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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / Proposed Rules that receipt of benefits under these programs was more reflective of poverty or dependence, while such was not the case for most non-cash benefits, which with the exception of institutionalization for long-term care at government expense were not considered.54 Finally, the former INS
also tried to address the negative impacts on public health and general welfare caused by individuals forgoing the receipt of such non-cash benefits to avoid negative immigration consequences.55
In the vacated 2019 Final Rule, DHS
also recognized a link between public charge and receipt of public benefits, but determined that neither the wording of section 212a4 of the Act, 8 U.S.C. 1182a4, nor case law examining public charge inadmissibility, mandates the primarily dependent standard set forth in the 1999 Interim Field Guidance . . . . 56
Emphasizing the policy statements contained in PRWORA,57 the vacated 2019 Final Rule expanded the types of public benefits considered as part of a public charge inadmissibility determination to include not only public cash assistance for income maintenance but also certain designated public non-cash benefits.58
In a future rulemaking, DHS may seek to clarify whether and which public benefits should be considered as part of a public charge inadmissibility determination.

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2. Questions for the Public DHS welcomes public comment on all aspects of the topic discussed 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. Should DHS consider the receipt of public benefits past and/or current in the public charge inadmissibility determination? If yes, how should DHS
consider the receipt of public benefits and why?
2. Which public benefits should be considered as part of a public charge inadmissibility determination?
3. Which public benefits, if any, should not be considered as part of a public charge inadmissibility determination?
4. How should DHS address the possibility that individuals who are eligible for public benefits, including 54 See
64 FR 28689, 28692 May 26, 1999.
64 FR 28689, 28692 May 26, 1999.
56 See 84 FR 41292, 41349 Aug. 14, 2019.
57 See 8 U.S.C. 1601.
58 See 84 FR 41292, 41439 Aug. 14, 2019.
55 See
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U.S. citizen relatives of noncitizens, would forgo the receipt of those benefits as a result of DHSs consideration of certain public benefits in the public charge inadmissibility determination?
What data and information should DHS
consider about the direct and indirect effects of past public charge policies in this regard?
G. Previous Rulemaking Efforts 1. Background DHS and its predecessor, INS, engaged in two previous rulemaking efforts as discussed in greater detail above in Part II, Section C. On May 26, 1999, INS issued a NPRM, which proposed how the agency would determine if a noncitizen is likely at any time to become a public charge under section 212a4 of the INA, 8 U.S.C.
1182a, for admission and adjustment of status purposes, and whether a noncitizen in and admitted to the United States has become a public charge within 5 years after the date of entry for causes not affirmatively shown to have arisen since entry under section 237a5 of the INA, 8 U.S.C.
1227a5.59 That NPRM, and the related 1999 Interim Field Guidance, provided a definition for public charge, specified the public benefits that would and would not be considered as part of a public charge determination, established a prospective totality of the circumstances framework that considered the factors set forth in section 212a4B of the INA, 8 U.S.C.
1182a4B, and clarified how the Affidavit of Support Under Section 213A of the INA is used. INS and later DHS never finalized the 1999 NPRM.
On August 14, 2019, DHS issued a final rule addressing the public charge ground of inadmissibility.60 The rule provided a new definition for public charge; specified the public benefits that would be considered as part of a public charge inadmissibility determination;
established a prospective totality of the circumstances framework that required consideration of all of the factors set forth in section 212a4B of the INA, 8 U.S.C. 1182a4B, as well as one additional factor; specified the standards and evidence that would be considered in the public charge inadmissibility determination; created a new Form I944 for public charge inadmissibility determinations in the adjustment of status context; and 59 See Inadmissibility and Deportability on Public Charge Grounds, 64 FR 28676 May 26, 1999.
60 See 84 FR 41292 Aug. 14, 2019, as amended by Inadmissibility on Public Charge Grounds;
Correction, 84 FR 52357 Oct. 2, 2019.

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changed the regulations for public charge bonds.61
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. What aspects of the 1999 Interim Field Guidance, if any, should be included in a future public charge inadmissibility rulemaking and why?
2. What aspects of the 1999 NPRM, if any, should be included in a future public charge inadmissibility rulemaking and why?
3. What aspects of the vacated 2019
Final Rule, if any, should be included in a future public charge inadmissibility rulemaking and why?
4. What data are available to estimate any potential direct and indirect effects, economic or otherwise, of the public charge ground of inadmissibility, the 1999 Interim Field Guidance, or the vacated 2019 Final Rule? For instance, what data are available to estimate any potential direct and indirect effects, economic or otherwise, on individuals, social service organizations, hospitals, businesses, and other persons and entities?
H. Bond and Bond Procedures 1. Background If a noncitizen is determined to be inadmissible based on the public charge ground, but is otherwise admissible, the person may be admitted in the discretion of the Secretary of Homeland Security upon the giving of a suitable and proper bond under section 213 of the INA, 8 U.S.C. 1183. That section authorizes the Secretary to establish the amount and conditions of such bond.
Regulations implementing the public charge bond were promulgated in 1964
and 1966,62 and are currently found at 8 CFR 103.6 and 8 CFR 213.1.
The 1999 Interim Field Guidance noted that the agency had the discretionary authority to offer public charge bonds, but did not otherwise explain the manner in which the agency would exercise that discretion.63 In the vacated 2019 Final Rule, DHS
established a framework to offer public charge bonds under section 213 of the 61 See 84 FR 41292 Aug. 14, 2019, as amended by Inadmissibility on Public Charge Grounds;
Correction, 84 FR 52357 Oct. 2, 2019.
62 See Miscellaneous Amendments to Chapter, 29
FR 10579 July 30, 1964; Miscellaneous Edits to Chapter, 31 FR 11713 Sept. 7, 1966.
63 See 64 FR 28689, 28693 May 26, 1999.

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