DOS Rule on Determining Visa Ineligibility Based on Public Charge Grounds

On October 11, 2019, the U.S. Department of State (DOS) published an interim final rule in the Federal Register, entitled Visas: Ineligibility Based on Public Charge Grounds. Once this interim final rule goes into effect, it will greatly expand the categories of public benefits considered in determining whether a foreign national may be deemed a public charge (i.e., a person who is financially dependent on public benefits).

Both the DOS and the U.S. Citizenship and Immigration Services (USCIS) public charge rules were scheduled to take effect on October 15, 2019. Several federal courts, however, blocked implementation of the USCIS rule. As for the DOS public charge rule, it is postponed until a public charge questionnaire (form DS-5540) is published. This process will take at least several months.

Purpose of DOS Public Charge Rules

Prior to the court decisions to block the USCIS public charge rule, the DOS released this interim final rule to ensure there would be consistency between the USCIS and DOS in making public charge determinations. The USCIS rule applies to foreign nationals in the United States who are applying for immigration benefits. The DOS rule, on the other hand, affects foreign nationals applying abroad for nonimmigrant or immigrant visas at a U.S. embassy or consulate.

Overview of DOS Rule

The DOS interim final rule interprets public charge as the receipt of one or more public benefits for more than 12 months in the aggregate within any 36-month period. Receipt of two benefits in one month counts as receiving benefits for two months.

Under the DOS rule, consular officers will use a “more likely than not” standard and take into account the totality of a foreign national’s circumstances at the time of visa application, when considering the likelihood of the foreign national’s becoming a public charge. At a minimum, the following factors will be considered in the totality of the circumstances:

1. Age
2. Health
3. Family status
4. Assets, resources, and financial status
5. Education and skills
6. Prospective visa classification

Heavily Weighed Positive and Negative Factors

The DOS will also consider heavily weighted positive and negative factors in an ineligibility determination based on public charge. The following factors will weigh heavily in favor of a finding that a foreign national is not likely to become a public charge:

• The applicant’s household has income, assets, resources, or support of at least 250 percent of the federal poverty guidelines for the foreign national’s household size
• The applicant is authorized to work and is currently employed with an annual income of at least 250 percent of the federal poverty guidelines for the foreign national’s household size
• The applicant has private health insurance for use in the United States, other than health insurance obtained with premium tax credits under the Affordable Care Act (i.e., “Obamacare”), covering the expected period of admission

The following factors will weigh heavily in favor of a finding that a foreign national is likely to become a public charge:

• The applicant is not a full-time student and is authorized to work, but is unable to prove to the consular officer that s/he is currently employed, has recent employment history, or a reasonable prospect of future employment
• The applicant has received or has been certified or approved to receive one or more public benefits for more than 12 months in the aggregate within any 36-month period

Types of Benefits

The rule’s definition of public benefit is in line with the one laid out in the DHS rule and includes any of the following forms of assistance received on or after October 15, 2019:

• Any cash assistance for income maintenance including Supplemental Security Income (SSI), Temporary Assistance for Needy Families (TANF), and federal, state or local cash benefit programs for income maintenance
• Supplemental Nutrition Assistance Program (SNAP)
• Section 8 Housing Assistance under the Housing Choice Voucher Program
• Section 8 Project-Based Rental Assistance
• Federally funded Medicaid (with certain exclusions)
• Subsidized public housing

Exclusions may apply to members of the armed forces and their family members, those seeking health services for immunizations, and those who wish to receive testing and treatment for communicable diseases.

The DOS interim final rule will allow consular officers to deny visa applications to applicants coming from abroad if they determine that an applicant could be a “public charge” under the expanded definition.

DOS Rule More Impactful on Nonimmigrants than USCIS Rule

While the public charge rule created by the DOS is very similar to the one created by the USCIS, the two rules are not identical. Perhaps the biggest difference between the rules – besides the fact that the USCIS rule is currently being blocked by the courts – is how they apply to nonimmigrant applicants.

Under the USCIS public charge rule, if a nonimmigrant files an I-539 application requesting an extension or change of status, the USCIS will only look at whether the applicant “… has received designated benefits for more than 12 months in the aggregate within a 36-month period since obtaining the nonimmigrant status they wish to extend or change.” The DOS, however, uses the same totality of the circumstances test for both immigrant and nonimmigrant visa applicants.

As mentioned above, one of the factors taken into consideration by the DOS in the interim final rule is the prospective visa classification. The DOS explains as follows:

“… a consular officer’s public charge analysis of an applicant for a B-1 nonimmigrant visa, who plans to attend a week-long business meeting, would differ from a longer term nonimmigrant applicant, such as an H-1B nonimmigrant specialty worker, who would reside and work in the United States for years at a time, and would differ even more from an immigrant visa applicant who intends to reside permanently in the United States and may not have pre-arranged employment. In this respect, the visa classification, including the purpose and duration of travel, are relevant to assessing the likelihood that an alien would avail himself or herself of public benefits (noting that in many cases visa applicants may not be eligible for public benefits in the United States), and therefore consular officers must evaluate these factors on a case-by-case basis.”

Information on Form DS-5540

On October 24, 2019, the DOS published in the Federal Register a request for public comment on the form DS-5540. Per the Federal Register publication, the questions on the form will “… pertain to the applicant’s health, family status, assets, resources, financial status, education, skills, health insurance coverage, and tax history.” Notably, although all non-exempt immigrant visa applicants will need to complete the form, it appears most nonimmigrant applicants will not be required to do so. Rather, “… a consular officer has discretion to require a nonimmigrant visa applicant to complete the DS-5540, when the officer determines the information is needed.”

Conclusion

Again, the DOS interim final rule will not go into effect for at least several months. Once any additional information is provided, the details will be posted on MurthyDotCom.

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