Title 8
SECTION 212.21
212.21 Definitions.
§ 212.21 Definitions.For the purposes of 8 CFR 212.20 through 212.23, the following definitions apply:
(a) Public Charge. Public charge means an alien who receives one or more public benefits, as defined in paragraph (b) of this section, for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).
(b) Public benefit. Public benefit means:
(1) Any Federal, State, local, or tribal cash assistance for income maintenance (other than tax credits), including:
(i) Supplemental Security Income (SSI), 42 U.S.C. 1381 et seq.;
(ii) Temporary Assistance for Needy Families (TANF), 42 U.S.C. 601 et seq.; or
(iii) Federal, State or local cash benefit programs for income maintenance (often called “General Assistance” in the State context, but which also exist under other names); and
(2) Supplemental Nutrition Assistance Program (SNAP), 7 U.S.C. 2011 to 2036c;
(3) Section 8 Housing Assistance under the Housing Choice Voucher Program, as administered by HUD under 42 U.S.C. 1437f;
(4) Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) under Section 8 of the U.S. Housing Act of 1937 (42 U.S.C. 1437f);
(5) Medicaid under 42 U.S.C. 1396 et seq., except for:
(i) Benefits received for an emergency medical condition as described in 42 U.S.C. 1396b(v)(2)-(3), 42 CFR 440.255(c);
(ii) Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act (IDEA) 20 U.S.C. 1400 et seq.;
(iii) School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law; and
(iv) Benefits received by an alien under 21 years of age, or a woman during pregnancy (and during the 60-day period beginning on the last day of the pregnancy);
(6) Public Housing under section 9 of the U.S. Housing Act of 1937.
(7) Public benefits, as defined in paragraphs (b)(1) through (b)(6) of this section, do not include any public benefits received by -
(i) An alien who at the time of receipt of the public benefit, or at the time of filing or adjudication of the application for admission or adjustment of status, or application or request for extension of stay or change of status is -
(A) Enlisted in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(B) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces, or
(ii) The spouse or child, as defined in section 101(b) of the Act, of an individual who at the time of receipt of the public benefit by such spouse or child, or at the time of filing or adjudication of the spouse's or child's application for admission or adjustment of status, or application or request for extension of stay or change of status, had been:
(A) Enlisted in the U.S. Armed Forces under the authority of 10 U.S.C. 504(b)(1)(B) or 10 U.S.C. 504(b)(2), or
(B) Serving in active duty or in the Ready Reserve component of the U.S. Armed Forces.
(8) In a subsequent adjudication for a benefit for which the public charge ground of inadmissibility applies, public benefits, as defined in paragraph (b) of this section, do not include 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 8 CFR 212.23(a), or for which the alien received a waiver of public charge inadmissibility, as set forth in 8 CFR 212.23(b).
(9) Public benefits, as defined in paragraph (b) of this section, do not include any public benefits that were or will be received by -
(i) Children of U.S. citizens whose lawful admission for permanent residence and subsequent residence in the legal and physical custody of their U.S. citizen parent will result automatically in the child's acquisition of citizenship, upon meeting the eligibility criteria of section 320(a)-(b) of the Act, in accordance with 8 CFR part 320; or
(ii) Children of U.S. citizens whose lawful admission for permanent residence will result automatically in the child's acquisition of citizenship upon finalization of adoption (if the child satisfies the requirements applicable to adopted children under INA 101(b)(1)), in the United States by the U.S. citizen parent(s), upon meeting the eligibility criteria of section 320(a)-(b) of the Act, in accordance with 8 CFR part 320; or
(iii) Children of U.S. citizens who are entering the United States for the purpose of attending an interview under section 322 of the Act in accordance with 8 CFR part 322.
(c) Likely at any time to become a public charge. Likely at any time to become a public charge means more likely than not at any time in the future to become a public charge, as defined in 212.21(a), based on the totality of the alien's circumstances.
(d) Alien's household. For purposes of public charge inadmissibility determinations under section 212(a)(4) of the Act:
(1) If the alien is 21 years of age or older, or under the age of 21 and married, the alien's household includes:
(i) The alien;
(ii) The alien's spouse, if physically residing with the alien;
(iii) The alien's children, as defined in section 101(b)(1) of the Act, physically residing with the alien;
(iv) The alien's other children, as defined in section 101(b)(1) of the Act, not physically residing with the alien, for whom the alien provides or is required to provide at least 50 percent of financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;
(v) Any other individuals (including a spouse not physically residing with the alien) to whom the alien provides, or is required to provide, at least 50 percent of the individual's financial support or who are listed as dependents on the alien's federal income tax return; and
(vi) Any individual who provides to the alien at least 50 percent of the alien's financial support, or who lists the alien as a dependent on his or her federal income tax return.
(2) If the alien is a child as defined in section 101(b)(1) of the Act, the alien's household includes the following individuals:
(i) The alien;
(ii) The alien's children as defined in section 101(b)(1) of the Act physically residing with the alien;
(iii) The alien's other children as defined in section 101(b)(1) of the Act not physically residing with the alien for whom the alien provides or is required to provide at least 50 percent of the children's financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the alien;
(iv) The alien's parents, legal guardians, or any other individual providing or required to provide at least 50 percent of the alien's financial support to the alien as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided to the alien;
(v) The parents' or legal guardians' other children as defined in section 101(b)(1) of the Act physically residing with the alien;
(vi) The alien's parents' or legal guardians' other children as defined in section 101(b)(1) of the Act, not physically residing with the alien for whom the parent or legal guardian provides or is required to provide at least 50 percent of the other children's financial support, as evidenced by a child support order or agreement, a custody order or agreement, or any other order or agreement specifying the amount of financial support to be provided by the parents or legal guardians; and
(vii) Any other individuals to whom the alien's parents or legal guardians provide, or are required to provide at least 50 percent of such individual's financial support or who is listed as a dependent on the parent's or legal guardian's federal income tax return.
(e) Receipt of public benefits. Receipt of public benefits occurs when a public benefit-granting agency provides a public benefit, as defined in paragraph (b) of this section, to an alien as a beneficiary, whether in the form of cash, voucher, services, or insurance coverage. Applying for a public benefit does not constitute receipt of public benefits although it may suggest a likelihood of future receipt. Certification for future receipt of a public benefit does not constitute receipt of public benefits, although it may suggest a likelihood of future receipt. An alien's receipt of, application for, or certification for public benefits solely on behalf of another individual does not constitute receipt of, application for, or certification for such alien.
(f) Primary caregiver means an alien who is 18 years of age or older and has significant responsibility for actively caring for and managing the well-being of a child or an elderly, ill, or disabled person in the alien's household.
[84 FR 41501, Aug. 14, 2019; 84 FR 52362, Oct. 2, 2019] Editorial Note:At 84 FR 52362, Oct. 2, 2019, the amendment to § 212.21(d)(2)(vii) at 84 FR 41501, Aug. 14, 2019 was corrected; however, the correcting amendment could not be incorporated in its entirety due to inaccurate amendatory instruction.