Dramatic revisions to public charge inadmissibility assessment that were due to go into effect last week are now on hold. In the case of the Department of Homeland Security (DHS) regulations, multiple injunctions have been issued preventing the rules from going into effect. Implementation of the new Department of State (DOS) regulations is also on hold due to a 60-day period to comment on a new form that immigrant visa applicants will have to complete. In addition, a separate presidential proclamation requiring most immigrant visa applicants to have health insurance was issued on October 4, 2019 and is due to go into effect on November 3. Each of the developments is discussed in more detail below along with guidance for practitioners.
DHS Final Rule — The DHS published a final regulation on August 14, 2019 that would have radically changed how USCIS officers interpret the public charge ground of inadmissibility. That regulation was scheduled to go into effect on October 15, 2019, but was enjoined by five federal district courts. Three of those courts (in New York, Washington State, and Maryland) issued nationwide injunctions; two other courts (in California and Illinois) issued more limited injunctions. The government will appeal those decisions, but for now USCIS is prohibited from applying the final rule when adjudicating applications for adjustment of status and Customs and Border Security is prohibited from applying it when screening applicants for admission at a port of entry. The current interpretation, as set forth in a 1999 Federal Register Notice, still controls.
DOS Interim Final Rule and New Form — On October 11, 2019, DOS published an interim final rule that amends 22 CFR § 40.41 governing the public charge ground of inadmissibility. The DOS definition of public charge, the five statutory factors, and the effect of receipt of public benefits mirrored the enjoined DHS regulation. The regulation was scheduled to go into effect on October 15, 2019, but implementation has been partially delayed. DOS is accepting public comments on this interim final rule until November 12, 2019, 30 days after it was published.
DOS was not a party to the litigation and the injunctions prohibiting the implementation of the DHS regulation. The agency justified its issuing the regulation as “final” and avoiding notice-and-comment requirements in order to align its interpretation with that of DHS. The agency stated it had an “interest in preventing inconsistent adjudication standards and different outcomes between determinations of visa eligibility and determinations of admissibility at a port of entry.” But given that the DHS rule has been enjoined, this justification no longer exists. Nevertheless, DOS has not withdrawn the final regulation.
Although the regulation is still in place, DOS will not change its visa application procedures until a new form (DS-5540, Public Charge Questionnaire) is published in the Federal Register, approved by the Office of Management and Budget, and DOS updates its Foreign Affairs Manual (FAM). On its website, the agency states: “Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. We will inform applicants of any changes to current visa application procedures.”
On October 24, 2019, the Department published a 60-Day Notice of Proposed Information Collection for its Public Charge Questionnaire, which is a necessary step to have the new information collection approved. The proposed DS-5540 will be used to screen immigrant visa applicants subject to the public charge ground of inadmissibility. Consular officers may require certain immigrant visa applicants not subject to public charge inadmissibility to complete portions of the form related to compliance with the presidential proclamation on health insurance. At the present time DOS has not published a copy of the proposed form. Approval of the new form and changes to the visa application procedures are not expected to happen until 2020, assuming it survives legal challenges.
Although DOS will not begin to collect information under this regulation until a later date, the notice opening comments on its Public Charge Questionnaire indicates that visa applicants will have to supply information on any affected benefits received on or after October 15, 2019. Thus, the regulation seems to have at least partially gone into effect on October 15, 2019.
Presidential Proclamation on Health Insurance — The White House issued a proclamation on October 4, 2019, titled “Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States Healthcare System.” The proclamation states that immigrant visa applicants will be denied entry to the United States unless they establish that they either have or can obtain approved health insurance within 30 days of admission or they will have enough resources to pay for reasonably foreseeable medical costs. The date of implementation of this proclamation is November 3, 2019. We anticipate litigation challenging this recent move.
The new requirement will mostly affect family-based and employment-based immigrant visa applicants. It will not affect applicants for adjustment of status, returning lawful permanent residents (LPRs), refugees, or asylees. The following are also not affected by the new requirement: Iraqi and Afghan special immigrant visa applicants and their spouses and children; children of a U.S. citizen who will be deriving citizenship upon admission as an LPR; applicants for fiancé(e) visas; and parents of US citizens provided that they demonstrate that their healthcare needs will not impose a substantial burden on the United States healthcare system.
Approved health insurance includes: employer-sponsored health plans; unsubsidized health plans offered in the individual market; short-term, limited duration health plans effective for a minimum of 364 days or until the beginning of planned, extended travel outside the United States; catastrophic plans; coverage by a family member’s health plan; U.S. military health plans; visitor health insurance plans with adequate medical coverage for a minimum of 364 days or until the beginning of planned, extended travel outside the United States; medical plans under the Medicare program; and any other health plan with adequate coverage as determined by the Secretary of Health and Human Services. For individuals over the age of 18, approved health insurance does not include coverage under the Medicaid program.
The agency has posted on its website the following message to immigrant visa applicants scheduled for interviews on or after November 3: “During the visa interview, applicants should be able to demonstrate to the satisfaction of the consular officer that they have the financial resources to pay for reasonably foreseeable medical costs or will have approved health insurance from the list above within 30 days of entry into the United States. Officers will review the medical and financial documentation that is already part of the applicant’s case file and may request additional information or documentation as needed. Prior to the visa interview, applicants may wish to review costs and eligibility requirements for approved health insurance plans or consider how they would pay for the reasonably foreseeable medical costs of any current medical condition they may have.” A new Form, DS-5541 will be used to obtain information about how the immigrant visa applicant plans to comply with the proclamation requirement. At the present time, DOS has not published a copy of the proposed form.
Advice to Practitioners Representing Adjustment of Status Applicants — Given the nationwide injunctions, the 1999 interpretation of the public charge ground of inadmissibility has not changed. Therefore, continue to prepare your client’s case as you have in the past. Make sure the sponsor or joint sponsor’s affidavit of support satisfies the financial requirements and includes the necessary documentation. Recommend that the client not disenroll from any health care or other public benefit programs that family members are receiving. Be alert to any requests for documents or USCIS adjudications that reflect a departure from the current standards for public charge.
In the event the court injunctions are lifted, the public charge standards will not apply retroactively to the October 15, 2019 date. The order from the New York court addresses that issue and states: “the effective date of the Rule is postponed…pending further Order of the Court such that, if this Order is later terminated and the Rule goes into effect, the Rule’s stated effective date of October 15, 2019, as well as any references in the Rule to October 15, 2019…shall be deemed to be replaced with a date equal to sixty days after this Order is terminated.”
Advice to Practitioners Representing Immigrant Visa Applicants — Applicants for an immigrant visa scheduled before November 3, 2019 will not be subject to the DOS final rule regarding public charge or to the presidential proclamation. Nevertheless, they will be subject to the current interpretation of public charge in the FAM, which was changed in January 2018 to place less weight on the affidavit of support and more weight on the applicant’s age, health, income, skills and resources. This interpretation is stricter than the current DHS interpretation. CLINIC published an article setting forth those changes to the FAM.
Applicants for an immigrant visa scheduled for on or after November 3, 2019 but before the end of the year will be subject to the health insurance requirement, unless this is enjoined. Note that some individuals who are not subject to public charge inadmissibility are nevertheless subject to the presidential proclamation. This includes VAWA self-petitioners and I-929 qualified relatives of U nonimmigrants seeking immigrant visas, unless otherwise exempt. Widows, who are not subject to the affidavit of support requirement but are subject to public charge inadmissibility, are also required to comply with the proclamation requirements.
Immigrant visa applicants with approved I-601A waivers are subject to the insurance requirement unless otherwise exempt. Visa refusal based solely on inability to satisfy this requirement, however, should not trigger revocation of the provisional waiver because it does not constitute a ground of inadmissibility.
If the client is concerned about satisfying this requirement, postpone the interview until a decision has been made on any court challenges or until the client is able to satisfy the requirement. Healthinsurance.org published an article about noncitizens’ eligibility for health insurance in the United States.
Applicants for an immigrant visa scheduled in 2020 may be subject both to the proclamation and a new DOS final rule on public charge, depending on the outcome of anticipated litigation. Note that implementation of any new public charge standard, as well as the proclamation, will also impact on clients currently residing abroad and awaiting a re-scheduled interview. We will continue to update you on the current status.