Chapter 4 - Prospective Determination Based on the Totality of the Circumstances
The public charge inadmissibility determination is a prospective determination based on the totality of an applicant’s circumstances.[1] In making such a determination, USCIS reviews all information in the record.
The public charge inadmissibility determination is inherently subjective in nature given the express wording of INA 212(a)(4)(A), which states that the public charge inadmissibility determination is “in the opinion of” DHS.[2]
The burden of proof to establish admissibility when seeking adjustment of status is always on the applicant.[3] The burden never shifts to the government during the adjudication process.[4]
A. Prospective Determination
A public charge inadmissibility determination is based on an applicant’s likelihood at any time in the future to become a public charge,[5] that is, the likelihood of becoming 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. Factors USCIS Considers
Evaluating whether an applicant is likely at any time to become a public charge based on the totality of the applicant’s circumstances[6] means evaluating all the information provided on the Application to Register Permanent Residence or Adjust Status (Form I-485), Report of Immigration Medical Examination and Vaccination Record (Form I-693), any other forms and evidence contained in the record, and statements by an applicant during an interview, if applicable. USCIS considers all information or evidence in the record that is relevant in the totality of the circumstances.[7]
For all applicants subject to the public charge ground of inadmissibility,[8] the officer will consider the statutory minimum factors: age;[9] health;[10] family status;[11] assets, resources, and financial status;[12] and education and skills.[13] The officer will favorably consider a sufficient Affidavit of Support Under Section 213A of the INA (Form I-864) (when required).[14] The officer will also consider any current or past receipt (or both) of public cash assistance for income maintenance or long-term institutionalization at government expense by the applicant.[15] However, relatively few applicants will be both subject to the public charge ground of inadmissibility and eligible for public benefits prior to adjustment of status.[16]
There is no “bright-line” test in making a public charge inadmissibility determination. No one factor, other than the lack of a sufficient Affidavit of Support Under Section 213A of the INA, if required, can be the sole criterion for determining if a noncitizen is likely at any time to become a public charge.[17] Instead, the officer must determine whether the applicant's circumstances, assessed in their totality, suggest that the applicant is more likely than not to become a public charge.[18]
C. Empirical Analysis of the Best-Available Data
Under 8 CFR 212.22(b), USCIS may periodically issue guidance to officers about how the factors under 8 CFR 212.22(a) may inform the likelihood that an applicant will become a public charge at any time, based on an empirical analysis of the best-available data as appropriate.[19]
USCIS has reviewed the available data and currently anticipates that the best-available data may be found in the Survey of Income and Program Participation (SIPP) from the U.S. Census Bureau, which is a nationally representative longitudinal survey of households that provides comprehensive information on the dynamics of income, employment, household composition, and government program participation. USCIS continues to analyze the SIPP data and other sources of data to consider how the best-available data can help inform this policy guidance as appropriate.
The regulation’s reference to empirical analysis does not contemplate individual officers conducting their own such analysis. The analysis of the best-available data mentioned in the regulation is performed at the agency level and is used to inform the Policy Manual content as appropriate.
USCIS will continue to analyze the data and may update the Policy Manual in the future as appropriate.
Footnotes
[^ 1] See INA 212(a)(4). See 8 CFR 212.22(b).
[^ 2] See Matter of Harutunian (PDF), 14 I&N Dec. 583, 588 (Reg. Comm. 1974) (“[T]he determination of whether an alien falls into that category [as likely to become a public charge] rests within the discretion of the consular officers or the Commissioner . . . Congress inserted the words ‘in the opinion of’ (the consul or the Attorney General) with the manifest intention of putting borderline adverse determinations beyond the reach of judicial review.” (citation omitted)). See Matter of Martinez-Lopez (PDF), 10 I&N Dec. 409, 421 (A.G. 1964) (“[U]nder the statutory language the question for visa purposes seems to depend entirely on the consular officer’s subjective opinion.”).
[^ 3] See INA 291. See Matter of Bett (PDF), 26 I&N Dec. 437 (BIA 2014).
[^ 4] See Matter of Arthur (PDF), 16 I&N Dec. 558 (BIA 1978).
[^ 5] See 8 CFR 212.22(a). See Matter of Harutunian (PDF), 14 I&N Dec. 583 (Reg. Comm. 1974). See Matter of Perez (PDF), 15 I&N Dec. 136 (BIA 1974). In comparison, the public charge ground of removal under INA 237(a)(5) is predicated on whether the noncitizen has become a public charge. See Matter of Viado (PDF), 19 I&N Dec. 252, 253 (Comm. 1985) (“The distinction is based on the fact that the determination of excludability involves a prediction of the likelihood of an alien becoming a public charge in the future, rather than an assessment of whether the alien has already become a public charge.”)
[^ 6] See 8 CFR 212.22(b). See Matter of Perez (PDF), 15 I&N Dec. 136, 137 (BIA 1974) (“The determination of whether an alien is likely to become a public charge under section 212(a)(15) is a prediction based upon the totality of the alien’s circumstances at the time he or she applies for an immigrant visa or admission to the United States.”).
[^ 7] See 87 FR 55472, 55497 (PDF) (Sept. 9, 2022) (final rule).
[^ 8] See INA 212(a)(4). See 8 CFR 212.23(a).
[^ 9] See 8 CFR 212.22(a)(1)(i). See Chapter 5, Statutory Minimum Factors, Section A, Age [8 USCIS-PM G.5(A)].
[^ 10] See 8 CFR 212.22(a)(1)(ii). See Chapter 5, Statutory Minimum Factors, Section B, Health [8 USCIS-PM G.5(B)].
[^ 11] See 8 CFR 212.22(a)(1)(iii). See Chapter 5, Statutory Minimum Factors, Section C, Family Status [8 USCIS-PM G.5(C)].
[^ 12] See 8 CFR 212.22(a)(1)(iv). See Chapter 5, Statutory Minimum Factors, Section D, Assets, Resources, and Financial Status [8 USCIS-PM G.5(D)].
[^ 13] See 8 CFR 212.22(a)(1)(v). See Chapter 5, Statutory Minimum Factors, Section E, Education and Skills [8 USCIS-PM G.5(E)].
[^ 14] See 8 CFR 212.22(a)(2). See Chapter 6, Affidavit of Support Under Section 213A of the INA [8 USCIS-PM G.6].
[^ 15] See 8 CFR 212.22(a)(3). See Chapter 7, Consideration of Current and/or Past Receipt of Public Cash Assistance for Income Maintenance or Long-term Institutionalization at Government Expense [8 USCIS-PM G.7].
[^ 16] See 87 FR 55472, 55519 (PDF) (Sept. 9, 2022) (final rule).
[^ 17] See 8 CFR 212.22(b).
[^ 18] See 87 FR 55472, 55517 (PDF) (Sept. 9, 2022) (final rule) (DHS defined the term ‘‘likely’’ as ‘‘more likely than not’’ in the 2019 Final Rule. DHS continues to believe that this interpretation is appropriate).
[^ 19] See 8 CFR 212.22(b). USCIS may periodically issue new guidance to officers to inform the totality of the circumstances assessment.