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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / Proposed Rules
NPRMNotice of Proposed Rulemaking PRWORAPersonal Responsibility and Work Opportunity Reconciliation Act of 1996
SNAPSupplemental Nutrition Assistance Program SSISupplemental Security Income USCISU.S. Citizenship and Immigration Services
I. Public Participation DHS invites all interested parties to submit written data, views, comments, and arguments on all aspects of this ANPRM. Comments must be submitted in English, or an English translation must be provided. DHS welcomes comments on any aspects discussed in this ANPRM and has identified in Section III. Request for Information of this document the matters on which DHS will find public comments most helpful to its future rulemaking.
Registration for listening sessions: To register and receive information on how to attend the virtual public listening sessions, please go to: https
www.uscis.gov/outreach/upcomingnational-engagements.
Instructions for comments: All submissions may be posted, without change, to the Federal eRulemaking Portal at https www.regulations.gov, and may include any personal information you provide. 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. For additional information, please read the Privacy and Security Notice available at https
www.regulations.gov.
Docket: For access to the docket and to read background documents or comments received, go to https
www.regulations.gov, referencing DHS
Docket No. USCIS20210013. 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.

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II. Background A. Legal Authority The authority of the Secretary of Homeland Security Secretary for issuing regulations is found in various sections of the Immigration and Nationality Act INA, 8 U.S.C. 1101 et seq., and the Homeland Security Act of 2002 HSA. 1 Section 102 of the HSA, 1 See Public Law 107296, 116 Stat. 2135, 6
U.S.C. 101 et seq. Nov. 25, 2002.

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6 U.S.C. 112, and section 103 of the INA, 8 U.S.C. 1103, charge the Secretary with the administration and enforcement of the immigration laws of the United States. In addition to establishing the Secretarys general authority for the administration and enforcement of immigration laws, section 103 of the INA, 8 U.S.C. 1103, enumerates various related authorities, including the Secretarys authority to establish such regulations, prescribe such forms of bond, issue such instructions, and perform such other acts as the Secretary deems necessary for carrying out such authority.
Section 212a4 of the INA, 8 U.S.C.
1182a4, provides that an applicant for a visa, admission, or adjustment of status is inadmissible if he or she is likely at any time to become a public charge. The public charge ground of inadmissibility, therefore, applies to anyone applying for a visa to come to the United States temporarily or permanently, for admission to the United States, or for adjustment of status to that of a lawful permanent resident.2 Some categories of noncitizens are exempt from the public charge inadmissibility ground, while others may apply for a waiver of the public charge inadmissibility ground.3
The INA does not define the term public charge. It does, however, specify that when determining whether a noncitizen is likely at any time to become a public charge, consular officers and immigration officers must, at a minimum, consider the noncitizens age; health; family status; assets, resources, and financial status; and education and skills.4 Additionally, section 212a4Bii of the INA, 8
U.S.C. 1182a4Bii, permits the consular officer or the immigration officer to consider any Affidavit of Support Under Section 213A of the INA
submitted on the applicants behalf when determining whether the applicant is likely at any time to become a public charge.5 Most noncitizens seeking family-based immigrant visas or adjustment of status, and some noncitizens seeking employment-based immigrant visas or adjustment of status, must submit a sufficient Affidavit of Support Under Section 213A of the INA
in order to avoid being found 2 See
INA section 212a4, 8 U.S.C. 1182a4.
INA section 245j, 8 U.S.C. 1255j; 8 CFR
245.11; INA section 245h2B, 8 U.S.C.
1255h2B; INA 212d3A, 8 U.S.C.
1182d3A.
4 See INA section 212a4Bi, 8 U.S.C.
1182a4Bi.
5 When required, the applicant must submit an Affidavit of Support Under Section 213A of the INA
Form I864 or Form I864EZ.
3 See
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inadmissible under section 212a4 of the INA, 8 U.S.C. 1182a4.6
In general, under section 213 of the INA, 8 U.S.C. 1183, the Secretary has the discretion to admit into the United States a noncitizen who is determined to be inadmissible based only on the public charge ground upon the giving of a suitable and proper bond or undertaking approved by the Secretary.7
The purpose of issuing a public charge bond is to ensure that the noncitizen will not become a public charge in the future.8 Since the introduction of the Affidavit of Support Under Section 213A of the INA, the use of public charge bonds has decreased, and USCIS
does not currently administer a public charge bond process.9
Section 235 of the INA, 8 U.S.C. 1225, addresses the inspection of applicants for admission, including admissibility determinations of such applicants.
Section 245 of the INA, 8 U.S.C. 1255, generally establishes eligibility criteria for adjustment of status to that of a lawful permanent resident.
B. Regulatory History The public charge ground of inadmissibility has been the subject of numerous judicial and administrative decisions, as well as administrative guidance and regulations. On May 26, 1999, soon after enactment of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 IIRIRA, which amended the public charge ground of inadmissibility,10 INS issued Interim Field Guidance on Deportability and Inadmissibility on Public Charge Grounds 1999 Interim Field Guidance.11 This guidance identified 6 See INA section 212a4C, D, 8 U.S.C.
1182a4C, D.
7 See INA section 213, 8 U.S.C. 1183.
8 See Matter of Viado, 19 I&N Dec. 252 BIA
1985.
9 See Adjudicators Field Manual AFM Ch.
61.1b, available at https www.uscis.gov/sites/
default/files/document/policy-manual-afm/afm61external.pdf last visited June 4, 2021.
10 Public Law 104208, div. C, 110 Stat 3009546.
DHS notes that a few months after IIRIRA was enacted, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 PRWORA, Public Law 104193, 11 Stat. 2105, which included a statement of national policy regarding immigration and welfare generally. The statement provides, among other things, that it continues to be the immigration policy of the United States that aliens within the Nations 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 the availability of public benefits not constitute an incentive for immigration to the United States.
See 8 U.S.C. 1601.
11 64 FR 28689 May 26, 1999. Due to a printing error, the Federal Register version of the field guidance appears to be dated March 26, 1999
even though the guidance was actually signed May
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