Chapter 1 - Purpose and Background
Under the Immigration and Nationality Act (INA) 212(a)(4), an applicant who is applying for a visa, admission, or adjustment of status and who is likely at any time to become a public charge, is inadmissible, unless exempt from this ground of inadmissibility. DHS has the authority to waive this ground of inadmissibility for certain applicants for admission and, in limited circumstances, also has the authority to waive this ground of inadmissibility for certain applicants for adjustment of status.
The INA provides that an applicant for a visa, admission, or adjustment of status is inadmissible if in the opinion of the consular officer, immigration officer, or immigration judge at the time of application for a visa, admission, or adjustment of status, the applicant is likely at any time to become a public charge.
The public charge ground of inadmissibility, therefore, applies to any noncitizen applying for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident (LPR). Congress has exempted by statute certain applicants for a visa, admission, or adjustment of status from the public charge ground of inadmissibility.
The INA does not define public charge. It does, however, specify that consular officers, immigration officers, and immigration judges must, at a minimum, consider certain factors when determining whether a noncitizen is likely at any time to become a public charge.
2. Public Benefits Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
In 1996, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA), which is commonly known as the 1996 welfare reform law, was passed by Congress. PRWORA stated that noncitizens generally should not depend on public resources and that the availability of public benefits should not constitute an incentive for immigration to the United States. Moreover, PRWORA significantly restricted a noncitizen’s eligibility for federal, state, local, and tribal public benefits.
Illegal Immigration Reform and Immigrant Responsibility Act of 1996
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was passed by Congress. IIRIRA amended Section 212(a)(4) of the INA, introducing the mandatory statutory factors, and created the enforceable Affidavit of Support Under Section 213A of the INA (Form I-864).
More specifically, IIRIRA codified the following minimum factors that must be considered when making public charge inadmissibility determinations: age; health; family status; assets, resources, and financial status; and education and skills.
Additionally, with IIRIRA, Congress made the legally enforceable Affidavit of Support Under Section 213A of the INA (Form I-864) a requirement for most family-sponsored and certain employment-based immigrants, and indicated that it may be considered as a factor in a public charge inadmissibility determination.
1999 Interim Field Guidance
On May 26, 1999, the legacy Immigration and Naturalization Service (INS) issued interim guidance, titled “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds” (1999 Interim Field Guidance (PDF)). This guidance identified how the agency would determine if a noncitizen is likely at any time to become a public charge for admission and adjustment of status purposes, and when a noncitizen would be deportable as a public charge.
INS incorporated the policies contained in the 1999 Interim Field Guidance in a proposed rule published on May 26, 1999. However, INS never finalized the proposed rule. INS, and later DHS, continued to apply the public charge ground consistent with the 1999 Interim Field Guidance for 2 decades.
Under the 1999 Interim Field Guidance and the 1999 proposed rule, “public charge” for purposes of a public charge inadmissibility determination was defined as a noncitizen who is likely to become primarily dependent on the government for subsistence, as demonstrated by either:
Receipt of public cash assistance for income maintenance; or
Institutionalization for long-term care at government expense.
Regulatory Changes in 2019
On August 14, 2019, DHS issued a final rule regarding the public charge ground of inadmissibility, titled “Inadmissibility on Public Charge Grounds” (2019 Final Rule). The 2019 Final Rule provided new and expanded definitions for certain terms and provided a multi-factor framework along with associated evidentiary requirements.
The 2019 Final Rule also added provisions that rendered certain nonimmigrants ineligible for extension of stay or change of status if they received specific public benefits for a certain period. Additionally, it revised DHS regulations governing the Secretary’s discretion to accept a public charge bond for those seeking adjustment of status.
The 2019 Final Rule was set to take effect on October 15, 2019. Before it did, numerous plaintiffs filed suits challenging the 2019 Final Rule in five district courts, across four circuits. The 2019 Final Rule was ultimately implemented on February 24, 2020. However, following a series of preliminary injunctions and stays or reversals of those injunctions, a partial final judgment vacating the 2019 Final Rule went into effect nationwide on March 9, 2022. DHS subsequently formally removed the 2019 Final Rule from the Code of Federal Regulations (CFR).
After the 2019 Final Rule was vacated and removed from the CFR, DHS returned to making public charge inadmissibility determinations in accordance with the statute and the 1999 Interim Field Guidance.
Regulatory Changes in 2022
On August 23, 2021, DHS published an Advance Notice of Proposed Rulemaking (ANPRM) to seek broad public feedback on the public charge ground of inadmissibility to inform its development of a future regulatory proposal. DHS reviewed all of the comments and considered them in developing a Notice of Proposed Rulemaking (NPRM).
On February 24, 2022, DHS published an NPRM. Following careful consideration of public comments received in response to the NPRM, DHS published a final rule, titled “Public Charge Ground of Inadmissibility,” on September 9, 2022 (2022 Final Rule).
The 2022 Final Rule implemented a different policy than the 2019 Final Rule. Under the 2022 Final Rule, similar to the 1999 Interim Field Guidance that was in place for 2 decades before the 2019 Final Rule, noncitizens are considered likely at any time to become a public charge if they are likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.
The 2022 Final Rule only addresses the public charge ground of inadmissibility and does not address the public charge ground of deportability, which was addressed in the 1999 Interim Field Guidance and 1999 NPRM.
The guidance outlined in this Part G only applies to Applications to Register Permanent Residence or Adjust Status (Forms I-485) postmarked (or, if applicable, submitted electronically) on or after December 23, 2022.
Officers must adjudicate applications postmarked (or, if applicable, submitted electronically) before December 23, 2022, consistent with the 1999 Interim Field Guidance. Public charge bond availability depends on the immigration benefit the applicant is seeking. The discussion of immigration bonds in this Part G is limited to public charge bonds administered by USCIS for applicants seeking adjustment of status with USCIS.
8 CFR 103.6 – Immigration bonds
31 U.S.C. 9304-9308 – Surety corporations
[^ 11] See Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009 (September 30, 1996). Congress added requirements for certain immigrant categories by creating INA 213A, making a sponsor’s affidavit of support submitted on behalf of a noncitizen legally enforceable under IIRIRA. See Division C, Title V of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-670 (September 30, 1996).
[^ 15] See 64 FR 28689 (PDF) (May 26, 1999). Due to a printing error, the Federal Register version of the field guidance appears to be dated “March 26, 1999” even though the guidance was actually signed May 20, 1999, became effective May 21, 1999, and was published in the Federal Register on May 26, 1999.
[^ 22] See CASA de Maryland, Inc., et al. v. Trump, 19-cv-2715 (D. Md.). See City and County of San Francisco, et al. v. DHS, et al., 19-cv-04717 (N.D.Ca.). See City of Gaithersburg, et al. v. Trump, et al., 19-cv-02851 (D. Md.). See Cook County et al. v. McAleenan et al., 19-cv-06334 (N.D. Ill.). See La Clinica De La Raza, et al. v. Trump, et al., 19-cv-4980 (N.D. Ca.). See Make the Road New York, et al. v. Cuccinelli, et al., 19-cv-07993 (S.D.N.Y.). See New York, et al. v. DHS, et al., 19-cv-07777 (S.D.N.Y.). See State of California, et al. v. DHS, et al., 19-cv-04975 (N.D. Cal.). See State of Washington, et al. v. DHS, et al., 19-cv-05210 (E.D. Wa.).
[^ 23] See Cook County v. Wolf, 498 F.Supp.3d 999 (N.D. Ill. 2020).
[^ 33] See 8 CFR 213.1. USCIS also accepts bonds before the issuance of an immigrant visa upon a request from a U.S. consular officer or upon the presentation by an interested person of a notification from the consular officer requiring such a bond. For more information, contact the U.S. Department of State. Moreover, U.S. Immigration and Customs Enforcement (ICE) administers other types of immigration bonds, such as voluntary departure bonds, delivery bonds, and order of supervision bonds. For more information on these types of bonds, contact ICE.