Chapter 11 - Public Charge Bonds: Posting and Accepting Bonds
A. Permission to Post Bond
A public charge bond may only be submitted by the applicant or on the applicant’s behalf after USCIS notifies the applicant and the applicant’s representative (if any) that a public charge bond may be submitted. USCIS does not accept requests to submit a public charge bond or unsolicited public charge bonds that are submitted with an Application to Register Permanent Residence or Adjust Status (Form I-485) or while the application is pending.
Because public charge bonds are only made available in USCIS’ discretion[1] to applicants inadmissible under the public charge ground,[2] the officer should adjudicate all aspects of the adjustment of status application before USCIS will consider whether the applicant should be offered the possibility to post a public charge bond.
B. USCIS Discretion to Offer a Bond
Providing the applicant with the opportunity to post a public charge bond is wholly within the discretion of the Secretary of Homeland Security. USCIS, therefore, determines whether to provide an adjustment of status applicant with the opportunity to post a public charge bond on a case-by-case basis and based on the facts of each individual case.[3]
USCIS views bonds as an effective way to provide a safeguard to hold public benefit agencies harmless in the event that the applicant receives public cash assistance for income maintenance or long-term institutionalization at government expense. USCIS does not offer the opportunity to post a public charge bond if the adjustment application would be denied on any other basis, including discretionary grounds.
Determining Public Charge Bond Amount
The purpose of the public charge bond is to hold the U.S. government harmless if a noncitizen becomes a public charge after adjusting to lawful permanent resident (LPR) status while the bond is in effect.
A public charge bond must be at least $1,000 and in such an amount that it will hold harmless[4] public benefit agencies who are likely to provide the applicant with public cash assistance for income maintenance or long-term institutionalization during the period in which the bond is in effect.[5]
However, USCIS determines the appropriate bond amount for each applicant on a case-by-case basis. USCIS considers the same factors listed in 8 CFR 212.22(a) when making a determination of the bond amount. The stronger the likelihood that the applicant will become a public charge (in the opinion of USCIS when considering these factors), the higher the bond amount.
The same factors considered as part of the public charge inadmissibility determination that rendered the applicant more likely than not to become a public charge at any time in the future should guide the determination of the public charge bond amount.
C. Requesting a Bond
If USCIS determines that giving the adjustment of status applicant the opportunity to submit a public charge bond is warranted, as a matter of discretion,[6] USCIS will request the submission of the Public Charge Bond (Form I-945) by issuing a Notice of Intent to Deny (NOID). The NOID should discuss, at a minimum, all of the following items:
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That the noncitizen has been found inadmissible on the public charge ground and the reason(s) why;
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That USCIS decided to favorably exercise its discretion to allow the noncitizen to have a public charge bond submitted, which would permit, if accepted, the noncitizen to adjust status to that of an LPR;
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The public charge bond amount;
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That the bond must be posted by submitting Form I-945 completed in accordance with the form’s instructions and with the appropriate fee;
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The due date, that is, by when Form I-945 must be submitted to (postmark date) USCIS;
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The consequences for failure to respond to the notice and for the failure to submit Form I-945, in accordance with the form’s instructions and with the appropriate fee. In particular, the NOID should specify that the public charge bond will be rejected or deemed insufficient and that the adjustment of status will be denied, if the bond is not properly submitted in accordance with the instructions and with the appropriate fee; and
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Any additional information required to properly post the bond.
D. Assessing the Sufficiency of a Submitted Public Charge Bond
Once the public charge bond is submitted, USCIS should determine whether the bond was properly completed as outlined in the form’s instructions and the NOID, and that the appropriate bond amount has been paid. The bond is not effective until USCIS accepts the bond.
A public charge bond is a contract between the U.S. government (USCIS) and the obligor. A contract is generally not effective until both parties accept the contract. USCIS accepts a bond when the designated USCIS authority signs the public charge bond on behalf of the U.S. government.[7]
In general, before a public charge bond can be endorsed with the signature of the authorized designated authority, USCIS must ensure that the public charge bond meets the regulatory requirements,[8] is submitted in accordance with instructions outlined in the form’s instructions and the NOID, and that the appropriate bond amount has been paid. Otherwise, the bond may be rejected upon submission or ultimately deemed insufficient.
Additionally, the conditions of the public charge bond are outlined in Form I-945 and in the NOID issued by USCIS. The obligor submitting the Form I-945 may not alter these terms in any way. USCIS does not accept a public charge bond as sufficient and acceptable if:
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The obligor or noncitizen submits the Form I-945 with an attachment or rider that contains additional conditions or otherwise alters the terms of the public charge bond;[9]
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The obligor physically alters the terms contained on Form I-945;[10] or
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The obligor submits the bond on a contract other than Form I-945.[11]
1. Accepting the Bond
If USCIS determines that the public charge bond meets the regulatory requirements, the requirements outlined in the form’s instructions, and in the NOID, USCIS may forward the public charge bond documentation to the designated USCIS authority for signature and acceptance of the public charge bond. Once the bond is signed and accepted, USCIS must issue a receipt.[12]
2. Issuing a Receipt for Accepted Bonds
Once the bond is signed by the designated USCIS authority and accepted, the obligor, the authorized agent (in the case of a surety bond), any representative, and the noncitizen and the noncitizen’s representative, if any, are notified that the bond has been accepted. The officer should also provide a receipt to the obligor and a copy of the receipt to the applicant and their representative (if any).
Because USCIS accepted the public charge bond, the officer adjudicating the adjustment of status application should proceed with the final adjudication of the adjustment. If the applicant is otherwise eligible for adjustment of status at the time the public charge bond is accepted by USCIS, then the adjustment of status application may be approved.[13]
3. Bond Not Accepted
If the public charge bond does not meet the regulatory requirements, the requirements outlined in the form’s instructions, or in the NOID, USCIS cannot accept the public charge bond and denies the adjustment of status application. The denial decision will include a discussion of how the bond did not meet the regulatory requirements.
Footnotes
[^ 2] See INA 213. See 8 CFR 213.1.
[^ 3] See INA 213. See 8 CFR 213.1.
[^ 4] By “hold harmless,” USCIS means that the bond amount should be set based on the value of the public benefits likely to be received by the applicant.
[^ 5] See 8 CFR 213.1(c). See INA 213.
[^ 6] To perform a discretionary analysis, USCIS weighs all positive factors present in a particular case against any negative factors in the totality of the circumstances. Some examples of discretionary considerations include: close family ties in the United States, community standing, length of lawful residence in the United States, evidence of respect for law and order, and violations of immigration law. Additionally, if an applicant is currently receiving public cash assistance for income maintenance or long-term institutionalization at government expense at the time of the public charge inadmissibility determination and indicates that they intend to continue receiving such benefits in the foreseeable future, USCIS will decline to offer the opportunity to submit a public charge bond as a matter of discretion. For more information on the use of discretion in adjudications, see Volume 1, General Policies and Procedures, Part E, Adjudications, Chapter 8, Discretionary Analysis [1 USCIS-PM E.8].
[^ 7] Officers tasked with evaluating the public charge bond should consult with their supervisory chain to determine to whom to forward a public charge bond so that it can be signed by the designated USCIS authority.
[^ 8] See 8 CFR 213.1.
[^ 9] This is the case even if the obligor generally agrees with the Form I-945 terms but suggests that the contract cover additional conditions. USCIS cannot accept a bond under conditions other than those outlined in Form I-945 and the NOID.
[^ 10] For example, the obligor may not strike any of the text on Form I-945 or the obligor may not add any text in writing to the Form I-945. In particular, the obligor may not use the overflow section in Form I-945 to add terms or alter the obligation imposed with Form I-945.
[^ 11] This is the case even if the document submitted by the obligor contains the same text as Form I-945 and the terms as outlined in the NOID but are on a document other than the Form I-945.
[^ 12] See Subsection 1, Accepting the Bond [8 USCIS-PM G.11(E)(1)].
[^ 13] For more information about adjustment of status, please see Volume 7, Adjustment of Status [7 USCIS-PM].