Chapter 12 - Public Charge Bonds: Maintaining, Substituting, and Canceling Bonds

A. Maintaining Bonds

Once a noncitizen has adjusted their status to that of a lawful permanent resident (LPR), USCIS must ensure that the bond continues to be enforceable during the bond’s validity. Additionally, an obligor, agent or co-obligor, or the noncitizen may experience a change of address, or the obligor or the noncitizen may wish to substitute the bond.

USCIS will send a copy of any communication with the obligor, the obligor’s representative, if any, the agent or co-obligor, and the agent or co-obligor’s representative, if any, to the noncitizen, and the noncitizen’s representative, if any.^[1] For that reason, any communication relating to the review of the bond should ordinarily be in writing.

If the officer has to communicate with any of the parties involved in the bond orally, USCIS generally transcribes the communication, and sends a copy of the transcribed communication to all parties involved. USCIS also retains a copy of the communication in the noncitizen’s file.

B. Substituting a Bond

A noncitizen or an obligor may have an interest in having the bond substituted at any time. For example, a noncitizen may have found a different obligor who provides the noncitizen better financial terms and conditions for purposes of a public charge bond submission. Another example would be if the obligor would like to be released from the public charge bond obligation and therefore, asks the noncitizen to seek a new obligor.

Acceptance of the Substitute Bond

A public charge bond on file with USCIS may be substituted. A substitute bond may either be submitted by the original obligor or a new obligor on behalf of the noncitizen. A substitute bond is submitted on Public Charge Bond (Form I-945) and completed in accordance with the form’s instructions and with the required fee.^[2]

When USCIS is reviewing the sufficiency of the substitute bond, USCIS ensures that the following requirements are met before presenting the public charge bond to the designated USCIS authority for signature and acceptance of the bond:

• The bond must meet all of the requirements applicable to the initial bond; and

• The bond must cover all liabilities that the initial obligor incurred, including any breach of the bond conditions, before USCIS accepts the substitute bond. The reason for this requirement is that USCIS may not learn of a breach until after the expiration or cancellation of the bond previously submitted to USCIS. Form I-945 includes this requirement as a term of the condition. When USCIS is verifying the sufficiency of the substitute public charge bond, USCIS must ensure that no text on the Form I-945 has been altered before USCIS accepts the form by having it signed by the designated USCIS authority.

In addition, USCIS follows the steps outlined in this part,^[3] addressing the acceptance of a public charge bond when reviewing the substitute public charge bond for sufficiency.

If USCIS determines that the substitute bond is sufficient, the officer should forward the public charge bond for acceptance by the designated USCIS authority for signature. The substitute bond is effective on the day it is signed by the designated USCIS authority. The officer should proceed with issuing the receipt as outlined in this part.^[4]

As part of the acceptance of the new public charge bond, USCIS cancels the bond being substituted, releases any prior obligors from liability, and accepts the substitute bond. A copy of the communication must be sent to all parties involved. If the bond that is returned to the obligor was a cash bond, USCIS must return the original bond amount and any interest accrued to the obligor of the bond being substituted.

If the substitute bond submitted is insufficient, USCIS generally notifies the obligor of the substitute bond so that the obligor may correct the deficiency or deficiencies within the timeframe stipulated in USCIS’ notice. This notice should not only be sent to the new obligor, but all parties involved, including the obligor and agent or co-obligor, if any, on file (the bond to be substituted), the agent or co-obligor of the substitute bond, the noncitizen, and any representative of any of the parties involved. If the deficiency is not corrected within the timeframe specified, the bond currently on file remains in effect.

C. Breach of Bond

A condition of the bond is that the noncitizen not receive public benefits^[5] in the form of either public cash assistance for income maintenance or long-term institutionalization at government expense after the noncitizen has adjusted their status to that of a LPR and until USCIS cancels the bond.^[6] A bond may be breached for non-compliance of any condition imposed on the public charge bond.^[7]

1. Investigation

USCIS may learn of a potential bond breach from various sources. For example, USCIS may learn of a potential bond breach from the noncitizen requesting that the public charge bond be canceled, when indicating as part of the cancellation request, that they have received public benefits. Regardless of the source of the information, USCIS investigates the allegation of the public charge bond breach.

Handling Information Prohibited from Disclosure to the Obligor

When investigating the information received about public benefits receipt, USCIS is required to send all communications relating to the bond to all parties involved, including the obligor, the agent or co-obligor, and all parties’ representatives, if any. Before sending any communication regarding the bond breach, USCIS consults the Office of the Chief Counsel (OCC) to determine whether any information USCIS has would be protected by law from the disclosure to the obligor.

If the information may not be disclosed by law, USCIS may not address it in the communication and use it for purposes of the public charge breach determination. Information that is not prohibited from disclosure should be included in the communication to all parties.

2. Adjudication

A bond breach exists because the noncitizen did not comply with the conditions of the bond; however, USCIS must declare the bond breached by notifying the obligor. Before the bond can be declared breached, USCIS must determine whether the information supports a finding that any conditions imposed by the bond were breached.

If USCIS finds that there is insufficient information to determine whether a breach occurred, USCIS should request additional information from the noncitizen or the obligor. However, if the evidence USCIS possesses supports a finding of a breach, then USCIS should inform the obligor and an agent or co-obligor of USCIS’ intention to declare the bond breached by issuing a Notice of Intent to Declare the Public Charge Bond Breached. The notice must, at a minimum, comply with the following guidelines:

• Be sufficiently specific to give the obligor or the agent or co-obligor the opportunity to respond and submit rebuttal evidence;

• Include all documentation received that supports the breach determination and is by law permitted to be disclosed to the obligor or agent or co-obligor. Any information that is prohibited, by law, from being disclosed should be redacted and may not be used to support the bond breach. USCIS should consult OCC before sending the notice to avoid inadvertent disclosure; and

• Include a date by when the obligor must respond and submit rebuttal evidence.

USCIS must also send a copy of any notification to the obligor or co-obligor regarding the breach to the noncitizen and the noncitizen's representative, if any.

3. Determination

After receiving the obligor's response to the Notice of Intent to Declare the Public Charge Bond Breached, USCIS determines whether the obligor’s response and any evidence submitted to rebut the initial breach determination is sufficient to overcome USCIS’ initial determination that the bond was breached.

If the obligor or agent or co-obligor has not provided sufficient evidence to rebut USCIS’ determination that the public charge bond was breached or if the obligor did not respond by the date required in the Notice of Intent to Declare the Public Charge Bond Breached, USCIS declares the bond breached, and informs the obligor and agent or co-obligor, if any, of the right to appeal the bond breach determination. USCIS must provide a copy of the determination to all parties involved in the bond.

If the information reveals that the noncitizen has not breached the public charge bond conditions, the public charge bond remains in place. USCIS must provide a copy of the determination to all parties involved of in the bond.

4. Appeal of Breach Determination

An obligor^[8] may appeal a breach determination to USCIS’ Administrative Appeals Office (AAO) by filing a Notice of Appeal or Motion (Form I-290B) together with the appropriate fee and required evidence.^[9] If the obligor fails to appeal the bond breach determination within the requisite appeal period, or if the appeal is filed untimely, the bond breach determination becomes administratively final unless a motion is granted to reopen or reconsider the proceedings, if permitted under the regulations.

If the obligor appeals the bond breach determination in a timely fashion, USCIS reviews the decision before the appeal is forwarded to the AAO.^[10] If an appeal is warranted, USCIS may treat the appeal as a motion and then take favorable action, which would resolve the appeal. USCIS may reopen a proceeding or reconsider a decision on their own motion.^[11]

If the officer is not inclined to take a favorable action, the appeal should be forwarded to the AAO for a decision on the obligor’s appeal.

5. Collecting Bond Amount

An administratively final determination that a bond has been breached creates a claim in favor of the United States. The claim may not be released or discharged by an immigration officer.

Cash Bonds

In a cash bond, the actual face value of the bond is deposited with USCIS to be held in case of a bond breach. Upon an administratively final decision that the bond has been breached, the money that was deposited for purposes of the bond becomes the means to satisfy the claim that the bond breach created in favor of the U.S. government. At that time, the entire bond amount is forfeited by the obligor. However, USCIS must return the interest accrued on the deposited amount. After all business is concluded, the obligor is released from the public charge bond.

Surety Bonds

In a surety bond, no cash is exchanged as part of the bond contract when the bond is posted.^[12] Only if the bond is breached will the surety company be required to pay the promised amount of money to the U.S. government. A surety company (or the obligor) must carry out its contracts and comply with statutory requirements, including prompt payment of demands arising from an administratively final determination that the bond had been breached.^[13]

D. Canceling a Bond

In general, a public charge bond has to remain in place until the bond can be canceled and USCIS determines that the bond has not been breached.

1. Request to Cancel

In general, until either the obligor or the noncitizen has filed a request to cancel the bond and USCIS has favorably adjudicated it, the bond remains in effect. USCIS may, however, at its own discretion, cancel the public charge bond if USCIS determines that the noncitizen otherwise meets the requirement for cancellation.^[14]

The request to cancel the public charge bond must be submitted on a Request for Cancellation of Public Charge Bond (Form I-356). The request must be completed and submitted in accordance with the form’s instructions and accompanied by the appropriate fee, if applicable.^[15]

Because the form may be submitted either by the obligor or the noncitizen, Form I-356 has several parts that must be completed either by the obligor (the person who has posted the bond) or by the obligor’s authorized agent (co-obligor, for surety companies only) who posted the bond on behalf of the noncitizen, or by the noncitizen. If the noncitizen is deceased, the executor of the noncitizen’s estate may complete the noncitizen’s part on behalf of the noncitizen.

Therefore, it is possible that a cancellation request is submitted without the obligor or any agent or co-obligor, or the noncitizen (or the noncitizen’s executor) knowing about it. In the form instructions, USCIS encourages completion of the entire form by all parties before it is submitted. However, it is possible for a request to be submitted when only partially completed, particularly when one party has requested cancellation of the bond without informing or including the other parties in the cancellation request.

Missing Information from the Noncitizen

If the obligor (or the agent or co-obligor) submits the cancellation request but the request does not contain the information from the noncitizen required to cancel the bond, the officer should do the following:

• Copy the request for cancellation of the public charge bond form for all parties involved;

• Send the original request received from the obligor to the noncitizen for completion of their parts of the bond cancellation request form, including signature parts;

• Specify the date when the noncitizen’s response is due (for purposes of calculating the response due date, the officer should follow USCIS guidance on the issuance of a Request for Evidence); and

• Send a copy of the communication to the obligor and the agent or co-obligor and any representative, even though the request originated from the obligor or agent or co-obligor.

If the noncitizen fails to respond to the communication within the timeframe stipulated, the officer should deny the request to cancel the public charge bond. This denial is without prejudice to the filing of another cancellation request.

Missing Information from Obligor

If the request to cancel the bond is submitted by the noncitizen without involvement of the obligor, USCIS officers should evaluate the information contained in the request to cancel the bond and proceed with the cancellation adjudication. If the noncitizen’s information reveals that the bond may have been breached, the officer is required to notify the obligor through a Notice of Intent to Declare the Public Charge Bond Breached and share the information provided by the noncitizen, to the extent permissible by law. This provides sufficient notice to the obligor of the noncitizen’s request to cancel the bond, and the opportunity to rebut any derogatory information regarding a possible bond breach.

2. Adjudicating the Request

A noncitizen or obligor may request that USCIS cancel the public charge bond if the noncitizen:

• Died (as evidenced by a certified copy of a death certificate, provided the immigrant did not become a public charge before death);

• Permanently departed the United States (provided the immigrant did not become a public charge before departure);

• Naturalized or otherwise obtained United States citizenship (provided the immigrant did not become a public charge before naturalization); or

• Reached their 5-year anniversary since admission or becoming an LPR. For purposes of this determination, the noncitizen or the obligor must establish that the public charge bond has not been breached during the 5-year period preceding the noncitizen’s fifth anniversary of becoming an LPR.^[16]

In addition to having to demonstrate that the above requirements are met, the obligor and the noncitizen must demonstrate that the bond has not been breached before the cancellation of the public charge bond by USCIS.^[17]

Form I-356 lists the pertinent information that the noncitizen has to provide to establish that the bond be canceled.

If there is insufficient information to determine whether a breach occurred, or whether the cancellation requirements are met, USCIS may request additional information from the noncitizen or the obligor.

3. Special Considerations Related to Permanent Departure

USCIS must approve the request to cancel the public charge bond if the noncitizen has not breached the public charge bond and permanently departed the United States.^[18]

A noncitizen is considered to have permanently departed if the noncitizen has:

• Lost or abandoned LPR status, whether involuntarily by operation of law or voluntarily; and

• Is physically outside the United States.

A noncitizen must establish that both elements have been met before USCIS cancels the bond.

For these purposes, a noncitizen is deemed to have involuntarily lost LPR status by operation of law only if the noncitizen lost their status:

• In removal proceedings with the entry of a final order of removal; or

• Through rescission of adjustment of status.

If a noncitizen loses their LPR status through operation of law, the noncitizen would be required to provide evidence of the loss of status by submitting evidence of the official determination of loss of LPR status before USCIS can cancel the bond.

Generally, determining whether a noncitizen has abandoned their LPR status voluntarily is fact specific and courts consider factors such as the length of a noncitizen’s absence from the United States, family and employment ties, property holdings, residence, and the noncitizen’s intent or actions.^[19] Any noncitizen may intentionally relinquish LPR status through their voluntary actions, such as by submitting a declaration of intent to abandon LPR status. Neither the Immigration and Nationality Act nor DHS regulations direct how noncitizens may formally inform the U.S. government of their abandoning their LPR status.

To simplify the process, USCIS created the Record of Abandonment of Lawful Permanent Resident Status (Form I-407) as a means by which a noncitizen may formally record that they have abandoned LPR status. The purpose of the form is to create a record and to ensure that the noncitizen acts voluntarily and willingly, and is informed of the right to a hearing before an immigration judge and has knowingly, willingly, and affirmatively waived that right.

A noncitizen may demonstrate voluntary relinquishment of the LPR status for purposes of bond cancellation by showing proof that they submitted Form I-407 to the U.S. government from outside the United States.

4. Decision

If USCIS determines that the obligor or the noncitizen met the burden of proof to establish that the bond has not been breached since the noncitizen became an LPR and that the conditions for the cancellation of the bond are met, USCIS may cancel the public charge bond. The decision to cancel the bond must be sent to all parties involved. When the public charge bond is canceled, the obligor is released from liability.

USCIS must notify the obligor and all parties involved of the cancellation of the bond and retain a copy of the communication in the file. If the public charge bond has been secured by a cash deposit or a cash equivalent, USCIS must refund the cash deposit and any interest earned to the obligor along with the communication.^[20]

If USCIS determines that the noncitizen does not meet the requirements for cancellation, other than a bond breach, then USCIS issues a Notice of Intent to Deny (NOID) to the obligor and any agent or co-obligor and any representative, in order to extend the opportunity to rebut any information. The notice must include the information provided by the noncitizen in Form I-356, unless protected by law, and any other documentation.

The officer will send a notice of the communication to the noncitizen and the noncitizen’s representative. If the obligor’s timely response to the NOID reveals that the noncitizen does not meet the cancellation requirements then the officer should not cancel the public charge bond.

If the obligor’s response cannot overcome the adverse information, then USCIS issues the decision, informing the obligor and the agent or co-obligor and any representative and the noncitizen and the noncitizen’s executor, if any, and the noncitizen’s representative, if any, that the bond cannot be canceled and that it remains in effect. The obligor may file an appeal to challenge this determination.^[21]

An obligor may only file a motion^[22] after an unfavorable decision on an appeal.

If USCIS determines that the noncitizen has breached the public charge bond, USCIS initiates bond breach proceedings.^[23] As part of the notification to the obligor of USCIS’ intent to declare the bond breached, the officer should explain why the bond cannot be canceled.

Footnotes

[^ 1] See Public Charge Bond (Form I-945).

[^ 2] See 8 CFR 103.7.

[^ 3] See Chapter 11, Public Charge Bonds: Posting and Accepting Bonds [8 USCIS-PM G.11].

[^ 4] See Chapter 11, Public Charge Bonds: Posting and Accepting Bonds, Section D, Assessing the Sufficiency of a Submitted Public Charge Bond, Subsection 2, Issuing a Receipt for Accepted Bonds [8 USCIS-PM G.11(D)(2)].

[^ 5] See 8 CFR 212.21(b)-(d).

[^ 6] See 8 CFR 103.6(c)(1).

[^ 7] See INA 213.

[^ 8] The obligor includes the term agent or co-obligor.

[^ 9] See 8 CFR 103.3.

[^ 10] See 8 CFR 103.3(a)(2).

[^ 11] See 8 CFR 103.5(a)(5)(i).

[^ 12] See Chapter 10, Public Charge Bonds, Section B, Type of Bonds [8 USCIS-PM G.10(B)].

[^ 13] See 31 U.S.C. 9305(b)(3).

[^ 14] See 8 CFR 103.6(c)(1).

[^ 15] See 8 CFR 103.5.

[^ 16] See Public Charge Bond (Form I-945).

[^ 17] See Instructions for Request for Cancellation of Public Charge Bond (Form I-356).

[^ 18] See INA 213.

[^ 19] See Matter of Huang (PDF), 19 I&N Dec. 749, 755-57 (BIA 1988) (considering the noncitizen’s absence from the United States because of her husband’s work and study abroad, as well as her own employment abroad, to find that her absence was not temporary in nature and that she had abandoned her LPR status). See Matter of Kane (PDF), 15 I&N Dec. 258, 265 (BIA 1975) (noncitizen who spent 11 months per year living in her native country operating a lodging house abandoned her LPR status; her desire to retain her status, without more, was not sufficient). See Matter of Quijencio (PDF), 15 I&N Dec. 95, 97-98 (BIA 1974) (noncitizen’s LPR status considered abandoned after 12-year absence). See Matter of Castro (PDF), 14 I&N Dec. 492, 494 (BIA 1973) (noncitizen who severed his ties to the United States for 6 years, moved abroad, acquired land, built a house and obtained steady employment, but made brief business trips to the United States was not a returning resident and had abandoned his status). See Matter of Montero (PDF), 14 I&N Dec. 399, 400-01 (BIA 1973) (noncitizen who returned to her native country to join her husband, children, home, employment, and financial resources without fixed intent to return within a fixed period had abandoned her LPR status). See Khoshfahm v. Holder, 655 F.3d 1147, 1154 (9th Cir. 2011) (noncitizen child who was out of the country for 6 years and prevented from returning due to the father’s heart condition and the events of September 11 did not abandon his LPR status).

[^ 20] See INA 293. See 8 CFR 293.1.

[^ 21] See generally 8 CFR 103.

[^ 22] See 8 CFR 103.5.

[^ 23] See Section C, Breach of Bond [8 USCIS-PM G.12(C)].