LawFlash

USCIS to Implement New Public Charge Rule; White House Introduces Health Insurance Requirement for Immigrant Visa Applicants

October 08, 2019

The US Citizenship and Immigration Services (USCIS) is preparing to implement a new rule next week that makes it more difficult for foreign nationals to extend their stay in the country or receive permanent residence if they have received public benefits. Meanwhile, the White House issued a proclamation last week to deny admission of immigrant foreign nationals that could “financially burden the United States healthcare system.”

DHS ‘Public Charge’ Rule Update and Reminder on Employment-Based Implications

As discussed in an earlier alert on August 22, 2019, the US Department of Homeland Security is preparing for the upcoming implementation of its new Public Charge rule, effective October 15, 2019. This rule makes it far more difficult for foreign nationals who have received public benefits to extend a temporary stay in the United States or receive lawful permanent residence (a green card).

Employers sponsoring foreign nationals should become familiar with the list of public benefits and consider informing their employees of the type of public benefits that may result in a finding of “public charge” inadmissibility. In addition, employers should keep in mind that the new Form I-944, Declaration of Self Sufficiency, which will be required of every applicant for a green card—including spouses and minor children of employer-sponsored green card applicants—will require significant preparation time to ensure that it is properly completed and has the appropriate supporting documentation.

Foreign nationals who apply or have applied for adjustment of status to lawful permanent residence or for a change or extension of temporary nonimmigrant status before October 15, 2019, will not be subject to the heightened scrutiny. 

In summary, the new rule states the following:

  • Applicants for adjustment of status to lawful permanent resident will be required to prove that they did not receive any applicable public benefits for more than 12 cumulative months within the last 36 months. When submitting an Application to Adjust Status (Form I-485), the applicant will now be required to submit a new form, Declaration of Self-Sufficiency (Form I-944), along with certain supporting documentation, including Internal Revenue Service transcripts and other financial documentation. A USCIS adjudicating officer has the discretion to deny the application if the officer believes that the applicant is likely to become a public charge in the future.
  • USCIS may deny an extension of nonimmigrant (temporary) stay or a change of nonimmigrant status if an applicant received one or more of the applicable public benefits for more than 12 months after initially being admitted as a nonimmigrant into the United States. Nonimmigrants will not be required to submit Form I-944.
  • In conducting a public charge review, USCIS will implement a “totality of the circumstances” test, and consider such factors as the applicant’s age, health, family status, financial status and assets, education, and skills, in addition to the receipt of any public benefits and other potentially negative factors that may demonstrate that the applicant will not be able to earn a living.

New Health Insurance Requirement for Immigrant Visa Applicants

In a separate development, the White House issued a presidential proclamation last Friday that seeks to deny admission to the United States of “immigrant” foreign nationals that will “financially burden the United States healthcare system.” The proclamation effectively makes immigrating aliens inadmissible to the United States unless they will be covered by “approved” health insurance within 30 days of their entry into the United States or have the financial resources to pay for “reasonably foreseeable” medical costs. Approved health insurance includes employer-sponsored plans, unsubsidized health plans offered on the individual market, short-term health policies effective for a minimum of 364 days, catastrophic plans, a family member’s health plan, military medical plans under Chapter 55 of Title 10 of the United States Code (including coverage under the TRICARE program), a visitor health insurance plan valid for at least 364 days, a Medicare plan, and any other health plan designated as adequate by the Secretary of Health and Human Services. Medicaid plans are not acceptable for persons over 18.

Persons holding a “valid immigrant visa” issued before November 3, 2019, are exempted from the proclamation’s requirements. Also exempted are Afghan and Iraqi holders of Special Immigrant Visas, children of US citizens, holders of IR-5 (parents of US citizens) and SB-1 (returning resident) visas, aliens under 18, unless accompanying a parent who is subject to the proclamation’s requirements, and aliens whose entries further US law enforcement objectives or are in the national interest.

The scope of the proclamation’s provisions is unclear. By its own terms, however, the proclamation’s requirements would apply only to persons seeking to enter the US as “immigrants” or permanent residents with immigrant visas. In other words, it appears to apply only to those seeking to complete the green card or lawful permanent residence process through an interview at a US consular post outside the United States. The provisions would thus not apply to persons entering the country as “nonimmigrants” to engage in temporary employment (including H-1B, L-1, TN, O-1 and E visa holders), to study (including F-1 and J-1 holders) or to visit temporarily (including persons admitted under ESTA or entering as B-1 Visitors for Business or B-2 Visitors for Pleasure). The proclamation would also seem (although this is less clear) to exclude persons who have applied for adjustment of status to permanent residence and are reentering the United States with Advance Parole documents.

The proclamation states that it will be effective on November 3 of this year; any person with an immigrant visa issued on or after this date and seeking to enter the US as an immigrant would therefore be subject to the requirement that approved health insurance be obtained or evidence of adequate financial resources be shown.

Contacts

If you have any questions or would like more information on the issues discussed in this alert, please contact any of the following Morgan Lewis lawyers:

Washington, DC 
Shannon A. Donnelly
Eleanor Pelta
Eric S. Bord

Miami 
Laura C. Garvin

San Francisco 
A. James Vázquez-Azpiri
Christina M. Gonzaga

For additional government-related guidance, learn more about our Washington strategic government relations and counseling practice.