The U.S. Department of State on Oct. 10 announced it would conform its public charge guidelines to the version of the rule issued by the U.S. Department of Homeland Security (DHS). The two federal agencies currently apply the rules differently to green card and visa applicants outside the United States (evaluated by the State Department) and to those within the United States (assessed by DHS).
The State Department move came right before two federal judges ordered the Trump administration to temporarily delay implementing the DHS public charge rule, just days before the rule was due to take effect on Oct. 15. The State Department’s version of the rule, modified in January 2018 and since applied in its current form for applicants abroad, isn’t directly affected by those court rulings. The revised State Department policy — an interim final rule published in the Federal Register on Oct. 11 — is currently still expected to take effect on Oct. 15.
“The State Department is publishing a complex new regulation on the Friday before a three-day weekend, going into effect the following Tuesday with consular officers worldwide, who have apparently gotten no prior training or guidance,” said Boundless co-founder and former White House immigration policy official Doug Rand. “The technical term for this is ‘insane.’”
Both the DHS and State Department versions of the public charge rule allow government officials to refuse green cards and other visas to applicants they believe might be unable to support themselves once in the United States, based on their health, financial situation, English proficiency, and other factors.
Legal experts are still poring over the newly issued regulation, which is intended to harmonize the two agencies’ policies and provide consistent evaluation guidelines for would-be immigrants.
“It remains unclear, however, whether the State Department will revoke its January 2018 changes to the Foreign Affairs Manual that were in many ways more expansive than the DHS public charge rule,” Rand said.
There are early signs that the State Department won’t be using the harmonization process to water down its existing implementation of the public charge rule. In fact, the new version of the rule states that one goal of the alignment is to avoid situations where consular officers might be lenient, granting visas to applicants who otherwise would be refused entry to the United States under the DHS version of the public charge rule.
Plenty of other questions remain unanswered, with the new interim State Department guidance lacking clarity regarding which green card or visa applicants will be required to complete the new Form I-944 (“Declaration of Self-Sufficiency”). This form, a lengthy set of questions published this month by DHS (and since removed from the U.S. Citizenship and Immigration Services website since the DHS public charge rule was blocked), requires applicants to provide detailed information about their family’s financial situation, as well as the other complicated new factors weaved into the public charge test, such as English proficiency, public-benefits use, and professional background.
While the State Department appears determined to press ahead with its new version of the public charge rule, there’s still time to weigh in: The government will accept public comments on the new rule until Nov. 12.
Is your application in danger of denial under the public charge rule?
If you need legal advice on these issues, the American Immigration Lawyers Association (AILA) can help find a licensed immigration attorney near you.
Alternatively, the U.S. Department of Justice accredits certain non-profit organizations that provide low-cost or free immigration legal services.