Starting from Today, October 15th, 2019, US Department of State will apply new public charge rule guidelines to assess all visa stampings done at US Consulates and Embassies across the world. In short, from today, the Consular Officer or Visa officer assessing your US Visa application, during visa interview, will evaluate your application based on new public charge guidelines, before issuing you visa. To clarify, this new rule is NOT blocked by the court and different from the recent DHS/ USCIS public charge rule that was blocked by court. In this article, we will cover the background and what the new public charge rule says and what Visa officers would look at, when someone attends visa interview.
Update : On Oct 24th, US Department of State, updated their alert indicating that they have published a rule with 60 days comment period from public for collecting info for Public Charge Questionnaire, before they roll out the public charge rule for visa stampings. Check Federal Register Public Charge Questionnaire. So, at this point of time, the visa applicants can follow their process and do not have do anything. Dept of State will inform, once the form is published and new rule takes effect. See below screenshot on the updated ruling and update on State.gov
Background of the US Visa Stampings Public Charge Rule :
In August 2019, DHS published Public Charge Rule that could impact many living in US on a visa and applying for green cards, including H1B, H4, L1, F1 and many other visa types planning for extensions and changes of status applications. That public charge rule created a lot of concerns to many and public outcry as it would impact many foreigners living in US. Many states filed a lawsuit with injunction order to block the same to go into effect from Oct 15th. After the court process like oral arguments, nationwide injuction order was given to block the public charge rule from going to effect from today, Oct 15th. Also, around the same time, on October 11th, 2019, before the court order to block the DHS/ USCIS Rule was issued, a similar New Public Charge Interim final rule was published by US State Department that changes the way US Consulate officers would review visa applicants applications for Visa issuance at US Consulates/ embassies. Though the public charge rule by DHS was blocked, the public charge rule issued by State Department is not blocked and is in effect. We can still see the News Alert on their website as well ( see below screenshot). Check State.gov Public Charge Alert
Who all does the New Public Charge Rule for US Visa Stampings impact ?
The public charge rule issued by US Department of State impacts most of the general Immigrant and Non-immigrant Visa types such as H1B Visa, H4 Visa, L1 Visa, B1/B2 Visa, F1 Visa, etc. unless they are explicitly exempted by congress for categories such as refugees, asylees, etc.
What is the New Public Charge Rule for US Visa Stampings or US Visa Issuance at Consulates ?
The new public charge rule for US visa stampings modifies the existing rule to add most of the new public charge rule provisions that were part of the August 2019 public charge final rule published by DHS. Below is the overall methodology that would be used by Consular officer to assess for public charge.
Public Charge Rule Assessment Method for Visa Issuance by US Consulate:
The US Visa Consular officer would assess the US Visa applicant based on below aspects of visa applicant:
- Family Status
- Assets, resources, and financial status
- Education, Skills
- US Visa Type seeking by the candidate
- Affidavit of Support (where applicable)
- Previously taken public benefits
Above aspects will be considered as general factors and also will be categorized as “Heavily weighted Factors”. Depending on the category, they may be classified as below
- Heavily weighted negative factors
- Heavily weighted positive factors.
Based on all the factors, positive or negative, the consular officer would look at the totality of the application and assess the individual for public charge, before they issue US visa.
US Visa Officer – Public Charge Assessment Factors, Details – What will they look ?
Below are additional details on how the Visa officer would look at each of the factors of the individual and assess them as positive or negative for visa issuance.
- US Visa Applicant’s Age: Individuals with age between 18 and 62 are considered as positive factor. If the individual is under 18, then it is a negative factor and the consular officer would look at the parent’s financial ability to support them with education, health insurance, etc. Similarly, if above 62 as the person cannot work, it is a negative factor as they cannot work and would weigh in that for overall assessment.
- US Visa Applicant’s Health: The visa officer would look at applicant’s health aspects and if they would become a public charge in future. They would look at aspects such as health insurance to cover any health-related expenses, etc. Also, other aspects of assets, family financial status would also be considered to look at potential to cover medical costs.
- US Visa Applicant’s Family Status: The visa officer would look at if the individual has a household to support or they are supported by another household. The size of the household, the income of the household. The annual gross income of the household should be 125% of the federal poverty guidelines for positive factor. The overall family status, other members situation would be considered in totality for the public charge determination.
- US Visa Applicant’s Assets, resources, and financial status : The overall household assets and if their financial status in terms of gross income having 125% over federal poverty line would be considered positive factor. They would look at the visa applicant’s private health insurance and other financial resources to cover their medical expenses. As it is not mandatory to have credit score for non-US residents, it would not be considered.
- US Visa Applicant’s Education, Skills : They would look at the applicant’s education and skills, if they have high school diploma or higher, if they have any certifications, professional licenses, etc. and treat them as positive factors as data suggests that such individuals would be self-sufficient and not become a public charge.
- US Visa Type seeking by the individual: The consular officer would look at the visa type that is applied by individual and assess accordingly. For example, the public charge assessment for B1 visa applicant to attend business meeting would be different from H1B visa holder seeking to work in US. Also, it would be even more different for someone seeking to enter on immigrant visa and permanently reside in US…The visa officer would look the context of the individual and assess based on that.
- Affidavit of Support (where applicable) : It would be a positive factor, if there is non-fraudulent affidavit of support, when required.
- Previously taken public benefits : The visa officer would look, if the applicant has taken any public benefits as per the new guidance and then treat that as a factor as well. If taken, it would be negative factor, if not taken, it is a positive factor.
Heavily Weighted Factors for Public Charge Determination
The visa officer would look at certain factors and treat them as heavily weighted factors for the assessment. Below are the classification of such factors:
- Heavily Weighted Negative Factors:
- Lack of Employment or future employment: If the applicant is not a full-time student and authorized to work in their residence country, but not having employment, employment history or prospect of future employment, then it would be a heavily weighted negative factor.
- Previous Public Benefits: If the applicant has received any public benefits from Oct 15, 2019 for more than 12 months in a given 36-month period, it is a heavily weighted negative factor.
- Lack of private health insurance to pay medical bills : If the individual does not have private health insurance and does not have plans/prospects to take such private health insurance, then it is a heavily weighted negative factor as they would not be able to cover medical costs.
- Prior Public Charge Inadmissibility or Deportability : If the individual has a past history of public charge or deportability in US, then they will be heavily weighted negative factors.
- Heavily Weighted Positive Factors:
- Household Income, Assets at least 250 percent of Federal Poverty Guidelines : If the household income of the applicant and the overall household financial assets are at least 250 percent of federal poverty guidelines, then it is considered a heavily weighted positive factor. For a family of four, it is about $62,000 as per current guidelines.
- Work authorization – Income at least 250 percent of Federal Poverty Guidelines: If the individual has work authorization to work in US and has income of at least 250 percent of federal poverty guidelines, then it is considered a heavily weighted positive factor.
- Private health insurance: If the individual is covered by private health insurance and not by any of the Obamacare/ premium tax credits under Affordable Care Act, then it is considered as a heavily weighted positive factor.
- Benefits Received before Oct 15, 2019 : If the applicant has taken any of the public benefits as classified in the public charge rule, in the past, which is before October 15th, 2019, then it would be treated as a negative factor, but not as a heavily weighted negative factor.
The definitions of Public Charge and Public Benefit are same as in the public charge rule from Aug, 2019. Read : Public Charge Rule from DHS – Public Benefits Details
Are there any additional Steps or Forms to be filled, when you go for Visa Stamping?
No, at this point of time, Dept of State has clearly indicated that there is no need to fill out any forms or do any additional paperwork for this new rule implementation. They mentioned that they will inform applicants, if any new changes are done to the process.
Are H1B Visa Holders, L1 Visa Holders, B1 Visa Holders, etc. Impacted with this ?
Yes, all of these visa holders are impacted with the new rule. They have clear reference in the rule, where they indicate that the way they assess H1B holder would be different from the way they assess B1 visa holder. See below. The changes are done for the public charge rule section and references all visa types non-immigrant and immigrant visa types.
As of today, no new procedures are there in place for Visa Stamping. When US Dept of State pushed these new public charge rules for consulates, they were under the assumption that DHS/USCIS public charge rule would also go in effect as planned on Oct 15th, 2019. With court interference and blocking of the DHS/USCIS Public charge rule, Dept of State is now stuck with their guidance given to their Consulates…we need to wait and see how they will play it out now…
What are your thoughts on the Visa Stamping Public Charge Rule ? Share your thoughts in comments.