(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).

[87 FR 55636, Sept. 9, 2022]