Understanding DOS’s Interim Final Rule on Public Charge

On October 11, 2019, DOS issued an interim final rule amending DOS regulations regarding how consular officers will determine whether a nonresident is ineligible for a visa because he or she is likely to become a public charge. Although the DHS final rule on public charge was enjoined from implementation on October 11, 2019, the DOS rule took effect on October 15, 2019. Sources have reported that DOS will not implement the rule until the new Form Public Charge Questionnaire, has been published by DHS. Moreover, DOS has not yet updated its Foreign Affairs Manual (FAM) to reflect the new public charge determination rules.

The overall standard for determining whether an individual is more likely than not to become a public charge in both the DOS and the now enjoined DHS rule is based on a totality of the circumstances approach, which considers at a minimum the applicant’s age, health, family status, assets, resources, financial status, education, and skills. DOS has designated several exemptions and exclusions to the public charge analysis. Some exemptions are blanket exemptions based on statute and some are purely regulatory and pertain to exemptions for certain classes of individuals receiving public benefits. It should be noted that in practice, DOS has not utilized the public charge analysis on a wide scale for nonimmigrants.

It is hard to know how DOS’s latest attempt at implementing the public charge rule will be. In addition to various lawsuits seeking the delayed implementation of the DHS rule, it is unclear whether one of the existing lawsuits will be amended or if another lawsuit will be filed challenging the implementation of the rule that were set to mimic DHS’s now enjoined rule.