State Department Postpones Implementation of Public Charge Regulation

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At a glance

• Visa applicants will not be subject to the State Department’s new public charge regulation until further notice. The rule was set to take effect today.
• The agency will implement the regulation after it develops and receives approval for a new form that is expected to solicit information on visa applicants’ finances, health, education and receipt of public benefits.
• A similar Department of Homeland Security regulation was blocked by a federal court on October 11 and remains suspended.

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The issue

The State Department will defer enforcement of its new public charge rule while it develops new forms and procedures to implement the rule. Until further notice, visa applicants will not be subject to heightened scrutiny of their finances, health and other personal circumstances contemplated under the regulation.

The State Department’s public charge regulation – originally set to take effect on October 15 – would impose a higher standard on visa applicants to establish that they are not likely to become a public charge of the U.S. government. Under the rule, consular officers would review each visa applicant under a “totality of circumstances” test that would include consideration of the applicant’s age, household size, income, finances, receipt of certain public benefits, health, education and skills.

The rule mirrors a Department of Homeland Security public charge rule that was also scheduled to take effect on October 15, but has been blocked by numerous federal courts. The court injunctions did not directly affect the State Department rule, but further lawsuits could challenge that regulation as well.

What this means for visa applicants

The State Department announcement means that visa applicants will not be required to submit extensive public charge information for now. However, immigrant visa applicants remain subject to a presidential proclamation that requires them to show that they will have unsubsidized health insurance within 30 days of entry to the United States (or the financial resources to pay for reasonably foreseeable medical expenses); the proclamation will take effect on November 3.

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