At a glance
- The State Department will request the Office of Management and Budget to make an emergency review of its public charge questionnaire in an effort to begin implementing its public charge rule on February 24.
- If expedited review is granted and completed before February 24, State Department implementation would coincide with the Department of Homeland Security's enforcement of its public charge rule on that date.
- There is no immediate impact to visa applicants. Once the State Department begins applying its public charge rule, nonimmigrant and immigrant visa applicants will be subject to increased scrutiny as to whether they might become a public charge of the U.S. government.
The State Department will request expedited review from the Office of Management and Budget (OMB) of its DS-5540 public charge questionnaire, to be used by consular officers in determining the admissibility of visa applicants under the agency's new public charge rule. The rule, which would impose a higher standard on visa applicants to establish that they are not likely to become a public charge of the U.S. government, had been set to take effect on October 15, 2019, but the agency delayed implementation while it develops a new public charge form. The State Department will publish another Federal Register notice when it officially requests emergency review of the form.
Public comments on the draft questionnaire were accepted by the State Department through December 23, 2019. The form was then submitted to the OMB for final approval, which can typically take several months. By requesting emergency OMB review of the form, the State Department hopes to expedite this time frame to coincide with the Department of Homeland Security's public charge implementation date. The DHS public charge rule is scheduled to take effect on February 24 in all U.S. states except Illinois, after the Supreme Court lifted the last remaining nationwide injunction that temporarily barred its implementation.
The State Department public charge rule has been challenged in federal court as well, but is not enjoined from taking effect.
The public charge questionnaire
The draft version of the DS-5540 questionnaire requests information about an applicant's income, financial assets and liabilities, health insurance coverage, and receipt of public benefits, among other questions. As proposed, it would be mandatory for immigrant visa applicants, including diversity lottery applicants. For nonimmigrant visa applicants, the questionnaire would only be requested at the discretion of the consular officer. The final version of the questionnaire will only be available after it clears OMB review.
Health insurance presidential proclamation still barred
A separate presidential proclamation requiring that immigrant visa applicants demonstrate they will have health insurance within 30 days of entry to the United States or the financial resources to pay for reasonably foreseeable medical expenses is currently barred from taking effect as litigation challenging the proclamation continues.
What this means for visa applicants
The DS-5540 public charge questionnaire is not yet finalized, so there is no immediate impact to visa applicants. However, once the form is finalized and the State Department begins public charge implementation, visa applicants – especially immigrant visa applicants – will be required to submit more detailed financial information and documentation in support of their visa applications at U.S. Embassies and consulates.
Fragomen is closely monitoring all public charge implementation and will provide updates as new information becomes available.
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