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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / Proposed Rules
7. What data sources and criteria should DHS use to assess the sufficiency of the applicants assets, resources, and financial status?
8. Should DHS consider the varied economic opportunities afforded to applicants to avoid unintended disparate impacts? If yes, how should DHS consider these limited opportunities and why?
e. Education and Skills 1. How should DHS consider an applicants education and skills in making a public charge inadmissibility determination?
2. What education and skills should DHS consider in making a public charge inadmissibility determination?
3. Should DHS consider the varied access to educational opportunities afforded to applicants to avoid disparate impacts? If yes, how should DHS
consider this limited access and why?
D. Affidavit of Support Under Section 213A of the INA

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1. Background Most family-based and some employment-based applicants for adjustment of status are required to submit an Affidavit of Support Under Section 213A of the INA, Form I864 or Form I864EZ, executed by a sponsor, which is usually the U.S. citizen or LPR
who filed the immigrant visa petition on the adjustment applicants behalf.44 The absence of a sufficient Affidavit of Support Under Section 213A of the INA, where required, will result in a finding of inadmissibility under section 212a4 of the INA, 8 U.S.C. 1182a4, without consideration of the mandatory statutory factors.45 Under section 212a4Bii of the INA, 8 U.S.C.
1182a4Bii, DHS may consider a sufficient Affidavit of Support Under Section 213A of the INA 46 for the purposes of determining the applicants likelihood of becoming a public charge at any time.
The 1999 Interim Field Guidance did not specifically address how officers should consider the Affidavit of Support Under Section 213A of the INA for the purposes of the totality of the 44 See INA sections 212a4C, D and 213A, 8
U.S.C. 1182a4C and D.
45 See INA sections 212a4C, D and 213A, 8
U.S.C. 1182a4C and D.
46 A sufficient Affidavit of Support Under Section 213A of the INA is one in which the sponsor has demonstrated that he or she has enough income and/or assets to maintain the sponsored noncitizen and the rest of the sponsors household at 125% of the Federal Poverty Guidelines FPG for that household size or at 100 percent of the FPG if the sponsor is active duty in the U.S. Armed Forces or U.S. Coast Guard. See INA section 213A, 8 U.S.C.
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circumstances determination as set forth in section 212a4Bii of the INA, 8
U.S.C. 1182a4Bii, focusing instead on how a sponsors receipt of meanstested public benefits was considered for the purposes of determining the sufficiency of the affidavit.47 However, in the vacated 2019 Final Rule, DHS
described how officers would consider a sufficient Affidavit of Support Under Section 213A of the INA.48 In that rule, DHS provided that adjudicators would consider the likelihood that the sponsor would actually provide the statutorily required amount of financial support to the noncitizen as part of the totality of the circumstances determination.49
In a future rulemaking, DHS may seek to address the manner in which a sufficient Affidavit of Support Under Section 213A of the INA is considered as part of a public charge inadmissibility determination.
2. Questions for the Public DHS welcomes public comment on all aspects of the topic described above, but would particularly benefit from commenters addressing one or more of the following questions, including the reasoning, data, and information behind their comments:
1. How should DHS consider a sufficient Affidavit of Support Under Section 213A of the INA in the public charge inadmissibility determination?
2. What weight should DHS give to a sufficient Affidavit of Support Under Section 213A of the INA in comparison to the mandatory statutory factors in the public charge inadmissibility determination?
E. Other Factors To Consider 1. Background Section 212a4B of the INA, 8
U.S.C. 1182a4B, states that DHS
must, at minimum, consider the individuals age; health; family status;
assets, resources, and financial status;
and education and skills. DHS may also consider any Affidavit of Support Under Section 213A of the INA, which is described above in Section D. The statutes inclusion of the words at minimum suggests that other factors, beyond those listed and the Affidavit of Support Under Section 213A of the INA, may be considered when determining whether an individual is likely to become a public charge.
While the 1999 Interim Field Guidance suggests that there are other factors besides the mandatory factors and the Affidavit of Support Under
Section 213A of the INA that are considered in the totality of the circumstances, that guidance did not specify or explain those other factors.50
The vacated 2019 Final Rule, however, promulgated one additional factor apart from the factors set forth in section 212a4B of the INA, 8 U.S.C.
1182a4Bthe noncitizens prospective immigration status and expected period of admission.51
In a future rulemaking, DHS may seek to address whether there are factors other than those identified in section 212a4B of the INA, 8 U.S.C.
1184a4B, that should be considered as part of a public charge inadmissibility determination.
2. Questions for the Public DHS welcomes public comment on all aspects of the topic described above, but would particularly benefit from commenters addressing the following questions including the reasoning, data, and information behind their comments:
1. What other factors, if any, should DHS consider as part of the public charge inadmissibility determination and why?
2. How, if at all, should DHS account for the fact that there are differences in the duration of time noncitizens are authorized to stay in the United States, and that many noncitizens subject to the public charge ground of inadmissibility are expected to remain in the United States for only a brief period of time?
3. What data or evidence is available and relevant to the question above?
F. Public Benefits Considered 1. Background The former INS, in the 1999 Interim Field Guidance, recognized a link between public charge and the receipt of public benefits by defining public charge in terms of primary dependence on the government for subsistence, and in directing officers to consider the receipt of public cash assistance for income maintenance or institutionalization for long-term care at government expense.52 In tying the receipt of cash assistance for income maintenance to public charge, the former INS believed it would be able to identify those who are primarily dependent on the government for subsistence without inhibiting access to non-cash benefits that serve important public interests. 53 The former INSs focus on cash assistance for income maintenance reflected the determination 50 See
47 See
64 FR 28689, 28693 May 26, 1999.
48 See 84 FR 41292, 41440 Aug. 14, 2019.
49 See 84 FR 41292, 41504 Aug. 14, 2019.

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64 FR 28689, 28690 May 26, 1999.
84 FR 41292, 41423 Aug. 14, 2019.
52 See 64 FR 28689, 28692 May 26, 1999.
53 See 64 FR 28689, 28692 May 26, 1999.
51 See
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