Adding , 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 details on how the statute's mandatory factors would be considered when making a public charge inadmissibility karacto.xyz://karacto.xyz · Third, Congress stated that it was enacting the Amendment under the Bankruptcy Clause. Section was first adopted in as part of the law establishing the current Bankruptcy Code, which was entitled, “An act to establish a uniform Law on the Subject of Bankruptcies.” Pub. L. No. , 92 Stat. ()karacto.xyz Section (c) was later repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of (IIRIRA) section (b), Pub. L. , Stat. , and replaced with a new section that gives the Attorney General the authority to cancel removal for a narrow class of inadmissible or deportable aliens,see id., at karacto.xyz
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Michael P. DiRaimondo, Marialaina L. James Loprest, Jr. We hold that: 1 the amendments to the Immigration and Nationality Act INA that expanded the class of aggravated felonies to include Chan's offense apply retroactively; 2 Chan is, therefore, statutorily precluded from establishing good moral character for the purposes of the INA; 3 Chan's waiver of deportation does not remove his conviction from consideration in subsequent immigration proceedings; and 4 Chan received the hearing he was entitled to under 8 U.
Citizenship and Immigration Services. See Brown v. Ashcroft , F. The Bureau of U. Before October 1, , applicants for citizenship applied for naturalization directly in the United States district court.
See Tutun v. United States , U. The INS would investigate the applicant and supply the court with a report and non-binding recommendations. See 8 C. In response to backlogs in the district courts, the Immigration Act of , Pub. Hovsepian , F.
H, H Federal statutes and regulations provide procedures for applicants to contest denials before naturalization officers within the CIS. See 8 U. Blakeway , F. The Amendments also provided for de novo judicial review in the United States district courts of the CIS's denials of applications for naturalization.
As the Tenth Circuit has noted, " [t]his grant of authority is unusual in its scope — rarely does a district court review an agency decision de novo and make its own findings of fact.
INS , F. Gonzales , F. In June , Chan married a United States citizen, and in October of that year, Chan was granted lawful permanent resident status. On December 11, , Chan was named in a four-count indictment charging him and another with smuggling aliens into the United States and related offenses, in violation of 18 U.
Chan pleaded guilty to one count of conspiracy to smuggle aliens, in violation of 18 U. On March 20, , Chan submitted an application for naturalization acknowledging his past conviction for conspiracy to smuggle aliens. Chan took and passed the naturalization exam. On October 16, , Gantner denied the appeal because Chan, having been convicted of an "aggravated felony," was unable to establish the good moral character necessary under 8 C.
Shortly thereafter, the government moved for summary judgment pursuant to Fed. The District Court granted the motion, holding that 1 Chan's conspiracy offense constituted an aggravated felony; 2 8 U. See Kai Tung Chan v. Gantner , F. Chan filed a timely notice of appeal of the District Court's decision.
Our review of a district court's grant of summary judgment is de novo. Brown v. Henderson , F. To obtain relief, the moving party must show that "there is no genuine issue as to any material fact" and that it "is entitled to a judgment as a matter of law.
In applying this standard, we "resolve all ambiguities and draw all inferences in favor of the non-moving party. Long Island R. The facts of this case are not in dispute. The relevant question is whether as a matter of statutory construction Chan is precluded from establishing good moral character.
No alien may become a United States citizen unless he establishes the following, subject to certain exceptions not at issue:. Title 8, section f 8 , precludes from establishing "good moral character" those "who, during the period for which good moral character is required to be established, is, or was.
At the time of Chan's conviction, conspiracy to engage in alien smuggling was not an aggravated felony under the INA. The current definition of the term "aggravated felony" — which also was the version in effect when Chan filed his naturalization petition — includes:. Additionally, section a 43 provides that attempts and conspiracies to commit offenses constitute aggravated felonies if the underlying substantive offense is included within the statutory definition.
Further, Congress in passed IIRIRA, which states that the current definition of "aggravated felony" is to be used "regardless of whether the conviction" for the offense included in the definition "was entered before, on, or after" the September 30, effective date of IIRIRA.
Chan argues that 1 the new definition of "aggravated felony" cannot be applied to him because it did not exist when he was convicted; and 2 retroactive application of the new definition to him would violate the Ex Post Facto Clause of the Constitution.
Both arguments are entirely lacking in merit. First, the denial of citizenship is a civil proceeding, see Abela v. Gustafson , F. Reno , F. Second, statutes may and should be retroactively applied when the statute at issue clearly indicates that it is intended to be retroactive. See Landgraf v. Congress made clear its intent to apply the expanded definition of aggravated felony in the same statutory section that created the new definition.
Cyr , U. Furthermore, because 8 U. Chan argues that, even if the definition of "aggravated felony" applies retroactively to include his conviction, the District Court erred in holding that he cannot establish that he is a person of good moral character. Specifically, he asserts that 8 U.
He claims that the relevant "period" for establishing good moral character in naturalization applications is the five-year residence requirement listed in section a 1 , and because his conviction occurred prior to that period, it is not relevant to the determination of his character. We find Chan's argument unpersuasive.
As we held in Boatswain v. Gonzales , an applicant convicted of an aggravated felony is precluded under 8 U. Boatswain v. Contrary to Chan's interpretation, section f 's reference to "the period for which good moral character is required to be established" is only an "acknowledgment that the various provisions of chapter twelve attach different chronological conditions to the good moral character requirement contained in each.
Therefore, "during the period for which good moral character is required," — i. It is particularly noteworthy, in this regard, that section f 5 bars only "one who has been convicted of two or more gambling offenses committed during such period " from establishing good moral character. Extension of Stay and Change of Status Applicants. Adjustment of Status Applicants. Definition of Public Charge and Related Terms. General Assistance Cash Benefits. Housing Programs. Section 8 Housing Choice Voucher Program.
Section 8 Project-Based Rental Assistance. Description of Program. Exceptions for Certain Medicaid Services. Institutionalization for Long-Term Care. Subsidized Public Housing. Public Charge Inadmissibility Determination.
Absence of a Required Affidavit of Support. Prospective Determination Based on Totality of Circumstances. Family Status Start Printed Page Assets, Resources, and Financial Status. Evidence of Assets and Resources. Evidence of Financial Status. General Consideration of Sponsorship and Affidavits of Support. Heavily Weighed Factors. Heavily Weighed Negative Factors. Heavily Weighed Positive Factors. Summary of Review of Factors in the Totality of the Circumstances. Favorable Determination of Admissibility.
Unfavorable Determination of Admissibility. Valuation of Monetizable Benefits. Overview of Immigration Bonds Generally. Overview of Public Charge Bonds. Public Charge Bond Substitution. Public Charge Bond Cancellation. Breach of a Public Charge Bond and Appeal. Exhaustion of Administrative Remedies. Public Charge Processing Fees. Other Technical Changes. Concurrent Surety Bond Rulemaking.
Statutory and Regulatory Requirements. Background and Purpose of the Rule. Cost-Benefit Analysis. Form I, Request for Fee Waiver. Affidavit of Support Forms. Form I, Petition for a Nonimmigrant Worker. Form I, Declaration of Self-Sufficiency. Discounted Direct Costs. Discounted Reduction in Transfer Payments. Regulatory Flexibility Act. Congressional Review Act. Unfunded Mandates Reform Act. Executive Order Federalism.
Executive Order Civil Justice Reform. Paperwork Reduction Act. List of Subjects and Regulatory Amendments. Bureau of Labor Statistics. Customs and Border Protection. Department of Homeland Security. Department of State. Form I—Petition for a Nonimmigrant Worker. Form I—Petition for Alien Relative. Form I—Request for Fee Waiver. Form I—Declaration of Self-Sufficiency. Form I—Public Charge Bond. Form N—Application for Certificate of Citizenship.
Government Accountability Office. Department of Health and Human Services. RFE—Request for Evidence. Secretary—Secretary of Homeland Security. Department of Agriculture. Citizenship and Immigration Services. 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, legal, 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 U. 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.
USCIS for this rulemaking. 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.
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 DHS seeks to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient, i.
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 as an immigrant, or seeks adjustment of status, is likely at any time to become a public charge under section a 4 of the Act, 8 U.
Due to operational limitations, this additional evidence would not generally be required at ports of entry.
DHS also proposes amending the nonimmigrant extension of stay and change of status regulations by exercising its authority to set additional conditions on granting such benefits. Finally, DHS proposes to revise its regulations governing the discretion of the Secretary of Homeland Security Secretary to accept a public charge bond under section of the Act, 8 U.
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 that are subject to the public charge grounds on inadmissibility. DHS would now require any adjustment applicants subject to the public charge inadmissibility ground to submit Form I with their Form I to demonstrate they are not likely to become a public charge.
The associated time burden estimate for completing these forms would increase because these applicants would be required to demonstrate that they have not received, are not currently receiving, nor are likely in the future to receive, public benefits as described in proposed 8 CFR These applicants may also incur additional costs if DHS determines that they are required to submit Form I in support of their applications for extension of stay or change of status.
Moreover, the proposed rule would impose new costs associated with the proposed public charge bond process, including new costs for completing and filing Form I Public Charge Bond , and Form I Request for Cancellation of Public Charge Bond. The proposed rule would impose new costs on the population seeking extension of stay or change of status using Form I, Form ICW, or Form I For any of these forms, USCIS officers would then be able to exercise discretion in determining whether it would be necessary to issue a request for evidence RFE requesting the applicant to submit Form I The proposed rule would potentially impose new costs on individuals or companies obligors if an alien has been found to be inadmissible on public charge grounds, but has been given the opportunity to submit a public charge bond, for which USCIS intends to use the new Form I Moreover, the proposed rule would also result in a reduction in transfer payments from the federal government to individuals who may choose to disenroll from or forego enrollment in a public benefits program.
Individuals may make such a choice due to concern about the consequences to that person receiving public benefits and being found to be likely to become a public charge for purposes outlined under section a 4 of the Act, even if such individuals are otherwise eligible to receive benefits.
Because state. For example, the federal government funds all SNAP food expenses, but only 50 percent of allowable administrative costs for regular operating expenses. DHS recognizes that reductions in federal and state transfers under federal benefit programs may have downstream and upstream impacts on state and local economies, large and small businesses, and individuals.
For example, the rule might result in reduced revenues for healthcare providers participating in Medicaid, pharmacies that provide prescriptions to participants in the Medicare Part D Low Income Subsidy LIS program, companies that manufacture medical supplies or pharmaceuticals, grocery retailers participating in SNAP, agricultural producers who grow foods that are eligible for purchase using SNAP benefits, or landlords participating in federally funded housing programs.
Additionally, the proposed rule would add new direct and indirect costs on various entities and individuals associated with regulatory familiarization with the provisions of this rule.
Familiarization costs involve the time spent reading the details of a rule to understand its changes. To the extent that an individual or entity directly regulated by the rule incurs familiarization costs, those familiarization costs are a direct cost of the rule.
For example, immigration lawyers, immigration advocacy groups, health care providers of all types, non-profit organizations, non-governmental organizations, and religious organizations, among others, may need or want to become familiar with the provisions of this proposed rule. An entity, such as a non-profit or advocacy group, may have more than one person that reads the rule.
Familiarization costs incurred by those not directly regulated are indirect costs. DHS estimates the time that would be necessary to read this proposed rule would be approximately 8 to 10 hours per person, resulting in opportunity costs of time.
The primary benefit of the proposed rule would be to help ensure that aliens who apply for admission to the United States, seek extension of stay or change of status, or apply for adjustment of status are self-sufficient, i. The elimination of this form would potentially reduce the number of forms USCIS would have to process, although it likely would not reduce overall processing burden.
A public charge bond process would provide benefits to applicants as they potentially would be given the opportunity to adjust their status if otherwise admissible, at the discretion of DHS, after a determination that they are likely to become public charges.
Table 1 provides a more detailed summary of the proposed provisions and their impacts. DHS seeks to better ensure that applicants for admission to the United States and applicants for adjustment of status to lawful permanent resident who are subject to the public charge ground of inadmissibility are self-sufficient, i.
The statute requires DHS to consider the following minimum factors that reflect the likelihood that an alien will become a public charge: The alien's age; health; family status; assets, resources, and financial status; and education and skills. DHS may also consider any affidavit of support submitted by the alien's sponsor and any other factor relevant to the likelihood of the alien becoming a public charge.
A 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.
B 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.
Aliens subject to the public charge ground of inadmissibility include: Immediate relatives of U. Most employment-based immigrants are coming to work for their petitioning employers; DHS believes that by virtue of their employment, such immigrants should have adequate income and resources to support themselves without resorting to seeking public benefits.
Similarly, DHS believes that, consistent with section a 4 , nonimmigrants should have sufficient financial means or employment, if authorized to work, to support themselves for the duration of their authorized admission and temporary stay. In addition, immediate relatives of U. DHS's view of self-sufficiency also informs other aspects of this proposal. DHS proposes that aliens who seek to change their nonimmigrant status or extend their nonimmigrant stay generally should also be required to continue to be self-sufficient and not remain in the United States to avail themselves of any public benefits for which they are eligible, even though the public charge inadmissibility determination does not directly apply to them.
Such aliens should have adequate financial resources to maintain the status they seek to extend or to which they seek to change for the duration of their temporary stay, and must be able to support themselves. As noted above, Congress codified the minimum mandatory factors that must be considered as part of the public charge inadmissibility determination under section a 4 of the Act, 8 U.
In addition, the Interim Field Guidance placed its emphasis on primary dependence on cash public benefits. This proposed rule would improve upon the Interim Field Guidance by removing the artificial distinction between cash and non-cash benefits, and aligning public charge policy with the self-sufficiency principles set forth in the Personal Responsibility and Work Opportunity Reconciliation Act of PRWORA.
DHS's authority for making public charge inadmissibility determinations and related decisions is found in several statutory provisions. Section of the Homeland Security Act of Pub. In addition to establishing the Secretary's general authority for the administration and enforcement of immigration laws, section of the Act enumerates various related authorities including the Secretary's authority to establish regulations and prescribe such forms of bond as are necessary for carrying out her authority.
Section of the Act, 8 U. Section a 4 of the Act also establishes the affidavit of support requirement as applicable to certain family-based and employment-based immigrants, and exempts certain aliens from both the public charge ground of inadmissibility and the affidavit of support requirement. That section authorizes the Secretary to establish the amount and conditions of such bond.
Section A of the Act, 8 U. The Secretary proposes the changes in this rule under these authorities. 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.
Department of State DOS and thereafter seek admission in the appropriate immigrant 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 a lawful permanent resident. In the nonimmigrant context, the nonimmigrant typically applies directly to the U.
The inspection is conducted by immigration officers in a timeframe and setting distinct from the visa adjudication process. If a nonimmigrant alien is present in the 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 as designated by Congress. Where an alien is seeking an immigration benefit that is subject to a ground of inadmissibility, DHS cannot approve the immigration benefit being sought if a waiver of that ground is unavailable under the INA, the alien does not meet the statutory and regulatory requirements for the waiver, or the alien does not warrant the waiver in any authorized exercise of discretion.
Pursuant to section a 1 of the Act, 8 U. 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. Under section of the Act, 8 U. Section a 4 of the Act, 8 U. 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 Start Printed Page adjustment of status to that of a lawful permanent resident.
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 the alien's age; health; family status; assets, resources, and financial status; and education and skills.
Some immigrant and nonimmigrant categories are exempt from the public charge inadmissibility ground. DHS proposes to list these categories in the regulation. DHS also proposes to list in the regulation the applicants that the law permits to apply for a waiver of the public charge inadmissibility ground.
Additionally, section a 4 of the Act, 8 U. 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. Since at least , the United States has denied admission to aliens on public charge grounds.
A series of administrative decisions after passage of the Act clarified that a totality of the circumstances review was the proper framework for making public charge determinations and that receipt of welfare would not, alone, lead to a finding of likelihood of becoming a public charge. Some specific circumstance, such as mental or physical disability, advanced age, or other fact showing that the burden of supporting the alien is likely to be cast on the public, must be present. A healthy person in the prime of life cannot ordinarily be considered likely to become a public charge, especially where 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.
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. The totality of circumstances approach to public charge inadmissibility determinations was codified in relation to one specific class of aliens in the s. Although IRCA provided otherwise eligible aliens an exemption or waiver for some grounds of excludability, the aliens generally remained excludable on public charge grounds.
The administrative practices surrounding public charge inadmissibility determinations began to crystalize into legislative changes in the s. The Immigration Act of reorganized section a of the Act and re-designated the public charge provision as section a 4 of the Act, 8 U. 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.
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. The Trafficking Victims Protection Act of further provided that an alien who is a victim of a severe form of trafficking in persons, or an alien classified as a nonimmigrant under section a 15 T ii of the Act, 8 U.
The following tables provide a summary of the definition of federal public benefit and the three categories of public benefits under PRWORA as applicable to aliens and qualified aliens.
Congress chose not to restrict eligibility for certain benefits, including Start Printed Page 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. Although PRWORA provided a broad definition of public benefits that only qualified aliens are eligible to receive, [ ] it also made certain public benefits available even to non-qualified aliens.
These benefits, which are described in 8 U. In addition, the notice provided for a three-part test in identifying excluded benefits and services for the protection of life and safety.
Specified programs must satisfy all three prongs of this test:. The government-funded programs, services, or assistance specified are those that: Deliver in-kind non-cash services at the community level, including through public or private non-profit agencies or organizations; do not condition the provision, amount, or cost of the assistance on the individual recipient's income or resources; and serve purposes of the type described in the list below, for the protection of life or safety.
The community-based programs, services, or assistance are limited to those that provide in-kind non-cash benefits and are open to individuals needing or desiring to participate without regard to income or resources.
Programs, services, or assistance delivered at the community level, even if they serve purposes of the type described, are not within this specification if they condition on the individual recipient's income or resources: a The provision of assistance; b the amount of assistance provided; or c the cost of the assistance provided on the individual recipient's income or resources.
Included within the specified programs, services, or assistance determined to be necessary for the protection of life or safety are the following types of programs:. Where the public interest is not served, we should not provide the public assistance to illegal immigrants. These benefits would not be part of the public charge determination under the proposed rule. 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, [ ] except in certain cases where an affidavit of support is required and must be considered at least in that regard.
There is no tension between the availability of public benefits to some aliens as set forth in PRWORA and Congress's intent to deny visa issuance, admission, and adjustment of status to aliens who are likely to become a public charge. Indeed, Congress, in enacting PRWORA and IIRIRA very close in time, must have recognized that it made certain public benefits available to some aliens who are also subject to the public charge grounds of inadmissibility, even though receipt of such benefits could render the alien inadmissible as likely to become a public charge.
Start Printed Page Under the carefully devised scheme envisioned by Congress, aliens generally would not be issued visas, admitted to the United States, or permitted to adjust status if they are likely to become public charges. This prohibition may deter aliens from making their way to the United States or remaining in the United States permanently for the purpose of availing themselves of public benefits. But Congress also did not correspondingly limit the applicability of the public charge statute; if an alien subsequent to receiving public benefits wished to adjust status in order to remain in the United States permanently or left the United States and later wished to return, the public charge inadmissibility consideration naturally including consideration of receipt of public benefits would again come into play.
In other words, 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. With its guidance, INS aimed to stem the fears that were causing noncitizens to refuse limited public benefits, such as transportation vouchers and child care assistance, so that they would be better able to obtain and retain employment and establish self-sufficiency.
The Deputy Secretary of HHS, which administers Temporary Assistance for Needy Families TANF , Medicaid, the Children's 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.
The letters did not foreclose the agency adopting a different definition consistent with statutory authority. The proposed rule provided that non-cash, supplemental and certain limited cash, special purpose benefits should not be considered for public charge purposes, in light of INS' decision to define public charge by reference to primary dependence on public benefits.
Ultimately, however, INS did not publish a final rule conclusively addressing these issues. If an alien is determined to be inadmissible on public charge grounds under section a 4 of the Act, 8 U. Historically, bond provisions started with states requiring certain amounts to assure an alien would not become a public charge.
Beginning in , immigration inspectors served on Boards of Special Inquiry that reviewed exclusion cases of aliens who were likely to become public charges because the aliens lacked funds or relatives or friends who could provide support. The present language of section of the Act, 8 U. In , Congress amended section of the Act to permit the posting of cash received by the U.
Department of the Treasury and to eliminate specific references to communicable diseases of public health significance. This proposed rule would establish a proper nexus between public charge and receipt of public benefits by defining the terms public charge and public benefit, among other terms.
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 at any time in the future to become a public charge. DHS also proposes to clarify the role of a sponsor's affidavit of support within public charge inadmissibility determinations.
In addition, DHS 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. 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 DHS also proposes to establish a public charge bond process in the adjustment of status context, and proposes to clarify DHS's authority to set conditions for nonimmigrant extension of stay and change of status applications.
Finally, this proposed rule interprets the public charge inadmissibility ground under section a 4 of the Act, 8 U. Department of Justice precedent decisions would continue to govern the standards regarding public charge deportability determinations.
This rule would apply to any alien subject to section a 4 of the Act, 8 U. Nearly sixty percent of the 2. Fifty-one percent of immediate relatives, ninety-two percent of family-sponsored immigrants, and ninety-eight percent of diversity visa immigrants obtained an immigrant visa at a consular post overseas before securing admission as a lawful permanent resident at a port-of-entry between fiscal years and This rule also addresses eligibility for extension of stay and change of Start Printed Page status.
For instance, aliens seeking adjustment of status undergo a different process than a temporary visitor for pleasure from Canada seeking admission to the United States. The length and nature of the stay of these two subsets of aliens differs significantly, as does frequency of entry. Accordingly, the processes and evidentiary requirements proposed in this rule vary in certain respects depending on the type of benefit and status an alien is seeking, as set forth below. Under section a 4 of the Act, 8 U.
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, in most instances, then is expected to depart the United States and return to his or her country. A visa applicant applies directly to a U. Applicants for admission are inspected at, or when encountered between, ports of entry. They are inspected by immigration officers to assess, among other things, whether they are inadmissible under section a of the Act, including section a 4.
Under the proposed rule, the type of nonimmigrant status and the duration of the nonimmigrant's stay in the United States would be considered in assessing whether the applicant has met his or her burden of demonstrating that he or she is likely to become a public charge.
For example, in determining whether an applicant for admission as a B-2 nonimmigrant visitor for pleasure who is coming to the United States for a one-week vacation is inadmissible on public charge grounds, DHS would consider that this temporary visit is short in nature and that the individual likely would only need financial resources to cover the expenses associated with the vacation.
Similarly, an alien who is the beneficiary of an immigrant visa petition approved by USCIS may apply to a DOS consulate abroad for an immigrant visa to allow him or her to seek admission to the United States as an immigrant.
In determining whether the applicant has demonstrated that he or she is not inadmissible on the public charge ground, DOS reviews all of the mandatory factors, including any required affidavits of support submitted under section A of the Act, 8 U. This process would not change under the proposed rule, but it is likely that DOS will amend its guidance to prevent the issuance of visas to inadmissible aliens, [ ] except as otherwise provided in the Act.
DOS would continue to review affidavits of support and screen aliens for public charge inadmissibility in accordance with applicable regulations and instructions prior to the alien undergoing inspection and applying for admission at a pre-inspection location or port-of-entry.
Additionally, although lawful permanent residents generally are not considered to be applicants for admission upon their return from a trip abroad, in certain limited circumstances a lawful permanent resident will be considered an applicant for admission and, therefore, subject to an inadmissibility determination. 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, in most instances, then is expected to depart the United States and return to his or her country.
However, consistent with the INA and controlling regulations, DHS may, in its discretion, extend an alien's nonimmigrant status or change an alien's nonimmigrant status from one classification to another.
Consistent with this authority, DHS is proposing to require an applicant for an extension of stay or change of status to attest that he or she has neither received since obtaining the nonimmigrant status he or she seeks to extend or to which he or she seeks to change, is not receiving, nor is likely to receive at any time in the future one or more public benefits as defined in this proposed rule. Although section a 4 of the Act by its terms only applies to applicants for visas, admission, and adjustment of status, and thus does not, by its terms, render aliens who are likely to become a public charge ineligible for the extension of stay or change of status, the government's interest in a nonimmigrant alien's ability to maintain self-sufficiency for the duration of the temporary stay does not end with his or her admission as a nonimmigrant.
In particular, the government has an interest in ensuring that aliens present in the United States do not depend on public benefits to meet their needs. Accordingly, DHS is proposing to consider whether the alien Start Printed Page has received since obtaining the nonimmigrant status he or she seeks to extend or to which he or she seeks to change, is currently receiving, or is likely to receive public benefits as defined in the proposed rule, when adjudicating an application to extend a nonimmigrant stay or change a nonimmigrant status.
Extension of stay and change of status applicants are already required to provide evidence of maintenance of their current nonimmigrant status. Although the INA does not indicate that aliens seeking an extension of stay or change of status must establish self-sufficiency, consideration of such alien's self-sufficiency aligns with the aforementioned policy statements set forth in PRWORA.
Except where the nonimmigrant status that the alien seeks to extend or to which the alien seeks to change is exempted by law from section a 4 of the Act, in order for an alien to demonstrate that he or she has neither received since obtaining the nonimmigrant status he or she seeks to extend or from which he or she seeks to change, nor is currently receiving or likely to receive any such public benefits, DHS will require applicants to answer questions on their application form, [ ] under penalty of perjury, regarding their receipt of these public benefits.
The responses to these questions would be used in determining whether the applicant has met his or her burden to establish eligibility for extension of stay or change of status under the proposed regulation. In adjudicating whether the applicant has demonstrated that he or she is not likely to receive public benefits as defined in the proposed rule, at any time in the future, DHS would consider the status to which the alien seeks to extend or to which to change, as well as the anticipated additional period of stay.
DHS would also consider whether the applicant has provided evidence of maintenance of status and that he or she has sufficient financial means to maintain the status he or she seeks, or that he or she will be gainfully employed in such status, as applicable.
Based on the information the alien provides in support of the application for extension of stay or change of status, USCIS would determine whether the applicant should also submit Form I in order to demonstrate that he or she is unlikely to receive public benefits during the temporary stay in the United States.
For example, if the alien is a B-2 nonimmigrant who was admitted to the United States to seek medical treatment and is seeking to extend his or her visit because he or she requires additional medical treatment that was unanticipated at the time of admission, the alien would need to submit evidence that he or she has the financial means to pay for this additional medical treatment and otherwise support himself or herself during the extended duration of his or her temporary stay.
An alien seeking to extend his or her stay in, or change status to, F-1 or M-1 nonimmigrant status would submit evidence of his or her financial ability to pay for his or her study and to financially support himself or herself.
Table 4 below provides a summary of nonimmigrant categories and the applicability of the public charge condition to such categories. In general, an alien who is physically present in the United States may be eligible to apply for adjustment of status before USCIS 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 the adjustment of status application.
In determining whether the adjustment applicant has demonstrated that he or she is not inadmissible on the public charge ground, DHS proposes to review the mandatory statutory factors together with any required affidavit of support and any other relevant information, in the totality of the circumstances.
Tables 5 through 9 below provide a summary of immigrant categories for adjustment of status and the applicability of the public charge inadmissibility determination to such categories. The public charge inadmissibility ground does not apply to all applicants who are seeking a visa, admission, or adjustment of status.
In general, the aforementioned classes of aliens are vulnerable populations of immigrants and nonimmigrants. Some have been persecuted or victimized and others have little to no private support network in the United States. These individuals tend to require government protection and support. Admission of these aliens also serves distinct public policy goals separate from the general immigration system.
Other legal provisions may permit waivers of public charge provisions under section a 4 of the Act, 8 U. The proposed regulation at 8 CFR DHS proposes to add several definitions that apply to public charge inadmissibility determinations. There is a scarcity of legislative guidance and case law defining public charge. Legislative history, however, suggests a link between public charge and the receipt of public benefits.
According to a Senate Judiciary Committee report, which preceded the passage of the Act, a Senate subcommittee highlighted concerns raised by an immigration inspector about aliens receiving old age assistance. The Senate subcommittee recommended against establishing a strict definition of the term public charge by law. Because the elements that could constitute any given individual's likelihood of becoming a public charge vary, the subcommittee instead recommended that the determination of whether an alien is likely to become a public charge should rest within the discretion of consular officers and the Commissioner.
Before Congress passed IIRIRA in , debates on public charge exclusion and deportation grounds considered the significance of an alien's use of public benefits and self-sufficiency. Absent a clear statutory definition, some courts and administrative authorities have tied public charge to receipt of public benefits without quantifying the level of public support or the type of public support required.
For example, in analyzing the term public charge in the context of deportability under section 19 of the Start Printed Page Immigration Act of , [ ] the U. Similarly, the U. District Court for the Southern District of New York, in Ex parte Mitchell and In re Keshishian respectively, indicated that a public charge is one who is supported at public expense without qualifying or quantifying the level of support at public expense necessary.
In Matter of Martinez-Lopez, the Attorney General indicated that public support or the burden of supporting the alien being cast on the public was a fundamental consideration in public charge inadmissibility determinations.
Bearing in mind the operative legislative history and case law examined above, DHS is proposing a new definition of public charge. The proposed definition also addresses circumstances where an alien receives a combination of monetizable benefits equal to or below the 15 percent threshold together with one or more benefits that cannot be monetized.
In such cases, DHS proposes that the threshold for duration of receipt of the non-monetizable benefits would be 9 months in the aggregate within a month period. In formulating the proposed definition of public benefits, DHS contemplated pertinent case law, the definition of public benefits in PRWORA, and the treatment of certain public benefits under the current public charge policy. The cases examined draw a distinction between the types of public benefits that are appropriately considered in public charge determinations, and the types that are not.
The principal reason PRWORA's definition does not work in the public charge inadmissibility determination is that it includes grants, contracts, and licensures that are transactional in nature and may involve the exchange of government resources for value provided by the alien.
Certain cash aid and non-cash benefits directed toward food, housing, and healthcare, on the other hand, are directly relevant to public charge inadmissibility determinations. Food, shelter, and necessary medical treatment are basic necessities of life. A person who needs the public's assistance to provide for these basic necessities is not self-sufficient.
DHS proposes to consider specific public benefit programs as part of the public charge inadmissibility analysis. Consistent with the Interim Field Guidance, DHS is proposing to consider all federal, state, local, and tribal cash assistance for income maintenance as part of the public benefits definition. The receipt of these public benefits indicates that the recipient, rather than being self-sufficient, needs the government's assistance to meet basic living requirements such as housing, food, and medical care.
Therefore, DHS believes that continuing to consider these benefits in the public charge inadmissibility consideration is appropriate. DHS also proposes consideration of certain non-cash benefits, because receipt of such benefits is relevant to determining whether an alien is self-sufficient. DHS recognizes that the universe of non-cash benefits is quite large, and that some benefits are more commonly used, at greater taxpayer expense, than others.
In addition, incorporating specific non-cash benefit programs into the public charge inadmissibility determination entails certain indirect costs—for instance, as a result of a final rule, the benefits-granting agency may make changes to forms or to enrollment or disenrollment procedures. In light of these considerations, and to provide consistency in adjudications and appropriate certainty for aliens and benefits-granting agencies, DHS proposes to incorporate consideration of a limited list of non-cash benefits in the public charge inadmissibility determination context.
Cash aid and non-cash benefits directed toward food, housing, and healthcare account for significant federal expenditure on low-income individuals and bear directly on self-sufficiency. Table 10 illustrates the estimated average annual public benefits payments and average annual benefit for each assistance program under consideration in this rule. In addition to federal expenditure impact, participation rates in these cash and non-cash benefits programs are significant.
In fact, participation rates in some non-cash programs are far higher than participation rates in some cash programs, regardless of a person's immigration status or citizenship.
Additionally, the categories represented in the SIPP immigration status item do not align precisely with the populations covered by this rule—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 these limitations, DHS believes the SIPP data on noncitizen participation is instructive with respect to the receipt of non-cash benefits by the noncitizen population on the whole.
DHS welcomes comments on its use of this data, and whether alternative reliable data sources are available. Table 11 shows public benefit participation, by nativity and citizenship status, in The total population studied was ,, The data shows that the rate of receipt for either cash or non-cash public benefits was approximately 20 percent among the native-born and foreign-born, including noncitizens.
The rate of receipt of cash benefits was only 2 to 4 percent for these populations, with receipt of non-cash benefits dominating the overall rate. Table 11 also shows Medicaid participation rates were Participation rates in SNAP among native-born, foreign-born, and noncitizen populations are The rate of receipt of cash benefits was 3. 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 Nation's social safety net, including with respect to noncitizens generally.
Table 12 reflects that noncitizens showed comparable rates of program participation regardless of whether their status at admission to the U.
For example, approximately 20 percent of noncitizens who were lawful permanent residents at admission to the U. Among the cash benefits considered, about 1 percent of noncitizens who were lawful permanent residents at admission, as well as those who were not, received SSI while less than 1 percent received either TANF or General Assistance.
In sum, the data from Tables 11 and 12 show that for native-born and foreign-born populations alike, non-cash public benefits play a significant role in many peoples' lives. DHS does not believe it is appropriate to ignore the receipt of non-cash benefits in its public charge inadmissibility analysis. Further, we note that certain non-cash benefits, just like cash benefits, provide assistance to those who are not self-sufficient.
DHS, therefore, proposes to consider cash benefits and non-cash public benefits. DHS believes that consideration of cash and non-cash benefit receipt represents an appropriately comprehensive and also readily administrable application of the public charge ground of inadmissibility. While an alien's receipt of one or more of these benefits alone would not establish that he or she is likely at any time in the future to become a public charge, as explained above, case law strongly suggests that an alien's self-sufficiency, i.
DHS notes, as discussed elsewhere in the rule, that for admissibility and adjustment of status purposes, the receipt of such benefits would be determined on a prospective basis, i. For extension of stay and change of status applicants, the determination regarding the receipt of such benefits above the proposed threshold is not exclusively prospective and is instead based on whether an alien has received since obtaining the nonimmigrant status that the alien seeks to end or from which the alien seeks to change, is receiving, or is likely at any time to receive benefits above the proposed threshold s.
At the time, the wide array of limited-purpose public benefits now available did not yet exist. The current policy's definition is consistent, in some respects, with how other agencies have defined dependence in certain contexts. DHS agrees with HHS that although a 50 percent threshold creates a bright line that may be useful for certain purposes, it is possible and likely probable that individuals below such threshold will lack self-sufficiency and be dependent on the public for support.