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Federal Register / Vol. 86, No. 160 / Monday, August 23, 2021 / Proposed Rules 1. To the extent that DHS considers a noncitizens past or current receipt of public benefits, for what period of time before the public charge inadmissibility determination should DHS consider the noncitizens receipt of public benefits?
Why is that time period relevant?
C. Statutory Factors
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1. Background Section 212a4B of the INA, 8
U.S.C. 1182a4B, states that DHS
must, at a minimum, consider the noncitizens age; health; family status;
assets, resources, and financial status;
and education and skills.36 DHS may also consider any Affidavit of Support under Section 213A of the INA, which is described below in Section D.37
In the 1999 Interim Field Guidance, the former INS noted that officers must consider the mandatory statutory factors, as well as any Affidavit of Support Under Section 213A of the INA
submitted, and that every denial order based on public charge must reflect consideration of each of these factors and specifically articulate the reasons for the officers determination. 38 The guidance suggested that factors would be either positive or negative,39 but did not explain what evidence officers should consider in evaluating these factors listed in section 212a4B of the INA, 8 U.S.C. 1182a4B, or the weight to be given to a particular factor, in the totality of the circumstances.40
In the vacated 2019 Final Rule, DHS
also required officers to consider the mandatory statutory factors, as well as a sufficient Affidavit of Support Under Section 213A of the INA, if submitted, in the totality of the circumstances, when assessing an applicants likelihood of becoming a public charge at any time in the future.41 That rule provided certain standards for officers to use in assessing each factor and also 36 See INA section 212a4Bi, 8 U.S.C.
1182a4Bi.
37 See INA section 212a4Bii, 8 U.S.C.
1182a4Bii.
38 See 64 FR 28689, 2868990 May 26, 1999.
39 See 64 FR 28689, 2868990 May 26, 1999.
40 See 64 FR 28689, 2868990 May 26, 1999. As explained more fully elsewhere in this document, the 1999 Interim Field Guidance included consideration of the past and present receipt of cash assistance for income maintenance and noted that less weight would be assigned the longer ago the benefits were received. 64 FR at 28690. The 1999
Interim Field Guidance also noted that applicants who received cash assistance for income maintenance could overcome such receipt by being employed full-time or having a sufficient Affidavit of Support Under Section 213A of the INA. 64 FR
at 28690.
41 See 84 FR 41307. As explained more fully elsewhere, the rule also required consideration of an additional factor not referenced in the statute.

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identified evidence that USCIS deemed relevant for the consideration of these factors.42
Through a future rulemaking, DHS
may seek to clarify how officers should consider the statutory factors in making a public charge inadmissibility determination, as well as any other factors relevant to assessing an applicants likelihood of becoming a public charge at any time.
2. Questions for the Public DHS welcomes public comment on 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. Which factors whether statutory factors or any other relevant factors identified by the commenter are most predictive of whether a noncitizen is likely or is not likely to become a public charge? To the extent that data exist on this question, how can DHS use such data to improve public charge policymaking and adjudication?
2. How can DHS address the potential for perceived or actual unfairness or discrimination in public charge inadmissibility adjudications, whether due to cognitive, racial, or other biases;
arbitrariness; variations in outcomes across cases with similar facts; or other reasons?
3. What kinds of tools in regulation or policy guidance could DHS provide to the public and adjudicators to make the totality of the circumstances determination more predictable and less subject to variation in different cases presenting similar facts?
4. Should DHS give any more or less consideration to any one or more of the statutory factors, the Affidavit of Support Under Section 213A of the INA, or any additional factors DHS may add through the rulemaking process in a public charge inadmissibility determination?
5. In the adjustment of status context, how should DHS request the necessary information to consider the mandatory statutory factors for each adjudication, without imposing undue paperwork burdens on the public and adjudicators?
a. Age 1. How should an applicants age be considered as part of the public charge inadmissibility determination?
b. Health 1. How should DHS define health for the purposes of a public charge inadmissibility determination?
42 See
PO 00000

84 FR 41292 Aug. 14, 2019.

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2. Should DHS consider disabilities and/or chronic health conditions as part of the health factor? If yes, how should DHS consider these conditions and why?
3. How should the Rehabilitation Act of 1973s prohibition of discrimination on the basis of disability be considered in DHSs analysis of the health factor? 43
4. How should DHS consider the Report of Medical Examination and Vaccination Record, Form I693, as part of the health factor?
5. Should DHS account for social determinants of health to avoid unintended disparate impacts on historically disadvantaged groups? If yes, how should DHS consider this limited access and why?
c. Family Status 1. How should DHS define and consider family status for the purposes of a public charge inadmissibility determination?
2. How should an applicants household size be considered as part of the family status factor? What definition of an applicants household size should DHS use for the public charge inadmissibility determination?
d. Assets, Resources, and Financial Status 1. What types of assets and resources are relevant to a public charge inadmissibility determination?
2. Whose assets and resources should be considered as part of this factor?
3. How should DHS define financial status for the purposes of a public charge inadmissibility determination?
4. How should DHS address the challenges faced by those not served by a bank or similar financial institution in demonstrating their assets, resources, and financial status?
5. Should DHS consider an applicants financial obligations such as child or spousal support, debt, or bankruptcy in a public charge inadmissibility determination? If yes, how should DHS consider an applicants debt, bankruptcy, or financial obligations when evaluating an applicants financial status and why?
6. Should DHS address its assessment of the relationship between the applicants assets, resources, and financial status in the context of his or her particular circumstances e.g., costs of living in the applicants geographic location in its rulemaking? If yes, how so?
43 Note that under Executive Order 12250, DOJ is charged with coordinating the implementation and enforcement by Executive agencies of Section 504
of the Rehabilitation Act.

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