U.S. Consulates to Consider Age, Health, and Financial Status of Visa Applicants Beginning October 15, 2019
The Department of Homeland Security will be implementing its new Public Charge regulation next week impacting individuals filing I-129 petitions for nonimmigrant workers, I-539 applications for nonimmigrants, and I-485 applications to adjust status. Today, just 4 days before implementation, the State Department is following suit by issuing its own interim final rule directing consular officers to assess the public charge ground of inadmissibility in the same way as USCIS. Beginning October 15, during the visa application process at a U.S. consulate or embassy, consular officers will make a more thorough determination regarding whether a visa applicant is likely to become a public charge and thus ineligible for a visa. This applies to most visa types, including business and employment visas.
Background: The Immigration and Nationality Act renders inadmissible (and therefore ineligible for a visa, ineligible for admission to the United States, and ineligible for adjustment of status) any alien who, in the opinion of a consular officer (or the Departments of Homeland Security (‘‘DHS’’) or Justice (‘‘DOJ’’), as applicable) is likely at any time to become a public charge. The statute does not define the term ‘‘public charge.’’
In accordance with the new rule, consular officers will at the time of visa application take into account factors, including the alien’s age; health; family status; assets, resources, financial status; and education and skills.
Age: Consular officers will consider whether the alien’s age makes the alien more likely than not to become a public charge in the totality of the circumstances, such as by impacting the alien’s ability to work. Consular officers will consider an alien’s age between 18 and 62 as a positive factor.
Health: Consular officers will consider whether the alien’s health serves as a positive or negative factor in the totality of the circumstances, including whether the alien has been diagnosed with a medical condition that is likely to require extensive medical treatment or institutionalization or that will interfere with the alien’s ability to provide and care for himself or herself, to attend school, or to work (if authorized).
Assets, resources, and financial status: Consular officers will consider several nonexclusive aspects of the alien’s assets, resources, and financial status. Annual gross income for the applicant’s household size of at least 125 percent of the most recent Federal Poverty Guidelines based on the applicant’s household size, is a positive factor. If the applicant’s annual household gross income is less than 125 percent of the most recent Federal Poverty Guidelines, the applicant can submit evidence of ownership of assets, which may affect the consular officer’s determination. Consular officers will also consider listed public benefits received.
Education and skills: Consular officers will consider both positive and negative factors associated with whether the alien has adequate education and skills to either obtain or maintain lawful employment with an income sufficient to avoid being likely to become a public charge. In assessing whether the alien’s level of education and skills makes the alien likely to become a public charge, the consular officer must consider, among other factors, the alien’s history of employment, educational level (high school diploma, or its equivalent, or a higher educational degree), any occupational skills, certifications, or licenses, and proficiency in English or proficiency in other languages in addition to English.
The interim final rule adds that consular officers will also consider the visa classification sought. For example, a consular officer’s public charge analysis of an applicant for a B–1 nonimmigrant visa, who plans to attend a week-long business meeting, would differ from a longer term nonimmigrant applicant, such as an H–1B nonimmigrant specialty worker, who would reside and work in the United States for years at a time, and would differ even more from an immigrant visa applicant who intends to reside permanently in the United States and may not have prearranged employment. In this respect, the visa classification, including the purpose and duration of travel, are relevant to assessing the likelihood that an alien would avail himself or herself of public benefits (noting that in many cases visa applicants may not be eligible for public benefits in the United States), and therefore consular officers must evaluate these factors on a case-by-case basis.
Reddy & Neumann, P.C. anticipates that most employment-based nonimmigrants applying for high-skilled U.S. work visas should not be found inadmissible under public charge grounds. Typical applicants for H, L, E, O, and TN visas likely possess the necessary education, skills and income for visa eligibility. As this rule is implemented next week, employment-based applicants appearing at visa interview should be prepared to confirm to the consular officer that they will be covered by the U.S. employer’s health insurance benefits. For more information contact firstname.lastname@example.org.
By: Emily Neumann
Emily Neumann is the managing partner at Reddy & Neumann, P.C. and is responsible for the overall functioning of our firm. She consults with company Legal and Human Resources teams to provide top-notch client service and advice regarding their temporary and permanent work visa sponsorship needs among new hires, current employees, and their families.