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Chapter 4 - Prospective Determination Based on Totality of the Circumstances

Alert

On Sept. 11, 2020, the U.S. Court of Appeals for the Second Circuit issued a decision that allows DHS to resume implementing the Public Charge Ground of Inadmissibility final rule nationwide, including in New York, Connecticut and Vermont. The decision stays the July 29, 2020, injunction, issued during the coronavirus (COVID-19) pandemic, that prevented DHS from enforcing the public charge final rule during a national health emergency.

Therefore, we will apply the public charge final rule and related guidance in the USCIS Policy Manual, Volumes 2, 8 and 12, to all applications and petitions postmarked (or submitted electronically) on or after Feb. 24, 2020. If you send your application or petition by commercial courier (for example, UPS, FedEx, or DHL), we will use the date on the courier receipt as the postmark date.

For information about the relevant court decisions, please see the public charge injunction webpage.

In general, the public charge inadmissibility determination (the determination whether an alien is likely at any time to become a public charge) is a discretionary and prospective determination based on the totality of an applicant's circumstances.[1]

The burden of proof to establish admissibility during the process of seeking an immigration benefit is always on the applicant.[2]

Evidence

USCIS reviews all information provided in the Application to Register Permanent Residence or Adjust Status (Form I-485), including the Declaration of Self-Sufficiency (Form I-944), and the Report of Medical Examination and Vaccination Record (Form I-693) or the medical examination report in the U.S. Department of State (DOS) Form DS-2054 or Form DS-7794, as well as any other information provided in the record to determine whether the applicant is inadmissible on the public charge ground.

Officers must use the public charge totality of circumstances framework to assist in this analysis.[3]

A. Subjective Nature of the Public Charge Inadmissibility Determination

The Immigration and Nationality Act (INA)[4] provides that an alien who, “in the opinion of” the Secretary is likely to become a public charge is inadmissible. The U.S. government has long interpreted the phrase “in the opinion of” as describing an assessment that is subjective and discretionary in nature.[5]

While authorizing this subjective, discretionary assessment, Congress also mandated that the public charge determination must consider, at a minimum, an applicant’s age, health, family status, assets, resources, financial status, education, and skills.[6] The regulation provides additional factors to consider, including Affidavit of Support Under Section 213A of the INA (Form I-864), the prospective immigration status and expected period of admission.[7] Consideration of these mandatory factors requires a case-by-case determination based on the totality of the alien's circumstances.[8] Therefore, an officer must review the factors as described below before making a public charge inadmissibility determination. However, to the extent that each applicant’s facts and circumstances are unique, officers’ public charge inadmissibility determinations will vary.

B. Prospective Determination

A public charge determination is based on an applicant’s likelihood at any time in the future to become a public charge.[9] While past or current receipt of public benefits may make an applicant, at present, a public charge, the past or current receipt of public benefits, alone, is insufficient to sustain a finding that an alien is likely to become a public charge at any point in the future.[10]

In determining whether an applicant is inadmissible on the public charge ground, USCIS must assess whether the applicant is likely to become a public charge in the future and not whether the applicant is currently a public charge or was a public charge in the past.[11]

To this end, USCIS must determine:

  • Whether the applicant is more likely than not to receive one or more public benefits[12] at any time in the future; and

  • Whether the applicant’s likely receipt of one or more of the public benefits[13] at any time in the future is more likely than not to exceed 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in 1 month counts as 2 months).[14]

If the applicant is more likely than not to receive one or more public benefits in the future, and such receipt is likely to exceed 12 months in the aggregate within a 36-month period, then the applicant is inadmissible on the public charge ground. Conversely, if the applicant is not more likely than not to receive public benefits in excess of 12 months in the aggregate within any 36-month period, then the applicant is not inadmissible on the public charge ground.

C. Totality of the Circumstances

There is no “bright-line” test in making a public charge inadmissibility determination. The mere presence of any one of the enumerated factors, alone, is not outcome determinative, except for the absence of a sufficient affidavit of support, where required. Instead, the officer must determine that the applicant's circumstances, assessed in their totality, suggest that the applicant is more likely than not to become a public charge.[15]

Evaluating whether an applicant is inadmissible based on the totality of the applicant’s circumstances[16] means evaluating all of the information provided by the applicant on the declaration of self-sufficiency, the adjustment of status application, and other associated forms; evidence provided and in the record; and statements by an applicant during an interview, if applicable. The totality of the circumstances analysis involves weighing all the positive and negative factors related to the factors as outlined below, as they apply to the applicant.[17] 

1. Determining Whether Factors are Positive or Negative

When conducting a totality of the circumstances analysis, an officer must first evaluate all of the applicant’s facts, circumstances, and evidence to determine whether factors in the analysis are positive or negative. Any factor that decreases the applicant’s future likelihood of receiving one or more public benefits above the 12 months in the aggregate in a 36-month period threshold is positive. Any factor that increases the applicant’s future likelihood of receiving one or more public benefits above the 12 aggregate months in a 36-month period threshold is negative.[18]

The mere presence of any one enumerated factors does not, by itself, necessarily result in a specific finding in the public charge inadmissibility assessment, except that absence of a sufficient Form I-864, where required, leads to an inadmissibility finding.

In addition, officers are not limited in the factors they may consider for purposes of the totality of circumstances analysis. The applicant may present factors not listed in the statute, regulation, or this guidance.[19]

2. Weight of the Factors

Beyond determining whether the factors are positive or negative, the officer must also weigh all factors individually and cumulatively. In particular, the officer must assess the weighted degree to which each factor is negative or positive – the extent to which the factor affects the likelihood that the alien will or will not receive one or more public benefits above the threshold. The weight given to an individual factor depends on the particular facts and circumstances of each case and the relationship of the individual factor to other factors in the analysis. A specific factor may weigh more heavily in one applicant’s case than another, depending on what other factors exist in each case. Multiple factors also operate together to carry more weight as a whole, if those factors in tandem show that the alien is likely to, or not likely to, become a public charge. However, factors are not both positive or negative and heavily weighted positive or negative. 

In addition, certain enumerated factors generally weigh heavily in favor of or against a finding that an alien is likely to become a public charge.[20] Only those factors specified in regulation may be considered heavily weighted. The existence of any heavily weighted factors does not necessarily require a certain outcome, as these factors can be overcome by other factors that are not heavily weighted. For example, a positive heavily weighted factor is not needed to overcome a heavily weighed negative factor.[21] Further, heavily weighted factors are not required to find an applicant likely or not likely to become a public charge.[22]

For example, a negative age factor of being over the age of 62,[23] may be outweighed by other positive factors in the totality of the circumstances, including, but not limited to, if the applicant is:

  • Employed with income sufficient to support him or herself and the household;

  • Not employed, but the household income is sufficient to support the household and the applicant;

  • Collecting a pension, earned Social Security benefits, or has a retirement account or other supportive income that replaces employment income.[24]

A negative factor of health may be outweighed, for example, if:

  • The applicant is under treatment and has a positive prognosis as indicated by a civil surgeon in the Form I-693; and

  • The applicant has private health insurance or sufficient assets, resources, or income that cover the reasonable costs of the medical treatments.

3. Public Charge Inadmissibility Determination

Officers must consider all factors in the totality of the circumstances. USCIS’ totality of circumstances assessment focuses on, for instance, the following considerations:

  • Ability to Earn a Living – The ability of the applicant to earn sufficient income to pay for basic living needs (that is, food and nutrition, housing, and healthcare), as evidenced or impacted by, for example, the applicant's age, health, work history, current employment status, future employment prospects, education, and skills.

  • Sufficiency of Income, Assets, and Resources – The sufficiency of the applicant's household income, assets, and resources to meet basic living needs (that is, food and nutrition, housing, and healthcare).

  • Sufficiency and Obligation of Sponsorship – The legal sufficiency of the Form I-864, if required, and the likelihood that a sponsor would actually provide the statutorily-required amount of financial support to the applicant, and other related considerations.

  • Ability to Overcome Receipt of Public Benefits or Certification or Approval to Receive Public Benefits Above the Designated Threshold – The ability of the applicant to overcome receipt of, or certification or approval to receive, one or more public benefits for more than 12 months in the aggregate in any 36-month period beginning no earlier than 36 months before the application for admission or adjustment of status.

Receipt of, or certification or approval to receive, one or more public benefits for more than 12 months in the aggregate in any 36-month period prior to the application for admission or adjustment of status is a heavily weighted factor in favor of a finding that the applicant is likely to become a public charge in the future.[25] An applicant’s ability to overcome this heavily weighted negative factor depends on the totality of the applicant's circumstances and the existence of positive factors that could outweigh this heavily weighted negative factor such that the applicant would not be found likely to become a public charge at any time in the future.

For example, the applicant’s assets and resources being at or above 250 percent of the Federal Poverty Guidelines (FPG), the applicant being healthy and between the ages of 18 and 61, the applicant being currently employed, and evidence that the applicant has disenrolled or requested to disenroll from public benefits could play a significant role in outweighing recent receipt of, or certification or approval to receive, public benefits above the designated threshold.

Not Inadmissible Based on the Public Charge Ground

If the officer finds that the applicant’s positive factors outweigh the applicant’s negative factors, such that the applicant is not likely to receive one or more public benefits for more than 12 months in the aggregate within any 36-month period at any time in the future, then the officer must conclude that the alien is not inadmissible as likely at any time to become a public charge.

Inadmissible Based on the Public Charge Ground

On the other hand, if the officer finds that the applicant’s negative factors outweigh the applicant’s positive factors, such that the applicant is more likely than not to receive one or more public benefits above the designated threshold at any time in the future, then the officer must conclude that the alien is inadmissible as likely to become a public charge. Absent a waiver (if available) or the applicant posting a sufficient public charge bond (where permitted in USCIS’ discretion), the applicant is inadmissible based on the public charge ground.[26]

Footnotes


[^ 1] See INA 212(a)(4). See 8 CFR 212.22.

[^ 2] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014). The burden never shifts to the government during the adjudication process. See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978).

[^ 3] See Appendix: Totality of the Circumstances Framework.

[^ 4] See INA 212(a)(4).

[^ 5] 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.

[^ 6] See INA 212(a)(4).

[^ 7] See 8 CFR 212.22.

[^ 8] See 8 CFR 212.22. See 84 FR 41292, 41396 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).

[^ 9] See 8 CFR 212.22(a). See Matter of Harutunian (PDF), 14 I&N Dec. 583 (BIA 1974). See Matter of Perez (PDF), 15 I&N Dec. 136 (BIA 1974). In comparison, the public charge ground of removal under INA 237(a)(5) is predicated on actual events, that is, the alien has become a public charge. See Matter of Viado (PDF), 19 I&N Dec. 252, 253 (BIA 1985) (“The distinction is based on the fact that the determination of excludability involves a prediction of the likelihood of an alien becoming a public charge in the future, rather than an assessment of whether the alien has already become a public charge.”).

[^ 10] See 8 CFR 212.21(a). See 84 FR 41292, 41397 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction) and Matter of Perez (PDF), 15 I&N Dec. 136, 137 (BIA 1974) (“The fact that an alien has been on welfare does not, by itself, establish that he or she is likely to become a public charge.”).

[^ 11] See 8 CFR 212.21(a). See 84 FR 41292, 41353 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).

[^ 12] As defined in 8 CFR 212.21(a). See Chapter 10, Public Benefits [8 USCIS-PM G.10].

[^ 13] As defined in 8 CFR 212.21(a). See Chapter 10, Public Benefits [8 USCIS-PM G.10].

[^ 14] See 8 CFR 212.21(a).

[^ 15] See 8 CFR 212.21(a). See 84 FR 41292, 41397 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).

[^ 16] See 8 CFR 212.22(a). See Matter of Perez (PDF), 15 I&N Dec. 136 (BIA 1974).

[^ 17] See INA 212(a)(4). See 8 CFR 212.22.

[^ 18] See 84 FR 41292, 41397 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).

[^ 19] See 8 CFR 212.22(b).

[^ 20] See 8 CFR 212.22(c).

[^ 21] See 83 FR 51114, 51221 (PDF) (Oct. 10, 2018) (proposed rule). See 84 FR 41292, 41397 (PDF) (Aug. 14, 2019) (final rule), as amended by 84 FR 52357 (PDF) (Oct. 2, 2019) (final rule; correction).

[^ 22] For more information, see Chapter 5, Factors [8 USCIS-PM G.5] through Chapter 14, Heavily Weighted Factors [8 USCIS-PM G.14].

[^ 23] See Chapter 6, Age [8 USCIS-PM G.6].

[^ 24] For example, consistent income from remittances, royalties, or income from stocks and bonds. 

[^ 25] See Chapter 14, Heavily Weighted Factors [8 USCIS-PM G.14].

[^ 26] See ​Von Pervieux v. INS​, 572 F.2d 114, 118 (3rd Cir. 1978). See ​Ameeriar v. INS​, 438 F.2d 1028, 1030 (3rd Cir. 1971). See ​Matter of Marques​, 16 I&N Dec. 314 (BIA 1977). ​For information on availability on bond, see Chapter 18, Public Charge Bonds [8 USCIS-PM G.18].

Resources

Legal Authorities

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 214.2 - Special requirements for admission, extension, and maintenance of status

8 CFR 214.2 - Special requirements for admission, extension, and maintenance of status

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

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 239, 8 CFR 239 - Initiation of removal proceedings

INA 245(j) - Adjustment to permanent resident status

INA 2488 CFR 248 - Change of nonimmigrant classification

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

Appendices

Appendix: Applicability of INA 212(a)(4) to Employment-Based Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Family-Based Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Other Applicants
Appendix: Applicability of INA 212(a)(4) to Refugee, Asylee, and Parolee Adjustment of Status Applications
Appendix: Applicability of INA 212(a)(4) to Special Immigrant Adjustment of Status Applications
Appendix: Eligibility for Public Benefits
Appendix: Totality of the Circumstances Framework

Updates

Technical Update - Moving the Adjudicator’s Field Manual Content into the USCIS Policy Manual

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.

POLICY ALERT - Implementation of Guidance on Inadmissibility on Public Charge Grounds

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.

Read More
POLICY ALERT - Public Charge Ground of Inadmissibility

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.

Read More
Technical Update - Replacing the Term “Foreign National”

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”].