The U.S. State Department has published a draft questionnaire to collect information from visa applicants applying at U.S. Consulates abroad to determine their potential ineligibility under the agency’s new public charge rule. The agency has stated that it will not implement this regulation until the form is finalized and approved by the Office of Management and Budget. No changes to case preparation are required at this time.

Key points:

  • The draft questionnaire is a four-page form that asks for information about the visa applicant’s health insurance coverage, household members, tax returns for the past three years, employment history, income, assets, liabilities and debts, education and skills, history of receiving public benefits and/or requesting fee waivers for an immigration benefit, and whether the applicant is likely to request or receive public benefits in the future, among other questions and attestations.
  • The questionnaire will apply to all immigrant visa applicants, including Diversity Visa lottery winners, and certain nonimmigrant visa applicants at the discretion of consular officers, and would seek information regarding public benefits requested or received by a visa applicant on or after Oct. 15, 2019.

Background: The State Department issued an interim final public charge rule Oct. 11 that was scheduled to take effect Oct. 15, but has delayed implementation while it works to finalize the visa questionnaire. Last week, the agency published a proposal that only summarized the questionnaire. The full draft questionnaire was published Wednesday. The rule is subject to a 60-day public comment period ending Dec. 23, 2019. Thereafter, the questionnaire will be sent to the Office of Management and Budget for review, a process that could take months to complete. A similar public charge regulation issued by the Department of Homeland Security that would apply to green card applicants in the U.S. has been temporarily blocked by five federal courts.

BAL Analysis: It is important to note that the State Department rule is not yet being enforced, and the draft form is not yet required at this time. If implemented, the detailed questionnaire will add significant time to visa applications and is likely to further slow down processing, as well as pose ineligibility issues for a greater number of visa applicants. The State Department rule and questionnaire are likely to be challenged in court, and implementation could be blocked by courts. BAL is closely monitoring these developments and will report new information as it becomes available.

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

Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.