The Department of State issued an interim final rule expanding the definition of public charge used by consular officials in evaluating visa applications. The rule intends to align the department’s definition with the Department of Homeland Security (DHS) public charge final rule.
Under immigration law, individuals seeking to enter or who reside legally in the United States and apply for a green card (adjustment of status) must demonstrate that they are not likely to become a public charge in the future.
While the DHS rule applies to people present in the United States or those being evaluated by an immigration official at a port of entry, the State Department rule applies to applicants seeking to obtain a U.S. visa from a consulate in their home country.
The State Department’s interim final rule adopts the same definition of public charge and public benefit as the DHS final rule. Specifically, the rule defines public charge as “receipt of one or more public benefits for more than 12 months in the aggregate within any 36-month period.” The types of public benefits considered in the updated public charge definition are:
- federal, state, local, or tribal cash assistance programs for income maintenance;
- nonemergency Medicaid benefits (with limited exceptions);
- the Supplemental Nutrition Assistance Program;
- the Section 8 Housing Choice Voucher Program;
- Section 8 Project-Based Rental Assistance; and
- subsidized housing under the Housing Act of 1937.
Certain types of Medicaid benefits are excluded from the definition of public benefit:
- emergency Medicaid;
- Medicaid received for services provided under the Individuals with Disabilities Education Act;
- school-based benefits provided to children at or below the oldest age of children eligible for secondary education in the state;
- Medicaid services for noncitizens younger than 21; and
- Medicaid services for pregnant women during pregnancy and a 60-day postnatal period.
As with the DHS rule, the State Department will not consider benefits received by members of the U.S. armed forces and their families, as well as foreign-born children of U.S. citizens. In determining the likelihood of an individual becoming a public charge, consular officers will use a totality of the circumstances test, accounting for:
- family status;
- education and skills;
- assets, resources, and financial status;
- prospective visa classification; and
- the affidavit of support from a sponsor.
The State Department set an effective date of Oct. 15, with comments due Nov. 12. Since the State Department issued its rule, multiple federal judges have halted the implementation of the DHS public charge rule, which was set to take effect Oct. 15. Since the State Department rule mirrors the DHS rule, the association will track any delays in implementation of the State Department rule.
Contact Senior Director of Policy Erin O’Malley at firstname.lastname@example.org or 202.585.0127 with questions.