State Department Issues Public Charge Regulation to Align with DHS Rule

At a glance

• The State Department’s new rule will impose a higher standard on both nonimmigrant and immigrant visa applicants to establish they are not likely to become a public charge of the U.S. government.
• The rule is set to take effect Tuesday, October 15. It is unclear how the agency will fully implement the regulation as new forms have not yet been issued in connection with the change.
• Public charge review of visa applicants abroad will largely align with the new Department of Homeland Security public charge rule, also set to take effect October 15.

The issue

The State Department will apply a new standard to determine whether visa applicants are likely to become a public charge under a regulation set for publication tomorrow and scheduled to take effect October 15, 2019. The new rule largely mirrors the recent Department of Homeland Security (DHS) public charge rule, also scheduled to take effect on October 15 amid multiple legal challenges. The State Department will accept public comments on its regulation for 30 days after publication.

What it means

Under its new rule, the State Department will review the personal circumstances of both nonimmigrant and immigrant visa applicants under a “totality of circumstances” test, including consideration of a foreign national’s age, household size, income, financial assets and liabilities, receipt of certain public benefits, health, education and skills, and prospective immigration status.

Only visa applicants subject to the public charge ground of inadmissibility will be subject to the new rule.

Both the DHS and State Department new rules broaden agency authority to determine whether certain foreign nationals will become a public charge of the United States. The State Department rule adopts DHS’s revised definition of public charge - someone who is deemed likely to use a defined set of cash and non-cash of public benefits for more than 12 months in a 36-month period. The State Department also adopts the exact list of public benefits enumerated in the DHS rule, and will only consider use of benefits on or after October 15 unless the benefit was already counted under existing public charge analysis (generally, cash assistance for income maintenance and benefits for long-term institutionalization).

This new public charge review of visa applicants is distinct from President Trump’s recent Presidential Proclamation which suspends the issuance of immigrant visas to certain foreign nationals who cannot demonstrate that they will obtain health insurance or otherwise pay for their health care expenses in the United States.

What’s next for nonimmigrant and immigrant visa applicants

Starting October 15, visa applicants may be subject to extra questioning or requests for additional information at their consular visa interviews. This may include inquiries about medical conditions, health insurance, and financial assets and liabilities, among other factors deemed relevant to the public charge inquiry. In commentary to the rule, the State Department notes that consular officers should take into account the different purposes and intended durations of stay for different types of visa applicants when making their assessment; for example, an applicant for a B-1/B-2 visitor visa will be reviewed differently from an applicant for an immigrant visa.

The agency may also issue updated or new visa application forms in the near future to collect the additional information and documentation cited under the new rule. In order to implement its version of the rule, DHS recently issued a lengthy new form, the I-944, Declaration of Self-Sufficiency. The State Department has publicly stated it is considering issuing its own form in connection with their regulation.

Fragomen is monitoring all public charge implementation and agency activity, including litigation challenging the DHS rule, and will provide updates as developments occur.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.