In early November, the U.S. Department of State issued a cable for consular officials located worldwide significantly expanding the grounds of excludability for foreign applicants for U.S. immigrant benefits.

To date, the guidance for consular posts and officers has advised consular officials to rely on medical records necessary to qualify for immigrant visas including determining whether an applicant might have communicable diseases such as tuberculosis, venereal disease or AIDS. In many instances, continuing treatment has warranted favorable issuance of immigrant visas if the foreign national applicant is being affirmatively treated for the condition.

The cable confirms that the general principles of review by a consular official include assessing the ‘totality of the circumstances’ test relating to an applicant’s age, health, family status, assets, resources, financial status, education and skills. The guidance further indicates that since health conditions may require significant financial resources, consular officials are instructed to carefully review medical reports for any indication of medical conditions (physical or mental) including Class B medical conditions which might require a need for ongoing significant care, or the need for public assistance.

Medical Conditions Requiring Special Consideration for the Purpose of Denying Immigrant Visa Issuance

The cable advises that attention to specific medical conditions which might lead to serious health problems in the future, including ‘obesity’, the risk of high blood pressure, Type 2 diabetes, breathing problems, asthma, sleep apnea, joint problems, osteoarthritis, gallstones, gallbladder disease, and mental illness, such as depression and anxiety are to be considered as grounds to deny immigrant visa issuance. 

The rationale for denial given is that due to the fact that these conditions could require care that could put a strain on the individual’s financial resources and would likely create the situation where the applicant for the immigrant visa would become a ‘public charge’ and rely on public assistance in the United States. The cable specifically advises consular officials that chronic health conditions identified in the medical reports should be given special attention as they may result in the necessity for the United States to furnish expensive long-term care or hospitalization with a visa applicant unable to support themselves through employment and which might require long-term institutionalization at the government’s expense.   The consular official is further charged with assessing whether an immigrant visa applicant might expect to rely on employer-provided health insurance to cover costs, and an assessment how the visa applicant might cover such costs after retirement. 

An Expansion of Other Factors to Deny Immigrant Visas

The State Department cable also instructs consular officials that it is not inappropriate to consider an expansion of factors necessary to qualify for immigrant visa issuance based upon the education and employment history of visa applicants, including a history of low-skilled jobs which might create conditions that would result in financial insecurity and less consideration for immigrant visa issuance for individuals who might have been the recipients of public assistance outside of the United States in the past.

Financial Support and Considerations for Purposes of Immigrant Visa Denial

The cable also advises consular officials to scrutinize affidavits of support to assess the likelihood that an immigrant visa applicant might become a public charge. The cable instructs consular officials to assess all derogatory factors to determine whether a denial of visa issuance based on public charge might be warranted. While the cable appears to address immigrant visa applicants only, it cites regulations to remind consular officials that it is applicable to nonimmigrant visa holders as well, including those who might be applying for H1B and L1 visas.

While there might be exceptions for many humanitarian-based applicants, including refugees, asylees and Violence Against Women Act (VAWA) applicants in the adjustment of status process – for those applying for immigrant visa benefits in the United States -  the cable reminds consular officials that such waivers do not exist in the immigrant visa process when applicants find themselves outside of the United States and apply for immigrant vias at consular posts.

USCIS Proposes to Rescind Its Current Public Charge Regulation and Replace it with Lowering the Threshold for Consideration that One Might be Deemed Likely to Depend on Government for Benefits

USCIS will formally propose rules to rescind its current public charge rules with a proposal to significantly expand its policy in lowering the threshold for those seeking U.S. immigration benefits and permanent residents, thus reducing their ability to be granted residence. In the United States, factors to be considered will be reconsideration of how likely an immigrant will be dependent on public assistance including the receipt of public cash assistance for income maintenance or long-erm care institutionalization at government expense. 

The new test would involve consideration whether an individual will become ‘dependent on public resources to meet their needs’ and not ‘primarily dependent’ - thus allowing discretion by Immigration Examiners to make more subjective determinations regarding the ability of an individual to meet their needs. Consideration whether dependents of principal applicants receive public benefits would also be considered in factoring a conclusion whether one might become a public charge and therefore ineligible for U.S. permanent residence.  Those foreign nationals with a disability would be protected under the Rehabilitation Act and are assured, in the proposed regulation, that disability would not be used as the sole factor to consider a public charge analysis.

The new policy would also consider whether an applicant for a U.S. immigration benefit would have received, applied for or received approval for ‘any’ public benefit and this factor would be deemed negative.  Currently, recipients of the Supplemental Nutrition Assistance Program (SNAP), Children’s Health Insurance Program (CHIP), all types of Medicaid, housing benefits or benefits relating to immunization or testing for communicable disease and other supplemental or special purpose programs have not been considered factors for a determination that one would likely become a public charge.  The proposed regulations would render participation in these programs to be negative.

For Adjustment of Status Applicants 

For those individuals residing in the United States and applying for adjustment of status to permanent resident, it is expected that form I-485 Application for Adjustment of Status applications would be revised and updated to inquire regarding more  financial and health related information, as well as information regarding the assets and liabilities of applicants –  similar to the I-485 application form utilized by the first Trump administration in the 2017-2021 time frame.

Next Steps for the USCIS Proposed Rule

The public will have a 30-day period to comment on the proposed USCIS rule. A final rule would be expected relatively quickly thereafter with no time frame given.  It is likely that legal challenges will ensue.

The Tarter Krinsky & Drogin Immigration Practice will continue to monitor this situation and provide updates as additional information becomes available.