obligor that the alien breached the bond, including
the reason(s) for the breach, and offer the obligor the right to appeal the determination in
accordance with the requirements of 8 CFR 103, subpart A. See proposed 8 CFR
213.1(e). A bond obligor could appeal a breach determination to the Administrative
Appeals Office 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. In the
alternative, an obligor could also file a motion to reopen or reconsider by using the same
form. See 8 CFR 103.5. If the appeal or motion is denied or the obligor fails to appeal,
the breach determination becomes the final agency determination, and USCIS would
issue a demand for payment pursuant to 31 CFR 901.2. See 8 CFR 103.6(e); see
generally United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc. 728 F. Supp.
2d 1077, 1089-91 (N.D. Cal. 2010); Safety Natal Cas. Corp. v. DHS, 711 F. Supp. 2d 697,
703-04 (S.D. Tex. 2008).
7. Suit on the Bond
[FOR DISCUSSION WITH DOJ]
8. Exhaustion of Administrative Remedies

121

Under the proposed rule, a party must first exhaust all administrative remedies
and obtain a final decision from USCIS in line with procedures in 8 CFR part 103, before
being able to bring suit challenging USCIS cancellation or bond breach determination in
Federal district court. See proposed 213.1(f).
9. Other Technical Changes
In addition to amending 8 CFR 103.6 and 213.1 to updated 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.
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 a asignificant regulatory actiona although it is not
economically significant since it does not meet the $100 million threshold, under section

122

3(f) of Executive Order 12866. Accordingly, OMB has reviewed this proposed
regulation.
Section 4(c) of Executive Order 13771 excludes from the definition of
aregulationa or arulea for its purposes, aany other category of regulations exempted by
the Director.a The Administrator of the Office of Information and Regulatory Affairs has
exempted this type of immigration regulation from regulations or rules covered by this
the Executive Order.
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 define the term apublic chargea for immigration
purposes and provide guidance on 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 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 immigrantas likelihood to become a
public charge. DHS is also revising existing regulations to clarify when and how it
considers public charge when adjudicating in change of status and extension of stay
applications. Finally, DHS is proposing to revise its regulations governing the
Secretaryas discretion to accept a public charge bond or similar undertaking under section
213 of the INA, 8 U.S.C. 1183a. Similar to a waiver, a public charge bond permits an
alien deemed inadmissible on the public charge ground to be admitted, if otherwise

123

admissible.300 Simultaneously, DHS is proposing to eliminate the use and consideration
of unenforceable affidavits of support currently applicable to certain classes of aliens.
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 estimates that the total annual cost on the population
applying to adjust status who would be required to file Form I-944 would be $25.8
million.
Over the first 10 years of implementation, DHS estimates the total quantified new
costs of the proposed rule would be as much as $258,448,690 (undiscounted) for filing
Form I-944 as part of the review for determination of inadmissibility based on public
charge when applying for adjustment of status. DHS estimates that the 10-year
discounted total costs of this proposed rule would be $220,461,975 at a 3 percent
discount rate and $181,523,545 at a 7 percent discount rate.
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
Public Charge Bond form (Form I-945). DHS estimates the total cost to file Form I-945
would be $5.30 per filer.
In addition, the proposed rule would potentially impose new costs on the
population seeking extension of stay or change of status using Form I-129 or Form I-539.

There is no mention of awaivera or awaivea in section 213 of the INA, 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).
300

124

For either of these forms, USCIS adjudication officers would be able to exercise
discretion regarding whether it would be necessary to issue a RFE whereby an applicant
may then have to submit Form I-944. The costs to Form I-129 beneficiaries who may
receive a RFE to file Form I-944 range from $444,914 to $52,730,601 annually. The
costs to Form I-539 applicants who may receive a RFE to file Form I-944 range from
$231,318 to $27,415,491 annually.
The primary benefit of the proposed rule would be to help ensure that aliens who
are admitted to the United States, seek extension or change of status, or apply for
adjustment of status are self-sufficient and would not use or receive one or more public
benefits through an improved review process. DHS also anticipates that the proposed
rule would produce some benefits from the elimination of Form I-864W. The elimination
of Form I-864W would potentially reduce the number of forms USCIS would have to
process. DHS estimates the amount of benefits that would accrue from eliminating Form
I-864W would be $34.84 per petitioner.301 However, DHS notes that we are unable to
determine the annual number of filings of Form I-864W who would now use other forms
and therefore currently unable to estimate the total annual benefits. Additionally, a
public charge bond process would also provide benefits to applicants as they potentially
would be given the opportunity to be admitted despite the determination that he or she is
likely to become a public charge.
Table 19 provides a more detailed summary of the proposed provisions and their
impacts.

301

Calculation opportunity cost of time for completing and submitting Form I-864W: ($34.84 per hour *
1.0 hours) = $34.84.

125

Table 19. 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:
Benefits
aC/ $34.84 per petitioner opportunity cost
of time for eliminating Form I-864W.
Costs:

Adding 8 CFR
212.21. Definitions.

To establish key definitions,
including public charge, public
benefit, dependent, government,
and subsidized health insurance.

Adding 8 CFR
212.22. Public
charge
determination.

Clarifies that evaluating public
charge is a prospective
determination based on the
totality of the circumstances.
Outlines minimum and additional
factors considered when
evaluating whether an immigrant
is inadmissible based on public
charge. Factors are weighed,
positively and negatively, to
determine an individualas
likelihood of becoming a public
charge.

Adding 8 CFR
212.23. Public
benefits considered
for purposes of
public charge
inadmissibility

Outlines public benefits that, if
alien used, received, currently
uses or receives, or is likely to
use or receive, constitutes a
negative factor in the public
charge determination.

Adding 8 CFR
212.24. Public
benefits not
considered for
purposes of public
charge
inadmissibility.

Outlines public benefits that
cannot be considered when
evaluating whether an alien is
likely to become inadmissible
based on public charge.

126

aC/ DHS anticipates a likely increase in the
number of denials for adjustment of
status applicants based on public charge
determinations due to formalizing and
standardizing the criteria and process
for public charge determination.

Qualitative:
Benefits
aC/ Ensure that aliens who are admitted to
the United States or apply for adjustment
of status are self-sufficient and would
not become dependent on public benefits
through an improved review process.
aC/ Potential to improve the efficiency for
USCIS in the review process for public
charge.

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

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

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

To provide, with limited
exceptions, that an applicant for
extension of nonimmigrant status
must demonstrate that he or she
is not using or receiving, nor
likely to use or receive, public
benefits as defined in proposed 8
CFR 212.21(d), before the
applicant can be granted .

Amending 8 CFR
248.1(a) and adding
8 CFR 248.1(c)(4).
Change of
nonimmigrant
classification
eligibility.
Amending 8 CFR
245. Adjustment of
status to that of a
person admitted for
permanent
residence..

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.

Quantitative:
aC/ None
Qualitative:
Benefits
aC/ Potential to improve the efficiency for
USCIS in the review process for public
charge.

Quantitative:
Costs
aC/ Total costs over 10-year period to
applicants applying to adjust status who
must file Form I-944 are:
aC/ $258.4 million for undiscounted
costs;
aC/ $220.5 million at a 3% discount rate;
and
aC/ $181.5 million at a 7% discount rate.
aC/ Range of potential annual costs for
those filing Form I-129 from $0.44
million to $52.7 million depending on
how many applicants are sent a RFE by
USCIS.
aC/ Range of potential annual costs for
those filing Form I-539 from $0.23
million to $ 27.4 million depending on
how many applicants are sent a RFE by
USCIS.
Qualitative:
aC/ None

Public Charge Bond Provisions

127

Amending 8 CFR
103.6. Public charge
bonds.

To set forth the Secretaryas
discretion to approve bonds,
specify acceptable sureties,
cancellation, bond schedules, and
breach of bond and move
principles governing public
charge bonds to proposed 8 CFR
213.1.

Quantitative:
Costs
aC/ $15.89 per applicant opportunity cost of
time for completing Public Charge Bond
(Form I-945).
aC/ $2.65 per applicant opportunity cost of
time for completing Request for
Cancellation of Public Charge Bond
(Form I-356).
aC/ Fees paid to surety bond companies to
secure public charge bond. Fees could
range from 1 a 15 percent of the public
charge bond amount based on an
individualas credit score.

Amending 8 CFR
213.1. Admission or
adjustment of status
of aliens on giving of
a public charge bond.

To change the title of this section
and add specifics to the public
charge bond provision for
individuals who are seeking an
immigrant visa or adjustment of
status, including the discretionary
review and the minimum amount
required for a public charge
bond.

Qualitative:
Costs
aC/ Potentially enable an alien who was
found inadmissibility on public charge
grounds to be admitted by posting a
public charge bond with DHS.

Source: USCIS analysis.

2. Background and Purpose of the Rule
As discussed in the preamble, DHS seeks to ensure that aliens who are admitted to
the United States or apply for adjustment of status are self-sufficient and would not use or
receive one or more public benefits. Under the INA, any 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.302
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

302

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

128

immigration officers must, at a minimum, consider certain factors including the alienas
age, health, and family status; assets, resources, and financial status; and education and
skills.303 Additionally, DHS may consider any affidavit of support submitted under
section 213A of the INA, 8 U.S.C. 1183a, on behalf of the applicant when determining
whether the applicant may become a public charge.304 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.305
However, in general, there is a lack of academic literature or economic research
examining the link between immigration and public benefits (i.e., welfare), and the
strength of that connection.306 It is also difficult to determine whether immigrants are net
contributors or net users of government-supported public assistance programs since much
of the answer depend on the data source, how the data are used, and what assumptions are
made for analysis.307 Moreover, DHS notes that we did not specifically estimate the
impacts and costs of the proposed rule on the welfare system for US citizen children who
could lose access to CHIP, SNAP, or other government-supported public assistance
programs for which they are entitled. DHS also was not able to estimate potential lost
productivity, early death, or increased disability insurance claims as a result of this
proposed rule.

303

See INA section 212(a)(4)(B)(i); 8 U.S.C. 1182(a)(4)(B)(i).
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.
305
See INA section 212(a)(4)(C) and (D), 8 U.S.C. 1182(a)(4)(C) and (D).
306
See Borjas, G.J. (2016) We wanted workers: Unraveling the immigration narrative. Chapter 9. W.W.
Norton & Company, New York.
307
See Borjas, G.J. (2016) We wanted workers: Unraveling the immigration narrative. Chapter 9, p. 175.
W.W. Norton & Company, New York.
304

129

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..308
The costs and benefits for this proposed rule focuses 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 admission from outside the United States
through consular processing at a DOS consulate abroad. In addition, nonimmigrant
workers 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 formaForm I-944ato the current process to
apply for adjustment of status. Currently, as part of the requirements for filing Form I485, 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 is also required for most family-based 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.

308

See proposed 8 CFR 212.25(a).

130

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 years of age, and parents of U.S. citizens 21 years of age and older); 2)
family-based 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 with certain visa classifications are
exempt from the requirement to submit a Form I-864 as well as any intending immigrant
who has 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.

131

Form I-864 includes attachment, Contract Between Sponsor and Household
Member (Form I-864A), which may be filed when a sponsoras 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 by
him or herself, an individual seeking an immigrant visa 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) of the INA, 8 U.S.C. 1883a(f)(2). The joint sponsoras 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

132

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 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 a
Request for Fee Waiver (Form I-912). If an applicantas 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:
aC/

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
aC/

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,
aRegistry,a Asylum Status under section 209(b) of the INA, Special Immigrant Juvenile
Status, and Lautenberg parolees.

133

Additionally, an individual may also apply for a fee waiver for Form I-485 for the
following statuses:
aC/

Battered spouses of A, G, E-3, or H nonimmigrants;

aC/

Battered spouse or child of a lawful permanent resident or U.S. citizen under INA

section 240A(b)(2);
aC/

T nonimmigrant;

aC/

U nonimmigrant; or

aC/

VAWA selfapetitioner.
DHS is proposing to facilitate the current Form I-485 application process by

creating a new formaForm I-944awhich would collect information to the extent
allowed by relevant laws based on factors such as age, health, family status, finances,
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 use
or receive, public benefits as defined in this proposed rule unless the applicant is in a

134

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 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 immigrant visa or
adjustment of status applicantas behalf if the immigrant visa applicant or adjustment of
status applicant was deemed inadmissible based on public charge. The process would
also include DHS determination of breach of a public charge bond, and the possibility to
appeal the breach determination, and cancellation of a public charge bond.
3. Population
This proposed rule would mostly affect individuals who are present in the United
States who are seeking an adjustment of status. According to statute, an individual who
is seeking adjustment of status and is at any time likely to become a public charge is
inadmissible to the United States.309 The grounds of inadmissibility apply whether the
person enters the United States for a temporary purpose or permanently. However, the
grounds of public charge inadmissibility do not apply to all applicants as there are various
classes of admission that are exempt from adjudication for public charge based on statute
or regulation. Within USCIS, this proposed rule would primarily affect individuals who
apply for adjustment of status since these individuals would be required to be reviewed

309

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

135

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 potentially affect individuals applying for an extension
of stay or change of status because these individuals would have to demonstrate that they
are neither using or receiving, nor likely to receive, public benefits as defined in the
proposed rule. This analysis estimates the populations from each of these groups that
would be subject to review for use or 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.
(i) Population Seeking Adjustment of Status
With this proposed rule, DHS intends to ensure that aliens who are admitted to the
United States or who apply for an adjustment of their status are self-sufficient and do not
intend to request public benefits. Therefore, DHS estimates the population of individuals
who are applying for adjustment of status using Form I-485. 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 20 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

136

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.

Table 20. Total Population that Applied
for Adjustment of Status, Fiscal Year
2012 to 2016.

Fiscal Year

Total Population Applying
for Adjustment of Status

2012

547,559

2013

530,802

2014

535,126

2015

542,315

2016

565,427

Total

2,735,894

5-year average

544,246

Source: USCIS analysis of DHS Yearbook of Immigration
Statistics.

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 inadmissibility based on public charge grounds. 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 DOS consulate abroad.
a. 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 inadmissibility based on public charge grounds.

137

Table 21 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.

Table 21. Classes of Applicants for Admission, Adjustment of Status, or Registry
Exempt from Inadmissibility Based on Public Charge According To Statute or
Regulation.
aC/

Refugees and asylees as follows: at the
time admission under section 207 of the
Act (refugees) or grant under section 208
of the Act (asylees adjustment of status to
lawful permanent resident under sections
207(c)(3) and 209(c) of the Act;

aC/

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;

aC/

Afghan and Iraqi Special immigrants
serving as translators with United States
armed forces as described in section
1059(a)(2) of the National Defense
Authorization Act for Fiscal Year 2006
Public Law 109a163 (Jan. 6, 2006), as
amended, and section 602(b) of the
Afghan Allies Protection Act of 2009,
Public Law 111a8, title VI (Mar. 11,
2009), as amended, 8 U.S.C. 1101 note;

aC/

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;

aC/

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;

aC/

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;

aC/

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;

aC/

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;

aC/

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

aC/

Aliens who entered the United States
prior to January 1, 1972 and who meet
the other conditions for being granted
lawful permanent residence under

138

section 249 of the Act and 8 CFR part
249 (Registry);
aC/

Aliens applying for or re-registering 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);

aC/

A nonimmigrant classified under section
101(a)(15)(T) of the Act, in accordance
with section 212(d)(13)(A) of the Act;

aC/

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;

aC/

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;

aC/

An alien who is a VAWA self-petitioner
under section 212(a)(4)(E)(i) of the Act;

aC/

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;

aC/

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);

aC/

American Indians Born in Canada as
described in section 289 of the Act;

aC/

Nationals of Vietnam, Cambodia, and
Laos applying for adjustment of status
under section 586 of Public Law 106-429
under 8 CFR 245.21; and

aC/

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,
Subtitle D (Sept. 30, 1996), 8 U.S.C.
1255 note.

Source: USCIS.

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, leaving the total population that would be subject to such review.

139

Table 22 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.310 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 3). After removing individuals from
this population whose classes of admission are exempt from examination for public
charge, DHS estimates the total population in fiscal year 2016 that would be subject to
public charge review for inadmissibility is 382,769.311

Table 22. Total Estimated Population of Individuals Seeking
Adjustment of Status who Were Exempt from Public Charge
Adjudication.
Total Population Seeking
Adjustment of Status that
is Exempt from Public
Charge Review for
Inadmissibility

Total Population Subject to
Public Charge Review for
Inadmissibility

2012

163,333

384,226

2013

132,814

397,988

2014

154,912

380,214

2015

176,190

366,125

2016

182,658

382,769

Total

810,783

1,925,111

5-year average

161,981

382,264

Source: USCIS analysis.

310

Calculation of total estimated population that would be subject to public charge review: (Total
Population Applying for Adjustment of Status) a (Total Population Seeking Adjustment of Status that is
Exempt from Public Charge Review for Inadmissibility) = Total Population Subject to Public Charge
Review for Inadmissibility.
311
Calculation of total population subject to public charge review for inadmissibility for fiscal year 2016:
565,427 a 182,658 = 382,769.

140

DHS estimates the projected annual average total population that would be
subject to public charge review for inadmissibility 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.
b. 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 they would 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.

141

Table 23 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 based on the likelihood of becoming a public charge over the period fiscal year
2012 to fiscal year 2016. 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 become a
public charge for failure to submit a sufficient affidavit of support. The estimated
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.

Table 23. Total Estimated Population of Individuals Seeking
Adjustment of Status Who Are Exempt from the Requirement to
Submit Public Charge Affidavit of Support.
Total Population Exempt
from Submitting Affidavit
of Support

Total Population Required
to Submit a Public Charge
Affidavit of Support

2012

288,951

258,608

2013

272,222

258,580

2014

283,726

251,400

2015

295,304

247,011

2016

292,976

272,451

Total

1,448,625

1,287,269

286,636

257,610

5-year average
Source: USCIS analysis

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.

142

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 from a sponsor based on the likelihood of becoming a
public charge 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.
(ii) 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 could also be used to request an extension or change in status. A
nonimmigrant may also file Form I-539 so long as the nonimmigrant is currently in an

143

eligible nonimmigrant category.312 A nonimmigrant 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 is not using or receiving, nor is likely to use or receive,
public benefits as defined in the proposed rule. However, DHS proposes that such
determinations would not require applicants seeking extension of stay or change of status
to file Form I-944 detailing 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 whereby an applicant would then have to submit Form I-944.
Table 24 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

312

Form I-539 may also be used by Commonwealth of the Northern Mariana Islands (CNMI) residents
applying for an initial grant of status; F and M nonimmigrants to apply for reinstatement; and persons
seeking V nonimmigrant status or an extension of stay as a V nonimmigrant.

144

stay or change of status through an employer petition using Form I-129 and therefore
subject to the discretionary RFEs for public charge determination.

Table 24. Total Estimated Population of
Beneficiaries Seeking Extension of Stay or Change
of Status through an Employer Petition Using
Form I-129, Fiscal Year 2012 a 2016.

Receipts

Approvals

Denials

2012

377,221

249,172

127,555

2013

282,225

221,229

60,413

2014

306,159

242,513

63,087

2015

340,338

277,010

62,175

2016

375,733

321,783

52,430

1,681,676

1,311,707

365,660

336,335

262,341

73,132

Total
5-year
average

Source: USCIS analysis
Notes: Denials include the number of applications that were denied,
terminated, revoked, or withdrawn during the reporting period. Cases
may have been adjudicated in a later year than the one in which they were
received.

Table 25 shows the total estimated population of individuals seeking extension of
stay and 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

145

status using Form I-539 and therefore would be subject to the discretionary RFEs for
public charge determination.

Table 25. Total Estimated Population of Individuals
Seeking Extension of Stay or Change of Status Using
Form I-539, Fiscal Year 2012 a 2016.

Receipts

Approvals

Denials

2012

154,309

135,379

18,781

2013

149,583

130,600

18,826

2014

185,515

136,298

22,053

2015

181,226

154,184

26,162

2016

203,695

138,870

17,492

Total

874,328

695,331

103,314

5-year average

174,866

139,066

20,663

Source: USCIS analysis
Notes: Denials include the number of applications that were denied,
terminated, revoked, or withdrawn during the reporting period. Cases may
have been adjudicated in a later year than the one in which they were received.

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 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 non-immigrants 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.
4. Cost-Benefit Analysis

146

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 of $7.25
per hour to estimate the opportunity cost of time as a reasonable proxy of time valuation
for individuals who are applying for adjustment of status and must be reviewed for
determination of inadmissibility based on public charge grounds.313 This analysis uses
the federal minimum wage rate since approximately 80 percent of the total number of
individuals who obtained lawful permanent resident status was in a class of admission
other than employment-based.314 As a result, DHS assumes these applicants hold
positions in occupations that have a wage below the mean hourly wage across all
occupations.
In addition, the federal minimum wage is an unweighted hourly wage that does
not account for worker benefits. DHS accounts for worker benefits 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 1.46 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.315 Due to data limitations, DHS assumes that individuals

313

See 29 USC ASS 206 - Minimum wage. Available at https://www.gpo.gov/fdsys/pkg/USCODE-2011title29/html/USCODE-2011-title29-chap8-sec206.htm (accessed Jan. 24, 2018).
314
See United States Department of Homeland Security. Yearbook of Immigration Statistics: 2016, Table
6. Washington, D.C., 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).
315
The benefits-to-wage multiplier is calculated as follows: (Total Employee Compensation per hour) /
(Wages and Salaries per hour) = $35.64 / $24.33 = 1.46. See Economic News Release, Employer Cost for

147

seeking to adjust status are widely dispersed throughout the various occupational groups
and industry sectors of the U.S. economy. DHS notes that there are no employment
requirements for filing 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 $10.59 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 $3.34 per hour. 316
However, DHS uses the unweighted mean hourly wage of $23.86 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 for these individuals as $34.84 per hour, where the mean hourly
wage is $23.86 per hour worked and average benefits are $10.98 per hour.317, 318

Employee Compensation (September 2017), 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. December 15, 2017, available at
https://www.bls.gov/news.release/archives/ecec_12152017.pdf (viewed Jan. 8, 2018).
316
The calculation of the weighted federal minimum hourly wage for applicants: $7.25 per hour * 1.46
benefits-to-wage multiplier = $10.585 = $10.59 (rounded) per hour.
317
The national mean hourly wage across all occupations is reported to be $23.86. See Occupational
Employment and Wage Estimates United States. May 2016. Department of Labor, BLS, Occupational
Employment Statistics program, available at https://www.bls.gov/oes/2016/may/oes_nat.htm.
318
The calculation of the weighted mean hourly wage for applicants: $23.86 per hour * 1.46 = $34.84 per
hour.

148

DHS welcomes any public comments on its use of the federal minimum wage for
most populations of this analysis and the average hourly wage for all occupations for
some other populations.
(i) 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 requirement 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 ano changea to DHS regulations to establish an 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 26 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 sources of costs derived from the process of applying for
extension of stay or change of status, including filing Form I-129 or Form I-539.

149

Table 26. Total Annual Baseline (Current) Costs.
Estimated
Annual
Population

Form
I-485, Application to Register Permanent
Residence or Adjust Status

Total Annual
Cost

382,264

Filing Fee

$435,780,960

Opportunity Cost of Time (OCT)

$25,302,054

Biometrics Services Fee

$32,492,440

Biometrics Services OCT

$14,858,602

Biometrics Services Travel Costs

$10,416,694

I-693, Report of Medical Examination
and Vaccination Record

382,264

Medical Exam Cost

$187,309,360

Opportunity Cost of Time (OCT)

$10,122,351

Postage Costs

$1,433,490

I-912, Request for Fee Waiver

53,285

Opportunity Cost of Time (OCT)

$725,534

Postage Costs

$219,593

Affidavit of Support Forms (I-864, I864A, I-864EZ, I-864W)

257,610

Opportunity Cost of Time (OCT)

$53,850,794

I-129, Petition for a Nonimmigrant
Worker

336,335

Filing Fee

$154,714,100

Opportunity Cost of Time (OCT)

$27,421,393

Postage Costs

$1,261,256

I-539, Application to Extend/Change
Nonimmigrant Status

174,866

Filing Fee

$64,700,420

Opportunity Cost of Time (OCT)

$11,453,723

Total Baseline Costs

$1,032,062,764

Source: USCIS analysis.

a. Determination of Inadmissibility based on Public Charge Grounds
(a) Form I-485, Application to Register Permanent Residence or Adjust Status

150

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. 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 $435,780,960.319
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.320 Using the total
rate of compensation for minimum wage of $10.59 per hour, DHS estimates the
opportunity cost of time for completing and submitting Form I-485 would be $66.19 per
applicant.321 Therefore, using the total population estimate of 382,264 annual filings for

319

Calculation: (Form I-485 filing fee ($1,140) * (Estimated annual population filing Form I-485 (382,264)
= $1,140 * 382,264 = $435,780,960 annual cost for filing Form I-485.
320
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.
321
Calculation for opportunity cost of time for filing Form I-485: ($34.84 per hour * 6.25 hours) = $66.187
= $66.19 (rounded) per applicant.

151

Form I-485, DHS estimates the total opportunity cost of time associated with completing
Form I-485 is approximately $25,302,054 annually. 322
USCIS requires applicants who file Form I-485 to submit biometric information
(fingerprints and signature) 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
$32,492,440.323
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.324 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.325 Using the total rate of compensation of minimum wage of $10.59 per

322

Calculation: Form I-485 estimated opportunity cost of time ($66.19) * Estimated annual population
filing Form I-485 (382,264) = $25,302,054.16 = $25,302,054 (rounded) annual opportunity cost of time for
filing Form I-485.
323
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.
324
See aEmployment Authorization for Certain H-4 Dependent Spouses; Final rule,a 80 FR 10284 (25 Feb.
2015); and aProvisional and Unlawful Presence Waivers of Inadmissibility for Certain Immediate
Relatives; Final Rule,a 78 FR 536, 572 (3 Jan. 2013).
325
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.

152

hour, DHS estimates the opportunity cost of time for completing the biometrics collection
requirements for Form I-485 is $38.87 per applicant.326 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 $14,858,602 annually.327
In addition to the opportunity cost of providing biometrics, applicants would 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 Administrationas (GSA) travel rate of $0.545 per mile.328
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 $10,416,694.329
In sum, DHS estimates the total current annual cost for filing Form I-485 is
$518,850,750. 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.330 DHS
Calculation for opportunity cost of time to comply with biometrics submission for Form I-485: ($10.59
per hour * 3.67 hours) = $38.87 (rounded) per applicant.
327
Calculation: Estimated opportunity cost of time to comply with biometrics submission for Form I-485
($38.87) * Estimated annual population filing Form I-485 (382,264) = $14,858,602 (rounded) annual
opportunity cost of time for filing Form I-485.
328
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-mileage-reimbursement-rates (accessed January 7, 2018).
329
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.
330
Calculation: $435,780,960 (Annual filing fees for Form I-485) + $25,302,054 (Opportunity cost of time
for filing Form I-485) + $32,492,440 (Biometrics services fees) + $14,858,602 (Opportunity cost of time
326

153

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 submitting an affidavit of support and requesting 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 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 healthrelated 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

for biometrics collection requirements) + $10,416,694 (Travel costs for biometrics collection) =
$518,850,750 total current annual cost for filing Form I-485.

154

notes that the cost of the medical examinations may vary widely, from as little as $20 to
as much as $1000 per respondent (including vaccinations to additional medical
evaluations and testing that may be required based on the health conditions of the
applicant).331 DHS estimates that the average cost for these activities is $490 and that all
applicants would incur this cost.332 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 $187,309,360.333
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.334
DHS estimates the opportunity cost of time for completing and submitting Form I-693 is
$26.48 per applicant based on the total rate of compensation of minimum wage of $10.59
per hour.335 Therefore, using the total population estimate of 382,264 annual filings for

331

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.
332
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.
333
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.
334
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.
335
Calculation for medical exam opportunity cost of time: ($10.59 per hour * 2.5 hours) = $26.475 =
$26.48 (rounded) per applicant.

155

Form I-485, DHS estimates the total opportunity cost of time associated with completing
and submitting Form I-693 is approximately $10,122,351 annually.336
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.337 DHS estimates the total annual cost in postage based on
the total population estimate of 382,264 annual filings for Form I-693 is $1,433,490.338
In sum, DHS estimates the total current annual cost for filing Form I-693 is
$198,865,201. 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.339
(c) Form I-912, Request for Fee Waiver
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 applicantas 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

336

Calculation: (Estimated medical exam opportunity cost of time for Form I-693) * (Estimated annual
population filing Form I-485) = $26.48 * 382,264 = $10,122,350.72 = $10,122,351 (rounded) annual
opportunity cost of time for filing Form I-485.
337
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.
338
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.
339
Calculation: $187,309,360 (Medical exam costs) + $10,122,351 (Opportunity cost of time for Form I693) + $1,433,490 (Postage costs for biometrics collection) = $198,865,201 total current annual cost for
filing Form I-693.

156

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 27 shows the estimated population of individuals that requested a fee
waiver (Form I-912), based to 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
5-year 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.340

Table 27. Total Population Requesting A Fee Waiver
(Form I-912) when Filing Form I-485, Adjustment of
Status.

Fiscal Year

Receipts

Approvals

Denials

2012

42,126

34,890

7,236

2013

52,453

41,615

10,838

340

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.

157

2014

58,534

47,629

10,905

2015

63,059

53,615

9,444

2016

76,616

68,641

7,975

292,788

246,390

46,398

58,558

49,278

9,280

Total
5-yr average
Source: USCIS analysis.

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 $10.59 per
hour, where the value of $10.59 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 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.341 Therefore,
using $10.59 per hour as the total rate of compensation, DHS estimates the opportunity
cost of time for completing and submitting Form I-912 is $12.39 per applicant.342 Using
the total population estimate of 58,558 requests for a fee waiver for Form I-485, DHS

341

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.
342
Calculation for fee waiver opportunity cost of time: ($10.59 per hour * 1.17 hours) = $12.39.

158

estimates the total opportunity cost of time associated with completing and submitting
Form I-912 is approximately $725,534 annually.343
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 I912 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.344 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 $219,593.345
In sum, DHS estimates the total current annual cost for filing a fee waiver request
(Form I-912) for Form I-485 is $945,127. 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.346
(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 employment-based 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 sponsoras income and assets do not meet the income requirements of Form

343

Calculation: (Estimated opportunity cost of time for Form I-912) * (Estimated annual population of
approved Form I-912) = $12.39 * 58,558 = $725,533.62 = $725,534 (rounded) annual opportunity cost of
time for filing Form I-944 that are approved.
344
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.
345
Calculation: (Form I-912 estimated cost of postage) * (Estimated annual population of approved Form I912) = $3.75 * 58,558 = $219,592.50 = $219,593 (rounded) annual cost in postage for filing Form I-912
that is approved.
346
Calculation: $725,534 (Opportunity cost of time for Form I-912) + $219,593 (Postage costs for
biometrics collection) = $945,127 total current annual cost for filing Form I-912.

159

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 Immigrantas Affidavit of Support.
However, 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 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 submitting the affidavit.347 Therefore, using the average
total rate of compensation of $34.84 per hour, DHS estimates the opportunity cost of time
for completing and submitting Form I-864 would be $209.04 per petitioner.348 DHS
assumes that the average total 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

347

Source for I-864 time burden estimate: Paperwork Reduction Act (PRA) Affidavit of Support Under
Section 213A of the Act (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.
348
Calculation opportunity cost of time for completing and submitting Form I-864, Affidavit of Support
Under Section 213A of the INA: ($34.84 per hour * 6.0 hours) = $209.04 per applicant.

160

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 I864 is $53,850,794 annually.349 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.350
Therefore, using the average total rate of compensation of $34.84 per hour, DHS
estimates the opportunity cost of time for completing and submitting Form I-864A will
be $60.97 per petitioner.351 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.

349

Calculation: (Form I-864 estimated opportunity cost of time) * (Estimated annual population filing Form
I-864) = $209.04 * 257,610 = $53,850,794.40 = $53,850,794 (rounded) total annual opportunity cost of
time for filing Form I-864.
350
Source for I-864A time burden estimate: Paperwork Reduction Act (PRA) Affidavit of Support Under
Section 213A of the Act (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.
351
Calculation opportunity cost of time for completing and submitting Form I-864A, Contract Between
Sponsor and Household Member: ($34.84 per hour * 1.75 hours) = $60.97.

161

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 I864EZ 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.352 Therefore, using the average total rate of compensation of
$34.84 per hour, DHS estimates the opportunity cost of time for completing and
submitting Form I-864EZ will be $87.10 per petitioner.353 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.354 Therefore, using the
average total rate of compensation of $34.84 per hour, DHS estimates the opportunity
cost of time for completing and submitting Form I-864EZ will be $34.84 per
petitioner.355 However, DHS notes that we are unable to determine the number filings of
352

Source for I-864EZ time burden estimate: Paperwork Reduction Act (PRA) Affidavit of Support Under
Section 213A of the Act (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.
353
Calculation opportunity cost of time for completing and submitting Form I-864EZ, Affidavit of Support
Under Section 213A of the INA: ($34.84 per hour * 2.5 hours) = $87.10.
354
Source for I-864W time burden estimate: Paperwork Reduction Act (PRA) Affidavit of Support Under
Section 213A of the Act (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.
355
Calculation opportunity cost of time for completing and submitting Form I-864W: ($34.84 per hour *
1.0 hours) = $34.84.

162

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 means-tested public
benefits. Form I-864P is used to determine the minimum level of income required to
sponsor most family-based immigrants and some employment-based immigrants. These
income requirements are to show that a sponsor has adequate means of financial support
and are 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.
b. Consideration of Use or Receipt, or Likelihood of Use or Receipt of Public
Benefits 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 on his or her behalf, or by filing
Form I-539 so long as the nonimmigrant is currently in an eligible nonimmigrant
category.356 This proposed rule seeks to require nonimmigrants who are seeking

356

Form I-539 may also be used by CNMI residents applying for an initial grant of status; F and M
nonimmigrants to apply for reinstatement; and persons seeking V nonimmigrant status or an extension of
stay as a V nonimmigrant.

163

extension of stay or change of status to demonstrate that they are not using or receiving,
nor is likely to use or receive, public benefits as defined in this rule. 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 process to request an extension of stay or change of status.
(a) Form I-129, Petition for a Nonimmigrant Worker
The current filing fee for Form I-129 is $460.00. 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 $154,714,100.357
DHS estimates the time burden for completing Form I-129 is 2 hours and 50
minutes (2.84 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.358 Using the average total rate of
compensation of $34.84 per hour, DHS estimates the opportunity cost of time for
completing and submitting Form I-129 will be $98.95 per petitioner.359 Therefore, using
the total population estimate of 336,335 annual filings for Form I-129, DHS estimates the

357

Calculation: (Form I-129 filing fee) * (Estimated annual population filing Form I-129) = $460 * 336,335
= $154,714,100 annual cost for filing Form I-129 seeking EOS/COS.
358
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.
359
Calculation for petition for nonimmigrant workers opportunity cost of time: ($34.84 per hour * 2.84
hours) = $98.946 = $98.95 (rounded).

164

total opportunity cost of time associate with completing and submitting Form I-129 is
approximately $33,280,348 annually.360
In addition to the filing fee and the opportunity cost of time associated with
completing and submitted 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.361 DHS estimates the total annual cost in postage based on the total population
estimate of 336,335 annual filings for Form I-129 is approximately $1,261,256.362
In sum, DHS estimates the total current annual cost for filing Form I-129 is
$189,255,704. 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-693
package to USCIS.363
(b) Form I-539, Application to Extend/Change Nonimmigrant Status
The current filing fee for Form I-539 is $370 per application.364 The fee is set at a
level to recover the processing costs to DHS. As previously discussed, the estimated

360

Calculation: (Form I-129 estimated opportunity cost of time) * (Estimated annual population filing Form
I-129) = $98.95 * 336,335 = $33,280,348.25 = $33,280,348 (rounded) annual opportunity cost of time for
filing Form I-129.
361
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 1615-0009).
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.
362
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.
363
Calculation: $154,714,100 (Filing fees for Form I-129) + $33,280,348 (Opportunity cost of time for
Form I-129) + $1,261,256 (Postage costs for Form I-129) = $189,255,704 total current annual cost for
filing Form I-129.
364
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.

165

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
$64,700,420.365
DHS estimates the time burden for completing Form I-539 is 2 hours and 23
minutes (2.38 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
form.366 Using the average total rate of compensation of $34.84 per hour, DHS estimates
the opportunity cost of time for completing and submitting Form I-539 will be $82.92 per
applicant.367 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 $14,499,889 annually.368
In sum, DHS estimates the total current annual cost for filing Form I-539 is
$79,200,309. The total current annual costs include Form I-539 filing fees and the
opportunity cost of time for completing Form I-539.369
(ii) Costs of Proposed Regulatory Changes

365

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.
366
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.
367
Calculation for application for EOS/COS opportunity cost of time: ($34.84 per hour * 2.38 hours) =
$82.919 = $82.92 (rounded).
368
Calculation: (Form I-539 estimated opportunity cost of time) * (Estimated annual population filing Form
I-539) = $82.92* 174,866 = $14,499,888.72 = $14,499,889 (rounded) annual opportunity cost of time for
filing Form I-539.
369
Calculation: $64,700,420 (Filing fees for Form I-539) + $14,499,889 (Opportunity cost of time for Form
I-539) = $79,200,309 total current annual cost for filing Form I-539.

166

The primary source of 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, education and skills, and
any additional financial support through an affidavit of support so that USCIS could
determine whether an applicant 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 ensure that he or she is not
likely to become a public charge. At the agencyas discretion, Form I-129 petitioners and
Form I-539 applicants seeking and 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 impose new costs by establishing a public charge
bond process. At the agencyas discretion, certain individuals who are found likely to
become a public charge may be provided the opportunity to post a public charge bond.
a. Form I-944, Declaration of Self-Sufficiency
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 INA.
Form I-944 would collect information 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 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

167

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.
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 or I-539. Table 28 shows the
estimated annual costs that the proposed rule would impose on individuals seeking to
adjust status who would be required to file Form I-944. 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 28. New Costs of the Proposed Rule.

Form
Form I-944, Declaration of SelfSufficiency

Estimated Annual
Population Required
to Submit Form I-944a

Total Annual Cost

382,264

Opportunity Cost of Time (OCT)

$18,218,702

Credit Report/Credit Score Costs

$7,626,167

Total New Costs of the Proposed Rule

$25,844,869

Source: USCIS analysis.
a This population is the same as the total estimated population of individuals applying for adjustment
of status (Form I-485) who are not in a class of admission that is exempt from review for
determination of inadmissibility based on public charge grounds.

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

168

statements, attaching necessary documentation, and submitting the declaration.
Therefore, using the total rate of compensation of minimum wage of $10.59 per hour,
DHS estimates the opportunity cost of time for completing and submitting Form I-944
would be $47.66 per applicant.370 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-944 is approximately $18,218,702 annually.371
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 to be submitted with the application.372
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).373 However, consumers are not necessarily entitled to a free credit score, for
which consumer reporting agencies may charge a fair and reasonable fee.374 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

370

Calculation for declaration of self-sufficiency opportunity cost of time: ($10.59 per hour * 4.5 hours) =
$47.655 = $47.66 (rounded) per applicant.
371
Calculation: (Estimated opportunity cost of time for Form I-944) * (Estimated annual population filing
Form I-485) = $47.66 * 382,264 = $18,218,702.24 = $18,218,702 (rounded) annual opportunity cost of
time for filing Form I-944.
372
The three major credit bureaus are Equifax, Experian, and TransUnion. Each of these bureaus are
publicly-traded, for-profit companies that are 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.
373
See FCRA, Section 612, Charges for Certain Disclosures. 15 U.S.C. ASS 1681j. Available at
https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf (accessed Jan. 26, 2018).
374
See FCRA, Section 609(f), Disclosures to Consumers, Disclosure of Credit Scores. 15 U.S.C. ASS 1681g.
Available at https://www.consumer.ftc.gov/articles/pdf-0111-fair-credit-reporting-act.pdf (accessed Jan. 26,
2018).

169

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 this is the amount that two of the three
major credit bureaus charge.375 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
$7,626,167.376
In sum, DHS estimates that the total cost to complete and file Form I-944 would
be $25,844,869. 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-485.377
b. Extension of Stay/Change of Status Using Form I-129, Petition for a
Nonimmigrant Worker, or Form I-539, Application to Extend/Change Nonimmigrant
Status
While individuals seeking adjustment of status would be reviewed to determine
inadmissibility based on public charge grounds under the provisions of this proposed
375

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/compare-credit-report-andscore-products.html (accessed Jan. 26, 2018);
Equifax - $19.95, available at https://www.equifax.com/personal/products/credit/report-and-score
(accessed Jan. 26, 2018); and
TransUnion - $11.50, available at https://disclosure.transunion.com/dc/disclosure/disclosure.jsp (accessed
Jan. 26, 2018).
376
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.
377
Calculation: $18,218,702 (Opportunity cost of time to complete Form I-944) + $7,626,167 (Cost of
credit report and credit score) = $25,844,869 total estimated cost to complete Form I-944.

170

rule, DHS proposes to conduct reviews of nonimmigrants who apply for extension of stay
or change of status to determine inadmissibility based on public charge grounds on a
discretionary basis. Therefore, 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 adjudication officers would be able to exercise
discretion regarding whether it would be necessary to issue a RFE whereby an applicant
may then then have to submit 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 cost. In addition,
DHS estimated that the average annual population that would request EOS/COS by filing
Form I-129 is 336,335 and that the annual population that would request EOS/COS by
filing 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 I129 would be $156.78 per beneficiary using the average total rate of compensation of
$34.84 per hour.378 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

378

Calculation for petition for opportunity cost of time for Form I-944: ($34.84 per hour * 4.5 hours) =
$156.78.

171

annual filings for Form I-129, DHS estimates the total annual opportunity cost of time
associated with completing Form I-944 would be approximately $52,730,601 annually.379
Similarly, 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 $156.78 per filer using the average total rate of compensation of $34.84 per hour.
DHS estimates the total opportunity cost of time associated with completing Form I-944
would be approximately $27,415,491 annually based on the total population estimate of
174,866 annual filings for Form I-539.380
DHS is unable to estimate the actual number of RFEs that adjudication officer
may issue to I-129 petitioners and I-539 filers to submit Form I-944 since such RFE
would be issued on a discretionary basis. However, we are able to present a range of
RFE that could be issued based on total population estimates and the estimated annual
cost associated with such RFE. Table 29 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 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 $52.7
million. 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 $27.4 million.

379

Calculation: (Form I-944 estimated opportunity cost of time) * (Estimated annual population filing Form
I-129) = $156.78 * 336,335 = $52,730,601.30 = $52,730,601 (rounded) annual opportunity cost of time for
filing Form I-944.
380
Calculation: (Form I-944 estimated opportunity cost of time) * (Estimated annual population filing Form
I-539) = $156.78 * 174,866 = $27,415,491.48= $27,415,491 (rounded) annual opportunity cost of time for
filing Form I-944.

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Table 29. Estimated Annual Costs for Requests for Evidence (RFE)
Issued to Submit Form I-944 with Form I-129 and Form I-539.

Form I-129

Percentage of
Applicants Issued
Request for
Evidence (RFE) to
Submit Form I-944
100%

Estimated Annual
Population
336,335

Estimated Annual Cost
$52,730,601

90%

302,702

$47,457,541

75%

252,251

$35,593,156

50%

168,168

$17,796,578

25%

84,084

$4,449,144

10%

33,634

$444,914

100%

174,866

$27,415,491

90%

157,379

$24,673,942

75%

131,149

$18,505,456

50%

87,433

$9,252,728

25%

43,716

$2,313,182

10%

17,487

$231,318

Form I-539

Source: USCIS analysis.
Notes: The analysis assumes the average total rate of compensation of $34.84 per hour for filers of
Forms I-129 and I-539.

c. Public Charge Bond
DHS does not currently have a specific 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 immigrant visa applicants and 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 cashieras
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. 9304-9308.381

381

See generally 8 CFR 103.6.

173

DHS approval of the public charge bond and DHS review of whether the bond should be
breached would be based on the alienas receipt of public benefits or canceled under
appropriate circumstances.
As discussed in the preamble, DHS has the broad authority to prescribe forms of
bonds as is deemed necessary for carrying out the Secretaryas authority under the
provisions of the INA.382 Additionally, an individual 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.383 The purpose of
issuing a public charge bond is to ensure that the alien will not become a public charge in
the future. If an individual becomes a public charge after submitting a public charge
bond and being admitted into the United States, the government would have a claim
against the bond obligors for the amount of public benefits received by the alien.
DHS is proposing that public charge bonds would be issued at the Secretaryas
discretion when an individual has been found to be inadmissible based on public charge
grounds. DHS may require an alien to submit a surety bond or a cashieras check or
money order to secure a bond. 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 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).384 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

382

See INA section 103(a)(3), 8 U.S.C. 1103(a)(3).
See INA section 213, 8 U.S.C. 1183.
384
See 31 U.S.C. 9304-9308. See also Bureau of the Fiscal Service, U.S. Department of Treasure,
available at https://www.fiscal.treasury.gov/fsreports/ref/suretyBnd/surety_home.htm
383

174

amount of the bond required would otherwise be determined at the discretion of the
adjudication officer. After reviewing an individualas circumstances and finding of
inadmissibility based on public charge grounds, an adjudication officer would notify the
individual 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 would submit a public charge bond using the new Public Charge
Bond form (Form I-945), and related forms. DHS envisions that it will use Form I-356,
Request for Cancellation of Public Charge Bond, for the cancellation of an immigration
surety bond.
A public charge bond would be considered breached if the alien uses or receives
any public benefit, as defined in proposed 8 CFR 212.21 after DHS accepts a public
charge bond submitted on that alienas behalf. 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). 385 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 individual with a bond
dies, departs the United States permanently, or is naturalized, provided the individual did
not become a public charge prior to death, departure, or naturalization and a request for
cancellation has been filed.386 Additionally, a public charge bond may be cancelled to
allow substitution of another bond, as outlined in proposed 8 CFR 213.1. To have the

385
386

See proposed 8 CFR 213.1(e).
See INA section 213, 8 U.S.C. 1183; see 8 CFR 103.6(c).

175

public charge bond cancelled, an individual would request the cancellation of the public
charge bond with USCIS using Form I-356.
When posting a surety bond, an individual generally pays between 1 percent to 15
percent of the bond amount for a surety company to post a bond.387 The percentage that
an individual must pay may be dependent on the individualas 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 a cash deposit and agreement.
There is currently no filing fee associated with submitting a public charge surety
bond using Form I-945. However, DHS estimates the time burden associated with filing
Form I-945 is 30 minutes (0.5 hours) 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.388
Therefore, using the total rate of compensation of minimum wage of $10.59 per hour,
DHS estimates the opportunity cost of time for completing and submitting Form I-945
would be $5.30 per applicant.389
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

387

For example, see https://suretybondauthority.com/frequently-asked-questions/ and
https://suretybondauthority.com/learn-more/. DHS notes that the company cited is for informational
purposes only.
388
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.
389
Calculation for public charge surety bond opportunity cost of time: ($10.59 per hour * 0.5 hours) =
$5.295 = $5.30 (rounded) per applicant.

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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. DHS is unable to estimate the number aliens who would be
eligible for a public charge bond. 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 cost per obligor would include $5.30 per obligor
for the opportunity cost of time for completing Form I-945. 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.
As noted previously, an obligor would file Form I-356 to request cancellation of a
public charge bond. There is currently no filing fee associated with filing Form I-356.
However, DHS estimates the time burden associated with filing Form I-356 is 15 minutes
(0.25 hours) per obligor 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.
Therefore, using the total rate of compensation of minimum wage of $10.59 per hour,
DHS estimates the opportunity cost of time for completing and submitting Form I-356
would be $2.65 per filer.
The filing fee for Form I-290B is $675 per obligor wishing to appeal the breach
determination. 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.390 In

390

See 8 CFR 103.7(c).

177

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 for reviewing instructions,
gathering the required documentation and information, completing the form, preparing
statements, attaching necessary documentation, and submitting the form.391 Therefore,
using the total rate of compensation of minimum wage of $10.59 per hour, DHS
estimates the opportunity cost of time for completing Form I-290B would be $15.89 per
obligor.392
In addition to the filing fee and the opportunity cost of time associated with
completing Form I-290B, applicants must bear the cost of postage for sending the Form
I-290B 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.393
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 would be $694.64 for completing
and filing Form I-290B, excluding the cost of obtaining a bond.394
(iii) Discounted Costs

391

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.
392
Calculation for appeal or motion opportunity cost of time: ($10.59 per hour * 1.5 hours) = $15.885 =
$15.89 (rounded) per applicant.
393
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.
394
Calculation: $674 filing fee + $15.89 opportunity cost of time + $3.75 postage cost = $694.64 per
applicant

178

To compare costs over time, DHS applied a 3 percent and a 7 percent discount
rate to the total estimated costs associated with filing Form I-944. DHS presents the total
estimated costs for filing Form I-944 to estimate future costs based on the present
value. Table 30 presents the combined total estimated costs associated with filing Form
I-944 as part of the review for determination of inadmissibility based on public charge
when applying for adjustment of status. The total estimated costs are presented nondiscounted, at a 3 percent discount rate, and at a 7 percent discount rate.

Table 30. Total Estimated Costs of Filing Form I-944, Declaration of
Self-Sufficiency, as Required for Determination of Inadmissibility
Based on Public Charge Grounds When Applying for Adjustment of
Status.

Total Annual Cost
Undiscounted Estimated Cost

Total Cost Over 10year Period

$25,844,869

$258,448,690

3% Discount Rate

$220,461,975

7% Discount Rate

$181,523,545

Source: USCIS analysis.

Over the first 10 years of implementation, DHS estimates the total quantified
costs of the proposed rule would be as much as $258,448,690 (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 be $220,461,975 at a 3
percent discount rate and $181,523,545 at a 7 percent discount rate.
While this economic analysis presents the quantified costs of this proposed rule
based on the estimated population applying to adjust status subject to review for public

179

charge determination, DHS reiterates we are unable to estimate the actual number of
Form I-129 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. However, previously in this economic analysis,
DHS presented a 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.
(iv) 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 collectionas costs to USCIS. Therefore, DHS
has established 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;
and Form I-539, Application to Extend/Change Nonimmigrant Status in accordance with

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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); and Form I912, Request for Fee Waiver. 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.
(v) Benefits of Proposed Regulatory Changes
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 are self-sufficient and
would not use or receive one or more public benefits. 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 and
does not increase the estimated time burden for completing 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

181

the time burden associated with filing this form is 60 minutes (1 hour) per petitioner.395
Therefore, using the average total rate of compensation of $34.84 per hour, DHS
estimates the amount of benefits that would accrue from eliminating Form I-864W would
be $34.84 per petitioner, which equals the opportunity cost of time for completing Form
I-864W.396 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 to 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 asmall entitiesa comprises
small businesses, not-for-profit organizations that are independently owned and operated

395

Source for I-864W time burden estimate: Paperwork Reduction Act (PRA) Affidavit of Support Under
Section 213A of the Act (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.
396
Calculation opportunity cost of time for completing and submitting Form I-864W: ($34.84 per hour *
1.0 hours) = $34.84.

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and are not dominant in their fields, or governmental jurisdictions with populations of
less than 50,000.397
DHS has reviewed this regulation in accordance with the RFA and certifies that
this rule would not have a significant economic impact on a substantial number of small
entities. 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 ruleas 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). Moreover, the
RFA does not consider an aindividuala as a small entity and, for RFA purposes, it does
not consider a ruleas estimated costs to individuals. In addition, the courts have held that
the RFA requires an agency to perform a regulatory flexibility analysis of small entity
impacts only when a rule directly regulates small entities. 398 Consequently, any indirect
impacts from a rule to a small entity are not considered costs for RFA purposes.
However, for individuals who choose to establish that they are not likely to
become a public charge, the proposed rule includes a range of total annual costs for the
beneficiaries of Form I-129, Petition for Nonimmigrant Worker, applications from
$444,914 to $52,730,601 (non-discounted) in time-related opportunity costs. DHS
estimated a range of the population for this provision in the proposed rule where as many
as 336,335 individuals would be impacted by this proposed rule annually if 100 percent

397

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.
398
U.S. Small Business Agency. A Guide for government agencies: How to comply with the Regulatory
Flexibility Act, Aug. 2012, pp. 22-23. Available at https://www.sba.gov/sites/default/files/advocacy/Howto-Comply-with-the-RFA-WEB.pdf.

183

of the population were to receive a RFE requiring submission of Form I-944 to 33,634 if
just 10 percent of the population were to receive a RFE. Since the beneficiaries, or
individuals, would be impacted, and not the petitioners of Form I-129, DHS does not
believe there will be any impact to small entities. DHS welcomes public comment on
whether any small entities may be impacted by this rule and any likely compliance costs
for those entities.
Based on the evidence presented in this RFA section and throughout this
preamble, DHS certifies that this rule would not have a significant economic impact on a
substantial number of small entities.
C.

Small Business Regulatory Enforcement Fairness Act of 1996

This proposed rule is not a major rule as defined by section 804 of the Small
Business Regulatory Enforcement Act of 1996, Public Law 104-121, 804, 110 Stat. 847,
872 (1996), 5 U.S.C. 804(2). This rule has not been found to result in an annual effect
on the economy of $100 million or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to compete with foreignbased companies in domestic or export markets.

D. Unfunded Mandates Reform Act
The Unfunded Mandate 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 result in a $100 million or more expenditure (adjusted annually for inflation) in

184

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.399
This proposed rule does not exceed the $100 million (adjusted for inflation)
expenditure threshold in any one year of implementation, nor does it 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 this
proposed rule would impose substantial direct compliance costs on State and local
governments, or would 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 Order
13175, Consultation and Coordination with Indian Tribal Governments, because it would

399

BLS, Historical Consumer Price Index for All Urban Consumers (CPI-U): U.S. city average, all items.
Accessed Jan. 31, 2018. Available at: https://www.bls.gov/cpi/tables/historical-cpi-u-201712.pdf.

185

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, Div. with
respect to the criteria specified in section 654(c)(1), DHS has determined that while it
cannot quantify the impacts of this regulatory action on families, the action has the
potential to erode family stability and decrease disposable income of families and
children because the action provides a strong disincentive for the receipt or use of public
benefits by aliens, as well as their household members, including U.S. children. 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. Finally, 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, maximizing the admission and
immigration of self-sufficient aliens to the United States, and minimizing the financial
burden of aliens and their families on the U.S. social safety net.
I. National Environmental Policy Act (NEPA)
DHS Directive (Dir) 023a01 Rev. 01 establishes 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 1500a1508.

186

The CEQ regulations allow Federal agencies to establish, with CEQ review and
concurrence, categories of actions (acategorical exclusionsa) 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. Dir. 023a01 Rev. 01
establishes Categorical Exclusions that DHS has found to have no such effect. Dir. 023a
01 Rev. 01 Appendix A Table 1. For an action to be categorically excluded, Dir. 023a01
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. Dir. 023a01 Rev. 01 section V.B (1)a
(3).
DHS analyzed this action and does not consider it to significantly affect the
quality of the human environment. This rule revises DHS regulations to interpret
statutory criteria in INA section 212(a)(4) for determining when an alien is likely to
become a public charge, and therefore inadmissible. The proposed rule proposes a new
definition of public charge, as well as evidentiary criteria for the consideration of
mandatory statutory factors (age, health, family status, assets, resources, financial status,
education, and skills) in the totality of the circumstances. The rule also proposes to
change and expand the definition of public benefit (from previously considering only
cash benefits, to now including certain noncash and supplemental benefits) which may be
considered in determining whether the person relies on public benefits and is therefore
likely to become a public charge, and therefore excludable. DHS anticipates that, if

187

finalized, the 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. The rule would potentially impose new costs on the
population seeking extension of stay or change of status using Form I-129 or Form I-539.
For either of these forms, USCIS officers would be able to exercise discretion regarding
whether it would be necessary to issue a request for evidence (RFE) requesting an
applicant to submit Form I-944. These populations immediately affected by this rule are
already in the United States at the time of application or petition. For these reasons, DHS
has determined that this rule does not individually or cumulatively have a significant
effect on the human environment and it thus would fit within one categorical exclusion
under Environmental Planning Program, DHS Instruction 023a01 Rev. 01, Appendix A,
Table 1. Specifically, the rule fits within Categorical Exclusion number A3(d) for rules
that interpret or amend an existing regulation without changing its environmental effect.
Finally, this rule is not a part of a larger action and presents no extraordinary
circumstances creating the potential for significant environmental effects. No further
NEPA analysis is required.
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.
USCIS Form I-944

188

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 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.

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(3) Agency form number, if any, and the applicable component of the DHS
sponsoring the collection: 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 charge ground of inadmissibility to file this form. On a case by case basis, USCIS
may request that a nonimmigrant seeking to extend stay or change status (Form I-539 or
I-129) file this form. The data collected on this form 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
form serves the purpose of standardizing public charge evaluation metrics and ensures
that declarants provide all essential information required for USCIS to assess selfsufficiency 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 I-944 is 382,264 and the estimated hour
burden per response is 4.5 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
1,720,188 hours.

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(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.
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

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(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 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 hours and 15 minutes; Supplement A is 36,000 respondents and
the estimated hour burden per response is 1 hour and 15 minutes; Supplement J is 28,309
respondents and the estimated hour burden per response is 1 hour; biometrics processing
is 305, 811 respondents and estimated burden is 1 hour and 10 minutes.

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(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
2,820,257 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.
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 1615-0075 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;

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(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
Act; 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 sponsoras 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 sponsoras
household members. It is only required if the sponsor used income of his or her

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household members to reach the required 125 percent of the Federal Poverty Guidelines.
The contract holds these household members jointly and severally liable for the support
of the sponsored immigrant. 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 I864; 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.
USCIS Form I-912

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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, (title). These edits include: (enter brief description of edits and add additional
forms as necessary). 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.
ICE 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

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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: Immigration 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 for-profit. In certain instances, a bond can be
posted as security for performance and fulfillment of the bonded alienas obligations to the
government. An acceptable surety company or an entity or individual who deposits
United States bonds, notes, or cash may execute the bond as surety.
(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

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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.

ICE 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:

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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.
Overview of information collection:
(1) Type of Information Collection: New Collection.
(2) Title of the Form/Collection: Cancellation of Public 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: Individuals or households. [Enter Abstract].
(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.

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(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.
VI. List of Subjects and Regulatory Amendments
List of Subjects
8 CFR 103
Administrative practice and procedure, Authority delegations (Government
agencies), Freedom of information, Immigration, Privacy, Reporting and recordkeeping
requirements, Surety bonds.
8 CFR 212
Administrative practice and procedure, Aliens, Immigration, Passports and visas,
Reporting and recordkeeping requirements.
8 CFR 213
Immigration, Surety bonds.
8 CFR 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 237
Aliens, Immigration, Deportability
8 CFR 245
Aliens, Immigration, Reporting and recordkeeping requirements
8 CFR 248
Aliens, Reporting and recordkeeping requirements.
Accordingly, DHS proposes to amend chapter I of title 8 of the Code of Federal
Regulations as follows:
PART 103 a 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. 112-54.1
2. Section 103.6 is amended by:
a. Revising paragraphs (a)(1), (a)(2)(i), (b) and (c)(1);
b. Adding new paragraph (d)(3); and
c. Revising paragraph (e)
The revisions and additions read as follows:
ASS 103.6 Surety bonds.

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(a) Posting of surety bonds. (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 together 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.
*****
(b) Acceptable Sureties. Any company listed on the Department of the Treasuryas
Listing of Approved Sureties (Department Circular 570) in effect on the date the bond is
requested, or a surety that deposits cashiersa checks or money orders for the full value of
the bond, is an acceptable surety.
(c) Cancellation. (1) Public charge bonds. Special rules for the cancellation of
public charge bonds are described in 8 CFR 213.1.
*****

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(d) * * *
(3) Public charge bonds. The threshold bond amount for public charge bonds is
set 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 bond has been
breached creates a claim in favor of the United States which may not be released by
DHS. 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.
PART 212 a DOCUMENTARY REQUIREMENTS: NONIMMIGRANTS;
WAIVERS; ADMISSION OF CERTAIN INADMISSIBLE ALIENS; PAROLE
3. The authority citation for part 212 continues to read as follows:
Authority: 6 U.S.C. 111, 202, 236 and 271; 8 U.S.C. 1101 and note, 1102, 1103,
1182 and note, 1184, 1185, 1187, 1223, 1225, 1226, 1227, 1255, 1359; 8 U.S.C. 1185
note (section 7209 of Pub. L. 108-458); 8 CFR part 2.
4. Sections 212.20 through 212.25 are newly added to read as follows:
ASS 212.20 Applicability of public charge inadmissibility.
8 CFR 212.20 through 212.25 address the public charge ground of inadmissibility
under section 212(a)(4) of the Act. Unless the alien requesting the immigration benefit or

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classification has been exempted from section 212(a)(4) of the Act as listed in 8 CFR
212.25(a) , the provisions of ASS212.20 through ASS212.25 of this part apply to an applicant
for admission or adjustment of status to lawful permanent resident.
ASS 212.21 Definitions for Public Charge.
For the purposes of ASS 212.20 through ASS 212.25 of this chapter, the following
definitions apply:
(a) Public Charge. A public charge means an alien who uses or receives one or
more public benefits as defined in paragraph (d) of this section. An alien inadmissible
based on the public charge ground means an alien who is likely at any time to use or
receive one or more public benefits.
(b) Dependent. For purposes of public charge determination under section
212(a)(4) of the Act, a dependent means:
(i) A person listed as a dependent on the alienas most recent tax return;
(ii) Any other person whom the alien is legally required to support; or
(iii) Any other person who lives with the alien, and who is being cared for or
provided for by the alien, and benefits from but does not contribute to the alienas income
or financial resources, to the extent such person is not claimed on the alienas tax return.
(c) Government. Government means any U.S. Federal, State, Territorial, tribal, or
local government entity or entities.
(d) Public benefit. Public benefit means any government assistance in the form
of cash, checks or other forms of money transfers, or instrument and non-cash
government assistance in the form of aid, services, or other relief, that is means-tested as

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defined in ASS 213a.1 of this Chapter, or intended to help the individual meet basic living
requirements such as housing, food, utilities, or medical care. This definition includes,
but is not limited to, benefits listed in 8 CFR 212.23, but excludes those benefits
described in in 8 CFR 212.24.
(e) Subsidized health insurance. Subsidized health insurance is any health
insurance for which the premiums are partially or fully paid, on a non-earned basis, by a
government agency, including but not limited to, advanced premium tax credits, tax
credits, or other forms of reimbursement.
ASS 212.22 Public Charge Determination
This section relates to the public charge ground of inadmissibility under section
212(a)(4) of the Act.
(a) Prospective determination. The public charge determination assesses the
likelihood that an alien will become a public charge at any time in the future.
(b) Minimum factors to consider. A public charge inadmissibility determination
must entail consideration of the alienas age; health; family status; education and skills;
and assets, resources, and financial status, as follows:
(1) The alienas age. (i) Standard. When considering an alienas age, DHS will
consider whether the alien is between the minimum age for full time employment (see,
e.g., 29 U.S.C. 213(c)) and the minimum aearly retirement agea for social security
purposes (see 42 U.S.C. 416(l)(2)) (between 18 and 61 as of 2017), and whether the
alienas age otherwise makes the alien more or less likely to become a public charge, such
as by impacting alienas ability to work.
(ii) [Reserved]

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(2) The alienas health. (i) Standard. When considering an alienas health, DHS
will consider whether the alien has any medical condition, and whether such condition
makes it more or less likely that the alien will become a public charge, including whether
the alienas ability to work is affected by the medical condition, or has non-subsidized
health insurance or the assets and resources to pay for medical costs.
(ii) Evidence. USCIS will consider, at a minimum:
(A) A diagnosis of a medical condition by a civil surgeon or panel physician;
(B) Evidence of non-subsidized health insurance; and
(C) Evidence of assets and resources.
(3) The alienas family status. (i) Standard. When considering an alienas family
status, DHS will consider whether the alien being a dependent or having dependent(s), as
defined in 8 CFR 212.21, makes it more or less likely that the alien will become a public
charge.
(ii) [Reserved]
(4) The alienas education and skills. (i) Standard. When considering an alienas
education and skills, DHS will consider whether the alien has sufficient education and
skills to obtain or maintain full-time employment, if authorized for employment.
(ii) Evidence. USCIS will consider, at a minimum, whether:
(A) The alien has a history of employment;
(B) The alien has a high school degree or higher education;
(C) The alien has any occupational skills, certifications, or licenses;
(D) The alien is proficient in English or another language as relevant to working fulltime.

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(5) The alienas assets and resources. (i) Standard. When considering an alienas assets
and resources, DHS will consider whether the alien can support him or herself and any
dependents as defined in 8 CFR 212.21, at the level of at least 125 percent of the most
recent Federal Poverty Guidelines based on the household size.
(ii) Evidence. USCIS will consider, at a minimum, the following types of evidence:
(A) The alienas annual gross income;
(B) Any additional income or support to the alien from another person or source during
the most recent full year (for example, income of a dependent or a spouse who is not a
dependent);
(C) The alienas cash assets and resources, including as reflected in checking and savings
account statements; and
(D) The alienas 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.
(6) The alienas financial status. (i) Standard. When considering an alienas
financial status, DHS will consider whether any aspect of the alienas financial status other
than the alienas assets and resources, such as the alienas liabilities or past reliance on
public benefits, makes the alien more or less likely to become a public charge.
(ii) Evidence. USCIS will consider, at a minimum:
(A) Whether the alien or any dependent has sought, received, or used, or any public
benefit;
(B) Whether the alien has sought or has received a fee waiver for an immigration benefit

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request on or after [effective date of this rule];
(C) The alienas credit history and credit score; and
(D) Whether the alien has received or is currently receiving any subsidized health
insurance.
(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. A sufficient
affidavit of support must meet the sponsorship and income requirements of section 213A
of the Act and comply with 8 CFR 213a.
(8) Other factors, as warranted, in the discretion of DHS, in individual
circumstances.
(c) Heavily weighed factors. Below are factors that DHS has determined will
generally weigh heavily in a public charge determination. The mere presence of an
enumerated circumstance does not, alone, create a presumption in favor of or against a
public charge determination. Other factors not enumerated may also be weighed heavily
in individual determinations, as circumstances warrant.
(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, and has no employment history or no reasonable
prospect of future employment;
(ii) The alien is currently using or receiving one or more public benefits;
(iii) The alien has used or received one or more public benefits within the last 36
months;

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(iv) The alien has a medical condition and is unable to show evidence of
unsubsidized health insurance, the prospect of obtaining unsubsidized health insurance,
or other non-governmental means of paying for treatment;
(v) The alien had previously been found inadmissible or deportable based on
public charge; or
(vi) Other factors as warranted, in the discretion of DHS, in individual
circumstances.
(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 has financial assets, resources, and support of at least 250 percent of
the Federal Poverty Guidelines;
(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; or
(iii) Other factors as warranted, in the discretion of DHS, in individual
circumstances.
(d) Totality of the circumstances. The determination must be based on the
totality of the alienas circumstances, including in consideration of the alienas immigration
status, by weighing all positive and negative factors, as outlined in this section.
(e) Previously excluded benefits. The determination does not entail consideration
of an alienas use or receipt of public benefits that would not have resulted in an
inadmissibility based on public charge under the public charge guidance published in the
Federal Register at 64 FR 28689 (May 26, 1999), unless such benefits are used or

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received on or after [INSERT DATE 60 DAYS FROM DATE OF PUBLICATION OF
THE FINAL RULE].
ASS 212.23 Public benefits considered for purposes of public charge inadmissibility.
Consideration of public benefits includes, but is not limited to, the following:
(a) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
(b) Temporary Assistance to Needy Families (TANF), 42 U.S.C. 601 et seq.;
(c) State or local cash benefit programs for income maintenance (often called
State "General Assistance," but which may exist under other names);
(d) Any other Federal public benefits for purposes of maintaining the applicantas
income, such as public cash assistance for income maintenance;
(e) Nonemergency benefits under the Medicaid Program, 42 U.S.C. 1396 et seq;
(f) Subsidized health insurance as defined in section 212.21 of this part;
(g) Supplemental Nutrition Assistance Program (SNAP, or formerly called aFood
Stampsa), 7 U.S.C. 2011 to 2036c;
(h) Special Supplemental Nutrition Program for Women, Infants, and Children
(WIC), 42 U.S.C. 1786;
(i) State Childrenas Health Insurance Program (CHIP or SCHIP), 42 U.S.C.
1397aa et seq.;
(j) Housing assistance under the McKinney-Vento Homeless Assistance Act, as
amended, 42 U.S.C. 11301 et seq. or the Housing Choice Voucher Program (section 8),
U.S. Housing Act of 1937, as amended, 42 U.S.C. 1437u, 24 CFR part 982;
(k) Means-tested energy benefits such as the Low Income Home Energy
Assistance Program (LIHEAP), 42 U.S.C. 8621 to 8630;

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(l) Institutionalization for both long-term and short-term care at government
expense;
(m) The earned income tax credit and similar refundable tax credits, when the
credit exceeds the alienas tax liability; and
(n) Any other public benefit, as described in ASS 212.21 except for those public
benefits described in 8 CFR 212.24.
ASS 212.24 Public benefits not considered for purposes of public charge
inadmissibility.
Consideration of public benefits excludes the following:
(a) Benefits paid for or earned by the person which may include, but are not
limited to, the following:
(1) Federal Old-Age, Survivors, and Disability Insurance benefits;
(2) Veteranas benefits;
(3) Government pension benefits;
(4) Government employee health insurance;
(5) Government employee transportation benefits;
(6) Unemployment benefits;
(7) Workeras compensation;
(8) Medicare benefits, unless the premiums are partially or fully paid by a government
agency;
(9) State disability insurance;
(10) Loans provided by the government that require repayment; and
(11) In-state college tuition, and any subsidized or unsubsidized government

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student loans, including, but not limited to loan under the William D. Ford Federal Direct
Loan Program, 34 CFR 685 and the Federal Perkins Loan Program, 34 CFR 674;
(b) Public benefits received where the total annual value in any 1 year does not
exceed 3 percent of the total Federal Poverty Guidelines threshold based on the
household size for that year.
(c) Elementary and secondary public education (Pre-K through 12th grade) as
permitted under the law including benefits under the Head Start Act, as amended, 42
U.S.C. 9801 et seq.;
(d) Benefits under the Individuals with Disabilities Education Act, 20 U.S.C.
1400 to 1482 and related services;
(e) Non-refundable tax credits, and refundable tax credits that are neither meanstested nor intended to help the individual beneficiary meet basic living requirements; and
(f) Any benefit as defined in 8 U.S.C. 1611(b), and 8 U.S.C. 1611(c)(2), including those
benefits defined in 42 U.S.C. Chapter 68.
ASS 212.25 Exemptions and waivers for public charge ground of inadmissibility.
(a) Exemptions. The public charge ground of inadmissibility does not apply to
the following categories of aliens:
(1) Refugees at the time 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;
(3) Amerasian immigrants at the time of application for admission as described in
sections 584 of the Foreign Operations, Export Financing, and Related Programs

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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 Special immigrants serving as translators with United States
armed forces as described in section 1059(a)(2) of the National Defense Authorization
Act for Fiscal Year 2006 Public Law 109a163 (Jan. 6, 2006), as amended, and section
602(b) of the Afghan Allies Protection Act of 2009, Public Law 111a8, title VI (Mar. 11,
2009), as amended, 8 U.S.C. 1101 note;
(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 101167, 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;

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(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 re-registering 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 classified under section 101(a)(15)(T) of the Act, in
accordance with section 212(d)(13)(A) of the Act;
(14) 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;
(15) 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;
(16) An alien who is a VAWA self-petitioner under section 212(a)(4)(E)(i) of the
Act;
(17) 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;
(18) 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);
(19) American Indians Born in Canada as described in section 289 of the Act;
(20) Nationals of Vietnam, Cambodia, and Laos applying for adjustment of status

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under section 586 of Public Law 106-429 under 8 CFR 245.21; and
(21) 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, Subtitle D (Sept. 30, 1996), 8 U.S.C. 1255 note; and
(22) 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 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 other categories of aliens for whom a waiver of public charge
inadmissibility is authorized under law or regulation.
PART 213 a PUBLIC CHARGE BONDS
5. The authority citation for part 213 is revised to read as follows:
Authority: 8 U.S.C. 1103; 1183; 8 CFR part 2.
6. Revise the part heading to read as shown above.
7. Section 213.1 and its section heading are revised to read as follows:
ASS 213.1 Admission or adjustment of status of aliens on giving of a public charge
bond.

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(a) Inadmissible aliens. In accordance with section 213 of the Act, after an alien
seeking adjustment of status or an immigrant visa has been found inadmissible as likely
to become a public charge under section 212(a)(4) of the Act, DHS including upon
request from a United States consular officer, 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 issued on the alienas behalf must
meet the conditions set forth in 8 CFR 103.6 and this section. A public charge bond is
presumptively not warranted if an alien has one or more heavily weighed negative
factors as defined in 8 CFR 212.22. DHS has discretion on whether to allow an alien to
submit a public charge bond.
(b) Public Charge Bonds. (1) Types. DHS may require an alien to submit a
surety bond, or a cashieras check or money order deposit 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 cashieras check or money order deposits to secure a bond, must be
executed on a form designated by DHS and in accordance with form instructions. Where
a surety bond is accepted, the bond must comply with requirements applicable to surety
bonds in 8 CFR 103.6 and this section. If a cashieras check or money order deposit is
being provided to secure a bond, DHS must issue a receipt on a form designated by DHS.

(2) Amount. Any surety public charge bond, or agreements to secure a public
charge bond on cashieras check or money order deposit, must be in an amount 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

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not be appealed by the alien or the obligor.
(3) Conditions. A public charge bond must remain in effect until the alien
naturalizes, permanently departs the United States, or dies. An alien on whose behalf a
public charge bond has been accepted by DHS may not use or receive any public benefits
as defined in 8 CFR 212.21 after the date of submission of such a bond and during its
effective period. If DHS accepts a bond of limited duration, it is a condition of admission
on bond that the bond be substituted with a new bond at least one year before the end of
the bondas validity period.
(c) Submission. A public charge bond may be submitted on the alienas behalf
only after DHS notifies the alien that a bond may be submitted. The bond must be
submitted to DHS in accordance with form instructions designated by DHS for this
purpose, and any procedures contained in the notice. DHS will specify the bond amount
and duration as appropriate for the alien, and the immigration benefit being sought.
(d) Cancellation. A public charge bond posted on behalf of an alien must be
cancelled after DHS receives a request for cancellation and determines that the conditions
of the bond described in paragraph (b)(3) of this section have been met and the bond has
not been breached. A public charge bond may be cancelled to allow for the substitution
of another bond. The request to cancel a public charge bond must be submitted on a form
designated by DHS, if any. If DHS cancels the bond, it will notify the obligor, and if the
bond has been secured by a cash deposit, refund the cash deposit to the obligor. When
the bond is cancelled, the obligor is released from liability. If DHS denies the request to
cancel the bond, DHS 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.

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(e) Breach. A final determination that a bond has been breached creates a claim
in favor of the United States for the full amount of the bond. Such claim may not be
released or discharged by DHS. If DHS determines that a bond has been breached, DHS
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. Either of the following circumstances
constitutes a breach of a public charge bond:
(1) Use or receipt of any public benefit, as defined in 8 CFR 212.21, by the alien
after DHS accepts a public charge bond submitted on that alienas behalf, and
(2) A failure to timely substitute a new bond to replace a bond of limited duration,
as described in paragraph (b)(3) of this section.
(f) 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 unless the party has obtained a
final decision in an administrative appeal under 8 CFR part 103, subpart A.
PART 214 a NONIMMIGRANT CLASSES
8. 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. 3009708; 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.
9. Section 214.1 is amended by:

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a. Adding new paragraph (a)(3)(iv),
b. Removing the term, aanda 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 revisions and additions read as follows:
ASS 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 section has been waived, the
alien must demonstrate that he or she is not using or receiving, nor is likely to use or
receive, public benefits as defined in 8 CFR 212.21. For purposes of this determination,
DHS may require the submission of a declaration of self-sufficiency on a form designated
by DHS, in accordance with form instructions.
*****
(c) * * *
(4) * * *
(iv) Except where the alienas nonimmigrant classification is exempted by law
from section 212(a)(4) of the Act, the alien is not currently using or receiving, nor is
likely to use or receive, one or more public benefits as defined in 8 CFR 212.21; and
*****
PART 237 -- DEPORTABLE ALIENS [FOR DISCUSSION WITH DOJ].
10. The authority citation for part 237 is newly added to read as follows:

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Authority: xxxx.
11. Part 237 is amended by:
a. Adding a new part heading to read as shown above;
b. Adding a new subpart A and heading;
c. Adding and reserving sections 237.1 through 237.4; and
d. Adding a new section 237.5 and its section heading.
The additions read and follows:
SUBPART A -- CLASSES OF DEPORTABLE ALIENS
*****
ASS 237.5 Public Charge Deportability
(a) Definitions. Terms used in this section have the following meanings:
(1) Public charge has the same meaning as defined in 8 CFR 212.21(a);
(2) Public benefit has the same meaning as defined in 8 CFR 212.21(c),
including benefits listed in 8 CFR 212.23, and excluding benefits listed in 212.24.
(b) Public charge deportability criteria. [TO BE INSERTED]
PART 245 - ADJUSTMENT OF STATUS TO THAT OF A PERSON ADMITTED
FOR PERMANENT RESIDENCE
12. The authority 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.
13. Section 245.4 is amended by designating the chapeau language as a new

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paragraph (a) without change, and adding a new paragraph (b) to read as follows:
ASS 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.
PART 248 a CHANGE OF NONIMMIGRANT CLASSIFICATION
14. The authority citation for part 248 continues to read as follows:
Authority: 8 U.S.C. 1101, 1103, 1184, 1258; 8 CFR part 2.
15. Section 8 CFR 248.1 is amended by:
a. Revising paragraph (a);
b. Redesignating paragraphs (b) through (e) as paragraphs (c) through (f),
respectively; and
c. Adding new paragraphs (b) and (c)(4).
The revisions and additions read as follows:
ASS 248.1 Eligibility. (a) General. Except for those classes enumerated in ASS248.2 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. 1101(a)(15)(K), or as an alien in transit under section 101(a)(15)(C) of the

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Act, 8 U.S.C. 1101(a)(15)(C). Except where the nonimmigrant classification to which
the alien seeks to change is explicitly exempted by law from section 212(a)(4) of the Act,
, the alien must establish that he or she is not currently using or receiving, nor is likely to
use or receive, public benefits as defined in 8 CFR 212.21 as a condition for approval of a
change of nonimmigrant status. 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.
(c) ***
(4) An alien seeking to change nonimmigrant classification must demonstrate
that he or she is not using or receiving, nor is likely to use or receive, public benefits as
defined in 8 CFR 212.21. For purposes of this determination, DHS may require the
submission of a declaration of self-sufficiency 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.
*****

_________________________

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Kirstjen M. Nielsen,
Secretary.

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