Chapter 8 - Waivers of Inadmissibility Based on Public Charge Ground
The availability of a waiver of a ground of inadmissibility depends on the immigration benefit the applicant is seeking.
A. Immigrant Waivers
In general, the public charge ground of inadmissibility cannot be waived for noncitizens seeking lawful permanent resident (LPR) status. However, the following noncitizens seeking LPR status may overcome the public charge ground of inadmissibility if they apply for and USCIS grants a waiver of the public charge ground of inadmissibility:
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Applicants seeking adjustment of status on account of their witness or informant status.[1]
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Certain aged, blind, or disabled applicants for adjustment of status under the legalization program.[2]
B. Nonimmigrant Waivers
The following nonimmigrants seeking admission may overcome the public charge ground of inadmissibility if the noncitizen applies for and is granted a waiver of the public charge ground of inadmissibility:
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Nonimmigrants seeking admission to the United States – A noncitizen applying for a nonimmigrant visa or seeking temporary admission as a nonimmigrant may seek a temporary waiver of inadmissibility.[3] This application for a temporary waiver of inadmissibility is adjudicated by U.S. Customs and Border Protection (CBP) as part of either a noncitizen’s application for admission at a port of entry or a noncitizen’s application for a nonimmigrant visa at a U.S. consulate or embassy.[4] If granted, the waiver generally only applies to the nonimmigrant classification for which it was granted.
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Applicants for admission as nonimmigrant witnesses or informants (S nonimmigrants)[5] – The application to seek nonimmigrant status as a witness or informant, including the request for a waiver of a ground of inadmissibility, is made on the Inter-Agency Alien Witness and Informant Record (Form I-854A (PDF, 458.02 KB)). The waiver is discretionary, and USCIS may grant the waiver if it considers it to be in the national interest to do so.
Footnotes
[^ 1] See INA 245(j). See 8 CFR 212.23(c)(2) and 8 CFR 245.11. According to 8 CFR 245.11(c), grounds of inadmissibility that were waived at the time of obtaining S nonimmigrant status are considered waived for purposes of the adjustment.
[^ 2] See INA 245A and INA 245A(d)(2)(B). See 8 CFR 212.23(c)(3). Aged, blind, or disabled applicants, as defined in Section 1614(a)(1) of the Social Security Act, as codified in 42 U.S.C. 1382c(a)(1), for adjustment of status under INA 245A may apply for a waiver of the public charge ground of inadmissibility. The waiver is filed on the Application for Waiver of Grounds of Inadmissibility Under Sections 245A or 210 of the Immigration and Nationality Act (Form I-690) according to the form’s instructions.
[^ 3] See INA 212(d)(3)(A).
[^ 4] For more information on applying for a waiver as a nonimmigrant under INA 212(d)(3), visit CBP.gov.
[^ 5] See INA 101(a)(15)(S). See 8 CFR 212.23(c)(1). See INA 212(d)(1). See 8 CFR 214.2(t)(5)(i). See 8 CFR 212.4(j)(1). The waiver is granted by USCIS.
Resources
10 U.S.C. 504(b) - Citizenship or residency
15 U.S.C. 1681 - Congressional findings and statement of purpose
21 U.S.C. 802 - Definitions
21 U.S.C. 841 - Prohibited acts A
22 CFR 40.51 - Labor certification
29 CFR 570 - Child labor regulations, orders and statements of interpretation
29 U.S.C. 213(c) - Child labor requirements
31 U.S.C. 9304-9308 - Surety corporations
42 CFR 34.4 - Medical notifications
42 U.S.C. 1382c (PDF) - Definitions
42 U.S.C. 413 - Quarter and quarter of coverage
42 U.S.C. 416(l) - Retirement age
7 CFR 273 - Certification of eligible households
8 CFR 1.2 - Definitions
8 CFR 1.3 - Lawfully present aliens for purposes of applying for Social Security benefits
8 CFR 1003.14 - Jurisdiction and commencement of proceedings
8 CFR 1003.1 - Organization, jurisdiction, and powers of the Board of Immigration Appeals
8 CFR 103.6 - Immigration bonds
8 CFR 204.5 - Petitions for employment-based immigrants
8 CFR 212.4 - Applications for the exercise of discretion under section 212(d)(1) and 212(d)(3)
8 CFR 213a - Affidavits of support on behalf of immigrants
8 CFR 235 - Inspection of persons applying for admission
8 CFR 245.11 - Adjustment of aliens in S nonimmigrant classification
8 CFR 292 - Representation and appearances
8 U.S.C. 1601-1646 - Restricting welfare and public benefits for aliens
8 U.S.C. 1611 (PDF) - Aliens who are not qualified aliens ineligible for Federal public benefits
8 U.S.C. 1612 (PDF) - Limited eligibility of qualified aliens for certain Federal programs
8 U.S.C. 1613 (PDF) - Five-year limited eligibility of qualified aliens for Federal means-tested public benefit
8 U.S.C. 1641 (PDF) - Definitions
Final Specification of Community Programs Necessary For Protection Of Life Or Safety Under Welfare Reform Legislation, 66 FR 3613 (Jan. 16, 2001) (Final rule)
INA 101 - Definitions
INA 101(a)(15) - Nonimmigrant classifications
INA 201 - Worldwide level of immigration
INA 203 - Allocation of immigrant visas
INA 208 - Asylum
INA 212(a)(4), 8 CFR 212.20-212.23 - Public charge inadmissibility
INA 212(d) - Temporary admission of nonimmigrants
INA 213, 8 CFR 213.1 - Admission of aliens on giving bond or undertaking; return upon permanent departure; adjustment of status of aliens on submission of a public charge bond
INA 213A, 8 CFR 213a - Requirements for sponsor's declaration of financial support
INA 235 - Inspection by immigration officers; expedited removal of inadmissible arriving aliens; referral for hearing
INA 237(a)(5) - Public charge (deportable aliens)
INA 245(j) - Adjustment to permanent resident status
INA 289 - Application to American Indians born in Canada
Pub. L. 104-193 (PDF) - Title IV of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996
Pub. L. 104-208 (PDF) - Illegal Immigration Reform and Immigrant Responsibility Act of 1996
Pub. L. 106-395 (PDF) - Child Citizenship Act of 2000
Pub. L. 111-293 (PDF) - Help Haitian Adoptees Immediately to Integrate Act of 2010
Pub. L. 111-8 (PDF) - Section 602(b), Title VI of the Afghan Allies Protection Act of 2009
Pub. L. 113-4 (PDF) - 127 Stat 54 of the Violence Against Women Reauthorization Act of 2013
Pub. L. 89-732 (PDF) - Cuban Refugees Adjustment of Status
Section 11, 26 Stat 1084 (PDF) of the Immigration Act of 1891
Section 212(a)(15), 66 Stat 163 (PDF), 183 of the Immigration and Nationality Act of 1952
Sections 1-2, 22 Stat 214 (PDF) of the Immigration Act of 1882
Appendices
Updates
This technical update incorporates into Volume 8 the policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced December 19, 2022, addressing the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (INA), as implemented by the Public Charge Ground of Inadmissibility Final Rule, 87 FR 55472 (PDF) (Sep. 9, 2022).
This guidance became effective December 23, 2022, and applies to adjustment of status applications postmarked (or filed electronically, if applicable) on or after that date. For applications postmarked (or submitted electronically, if applicable) before December 23, 2022, USCIS will continue to apply the public charge ground of inadmissibility consistent with the statute and the 1999 Interim Field Guidance.
U.S. Citizenship and Immigration Services (USCIS) is issuing policy guidance in the USCIS Policy Manual to address the public charge ground of inadmissibility under section 212(a)(4) of the Immigration and Nationality Act (INA), as implemented by the Public Charge Ground of Inadmissibility Final Rule, 87 FR 55472 (PDF) (Sep. 9, 2022).
The new final rule and policy guidance become effective December 23, 2022, and apply to adjustment of status applications postmarked (or filed electronically, if applicable) on or after that date. For applications postmarked (or submitted electronically, if applicable) before December 23, 2022, USCIS will continue to apply the public charge ground of inadmissibility consistent with the statute and the 1999 Interim Field Guidance.
This technical update to Volume 8 alerts readers to the September 9, 2022 publication of the Public Charge Ground of Inadmissibility Final Rule, 87 FR 55472 (PDF), and clarifies that USCIS will continue to apply the 1999 Interim Field Guidance until the final rule goes into effect on December 23, 2022. For more information about how USCIS is applying the public charge ground of inadmissibility, see the Public Charge Resources webpage.
USCIS is administering the public charge inadmissibility statute (section 212(a)(4) of the Immigration and Nationality Act) consistent with the 1999 Interim Field Guidance to determine whether a noncitizen is inadmissible as likely at any time to become a public charge. The 1999 Interim Field Guidance is the policy that was in place before the 2019 Public Charge Final Rule was implemented. The 2019 Public Charge Final Rule is no longer in effect. For more information about how USCIS is applying the public charge ground of inadmissibility, see the Public Charge Resources webpage.
This technical update replaces all instances of the term “alien” with “noncitizen” or other appropriate terms throughout the Policy Manual where possible, as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
This technical update removes the guidance in Volume 2, Part A, Chapter 4, Volume 8, Part G, and Volume 12, Part D, Chapter 2 relating to the administration of the public charge ground of inadmissibility under the Inadmissibility on Public Charge Grounds final rule, 84 FR 41292 (Aug. 14, 2019); as amended by Inadmissibility on Public Charge Grounds; Correction, 84 FR 52357 (Oct. 2, 2019) ( “Public Charge Final Rule”), which was implemented on Feb. 24, 2020. On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. On Nov. 3, 2020, the U.S. Court of Appeals for the Seventh Circuit issued an administrative stay and, on Nov. 19, 2020, a stay pending appeal of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted its stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage.
This technical update removes the WA Food Assistance Program for Legal Immigrants from the list of examples of state, local, and tribal cash assistance programs that are considered income maintenance for purposes of the public charge inadmissibility determination.
U.S. Citizenship and Immigration Services (USCIS) is updating and incorporating relevant Adjudicator’s Field Manual (AFM) content into the USCIS Policy Manual. As that process is ongoing, USCIS has moved any remaining AFM content to its corresponding USCIS Policy Manual Part, in PDF format, until relevant AFM content has been properly incorporated into the USCIS Policy Manual. To the extent that a provision in the USCIS Policy Manual conflicts with remaining AFM content or Policy Memoranda, the updated information in the USCIS Policy Manual prevails. To find remaining AFM content, see the crosswalk (PDF, 309.83 KB) between the AFM and the Policy Manual.
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
3 USCIS-PM - Volume 3 - Humanitarian Protection and Parole
4 USCIS-PM - Volume 4 - Refugees and Asylees
5 USCIS-PM - Volume 5 - Adoptions
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
Note: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. The U.S. Court of Appeals for the Seventh Circuit later issued a stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted the stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage. The alert text below and related guidance are no longer in effect.
This update incorporates into Volumes 2, 8, and 12 policy guidance that U.S. Citizenship and Immigration Services (USCIS) announced February 5, 2020, implementing the Inadmissibility of Public Charge Grounds Final Rule. This guidance is in effect as of February 24, 2020 and applies nationwide to all applications and petitions postmarked on or after that date. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Final Rule. For more information about the classes of [noncitizens] who are exempt from the Final Rule, see the appendices related to applicability. For information on related litigation affecting implementation, see the USCIS webpage on the injunction.
Note: On Nov. 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the Public Charge Final Rule nationwide. The U.S. Court of Appeals for the Seventh Circuit later issued a stay of the U.S. District Court for the Northern District of Illinois’ Nov. 2, 2020 decision. On Mar. 9, 2021, the U.S. Court of Appeals for the Seventh Circuit lifted the stay and the U.S. District Court for the Northern District of Illinois’ order vacating the Public Charge Final Rule went into effect. USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to the rule. For information on related litigation affecting implementation, see the Inadmissibility on Public Charge Grounds Final Rule: Litigation webpage. The alert text below and related guidance are no longer in effect.
U.S. Citizenship and Immigration Services (USCIS) is issuing guidance in the USCIS Policy Manual to address the final rule on the public charge ground of inadmissibility. This policy guidance is effective on February 24, 2020, and will apply to all applicants and petitioners filing applications and petitions for adjustment of status, extension of stay, and change of status, except for applicants and petitioners in the State of Illinois, whose cases will be adjudicated under prior policy, including the 1999 Interim Field Guidance (PDF) and AFM Ch. 61.1 (PDF). For additional information, see Public Charge Inadmissibility Determinations in Illinois. Certain classes of aliens are exempt from the public charge ground of inadmissibility (such as refugees, asylees, certain VAWA self-petitioners, U petitioners, and T applicants) and therefore, are not subject to the Inadmissibility on Public Charge Grounds final rule. For more information about the classes of [noncitizens] who are exempt from the final rule, see the appendices related to applicability.
This technical update replaces all instances of the term “foreign national” with “alien” throughout the Policy Manual as used to refer to a person who meets the definition provided in INA 101(a)(3) [“any person not a citizen or national of the United States”].
1 USCIS-PM - Volume 1 - General Policies and Procedures
2 USCIS-PM - Volume 2 - Nonimmigrants
6 USCIS-PM - Volume 6 - Immigrants
7 USCIS-PM - Volume 7 - Adjustment of Status
8 USCIS-PM - Volume 8 - Admissibility
9 USCIS-PM - Volume 9 - Waivers and Other Forms of Relief
10 USCIS-PM - Volume 10 - Employment Authorization
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