Chapter 10 - Public Charge Bonds

If an applicant is determined to be inadmissible based on the public charge ground,^[1] but is otherwise admissible, they may be admitted in the discretion of the Secretary of Homeland Security, after posting a suitable and proper bond.^[2] Public charge bonds are intended to ensure “that the alien will not in the future become a public charge.”^[3] Before an applicant may post a public charge bond, USCIS must invite them to do so.^[4]

If USCIS decides in its discretion that the applicant may post a bond, USCIS will issue a Notice of Intent to Deny (NOID) in which it will invite the applicant to submit a bond. No public charge bonds will be accepted from adjustment of status applicants without an invitation from USCIS. In the case of visa applicants, a bond will be accepted by USCIS only if USCIS receives notification that a consular officer requires the bond.

USCIS may accept a public charge bond before the issuance of an immigrant visa upon the receipt of a request directly from a United States consular officer or upon the presentation by an interested person of a notification from the consular officer requiring the bond.^[5]

A public charge bond is a type of immigration bond.^[6] A bond, including a public charge bond, is a contract between the United States (the obligee) and a natural person or a company (the obligor) who pledges a sum of money to guarantee a set of conditions imposed by the U.S. government concerning the noncitizen (also called the principal).^[7]

In the case of the public charge bond, the obligor pledges a sum of money to guarantee that the applicant will not become a public charge, as defined in the statute.^[8] The purpose of a public charge bond is to act as “security for performance and fulfillment of the financial obligations of a bonded alien to the U.S. government.”^[9]

Public charge bonds are intended to hold the United States and all states, territories, counties, towns, municipalities, and districts harmless against noncitizens becoming public charges.^[10] A public charge bond is issued on the condition that the noncitizen does not become a public charge after the bond is issued.

If the U.S. government invites the noncitizen to post a public charge bond, and the noncitizen posts the bond in the amount specified by USCIS and complies with all other requirements as provided in the form and form instructions, USCIS accepts the public charge bond and adjusts the applicant’s status to that of a lawful permanent resident (LPR) despite the noncitizen’s inadmissibility.

A. Background

Historically, bond provisions started with states requiring certain amounts of money to be posted as assurance that a noncitizen would not become a public charge.^[11] Beginning in 1893, immigration inspectors served on boards of special inquiry that reviewed exclusion cases of noncitizens who were likely to become public charges because they lacked funds or relatives or friends who could provide support.^[12] In these cases, the board of special inquiry usually admitted the noncitizen if someone could post bond or one of the immigrant aid societies would accept responsibility for the noncitizen.

Bond provisions were codified in federal immigration laws in 1903.^[13] The present language of INA 213 has been in the law without significant variation since 1907.^[14] Under Section 21 of the Immigration Act of 1917, an immigration officer could admit a noncitizen if a suitable bond was posted.^[15] Regulations implementing the public charge bond were promulgated in 1964 and 1966,^[16] and are currently found at 8 CFR 103.6 and 8 CFR 213.1. In 1970, Congress amended INA 213 to permit the posting of cash received by the U.S. Department of the Treasury (Treasury) and to eliminate specific references to communicable diseases of public health significance.^[17]

With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) in 1996, Congress amended the section by adding a parenthetical that clarified that a bond may be requested in addition to, and not in lieu of, the Affidavit of Support Under Section 213A of the INA (Form I-864) and the deeming requirement under INA 213A.^[18]

The 1999 Interim Field Guidance explained the IIRIRA changes to the public charge bond statute and noted that officers can offer public charge bonds as they had done in the past, but did not detail procedures for public charge bonds.^[19]

The 2022 Final Rule added streamlined provisions to clarify acceptance, forms, and amount of USCIS public charge bonds, as well as cancellation of bonds.^[20]

B. Type of Bonds

Public charge bonds may generally be posted as:^[21]

• A cash bond – This type of bond is posted as cash equivalent as specified by USCIS;^[22] or

• A surety bond – This type of bond is posted through a surety company certified by the Treasury.^[23]

Regardless of the type of public charge bond, the bond must be posted with USCIS by submitting a Public Charge Bond (Form I-945) in accordance with its instructions and the appropriate fee.^[24]

Cash Bonds

A cash bond is secured by a deposit of the full face value of the bond. It can be posted by a company or a natural person. If an applicant is given the opportunity to post a public charge bond, the bond should be paid in accordance with the Form I-945 instructions.

Once USCIS receives the funds, the money is held in a U.S. Treasury account until it is either forfeited due to breach or the bond is canceled. Funds used to secure a bond accrue interest at the rate set by the Treasury on the date the funds are received.^[25]

Surety Bonds

A surety bond is a bond that is submitted on the noncitizen’s behalf by a company, which guarantees the payment of a certain amount of money if the noncitizen fails to comply with the conditions set by the government as part of the bond. In the case of a surety bond, no cash is exchanged as part of the bond contract; only if and when the noncitizen breaches the conditions of the bond will the surety company pay the promised amount of money to the government.

Before a surety company can do business with any government entity, it must be certified by the Treasury.^[26] All certified companies are listed in a document entitled Circular 570.^[27] USCIS only accepts surety bonds from companies certified by the Treasury to post bonds.^[28]

A surety company can execute a bond on its own or it can do so through authorized agents.^[29] To establish that an agent is an authorized agent who may act on behalf of the surety company, the agent must provide evidence of the authorization through a power of attorney that must comply with the state laws governing the jurisdiction in which it is executed.

This power of attorney is not the same as the Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28). Therefore, when submitting a public charge bond on behalf of a certified surety company, the agent must attach either an original power of attorney, or a true copy (as defined under applicable state law), to Form I-945.

If the agent^[30] also seeks to act in the capacity of an attorney or accredited representative of the surety company, the agent must also submit Form G-28.^[31]

If the surety company posts bonds through an agent, the agent becomes a co-obligor. This means that the agent is jointly and severally liable for the bond amount. If the noncitizen breaches the condition of the bond by receiving public benefits above the threshold, either the surety company or the agent or both can be held liable for and up to the amount of the bond.

Example

Immigration Bonds, Inc. provides public charge bond services on behalf of Bank B, a Treasury-certified surety company. When submitting a public charge bond, Immigration Bonds, Inc. must submit Form I-945 and an original or a true copy (as defined under applicable state law) of the power of attorney that complies with the state laws governing the jurisdiction in which the power of attorney was executed. The power of attorney demonstrates that Immigration Bonds, Inc. is authorized to submit the bond on behalf of Bank B.

By completing the Form I-945, the agent must sign as a co-obligor on the bond. If Immigration Bonds, Inc. also acts as Bank B’s attorney or accredited representative, Immigration Bonds, Inc., would also have to submit a properly completed Form G-28. If the public charge bond is accepted, then Immigration Bonds, Inc. and Bank B become co-obligors on the public charge bond.

If the public charge bond is breached because the noncitizen does not comply with the bond conditions, the U.S. government may collect from either Immigration Bonds, Inc. or Bank B or both to obtain the full face value of the public charge bond.

The following table illustrates the differences between the public charge cash and surety bonds.

C. Bond Amount

A public charge bond must be at least $1,000.^[32] However, USCIS determines the appropriate bond amount for each applicant on a case-by-case basis.

D. Bond Duration

USCIS only accepts public charge bonds of unlimited duration. This means that the bond will not expire, but instead remains in effect until one of the following events occurs:

• USCIS approves a substitute bond that replaces the bond originally posted;^[33]

• USCIS cancels the bond;^[34] or

• USCIS determines that the bond is breached.^[35]

E. Bond Stages

The decision to allow an applicant who is inadmissible only on the public charge ground to submit a public charge bond is within DHS’s discretion. The posting of a public charge bond by an applicant who is found to be inadmissible only on account of the public charge ground authorizes USCIS, upon accepting the bond, to adjust the status of the applicant to that of an LPR. Before posting a public charge bond, USCIS must invite the noncitizen to do so.^[36] No public charge bonds will be accepted without an invitation from USCIS.

The public charge bond is posted on the condition that the applicant does not become a public charge after adjusting status.^[37] If the applicant does not maintain all conditions of the public charge bond, the bond is breached, and the U.S. government will demand payment on the bond.

If the applicant does not become a public charge while the bond is in effect, then USCIS will cancel the bond upon the request from either the obligor or agent or co-obligor (the one who posted the bond), or the applicant.^[38]

The following table summarizes the various stages of a public charge bond.

Footnotes

[^ 1] See INA 212(a)(4).

[^ 2] See INA 213. See 8 CFR 103.6 and 8 CFR 213.1.

[^ 3] See Matter of Viado (PDF), 19 I&N Dec. 252, 253 (BIA 1985).

[^ 4] See 8 CFR 213.1(a).

[^ 5] See 8 CFR 213.1(b).

[^ 6] There are many types of immigration bonds prescribed in the Immigration and Nationality Act (INA). Most immigration bonds are currently administered by U.S. Immigration and Customs Enforcement (ICE), and not USCIS. For example, ICE administers the voluntary departure bonds, delivery bonds, and order of supervision bonds. For more information on other immigration bonds, contact ICE.

[^ 7] See Matter of Allied Fid. Ins. Co. (PDF), 19 I&N Dec. 124, 125-26 (BIA 1984) (discussing the contractual nature of delivery bonds submitted under 8 CFR 103.6).

[^ 8] See INA 212(a)(4).

[^ 9] See Public Charge Bond (Form I-945) instructions.

[^ 10] See INA 213. See Matter of Viado (PDF), 19 I&N Dec. 252 (BIA 1985).

[^ 11] See Mayor, Aldermen and Commonality of City of N.Y. v. Miln, 36 U.S. 102 (1837) (upholding a New York statute that required vessel captains to provide certain biographical information about every passenger on the ship and further permitting the mayor to require the captain to provide a surety of not more than $300 for each noncitizen passenger to indemnify and hold harmless the government from all expenses incurred to financially support the noncitizen and the noncitizen’s children).

[^ 12] See Immigration Act of 1892, Pub. L. 51-551 (PDF), 26 Stat. 1084 (March 3, 1891), which created the Office of the Superintendent of Immigration within the U.S. Department of the Treasury. The Superintendent oversaw a new corps of U.S. immigration inspectors stationed at the country’s principal ports of entry. See the USCIS Origins of Federal Immigration Service webpage.

[^ 13] See Immigration Act of 1903, Pub. L. 57-162 (PDF), 32 Stat. 1213 (March 3, 1903).

[^ 14] See Section 26 of the Act of February 20, 1907, Pub. L. 59-96 (PDF), 34 Stat. 898, 907.

[^ 15] See Pub. L. 64-301 (PDF), 39 Stat. 874, 876 (February 5, 1917).

[^ 16] See 29 FR 10579 (PDF) (July 30, 1964) and 31 FR 11713 (PDF) (Sept. 7, 1966).

[^ 17] See Immigration and Nationality Act Amendments of 1970, Pub. L. 91-313 (PDF), 84 Stat. 413 (July 10, 1970). See 116 Cong. Rec. S 9957 (daily ed. June 26, 1970).

[^ 18] See Section 564(f) of Division C of Pub. L. 104-208 (PDF), 110 Stat. 3009, 3009-684 (September 30, 1996). The Examinations Handbook included guidance on public charge bond processes and policies in Part VI, at VI-88 through VI-98 (October 1, 1988). After legacy Immigration and Naturalization Service (INS) retired the Examinations Handbook, INS’s Operating Instructions provided guidance on the topic at Section 103.6 and 213.1 (November 1997). In 1998, INS removed the Operating Instructions and transferred the parts relating to immigration bonds to the Inspector’s Field Manual, Chapter 45. Neither INS nor USCIS appear to have issued new guidance on the topic since that time. With the creation of the Adjudicator’s Field Manual (AFM), USCIS incorporated existing public charge bond guidance into Chapter 61.1, but given the affidavit of support, the authority has rarely been exercised since the passage of IIRIRA.

[^ 19] See 64 FR 28689 (PDF) (May 26, 1999).

[^ 20] See 87 FR 55472 (PDF)(Sept. 9, 2022) (final rule). See 8 CFR 103.6 and 8 CFR 213.1.

[^ 21] See 8 CFR 103.6.

[^ 22] See 8 CFR 213.1.

[^ 23] See 8 CFR 103.6.

[^ 24] See 8 CFR 103.2 and 8 CFR 103.7.

[^ 25] See 8 CFR 293.1.

[^ 26] See 31 U.S.C. 9304-9308. As part of the certification process, the Treasury ascertains the company’s credit worthiness.

[^ 27] Circular 570 is available at the Treasury’s Listing of Certified Companies webpage.

[^ 28] The Treasury certifies companies only after having evaluated a surety company’s qualifications to underwrite federal bonds, including whether those sureties meet the specified corporate and financial standards. Under 31 U.S.C. 9305(b)(3), a surety (or the obligor) must be able to carry out its contracts and must comply with statutory requirements, including prompt payment of demands arising from an administratively final determination that the bond has been breached.

[^ 29] However, a surety bond cannot be posted by a person who is not an authorized agent for a certified company. For example, if a noncitizen is offered the opportunity to post a public charge bond, the noncitizen cannot submit a surety bond on their own behalf.

[^ 30] An agent or co-obligor may also act through their authorized representative, as defined in 8 CFR 1.2 and 8 CFR 292. Such a representative must submit Form G-28 on behalf of the agent or co-obligor.

[^ 31] If the Form G-28 is missing, but should have been submitted, USCIS should request the Form G-28 before proceeding.

[^ 32] See 8 CFR 213.1(c).

[^ 33] For more information on bond substitution, see Chapter 12, Public Charge Bonds: Maintaining, Substituting, and Canceling Bonds, Section B, Substituting a Bond [8 USCIS-PM G.12(B)].

[^ 34] For more information on bond cancellation, see Chapter 12, Public Charge Bonds: Maintaining, Substituting, and Canceling Bonds, Section D, Canceling a Bond [8 USCIS-PM G.12(D)].

[^ 35] For more information on bond breach, see Chapter 12, Public Charge Bonds: Maintaining, Substituting, and Canceling Bonds, Section C, Breach of Bond [8 USCIS-PM G.12(C)].

[^ 36] See 8 CFR 213.1(a).

[^ 37] See INA 213.

[^ 38] See INA 213.