The U.S. Department of Homeland Security (DHS) adopted revised regulations for determining whether an alien is inadmissible to the United States under existing law because he or she is likely at any time to become a public charge. The Secretary of Homeland Security (Secretary) has discretion to admit an alien who has been determined to be inadmissible as a public charge if the alien posts a bond to secure that he or she will not become a public charge in the future. U.S.
Citizenship and Immigration Services (USCIS) currently does not have a regulation in place for public charge bonds and the new regulations establish a process for applicants for an adjustment of their immigration status who are inadmissible only on public charge grounds to post a bond. Surety bonds, cash, or cash equivalents will be accepted to meet the requirement.
Originally, the bond would have had to be for at least $10,000. As adopted, the minimum bond amount is $8,100. The bond amount is subject to adjustment for inflation, rounded up to the nearest dollar. Sureties issuing the bond must be listed on the U.S. Treasury Department’s Circular 570. The bond is conditioned on the alien not receiving public benefits after the alien’s adjustment of status to that of a legal permanent resident and until the bond is cancelled. The bond must remain in effect until the alien naturalizes or otherwise obtains U.S. citizenship, permanently departs the United States, or dies, until the bond is substituted with another bond, or until the bond is otherwise cancelled by DHS.
DHS may cancel the bond after five years if the alien has filed a request to cancel the bond and has not received any public benefits or otherwise violated the bond’s conditions. The bond is considered breached for failure to comply with the conditions of the bond and USCIS is prohibited from cancelling the bond in the event of a breach. The bond is subject to forfeiture for the entire amount of the bond if the alien breaches a condition of the bond. A final determination that a bond has been breached creates a claim in favor of the United States. Under the new regulations, a party must first exhaust all administrative remedies and obtain a final decision from USCIS in compliance with existing regulations before being able to bring suit challenging USCIS’s cancellation or bond breach determination in federal district court.
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