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Public Charge Ground of Inadmissibility rule (2022)
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The Public Charge Ground of Inadmissibility rule is a significant rule issued by the U.S. Citizenship and Immigration Services (USCIS), U.S. Department of Homeland Security (DHS) effective December 23, 2022, that amended the prescriptions determining whether noncitizens are inadmissible to the United States because they are likely to become a public charge, per the Immigration and Nationality Act (INA).[1]
Timeline
The following timeline details key rulemaking activity:
- December 23, 2022: The final rule took effect.[1]
- September 9, 2022: DHS issued the final rule.[1]
- April 24, 2022: The comment period closed.[1]
- February 24, 2022: DHS issued the Public Charge Ground of Inadmissibility proposed rule and opened the comment period.[1]
- March 09, 2021: A Federal District Court Vacated the Inadmissibility on Public Charge Grounds final rule.[1]
- August 14, 2019: DHS issued Inadmissibility on Public Charge Grounds final rule.[1]
Background
The Immigration and Nationality Act (INA) states that a noncitizen who is likely to become a public charge, or someone primarily reliant on government funding, is inadmissible to the United States. The INA didn't thoroughly define what constitutes a public charge, and DHS was charged with defining the term, as well as the conditions under which one was "likely to become a public charge," according to the rule. DHS issued a final rule on August 14, 2019, that expanded on the definition of a public charge, created a heavy paperwork load for applicants and DHS officers, and "was associated with widespread collateral effects... primarily with respect to those who were not even subject to the public charge ground of inadmissibility, such as U.S. citizen children in mixed-status households." The 2019 final rule was vacated after a series of litigations, and the 2022 Public Charge Ground of Admissibility rule changed the policy in the preceding rule. DHS deemed the 2022 rule more clear, comprehensible, and consistent.[1]
Summary of the rule
The following is a summary of the rule from the rule's entry in the Federal Register:
| “ | The U.S. Department of Homeland Security (DHS) is amending its regulations to prescribe how it determines whether noncitizens are inadmissible to the United States because they are likely at any time to become a public charge. Noncitizens who are applicants for visas, admission, and adjustment of status must establish that they are not likely at any time to become a public charge unless Congress has expressly exempted them from this ground of inadmissibility or has otherwise permitted them to seek a waiver of inadmissibility. Under this rule, DHS would determine that a noncitizen is likely at any time to become a public charge if the noncitizen is likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. On August 14, 2019, DHS issued a different rule on this topic, Inadmissibility on Public Charge Grounds Final Rule (2019 Final Rule), which is no longer in effect. This rule implements a different policy than the 2019 Final Rule.[1][2] | ” |
Summary of provisions
The following is a summary of the provisions from the rule's entry in the Federal Register:[1]
| “ |
As discussed at greater length below, DHS believes that, in contrast to the 2019 Final Rule, this rule would effectuate a more faithful interpretation of the statutory phrase “likely at any time to become a public charge”; avoid unnecessary burdens on applicants, officers, and benefits-granting agencies; and mitigate the possibility of widespread “chilling effects” with respect to individuals disenrolling or declining to enroll themselves or family members in public benefits programs for which they are eligible, especially with respect to individuals who are not subject to the public charge ground of inadmissibility. Under this rule, similar to the 1999 Interim Field Guidance that was in place for two decades prior to the 2019 Final Rule, noncitizens would be considered likely at any time to become a public charge if they are likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense. This final rule also makes important clarifications and changes as compared to the 1999 Interim Field Guidance. For instance, this rule clarifies DHS's approach to consideration of disability and long-term institutionalization at government expense; states a bright-line rule against considering the receipt of public benefits by an applicant's dependents (such as a U.S. citizen child in a mixed-status household); and changes the Form I–485 to collect additional information relevant to the public charge inadmissibility determination. DHS also added streamlined provisions to clarify acceptance, form, and amount of USCIS public charge bonds, as well as cancellation of public charge bonds. Finally, later in this preamble, in response to public comments, DHS further clarifies that primary dependence connotes significant reliance on the government for support, and means something more than dependence that is merely transient or supplementary. The rule also contains multiple additional provisions and definitions, some of which are consistent with aspects of the 1999 Interim Field Guidance (and the 2019 Final Rule), and some of which differ in material respects.[2] |
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Significant impact
- See also: Significant regulatory action
Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.
Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]
The text of the Public Charge Ground of Inadmissibility rule states that OMB deemed this rule economically significant under E.O. 12866:
| “ | The Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has determined that this final rule is an economically significant regulatory action under section 3(f)(1) of E.O. 12866.[2] | ” |
Text of the rule
The full text of the rule is available below:[1]
See also
External links
Footnotes
