State Department publishes proposal for “public charge” questionnaire for visa applicants

24 Oct 19

UNITED STATES

The U.S. State Department has proposed a questionnaire seeking information from visa applicants about their potential ineligibility on the basis of the agency’s new “public charge” rule. The questionnaire has not been published yet, and is forthcoming.

Key points:

  • The questionnaire will apply to immigrant visa applicants, including Diversity Visa lottery winners, and certain nonimmigrant visa applicants, and would seek details about applicants’ ability to support themselves while in the U.S. without relying on public benefits. Applicants will be asked about their health, family status, assets and resources, financial status, education, skills, health insurance coverage, tax history, and whether they have received certain public benefits on or after Oct. 15.
  • The notice proposing the questionnaire will be subject to a 60-day public comment period ending Dec. 23, 2019. Thereafter, the proposed form will be sent to the Office of Management and Budget for review.
  • The State Department’s public charge rule and questionnaire are likely to be challenged in court and could be blocked by courts. A similar public charge rule issued by the Department of Homeland Security that covers immigrants applying within the U.S. has been blocked from taking effect by five federal courts.

Background: The State Department issued an interim final rule on Oct. 11 to take effect Oct. 15, but later announced it would delay implementation while it worked to finalize the visa applicant questionnaire. The rule was intended to align the State Department’s public charge inadmissibility standards for visa applicants applying at U.S. missions abroad with new public charge rules issued by the Department of Homeland Security for applicants within the U.S. But the same day the State Department issued its rule, federal courts blocked implementation of the DHS public charge rule. Federal courts in California, Illinois, Maryland, New York and Washington have enjoined the DHS rule from taking effect while the lawsuits proceed. Although those lawsuits and injunctions did not include the State Department’s public charge rule, the State Department rule is likely to face lawsuits and may be similarly enjoined from taking effect.

BAL Analysis: At this time, the State Department’s public charge rule and forthcoming questionnaire for visa applicants (Form DS-5540) have not yet been implemented. The 60-day public comment period and OMB review process mean that implementation is likely to take months and the rule would take effect in 2020 at the earliest. Visa applicants applying at U.S. consulates abroad should be aware that if the State Department rule takes effect, consular officers will use the information on the questionnaire to determine if visa applicants are likely to become a public charge and therefore ineligible for a visa. BAL is closely monitoring this rule and the questionnaire that is expected to be released soon, as well as litigation that may be filed to stop implementation of the rule. BAL will provide updates on developments as information becomes available.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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