The Department of Homeland Security (DHS) has posted on its website the text of its much-anticipated proposed rule redefining the term “public charge.” The immigration law allows U.S. Citizenship and Immigration Services (USCIS) and the Department of State to conclude that an applicant for a temporary or immigrant visa (“green card”) is inadmissible if he or she “is likely at any time to become a public charge.”

The statute at INA § 212(a)(4) requires the consideration of the foreign national’s (1) age, (2) health, (3) family status, (4) assets, resources, and financial status, and (5) education and skills. The visa applicant will likely be required to identify and document employment history, education and training, current and prior income, any offers of employment, health conditions that would affect employability, enrollment in health insurance, and assets or resources. The rule, if implemented as proposed, would make it much more difficult for those who have a spotty employment history, are low income or underemployed, retired, disabled, or suffering from a medical condition that affects their employability.

Stemming from a 2017 Trump Administration executive order encouraging “extreme vetting” of immigrants and refugee applicants, the agency’s proposed rule would significantly alter the way USCIS officers screen for potential public charge of adjustment of status (“green card”) applicants or of nonimmigrants, including H-1B, O-1, and TN visa holders applying for an extension or change of status. Once finalized, the rule would also affect how consular officers screen for public charge for both immigrant and nonimmigrant applicants, since the Department of State traditionally joins in USCIS interpretations of grounds of inadmissibility.