8 C.F.R. §§ 212.20–212.23

4 sections in range

§212.20. Applicability of public charge inadmissibility.

8 C.F.R. § 212.20

8 CFR 212.20 through 212.23 address the public charge ground of inadmissibility under section 212(a)(4) of the Act. Unless the alien requesting the immigration benefit or classification has been exempted from section 212(a)(4) of the Act as listed in § 212.23(a), the provisions of §§ 212.20 through 212.23 of this part apply to an applicant for admission or adjustment of status to that of a lawful permanent resident.

Notes, amendments, and revision history

Amendments

[87 FR 55636, Sept. 9, 2022]

Authority

Authority: 6 U.S.C. 111, 202(4) and 271; 8 U.S.C. 1101 and note, 1102, 1103, 1182 and note, 1184, 1187, 1223, 1225, 1226, 1227, 1255, 1359; section 7209 of Pub. L. 108-458 (8 U.S.C. 1185 note); Title VII of Pub. L. 110-229 (8 U.S.C. 1185 note); Pub. L. 115-218; 8 CFR part 2. Section 212.1(q) and (r) also issued under section 702, Pub. L. 110-229, 122 Stat. 754, 854.

Source

Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.

Amendments

[87 FR 55636, Sept. 9, 2022]

§212.21. Definitions.

8 C.F.R. § 212.21

For the purposes of §§ 212.20 through 212.23, the following definitions apply:

(a)

Likely at any time to become a public charge means likely at any time to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or long-term institutionalization at government expense.

(b)

Public cash assistance for income maintenance— means:

(1)

Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;

(2)

Cash assistance for income maintenance under the Temporary Assistance for Needy Families (TANF) program, 42 U.S.C. 601 et seq.; or

(3)

State, Tribal, territorial, or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names).

(c)

Long-term institutionalization at government expense means government assistance for long-term institutionalization (in the case of Medicaid, limited to institutional services under section 1905(a) of the Social Security Act) received by a beneficiary, including in a nursing facility or mental health institution. Long-term institutionalization does not include imprisonment for conviction of a crime or institutionalization for short periods for rehabilitation purposes.

(d)

Receipt (of public benefits). An individual's receipt of public benefits occurs when a public benefit-granting agency provides either public cash assistance for income maintenance or long-term institutionalization at government expense to the individual, where the individual is listed as a beneficiary of such benefits. An individual's application for a public benefit on their own behalf or on behalf of another does not constitute receipt of public benefits by such individual. Approval for future receipt of a public benefit that an individual applied for on their own behalf or on behalf of another does not constitute receipt of public benefits by such an individual. An individual's receipt of public benefits solely on behalf of a third party (including a member of the alien's household as defined in paragraph (f) of this section) does not constitute receipt of public benefits by such individual. The receipt of public benefits solely by a third party (including a member of the alien's household as defined in paragraph (f) of this section), even if an individual assists with the application process, does not constitute receipt for such individual.

(e)

Government means any Federal, State, Tribal, territorial, or local government entity or entities of the United States.

(f)

Household— The alien's household includes:

(1)

The alien;

(2)

The alien's spouse, if physically residing with the alien;

(3)

If physically residing with the alien, the alien's parents, the alien's unmarried siblings under 21 years of age, and the alien's children as defined in section 101(b)(1) of the Act;

(4)

Any other individuals (including a spouse or child as defined in section 101(b)(1) of the Act not physically residing with the alien) who are listed as dependents on the alien's federal income tax return; and

(5)

Any other individual(s) who lists the alien as a dependent on their federal income tax return.

Notes, amendments, and revision history

Amendments

[87 FR 55636, Sept. 9, 2022]

Authority

Source

Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.

Amendments

[87 FR 55636, Sept. 9, 2022]

§212.22. Public charge inadmissibility determination.

8 C.F.R. § 212.22

(a)

Factors to consider—

(1)

Consideration of minimum factors— For purposes of a public charge inadmissibility determination, DHS will consider the alien's:

(i)

Age;

(ii)

Health, as evidenced by a report of an immigration medical examination performed by a civil surgeon or panel physician where such examination is required (to which DHS will generally defer absent evidence that such report is incomplete);

(iii)

Family status, as evidenced by the alien's household size, based on the definition of household in § 212.21(f);

(iv)

Assets, resources, and financial status, as evidenced by the alien's household's income, assets, and liabilities (excluding any income from public benefits listed in § 212.21(b) and income or assets from illegal activities or sources such as proceeds from illegal gambling or drug sales); and

(v)

Education and skills, as evidenced by the alien's degrees, certifications, licenses, skills obtained through work experience or educational programs, and educational certificates.

(2)

Consideration of affidavit of support. DHS will favorably consider an Affidavit of Support Under Section 213A of the INA, when required under section 212(a)(4)(C) or (D) of the Act, that meets the requirements of section 213A of the Act and 8 CFR part 213a, in making a public charge inadmissibility determination.

(3)

Consideration of current and/or past receipt of public benefits— DHS will consider the alien's current and/or past receipt of public cash assistance for income maintenance or long-term institutionalization at government expense (consistent with § 212.21(c)). DHS will consider such receipt in the totality of the circumstances, along with the other factors. DHS will consider the amount and duration of receipt, as well as how recently the alien received the benefits, and for long-term institutionalization at government expense, evidence submitted by the alien that the alien's institutionalization violates federal law, including the Americans with Disabilities Act or the Rehabilitation Act. However, current and/or past receipt of these benefits will not alone be a sufficient basis to determine whether the alien is likely at any time to become a public charge. DHS will not consider receipt of, or certification or approval for future receipt of, public benefits not referenced in § 212.21(b) and (c)), such as Supplemental Nutrition Assistance Program (SNAP) or other nutrition programs, Children's Health Insurance Program (CHIP), Medicaid (other than for long-term use of institutional services under section 1905(a) of the Social Security Act), housing benefits, any benefits related to immunizations or testing for communicable diseases, or other supplemental or special-purpose benefits.

(4)

Disability alone not sufficient. A finding that an alien has a disability, as defined by Section 504 of the Rehabilitation Act, will not alone be a sufficient basis to determine whether the alien is likely at any time to become a public charge.

(b)

Totality of the circumstances. The determination of an alien's likelihood of becoming a public charge at any time in the future must be based on the totality of the alien's circumstances. No one factor outlined in paragraph (a) of this section, other than the lack of a sufficient Affidavit of Support Under Section 213A of the INA, if required, should be the sole criterion for determining if an alien is likely to become a public charge. DHS may periodically issue guidance to adjudicators to inform the totality of the circumstances assessment. Such guidance will consider how these factors affect the likelihood that the alien will become a public charge at any time based on an empirical analysis of the best-available data as appropriate.

(c)

Denial Decision. Every written denial decision issued by USCIS based on the totality of the circumstances set forth in paragraph (b) of this section will reflect consideration of each of the factors outlined in paragraph (a) of this section and specifically articulate the reasons for the officer's determination.

(d)

Receipt of public benefits while an alien is in an immigration category exempt from public charge inadmissibility. In an adjudication for an immigration benefit for which the public charge ground of inadmissibility applies, DHS will not consider any public benefits received by an alien during periods in which the alien was present in the United States in an immigration category that is exempt from the public charge ground of inadmissibility, as set forth in § 212.23(a), or for which the alien received a waiver of public charge inadmissibility, as set forth in § 212.23(c).

(e)

Receipt of benefits available to refugees. DHS will not consider any public benefits that were received by an alien who, while not a refugee admitted under section 207 of the Act, is eligible for resettlement assistance, entitlement programs, and other benefits available to refugees admitted under section 207 of the Act, including services described under section 412(d)(2) of the Act provided to an unaccompanied alien child as defined under 6 U.S.C. 279(g)(2).

Notes, amendments, and revision history

Amendments

[87 FR 55636, Sept. 9, 2022]

Authority

Source

Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.

Amendments

[87 FR 55636, Sept. 9, 2022]

§212.23. Exemptions and waivers for public charge ground of inadmissibility.

8 C.F.R. § 212.23

(a)

Exemptions. The public charge ground of inadmissibility under section 212(a)(4) of the Act does not apply, based on statutory or regulatory authority, to the following categories of aliens:

(1)

Refugees at the time of admission under section 207 of the Act and at the time of adjustment of status to lawful permanent resident under section 209 of the Act;

(2)

Asylees at the time of grant under section 208 of the Act and at the time of adjustment of status to lawful permanent resident under section 209 of the Act;

(3)

Amerasian immigrants at the time of application for admission as described in sections 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, Public Law 100-202, 101 Stat. 1329-183, section 101(e) (Dec. 22, 1987), as amended, 8 U.S.C. 1101 note;

(4)

Afghan and Iraqi Interpreters, or Afghan or Iraqi nationals employed by or on behalf of the U.S. Government as described in section 1059(a)(2) of the National Defense Authorization Act for Fiscal Year 2006 Public Law 109-163 (Jan. 6, 2006), as amended, and section 602(b) of the Afghan Allies Protection Act of 2009, Public Law 111-8, title VI (Mar. 11, 2009), as amended, 8 U.S.C. 1101 note, and section 1244(g) of the National Defense Authorization Act for Fiscal Year 2008, as amended, Public Law 110-181 (Jan. 28, 2008);

(5)

Cuban and Haitian entrants applying for adjustment of status under section 202 of the Immigration Reform and Control Act of 1986 (IRCA), Public Law 99-603, 100 Stat. 3359 (Nov. 6, 1986), as amended, 8 U.S.C. 1255a note;

(6)

Aliens applying for adjustment of status under the Cuban Adjustment Act, Public Law 89-732 (Nov. 2, 1966), as amended, 8 U.S.C. 1255 note;

(7)

Nicaraguans and other Central Americans applying for adjustment of status under section 202(a) and section 203 of the Nicaraguan Adjustment and Central American Relief Act (NACARA), Public Law 105-100, 111 Stat. 2193 (Nov. 19, 1997), as amended, 8 U.S.C. 1255 note;

(8)

Haitians applying for adjustment of status under section 902 of the Haitian Refugee Immigration Fairness Act of 1998, Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998), as amended, 8 U.S.C. 1255 note;

(9)

Lautenberg parolees as described in section 599E of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1990, Public Law 101-167, 103 Stat. 1195, title V (Nov. 21, 1989), as amended, 8 U.S.C. 1255 note;

(10)

Special immigrant juveniles as described in section 245(h) of the Act;

(11)

Aliens who entered the United States prior to January 1, 1972, and who meet the other conditions for being granted lawful permanent residence under section 249 of the Act and 8 CFR part 249 (Registry);

(12)

Aliens applying for or reregistering for Temporary Protected Status as described in section 244 of the Act in accordance with section 244(c)(2)(A)(ii) of the Act and 8 CFR 244.3(a);

(13)

Nonimmigrants described in section 101(a)(15)(A)(i) and (ii) of the Act (Ambassador, Public Minister, Career Diplomat or Consular Officer, or Immediate Family or Other Foreign Government Official or Employee, or Immediate Family), in accordance with section 102 of the Act and 22 CFR 41.21(d);

(14)

Nonimmigrants classifiable as C-2 (alien in transit to U.N. Headquarters) or C-3 (foreign government official), 22 CFR 41.21(d);

(15)

Nonimmigrants described in section 101(a)(15)(G)(i), (ii), (iii), and (iv), of the Act (Principal Resident Representative of Recognized Foreign Government to International Organization, and related categories), in accordance with section 102 of the Act and 22 CFR 41.21(d);

(16)

Nonimmigrants classifiable as NATO-1, NATO-2, NATO-3, NATO-4 (NATO representatives), and NATO-6 in accordance with 22 CFR 41.21(d);

(17)

Applicants for nonimmigrant status under section 101(a)(15)(T) of the Act, in accordance with § 212.16(b);

(18)

Except as provided in paragraph (b) of this section, individuals who are seeking an immigration benefit for which admissibility is required, including but not limited to adjustment of status under section 245(a) of the Act and section 245(l) of the Act and who:

(i)

Have a pending application that sets forth a prima facie case for eligibility for nonimmigrant status under section 101(a)(15)(T) of the Act, or

(ii)

Have been granted nonimmigrant status under section 101(a)(15)(T) of the Act, provided that the individual is in valid T nonimmigrant status at the time the benefit request is properly filed with USCIS and at the time the benefit request is adjudicated;

(19)

Except as provided in paragraph (b) of this section—

(i)

Petitioners for nonimmigrant status under section 101(a)(15)(U) of the Act, in accordance with section 212(a)(4)(E)(ii) of the Act; or

(ii)

Individuals who are granted nonimmigrant status under section 101(a)(15)(U) of the Act in accordance with section 212(a)(4)(E)(ii) of the Act, who are seeking an immigration benefit for which admissibility is required, including, but not limited to, adjustment of status under section 245(a) of the Act, provided that the individuals are in valid U nonimmigrant status at the time the benefit request is properly filed with USCIS and at the time the benefit request is adjudicated;

(20)

Except as provided in paragraph (b) of this section, any aliens who are VAWA self-petitioners under section 212(a)(4)(E)(i) of the Act;

(21)

Except as provided in paragraph (b) of this section, qualified aliens described in section 431(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 8 U.S.C. 1641(c), under section 212(a)(4)(E)(iii) of the Act;

(22)

Applicants adjusting status who qualify for a benefit under section 1703 of the National Defense Authorization Act, Public Law 108-136, 117 Stat. 1392 (Nov. 24, 2003), 8 U.S.C. 1151 note (posthumous benefits to surviving spouses, children, and parents);

(23)

American Indians born in Canada determined to fall under section 289 of the Act;

(24)

Texas Band of Kickapoo Indians of the Kickapoo Tribe of Oklahoma, Public Law 97-429 (Jan. 8, 1983);

(25)

Nationals of Vietnam, Cambodia, and Laos applying for adjustment of status under section 586 of Public Law 106-429 under 8 CFR 245.21;

(26)

Polish and Hungarian Parolees who were paroled into the United States from November 1, 1989 to December 31, 1991, under section 646(b) of the IIRIRA, Public Law 104-208, Div. C, Title VI, Subtitle D (Sept. 30, 1996), 8 U.S.C. 1255 note;

(27)

Applicants adjusting status who qualify for a benefit under Section 7611 of the National Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, 113 Stat. 1198, 2309 (December 20, 2019) (Liberian Refugee Immigration Fairness), later extended by Section 901 of Division O, Title IX of the Consolidated Appropriations Act, 2021, Public Law 116-260 (December 27, 2020) (Adjustment of Status for Liberian Nationals Extension);

(28)

Certain Syrian nationals adjusting status under Public Law 106-378; and

(29)

Any other categories of aliens exempt under any other law from the public charge ground of inadmissibility provisions under section 212(a)(4) of the Act.

(b)

Limited Exemption. Aliens described in paragraphs (a)(18) through (21) of this section must submit an Affidavit of Support Under Section 213A of the INA if they are applying for adjustment of status based on an employment-based petition that requires such an affidavit of support as described in section 212(a)(4)(D) of the Act.

(c)

Waivers. A waiver for the public charge ground of inadmissibility may be authorized based on statutory or regulatory authority, for the following categories of aliens:

(1)

Applicants for admission as nonimmigrants under 101(a)(15)(S) of the Act;

(2)

Nonimmigrants admitted under section 101(a)(15)(S) of the Act applying for adjustment of status under section 245(j) of the Act (witnesses or informants); and

(3)

Any other category of aliens who are eligible to receive a waiver of the public charge ground of inadmissibility.

Notes, amendments, and revision history

Amendments

[87 FR 55636, Sept. 9, 2022]

Authority

Source

Source: 17 FR 11484, Dec. 19, 1952, unless otherwise noted.

Amendments

[87 FR 55636, Sept. 9, 2022]

8 C.F.R. §§ 212.20–212.23

§212.20. Applicability of public charge inadmissibility.

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Source

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§212.21. Definitions.

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Source

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§212.22. Public charge inadmissibility determination.

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Source

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§212.23. Exemptions and waivers for public charge ground of inadmissibility.

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Source

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