Chapter 1 - Purpose and Background
Self-sufficiency is a basic principle of U.S. immigration law and policy. Aliens coming to the United States should rely on their own capabilities and the resources of their families, their sponsors, and private organizations. Aliens should not depend on public resources to meet their needs.
In recognition of these principles, Congress provided a specific ground of inadmissibility and implemented other requirements to ensure admission of those aliens who could prove self-sufficiency. Under Section 212(a)(4) of the Immigration and Nationality Act (INA), 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.
In addition, all family-based and a limited number of employment-based applicants for immigrant visas and adjustment of status are required to submit an Affidavit of Support Under Section 213A of the INA (Form I-864 or Form I-864EZ), completed by a qualified sponsor.
Since at least 1882, the United States has denied admission to aliens based on the public charge ground. The INA of 1952 excluded aliens that, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the government at the time of application for admission, were likely at any time to become public charges. The government has long interpreted the words “in the opinion of” as evincing the subjective nature of the determination.
The INA provides that an applicant for a visa, admission, or adjustment of status is inadmissible if he or she is likely at any time to become a public charge. The public charge ground of inadmissibility, therefore, applies to any alien applying for a visa to come to the United States temporarily or permanently, for admission, or for adjustment of status to that of a lawful permanent resident (LPR).
The INA does not define public charge. It does, however, specify that consular officers and immigration officers must, at a minimum, consider certain factors when determining if an alien is likely at any time to become a public charge.
In 1996, when passing the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), Congress reaffirmed self-sufficiency as the basic principle governing welfare and immigration in the United States. Specifically, it reaffirmed that aliens should not depend on public resources, and that the availability of these resources should not constitute an incentive for immigration to the United States. Through PRWORA, Congress significantly restricted an alien’s eligibility for federal, state, local, and tribal public benefits.
Additionally, Congress added requirements for certain immigrant categories by creating INA 213A, making a sponsor’s affidavit of support submitted on behalf of an alien legally enforceable under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA).
Although Congress significantly restricted aliens’ receipt of public benefits with PRWORA, it permitted “qualified aliens” to remain eligible for some public benefits. In particular, qualified aliens remain eligible for medical and nutritional benefits, including Medicaid and Food Stamps (currently known as Supplemental Nutritional Assistance Program or "SNAP"). With certain exceptions, aliens who are not qualified aliens generally are ineligible to receive federal, state, local, or tribal public benefits. Still, some states and localities have funded public benefits, particularly medical and nutrition benefits, for which nonqualified aliens may be eligible.
Congress chose not to restrict eligibility for certain types of federal 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.
PRWORA defined the term “State or local public benefit” broadly except where the term encroached upon the definition of federal public benefit. Under PRWORA, states may enact their own legislation to provide public benefits to certain aliens not lawfully present in the United States. PRWORA also provided that a state that chooses to follow the federal qualified alien definition in determining aliens’ eligibility for public assistance “shall be considered to have chosen the least restrictive means available for achieving the compelling governmental interest of assuring that aliens be self-reliant in accordance with national immigration policy.”
While PRWORA allows both qualified aliens and non-qualified aliens to receive certain federal public benefits, Congress did not exempt the receipt of such benefits from consideration for purposes of the public charge inadmissibility determination. Therefore, even where an alien is eligible to receive public benefits under PRWORA, USCIS may take such receipt into consideration, for purposes of a public charge inadmissibility determination, unless the alien is exempt from the public charge ground of inadmissibility.
Statutory Changes in 1996
With the passage of IIRIRA in 1996, Congress changed the public charge inadmissibility statute to codify the following minimum factors that must be considered when making public charge inadmissibility determinations:
Assets, resources, and financial status; and
Education and skills.
Additionally, with IIRIRA, Congress made the legally enforceable affidavit of support (Affidavit of Support Under Section 213A of the INA (Form I-864)) a requirement for family-sponsored and certain employment-based immigration cases, and indicated that it may be considered as a factor in the public charge inadmissibility determination.
In the Conference Report, the committee indicated that the amendments to the INA were designed to expand the public charge ground of inadmissibility. The report indicated that self-reliance was one of the fundamental principles of immigration law and aliens should have affidavits of support executed. Therefore, although an alien may obtain public benefits for which he or she is eligible, the receipt of those benefits may be considered for future public charge inadmissibility determination purposes, unless the alien is exempt from public charge.
1999 Interim Field Guidance
On May 26, 1999, legacy Immigration and Naturalization Service (INS) issued interim guidance entitled, 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 person is likely at any time to become a public charge, for admission and adjustment of status purposes, and when a person would be deportable as a public charge. INS incorporated the policies contained in the 1999 Interim Field Guidance as regulations in a proposed rule issued on May 26, 1999.
The 1999 Interim Field Guidance defined public charge in its proposed rule to mean “the likelihood of an alien becoming 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.”
The 1999 Interim Field Guidance is applied to applications postmarked (or, if applicable, submitted electronically) before 12:00 a.m. Eastern Time on February 24, 2020.
Regulatory Changes in 2019
On August 14, 2019, DHS published the final rule, Inadmissibility on Public Charge Grounds (PDF). This Policy Manual Part incorporates the final rule and provides corresponding guidance to officers for adjudicating the public charge ground of inadmissibility. The final rule superseded any guidance previously provided as part of the 1999 Interim Field Guidance.
With the final rule, DHS seeks to better ensure that applicants for admission to the United States and applicants for adjustment of status who are subject to the public charge ground of inadmissibility are self-sufficient. Furthermore, the following congressional policy statements relating to self-sufficiency, immigration, and public benefits inform DHS’s administration of INA 212(a)(4):
Self-sufficiency has been a basic principle of United States immigration law since this country’s earliest immigration statutes.
It continues to be the immigration policy of the United States that:
Aliens within the Nation’s borders not depend on public resources to meet their needs, but rather rely on their own capabilities and the resources of their families, their sponsors, and private organizations; and
The availability of public benefits not constitute an incentive for immigration to the United States.
Within this administrative and legislative context, DHS’s view of self-sufficiency is that aliens subject to the public charge ground of inadmissibility must rely on their own capabilities and secure financial support, including from family members and sponsors, rather than seek and receive public benefits to meet their needs.
USCIS is implementing the DHS regulation governing public charge inadmissibility determinations as of 12:00 a.m. Eastern Time on February 24, 2020, and applies to applications and petitions postmarked (or, if applicable, submitted electronically on or after 12:00 a.m. Eastern Time on February 24, 2020). For applications and petitions that are sent by commercial courier (for example, UPS, FedEx, or DHL), the postmark date is the date reflected on the courier receipt.
Historically, bond provisions started with states requiring certain amounts to assure an alien would not become a public charge. Bond provisions were codified in federal immigration laws in 1903. The acceptance of a bond posting in consideration of the alien’s admission and to assure that he or she will not become a public charge may have had its origin in federal administrative practice earlier than this date. Beginning in 1893, immigration inspectors served on Boards of Special Inquiry that reviewed exclusion cases of aliens who were likely to become public charges because the alien lacked funds or relatives or friends who could provide support. In these cases, the Board of Special Inquiry usually admitted the alien if someone could post bond or one of the immigrant aid societies would accept responsibility for the alien.
The present language of INA 213 has been in the law without significant variation since 1907. Under Section 21 of the Immigration Act of 1917, an immigration officer could admit an alien if a suitable bond was posted. In 1970, Congress amended INA 213 to permit the posting of cash received by the U.S. Department of the Treasury and to eliminate specific references to communicable diseases of public health significance. Regulations implementing the public charge bond were promulgated in 1964 and 1966.
With the passage of the IIRIRA in 1996, Congress amended the section by adding a parenthetical that clarified that a bond may be requested in addition to, and not in lieu of, the affidavit of support and the deeming requirement under INA 213A.
The guidance outlined in this Part G only applies to applications or petitions postmarked (or, if applicable, submitted electronically) on or after February 24, 2020, for which admissibility is required. For applications and petitions that are sent by commercial courier (for example, UPS, FedEx, DHL), the postmark date is the date reflected on the courier receipt.
Officers must adjudicate applications or petitions postmarked (or, if applicable, submitted electronically) before February 24, 2020, according to the 1999 Interim Field Guidance.
Public charge bond availability depends on the immigration benefit the applicant is seeking. This Part G only addresses public charge bonds administered by USCIS for applicants seeking adjustment of status with USCIS.
8 CFR 103.6 – Surety bonds
31 U.S.C. 9304-9308 – Surety corporations
[^ 5] See Sections 1-2 of the Immigration Act of 1882, 22 Stat. 214, 214 (PDF) (August 3, 1882). Section 11 of the Immigration Act of 1891, 26 Stat. 1084, 1086 (PDF) (March 3, 1891) 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.
[^ 7] See Matter of Harutunian (PDF), 14 I&N Dec. 583, 588 (Reg. Comm. 1974) (“[T]he determination of whether an alien falls into that category [as likely to become a public charge] rests within the discretion of the consular officers or the Commissioner . . . Congress inserted the words ‘in the opinion of’ (the consul or the Attorney General) with the manifest intention of putting borderline adverse determinations beyond the reach of judicial review.” (citation omitted)). See Matter of Martinez-Lopez (PDF), 10 I&N Dec. 409, 421 (A.G. 1962) (“[U]nder the statutory language the question for visa purposes seems to depend entirely on the consular officer’s subjective opinion.”). Neither Harutunian nor Martinez-Lopez specifically limited the general understanding of public charge to only those who are “elderly, unemployed or unsponsored” aliens; these decisions were based on the understanding that Congress intended to exclude those who were unable to support themselves and who received public benefits.
[^ 11] See Title IV of Pub. L. 104-193 (PDF), 110 Stat. 2105, 2260 (August 22, 1996). See Appendix: Totality of the Circumstances Framework for a complete list of public benefits and eligibility for immigrants.
[^ 16] Other programs for which certain aliens remain eligible include: Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), the Children's Health Insurance Program (CHIP), and the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC).
[^ 18] 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 (March 2012).
[^ 30] See H.R. Rep. No. 104-828, at 240-41 (1996) (Conf. Rep.). See H.R. Rep. No. 104-469(I), at 143-45 (1996).
[^ 31] See H.R. Rep. No. 104-828, at 241 (1996) (Conf. Rep.).
[^ 37] Former INS defined “primarily dependent” as “the majority” or “more than 50 percent.”
[^ 38] However, for applications postmarked (or, if applicable, submitted electronically) on or after February 24, 2020, “if the alien received any included public benefit listed in the 1999 Interim Field Guidance (cash assistance for income maintenance, including SSI, TANF, and general assistance) before February 24, 2020, DHS will consider those benefits as they would have been considered under the 1999 Interim Field Guidance. In other words, for adjustment of status applications postmarked (or if applicable, submitted electronically) on or after February 24, 2020, an applicant’s receipt of any of the benefits listed in the 1999 Interim Field Guidance prior to February 24, 2020, will be treated as a negative factor in the totality of the circumstances, as they were in the 1999 Interim Field Guidance.” See 84 FR 41292, 41459 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).
[^ 43] See, for example, Mayor, Aldermen & Commonality of City of N.Y. v. Miln, 36 U.S. 102 (1837) (upholding a New York statute that required vessel captains to provide certain biographical information about every passenger on the ship and further permitting the mayor to require the captain to provide a surety of not more than $300 for each noncitizen passenger to indemnify and hold harmless the government from all expenses incurred to financially support the person and the person’s children).
[^ 44] See the Immigration Act of 1903, Pub. L. 57-162, 32 Stat. 1213 (March 3, 1903).
[^ 45] See the Immigration Act of 1892, Pub. L. 51-551, 26 Stat. 1084 (March 3, 1891), which created the Office of the Superintendent of Immigration within the Treasury Department. The Superintendent oversaw a new corps of U.S. immigration inspectors stationed at the country’s principal ports of entry. See USCIS’ web page, Origins of Federal Immigration Service.
[^ 46] See Section 26 of the Act of February 20, 1907, Pub. L. 59-96, 34 Stat. 898, 907.
[^ 47] See Pub. L. 64-301, 39 Stat. 874, 876 (February 5, 1917).
[^ 50] See Section 564(f) of Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009-546, 3009-684 (September 30, 1996). The Examinations Handbook included guidance on public charge bond processes and policies in Part VI, at VI-88 through VI-98 (October 1, 1988). After legacy Immigration and Naturalization Service (INS) retired the Examinations Handbook, INS’s Operating Instructions provided guidance on the topic at Section 103.6 and 213.1 (November 1997). In 1998, INS removed the Operating Instructions and transferred the parts relating to immigration bonds to the Inspector’s Field Manual, Chapter 45. Neither INS nor USCIS appear to have issued new guidance on the topic since that time. With the creation of the Adjudicator’s Field Manual (AFM), USCIS incorporated existing public charge bond guidance into Chapter 61.1, but given the affidavit of support, the authority has rarely been exercised since the passage of IIRIRA.
[^ 51] The date USCIS implemented the rule. See 84 FR 41292 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction). For applications postmarked (or, if applicable, submitted electronically) on or after February 24, 2020, “if the alien received any included public benefit listed in the 1999 Interim Field Guidance (cash assistance for income maintenance, including SSI, TANF, and general assistance) before February 24, 2020, DHS will consider those benefits as they would have been considered under the 1999 Interim Field Guidance. In other words, for adjustment of status applications postmarked (or if applicable, submitted electronically) on or after February 24, 2020, an applicant’s receipt of any of the benefits listed in the 1999 Interim Field Guidance prior to February 24, 2020, will be treated as a negative factor in the totality of the circumstances, as they were in the 1999 Interim Field Guidance.” See 84 FR 41292, 41459 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).
[^ 54] See 8 CFR 213.1. U.S. Immigration and Customs Enforcement (ICE) administers other types of immigration bonds, such as voluntary departure bonds or appearance bonds. For more information on these types of bonds, contact ICE.
10 U.S.C. 504(b) - Citizenship or residency
15 U.S.C. 1681 - Congressional findings and statement of purpose
21 U.S.C. 802 - Definitions
21 U.S.C. 841 - Prohibited acts A
22 CFR 40.51 - Labor certification
29 CFR 570 - Child labor regulations, orders and statements of interpretation
29 U.S.C. 213(c) - Child labor requirements
31 U.S.C. 9304-9308 - Sureties and surety bonds
31 U.S.C. 9305 - Authority and revocation of authority of surety corporations
38 U.S.C 1965 - Definitions
42 CFR 34.4 - Medical notifications
42 U.S.C. 1382c (PDF) - Definitions
42 U.S.C. 413 - Quarter and quarter of coverage
42 U.S.C. 416(l) - Retirement age
7 CFR 273 - Certification of eligible households
8 CFR 1.2 - Definitions
8 CFR 1.3 - Lawfully present aliens for purposes of applying for Social Security benefits
8 CFR 1003.14 - Jurisdiction and commencement of proceedings
8 CFR 1003.1 - Organization, jurisdiction, and powers of the Board of Immigration Appeals
8 CFR 103.6 - Surety bonds
8 CFR 204.5 - Petitions for employment-based immigrants
8 CFR 212.20-212.23 - Applicability of public charge inadmissibility; Definitions; Public charge determination; Exemptions and waivers for the public charge ground of inadmissibility
8 CFR 212.21(b) - Public Benefits
8 CFR 212.4 - Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3)
8 CFR 213.1 - Admission under bond or cash deposit
8 CFR 213a - Affidavits of support on behalf of immigrants
8 CFR 235 - Inspection of persons applying for admission
8 CFR 245.11 - Adjustment of aliens in S nonimmigrant classification
8 CFR 292 - Representation and appearances
8 CFR 293.1 - Computation of interest
8 U.S.C. 1363 - Deposit of and interest on cash received to secure immigration bonds
8 U.S.C. 1601-1646 - Restricting welfare and public benefits for aliens
8 U.S.C. 1611 (PDF) - Aliens who are not qualified aliens ineligible for Federal public benefits
8 U.S.C. 1612 (PDF) - Limited eligibility of qualified aliens for certain Federal programs
8 U.S.C. 1613 (PDF) - Five-year limited eligibility of qualified aliens for Federal means-tested public benefit
8 U.S.C. 1641 (PDF) - Definitions
Final Specification of Community Programs Necessary For Protection Of Life Or Safety Under Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001) (Final rule)
INA 101 - Definitions
INA 101(a)(15) - Nonimmigrant classifications
INA 201 - Worldwide level of immigration
INA 203 - Allocation of immigrant visas
INA 208 - Asylum
INA 212(a)(4) - Public charge
INA 212(d) - Temporary admission of nonimmigrants
INA 213 - Admission of certain aliens on giving bond or undertaking; return upon permanent departure
INA 235 - Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
INA 237(a)(5) - Public charge (deportable aliens)
INA 245(j) - Adjustment to permanent resident status
INA 289 - Application to American Indians born in Canada
Inadmissibility on Public Charge Grounds, 84 FR 41292 (Aug. 14, 2019) (Final rule)
Pub. L. 104-193 (PDF) - Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Pub. L. 104-208 (PDF) - Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Pub. L. 106-395 (PDF) - Child Citizenship Act of 2000
Pub. L. 111-293 (PDF) - Help Haitian Adoptees Immediately to Integrate Act of 2010
Pub. L. 111-8 (PDF) - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009
Pub. L. 113-4 (PDF) - 127 Stat 54 of the Violence Against Women Reauthorization Act of 2013
Pub. L. 89-732 (PDF) - Cuban Refugees Adjustment of Status
Section 11, 26 Stat 1084 (PDF) of the Immigration Act of 1891
Section 212(a)(15), 66 Stat 163 (PDF), 183 of the Immigration and Nationality Act of 1952
Sections 1-2, 22 Stat 214 (PDF) of the Immigration Act of 1882
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF) between the AFM and the Policy Manual.
This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of aliens who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see our page on the injunction.
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1. For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of aliens who are exempt from the final rule, see the appendices related to applicability.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].