On Feb. 24, U.S. immigration officials began enforcing a new definition of public charge to screen applicants for immigration benefits and visas.
The Department of Homeland Security (DHS) and Department of State (DOS) finalized the new, expanded definition of public charge in two companion final rules last fall. DHS’ final rule on inadmissibility on public charge grounds expanded the types of public benefits immigration officials consider in making a public charge determination to include nonemergency Medicaid (with limited exemptions), nutritional benefits, and housing benefits. DOS adopted the DHS definition of public charge in an interim final rule. The DOS rule applies to individuals seeking visas at foreign consulates or embassies of the U.S., while the DHS rule applies to individuals applying for green cards, extension of status, or change of status while residing in the U.S.
The DHS rule was set to take effect Oct. 15 but was put on hold by five federal district courts pending a resolution of lawsuits on the legal merits of these cases. Meanwhile, DOS put its final rule on hold until it could finalize a form that consular officials will use to apply the public charge test to applicants for visas.
A January Supreme Court decision overturned the district court injunctions, allowing the DHS public charge rule to take effect everywhere but in the state of Illinois. After that decision, DHS announced its intention to apply the rule on Feb. 24 in all states but Illinois. Last Friday, the Supreme Court issued a new decision allowing the rule to take effect in Illinois, as well. This development means DHS can implement its final rule nationwide until the five district courts issue decisions on the lawfulness of the final rule.
Separately, regarding the DOS final rule, the Office of Management and Budget completed its review of form DS-5540, which is a questionnaire consular officials will review to determine if applicants for visas are likely to become a public charge. The completion of this form, along with updates to DOS’ Foreign Affairs Manual and a New York district court’s denial of a request for a temporary restraining order, allow the DOS rule to take effect Feb. 24.
Contact Senior Director of Policy Erin O’Malley at email@example.com or 202.585.0127 with questions.