[Federal Register Volume 86, Number 219 (Wednesday, November 17, 2021)]

[Rules and Regulations]

[Pages 64070-64071]

From the Federal Register Online via the Government Publishing Office [www.gpo.gov]

[FR Doc No: 2021-25038]




22 CFR Part 40

[Public Notice: 11566]

RIN 1400-AE87

Visas: Ineligibility Based on Public Charge Grounds

AGENCY: State Department.

ACTION: Interim final rule; reopening of public comment period.


SUMMARY: On October 11, 2019, the Department of State (``the

Department'') published an interim final rule (``IFR'') regarding visa

ineligibility on public charge grounds and accepted public comments on

the rule through November 12, 2019. Given the many changed

circumstances since publication of the IFR, the Department is

soliciting additional information from the public by reopening the

public comment period for an additional 60 days.

DATES: The Department of State will accept comments until January 18,


ADDRESSES: To provide comments go to https://www.regulations.gov, enter

Docket DOS-2021-0034 and RIN 1400-AE87. Alternatively, you may submit

comments by any of the following methods:

Email: You may submit comments via email to

VisaRegs@state.gov. You must include the RIN in the subject line of

your message.

Mail paper submissions: You may submit comments via

physical mail to Regulatory Coordinator, Visa Services, Bureau of

Consular Affairs, Department of State, 600 19th St. NW, Washington, DC

  1. You must include the RIN in the Attention Line in the address.

FOR FURTHER INFORMATION CONTACT: Andrea B. Lage, Acting Regulatory

Coordinator, Visa Services, Bureau of Consular Affairs, Department of

State, 600 19th St. NW, Washington, DC 20006, (202) 485-7586,



  1. Public Participation

All interested parties are invited to respond to this Reopening of

Public Comment Period by submitting written views and comments on the

IFR regarding visa ineligibility on public charge grounds. Comments

must be submitted in English or commenters must submit an English

translation. Comments that will provide the most assistance to the

Department in considering recommendations will reference a specific

existing regulation, order, guidance, policy, or any other similar

agency action, explain the reason for any recommended change, and

include information that supports the recommended change.

  1. Background

On August 14, 2019, the Department of Homeland Security (``DHS'')

issued a final rule outlining its new interpretation of the public

charge ground of inadmissibility. See Inadmissibility on Public Charge

Grounds, 84 FR 41292, as amended on October 2, 2019 by Inadmissibility

on Public Charge Grounds; Correction, 84 FR 52357 (``DHS Public Charge

Final Rule''). The Department issued an IFR on October 11, 2019,

amending 22 CFR 40.41 by prescribing how consular officers determine

whether a noncitizen is ineligible for a visa under section 212(a)(4)

of the Immigration and Nationality Act (``INA''), 8 U.S.C. 1182(a)(4),

and 6 U.S.C. 236(b), because they are likely at any time to become a

public charge. See Visas: Ineligibility Based on Public Charge Grounds,

84 FR 54996.

The Department issued its IFR in significant part to ensure that

consular officers were applying standards consistent with the DHS

Public Charge Final Rule. Specifically, the IFR could have helped avoid

situations where a consular officer evaluates a visa applicant's

circumstances and concludes that the applicant is not likely at any

time to become a public charge, only for DHS to find the applicant

inadmissible on public charge grounds under the same facts when they

seek admission to the United States. See, e.g., 84 FR at 55011

(``Coordination of Department and DHS implementation of the public

charge inadmissibility ground is critical to the Department's interest

in preventing inconsistent adjudication standards and different

outcomes between determinations of visa eligibility and determinations

of admissibility at a port of entry.'').\1\


\1\ The IFR is currently under a preliminary injunction issued

by the Southern District of New York on July 29, 2020. See Make the

Road New York v. Pompeo, 475 F. Supp. 3d 232 (S.D.N.Y. 2020).


In the time since the Department first issued the IFR, a court

order vacating the DHS Public Charge Final Rule nationwide went into

effect after the government moved to voluntarily dismiss an appeal of

that order.\2\ Due to the vacatur of the DHS Public Charge Final Rule,

DHS immediately stopped applying its Public Charge Final Rule to all

pending applications and petitions that would have been subject to that

rule.\3\ DHS is now implementing the public charge inadmissibility

statute using the former-Immigration and Nationalization Service's 1999

Interim Field Guidance on Deportability and Inadmissibility on Public

Charge Grounds (64 FR 28689, May 26, 1999) issued by the former

Immigration and Naturalization Service, which was in place before the

2019 DHS Public Charge Final Rule was implemented, for immigration

petitions, applications for admission and adjustment of status. On

August 23, 2021, DHS published an Advance Notice of Proposed Rulemaking

(``ANPRM'') and notice of virtual public listening sessions to seek

broad public feedback on the public charge ground of inadmissibility

that will inform its development of a future regulatory proposal.\4\


\2\ Cook County v. Wolf, 498 F. Supp. 3d 999 (N.D. Ill. 2020),

appeal dismissed, 2021 WL 1608766 (7th Cir. Mar. 9, 2021).

\3\ See USCIS, ``Inadmissibility on Public Charge Grounds Final

Rule: Litigation'' https://www.uscis.gov/green-card/green-card-processes-and-procedures/public-charge/inadmissibility-on-public-charge-grounds-final-rule-litigation (last visited Aug. 24, 2021).

\4\ Public Charge Ground of Inadmissibility, 86 FR 47025 (Aug.

23, 2021).


III. Change in Circumstances

With the vacatur of the 2019 DHS Public Charge Final Rule the

original reason for the Department's adoption of the 2019 IFR may no

longer apply. Further, with the publication of the DHS ANPRM, DHS has

indicated an intention to develop a new regulatory proposal that may

substantively differ from the IFR.

Additionally, just months after the Department issued its IFR, the

COVID-19 pandemic swept the globe. The pandemic's ongoing effects on

public health and economic conditions have been vast and have

underscored the importance of ensuring that individuals are able to

access public health and other programs for which they and their

[[Page 64071]]

family members are eligible, without undue fear or confusion. The

Department welcomes comments on the potential effects of the IFR on

public health measures in response to the pandemic, as well as other

ways that the Department should consider the intervening circumstances

of the COVID-19 pandemic in relation to the IFR.

Consequently, the Department has concluded that it should review

the IFR to determine (1) if the IFR should be rescinded or revised, and

(2) what final rule should be adopted, if any. If the IFR is rescinded,

Sec. 40.41 would logically revert to its prior text pending any new

rulemaking; such an outcome would likely be preferable to a regulatory

void, which the Department did not propose in the 2019 IFR. See 22 CFR

40.41 (2018).\5\


\5\ Prior text of Sec. 40.41 available at https://www.govinfo.gov/content/pkg/CFR-2018-title22-vol1/pdf/CFR-2018-title22-vol1-chapI-subchapE.pdf, page 8.


  1. Request for Public Comment

The Department invites comment on any issues that may be pertinent

to its review of the IFR to determine (1) if the IFR should be

rescinded or revised, and (2) what final rule should be adopted, if

any. Reopening the comment period gives interested persons an

opportunity to comment on these issues.

Kevin E. Bryant,

Deputy Director, Office of Directives Management, U.S. Department of


[FR Doc. 2021-25038 Filed 11-16-21; 8:45 am]