This morning, the Department of State posted an interim final rule on public charge. We are still analyzing the rule, but wanted to share some points.


** State Department Issues Public Charge Rule
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Dear Allies,

This morning, the Department of State (DOS) posted an interim final rule ([link removed]) on public charge. As expected, the DOS rule attempts to align “public charge” policy at consular offices abroad with public charge policy in the U.S. under the final Department of Homeland Security (DHS) rule.

Both the DOS and DHS rules are scheduled to go into effect on Oct. 15, 2019. An interim final rule allows an agency to print a final rule directly, while still providing an opportunity for public comment. The DOS rule will have a 30 day comment period, starting when it is posted formally in the federal register in the next few days.

We are still analyzing the DOS rule, but wanted to share a few main points:
* Who is affected? The DOS rule affects non–U.S. citizens who go through consular processing in their home country before entering the U.S. This includes people seeking nonimmigrant visas, including tourist or employment-based visas, and people seeking to be admitted to the U.S. as lawful permanent residents. The changes also could affect green card applicants who are required to leave the U.S. to seek status through consular processing. In contrast, the DHS rule affects immigrants applying for admission to the country or lawful permanent resident (LPR) status inside the US.

* How does this intersect with the January 2018 FAM guidance? The DOS rule will be their new policy and “supersedes all prior inconsistent guidance on public charge visa ineligibility,” including January 2018 changes to the Foreign Affairs Manual ([link removed]) .

* How does the DOS rule align the DOS public charge test with the DHS public charge test? In both rules...
+ “Public charge” is defined as an immigrant “who receives one or more public benefits for more than 12 months in the aggregate within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months’ worth of benefits).”
+ Receipt of benefits by a family member will not be considered.
+ Benefits received in other countries will not be considered.
+ Benefits (other than cash assistance or long-term care) used before October 15, 2019 will not be considered.
+ Starting October 15, the benefits considered and not considered are the same in both rules.
+ Receipt of named benefits will just be one factor in the broader totality of circumstances test which considers an applicant’s age, health, family status, income and resources, education and skills.

We will be in close touch over the next few days as we prepare for several possible scenarios. In addition to the start of the DOS comment period, there are still 9 cases challenging the DHS public charge rule ([link removed]) and it’s possible a judge may issue a preliminary injunction as early as this week. As the news unfolds, we will be updating our PIF documents on public charge and sharing them with all of you.

We appreciate all of you for keeping at this work every day despite the growing list of challenges we face. Together we will grow stronger in the fight to achieve our vision: a nation where all are truly equal, immigration is recognized as a strength, and no one in America is denied the essentials of life because of where they were born.

Best regards,

Madison Allen (Center for Law and Social Policy), and
Sonya Schwartz (National Immigration Law Center), on behalf of the Co-chairs of the Protecting Immigrant Families Campaign

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