POSTPONED! – New State Department “Public Charge” Rule Applies to Visa Applicants starting 10/15/19

**UPDATE** Late on October 15, 2019, The U.S. Department of State (DOS) decided to postpone implementation of its new public charge regulation. It will first develop new visa application forms and procedures, which are expected to require information related to the visa applicant’s health, finances, education and receipt of public benefits. This means that the current visa application forms and processes will continue unchanged for now, until the new forms and procedures are ready to be implemented and enforced.
October 15, 2019: On Friday (October 11, 2019), a federal district court temporarily stopped the U.S. Department of Homeland Security (DHS) from implementing new “public charge” requirements for certain nonimmigrant and immigrant petitions and applications. However, on the same day, the U.S. Department of State (DOS) issued new regulations to apply this same “public charge” analysis to visa applications, and the federal district court’s ruling does not apply to DOS. This means that, effective today, visa applicants will be required to meet a higher standard and provide additional information during their visa application process, to determine whether they are likely at any time to become a “public charge” after admission into the United States.
The DOS definition of someone who is a public charge is anyone who is deemed likely to use a defined set of cash and non-cash public benefits for more than 12 months within a 36 month period. DOS will only consider use of such benefits on or after October 15, 2019 (today), unless the benefit was already counted under the existing public charge analysis (which generally means cash assistance for income maintenance and benefits for long-term institutionalization). DOS will also only consider benefits received directly by that applicant; applying for benefits on behalf of someone else (such as a child) will not be considered relevant for that applicant.
Under this new rule, consular officers at U.S. Embassies and Consulates abroad will review the personal circumstances of both nonimmigrant and immigrant visa applicants under a “totality of circumstances” test, including consideration of a person’s age; household size; income; financial assets and liabilities; receipt of certain public benefits in the past; health; education and skills; and prospective immigration status. If a person is determined to be a public charge, his/her visa application might be denied and that person could be deemed inadmissible to the U.S. It is currently not clear whether there is an appeals process if a visa application is denied on this ground, or whether any waivers might be available.
Examples of public benefits that will be reviewed in this visa application public charge analysis include, among other things, the receipt of: Supplemental Security Income (SSI); Temporary Assistance for Needy Families (TANF); federal, state or local cash benefit programs for income assistance; Supplemental Nutrition Assistance Program (SNAP, also known as “food stamps”); Section 8 Housing Choice Voucher Program; Section 9 Public Housing; and Medicaid (with certain exceptions).
After today, anyone applying for a visa stamp overseas might be subject to extra questioning or requests for additional information and documentation regarding this public charge analysis. This may include inquiries about medical conditions, health insurance, and financial assets and liabilities, among other things deemed relevant by the consular officer in making a public charge determination.