The State Department intends to publish a notice in the Federal Register tomorrow, seeking emergency review of its public charge questionnaire (Form DS-5540) for visa applicants applying at U.S. consulates overseas. A prepublication version of the notice was posted today.

Key points:

  • The State Department intends to obtain approval of the visa questionnaire form from the Office of Management and Budget by Feb. 24, and implement the public charge rule on that date.
  • The visa questionnaire is a multi-page form that asks visa applicants extensive questions about their finances to determine whether they are likely to request public benefits in the U.S.
  • The agency’s reason for seeking emergency processing is that it wants to implement the rule by Feb. 24, the same date that the Department of Homeland Security (DHS) is implementing its public charge rule, and under normal procedures the visa questionnaire would not be approved in time.

Background: The State Department published its own public charge regulation for visa applicants outside the U.S., which was scheduled to take effect Oct. 15, 2019; however, it postponed implementation until the visa questionnaire was finalized. The State Department published a draft of its proposed visa questionnaire at the end of October.

Meanwhile, the DHS public charge rule that applies to applicants in the U.S. was tied up in courts, which prevented DHS from implementing it. Late last month, however, the Supreme Court lifted several nationwide injunctions, clearing the way for DHS to implement the rule while lawsuits challenging the rule proceeded in the courts, except for petitioners and applicants in Illinois where a state-wide injunction on implementation of the rule was kept in place. DHS thereafter announced it will implement its rule on Feb. 24.

The State Department is now seeking emergency approval of the visa questionnaire so its implementation can coincide with enforcement of the DHS rule. After the State Department has requested emergency approval, it is expected to publish another notice that will provide additional information.

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

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