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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / Proposed Rules
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how the agency would determine if a person is likely to become a public charge under section 212a4 of the INA, 8 U.S.C. 1182a4, for admission and adjustment of status purposes, and whether a person is deportable as a public charge under section 237a5 of the INA, 8 U.S.C. 1227a5. INS
proposed promulgating these policies as regulations in a proposed rule issued on May 26, 1999, but no final rule was issued.12 The Department of State DOS
also issued a cable to its consular officers at that time implementing similar guidance for visa adjudications, and similarly updated its Foreign Affairs Manual FAM.13 Until 2019, INS and later, USCIS, followed the 1999
Interim Field Guidance in their adjudications. DOS followed its public charge guidance as set forth in the FAM.14
In August 2019, DHS issued a final rule titled Inadmissibility on Public Charge Grounds 2019 Final Rule.15
The 2019 Final Rule redefined the term public charge to mean an alien who receives one or more public benefits, as defined in the 2019 Final Rule, for more than 12 months in the aggregate within any 36-month period such that, for instance, receipt of two benefits in one month counts as two months. 16 It also defined the term public benefit to include cash assistance for income maintenance other than tax credits, SNAP, most forms of Medicaid, Section 8 Housing Assistance under the Housing Choice Voucher HCV Program, Section 8 Project-Based Rental Assistance, and certain other forms of subsidized housing.17 The applicability of some provisions of the 2019 Final Rule was limited in certain ways, including with respect to active duty military members and their spouses and children, and for children in certain contexts.18
20, 1999, became effective May 21, 1999 and was published in the Federal Register on May 26, 1999.
12 See Inadmissibility and Deportability on Public Charge Grounds, 64 FR 28676 May 26, 1999.
13 See 9 FAM 40.41.
14 See 9 FAM 302.82B2, Determining Totality of Circumstances, g Public Charge Bonds, available at https fam.state.gov/fam/
09fam/09fam030208.html. Note that on January 3, 2018, DOS amended its FAM guidance, which retained the definitions and framework from the prior guidance, but changed the manner in which DOS evaluated the Affidavit of Support Under Section 213A of the INA as well as how it considered the receipt of non-cash benefits by applicants, sponsors, and family members.
15 See 84 FR 41292 Aug. 14, 2019; see also 84
FR 52357 Oct. 2, 2019 making corrections. In October 2019, DOS issued a conforming rule. See 84 FR 54996 Oct. 11, 2019.
16 See 84 FR 41292 Aug. 14, 2019.
17 See 84 FR 41292 Aug. 14, 2019.
18 See 84 FR 41292 Aug. 14, 2019. For example, under that rule, public benefits did not include benefits received by a person who, at the time of
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The 2019 Final Rule also established an evidentiary framework for USCIS
consideration of public charge inadmissibility and explained how DHS
would interpret the minimum statutory factors for determining whether, in the opinion of 19 the officer, a noncitizen is likely at any time to become a public charge. Specifically, for adjustment of status applications before USCIS, DHS
created a new Declaration of SelfSufficiency, Form I944, that collected information from applicants relevant to the 2019 Final Rules approach to the statutory factors.20
The 2019 Final Rule also revised DHS
regulations governing the Secretarys discretion to accept a public charge bond under section 213 of the INA, 8
U.S.C. 1183, for those seeking adjustment of status.21
The 2019 Final Rule was preliminarily enjoined by U.S. district courts in the Southern District of New York, District of Maryland, Northern District of California, Eastern District of Washington, and Northern District of Illinois.22 Following a series of stays of the preliminary injunctions,23 DHS
began applying the Final Rule on February 24, 2020. Since that time, preliminary injunctions against the Final Rule were affirmed by the Second, receipt, filing the application for admission or adjustment of status, or adjudication, was enlisted in the U.S. Armed Forces, serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or benefits received by the spouse or child of such a service member. Moreover, under that rule, public benefits did not include benefits received by children of U.S. citizens whose lawful admission for permanent residence would result in automatic acquisition of U.S. citizenship.
19 See INA section 212a4A, 8 U.S.C.
1182a4A.
20 The Declaration of Self-Sufficiency requirement only applied to adjustment of status applicants and not to applicants for admission at a port of entry.
21 See 84 FR 41292 Aug. 14, 2019. The 2019
Final Rule also contained provisions that would render certain nonimmigrants ineligible for extension of stay or change of status if they received one or more public benefits for more than 12
months in the aggregate within any 36-month period since obtaining the nonimmigrant status they sought to extend or change.
22 See City and Cnty. of San Francisco v. USCIS, 408 F. Supp. 3d 1057 N.D. Cal. 2019; Cook County, Ill. v. McAleenan, 417 F. Supp. 3d 1008
N.D. Ill. 2019; Casa de Md. v. Trump, 414 F. Supp.
3d 760 D. Md. 2019 Make the Road New York v.
Cuccinelli, 419 F. Supp. 3d 647 S.D.N.Y. 2019;
Wash. v. DHS, 408 F. Supp. 3d 1191 E.D. Wash.
2019.
23 See Wolf v. Cook County, 140 S. Ct. 681 2020
staying preliminary injunction from the Northern District of Illinois; DHS v. New York, 140 S. Ct. 599
2020 staying preliminary injunctions from the Southern District of New York; City and Cnty. of San Francisco v. USCIS, 944 F.3d 773 9th Cir.
2019 staying preliminary injunctions from the Eastern District of Washington and Northern District of California; CASA de Md. v. Trump, No.
192222 4th Cir. Dec. 9, 2019 staying preliminary injunction from the District of Maryland.

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Seventh, and Ninth Circuit Courts of Appeals.24 On November 2, 2020, the U.S. District Court for the Northern District of Illinois issued a Rule 54b judgment vacating the rule on the merits.25 On November 3, 2020, the Seventh Circuit granted an administrative stay of the district courts judgment and, on November 19, 2020, the Seventh Circuit granted a stay pending appeal. On March 9, 2021, DHS
moved to dismiss its appeal before the Seventh Circuit, the Seventh Circuit dismissed the appeal, and the Rule 54b judgment went into effect.
As a result of the judgment, DHS
ceased to apply the 2019 Final Rule and instead reverted to the policy that was in effect prior to that rule, i.e., the 1999
Interim Field Guidance. DHS also removed the regulatory text that DHS
had promulgated in the 2019 Final Rule and that had been vacated by the district court, thereby restoring the regulatory text to appear as it did prior to the 2019
Final Rules issuance.26
DHS notes that on February 2, 2021, President Biden issued Executive Order 14012, Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans.27 In the Executive Order, the President declared a national policy to ensure that our laws and policies encourage full participation by immigrants, including refugees, in our civic life; that immigration processes and other benefits are delivered effectively and efficiently; and that the Federal Government eliminates sources of fear and other barriers that prevent immigrants from accessing government services available to them. 28 The President also specifically directed a review of public charge policies by the Secretary of State, the Attorney General, and the Secretary of Homeland Security, in consultation with the heads of relevant agencies.
24 See New York v. DHS, 969 F.3d 42 2d Cir.
2020; Cook County, Ill. v. Wolf, 962 F.3d 208 7th Cir. 2020; City and Cnty. of San Francisco v.
USCIS, 981 F.3d 742 9th Cir. 2020; see also Casa de Md. v. Trump, 981 F.3d 311 4th Cir. 2020
granting en banc review and vacating a panel opinion that had reversed a preliminary injunction.
In July 2020, the Southern District of New York issued a second preliminary injunction against the Final Rule for reasons related to the COVID19
pandemic, which the Second Circuit later stayed.
See New York v. DHS, 475 F. Supp. 3d 208
S.D.N.Y. 2020, injunction stayed, 974 F.3d 210 2d Cir. 2020.
25 See Cook County, Ill. v. Wolf, No. 19C6334, 2020 WL 6393005 N.D. Ill. Nov. 2, 2020.
26 86 FR 14221 Mar. 15, 2021.
27 86 FR 8277 Feb. 5, 2021.
28 86 FR 8277 Feb. 5, 2021.

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