Today, the Department of State, which has authority over U.S. Embassies and Consulates, has published an interim final regulation changing its “Public Charge” policy to match the Department of Homeland Security’s regulations that are set to take effect on Tuesday. Beginning on Tuesday, October 15th, consular officers will look more thoroughly into most nonimmigrant and immigrant visa applications to decide whether the applicant may be ineligible for the visa due to the likelihood of becoming a public charge.
The Department of State’s regulation sets forth a list of various factors that can weigh positively or negatively towards whether the person applying for the visa will be a public charge. These factors include the applicant’s age, health, education background, and financial status. Consular officers will also consider the visa classification sought. For example, 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 prearranged employment. The visa classification,purpose, and duration of travel will be evaluated as part of the public charge analysis during the visa application process.
While it is expected that the majority of high-skilled employment visa applicants, such as those applying for H, L, E, O, and TN visas, should have a sufficient salary to avoid becoming a public charge, applicants will likely experience additional scrutiny and may see longer wait times for visas to be issued. Work visa applicants should consider carrying (1) documentation of their salary offer (such as an employment verification letter from the US employer); (2) proof that they will be covered under their employer’s medical insurance; and (3) be prepared to answer questions regarding medical conditions. Sufficient salary, health insurance coverage, and lack of medical conditions requiring extensive treatment are all considered as positive factors will help the consular officer conclude that there is no grounds for a public charge finding.
In accordance with the new rule, consular officers will at the time of visa application take into the listed factors in the following ways:
Age: Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and 62 as a positive factor.
Health: Consular officers will consider whether the alien’s health serves as a positive or negative factor in the totality of the circumstances, including whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work (if authorized).
Assets, resources, and financial status: Consular officers will consider several nonexclusive aspects of the alien’s assets, resources, and financial status. Annual gross income for the applicant’s household size of at least 125 percent of the most recent Federal Poverty Guidelines based on the applicant’s household size, is a positive factor. If the applicant’s annual household gross income is less than 125 percent of the most recent Federal Poverty Guidelines, the applicant can submit evidence of ownership of assets, which may affect the consular officer’s determination. Consular officers will also consider listed public benefits received.
Education and skills: Consular officers will consider both positive and negative factors associated with whether the alien has adequate education and skills to either obtain or maintain lawful employment with an income sufficient to avoid being likely to become a public charge. In assessing whether the alien’s level of education and skills makes the alien likely to become a public charge, the consular officer must consider, among other factors, the alien’s history of employment, educational level (high school diploma, or its equivalent, or a higher educational degree), any occupational skills, certifications, or licenses, and proficiency in English or proficiency in other languages in addition to English.
The interim final rule discuss certain factors and factual circumstances that will weigh heavily in determining whether an alien is likely to become a public charge, including negative and positive factors.
The heavily weighted negative factors are:
• The alien is not a full-time student and is authorized to work, but is unable to satisfy the consular officer that he or she is currently employed, has recent employment history, or a reasonable
prospect of future employment;
• The alien has received, or has been certified or approved to receive, one or more of the specified public benefits (see list of specific public benefits considered here);
• The alien has been diagnosed with a medical condition that is likely to require extensive treatment or institutionalization or that will interfere with the alien’s ability to provide for himself or herself, attend school, or work;
• The alien has no health insurance for use in the United States and has neither the prospect of obtaining private health insurance, nor the financial resources to pay for reasonably foreseeable medical costs related to such medical condition;
• The alien was previously found inadmissible or deportable on public charge grounds by an Immigration Judge or the Board of Immigration Appeals.
The heavily weighted positive factors are:
• The alien’s household has income, assets, resources, or support of at least 250 percent of the Federal Poverty Guidelines for the alien’s household size.
• The alien is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines.
• The alien has private health insurance for use in the United States covering the expected period of admission.
Also, in the future, the Department of State expects to publish a new form requiring applicants to provide detailed information about their age, health, family status, finances, and education and skills. It appears that the State Department expects about 450,000 of the roughly 12 million visa applicants (about 3-4%) to be required to fill out this additional form. At this time, the new form is not expected to include credit history or credit score like the USCIS Form I-944 that was recently introduced for adjustment of status applicants.