State Department Reportedly Applying Expanded Health Review in Visa Applications

The State Department has issued an internal cable advising consular officers to apply a significantly broader health review when determining whether a visa applicant is likely to become a public charge of the United States, according to news outlets that have reviewed the cable. The change is likely to have the strongest impact on immigrant visa applicants applying for permanent resident status through U.S. consulates abroad since these applicants are seeking to reside permanently in the United States. Immigrant visa applicants undergo a panel physical medical exam abroad as a part of their immigrant visa application.

The expanded review described in the new State Department cable would include a much broader range of health conditions in a public charge determination, including diabetes, asthma, high blood pressure, cardiovascular disease, sleep apnea, cancer, respiratory, neurological or metabolic diseases, mental health conditions, or obesity as negative factors in a public charge review. The cable reportedly asserts that if a consular officer does not believe an applicant would have adequate financial resources to cover the cost of their medical care over their entire expected lifespan without seeking government cash assistance or long-term institutionalization at government expense, the consular officer may deny the application based on a public charge finding.

The cable also reportedly directs consular officers to:

• Consider the health conditions of an applicant’s family members who are not themselves visa applicants, in making a public charge finding about an applicant;
• Consider a wider range of public benefits currently or previously received by a visa applicant. Though the current Department of Homeland Security public charge regulation does not include government housing, food, or medical assistance in its definition of a covered public benefit, the State Department cable reportedly directs consular officers to consider these benefits as negative factors in a public charge totality test; and
• Engage in a more rigorous review of whether a visa applicant’s age, education and skills, and financial situation indicate that the applicant is likely to become a public charge at any time.

In addition, the cable reportedly reminds consular officers that the public charge ground of inadmissibility applies to nonimmigrant as well as immigrant visa applicants, though acknowledges that immigrant visa applicants will generally need to provide considerably more evidence to overcome the ineligibility ground. Currently, unless there is a concern regarding a history of substance use, nonimmigrant applicants generally are not required to undergo a medical examination or provide detailed medical information.

Public charge is a statutory ground of inadmissibility that applies to all visa applicants (both nonimmigrant and immigrant), adjustment of status applicants, and some nonimmigrants within the United States in certain circumstances. The Immigration and Nationality Act does not define “public charge” but requires a totality test of certain factors to determine if a foreign national is likely to become a public charge of the government – health, age, and financial status are among the required factors. If the government deems it likely that a foreign national will become a public charge, the government can deny the immigration benefit or status sought by the foreign national. Immigrant visa applicants are subject to a much more robust public charge review than nonimmigrant visa applicants.

While public charge in the permanent residence context has always involved review of an immigrant visa applicant’s health, that review was generally limited to screening for communicable and infectious diseases like tuberculosis and the measles, ensuring an applicant’s vaccination history is complete, and screening for a history of alcohol or drug use. The expanded review described in the new State Department cable would include a review of a much broader range of health conditions including some very common chronic but treatable conditions.

During the first Trump Administration, the U.S. government was highly focused on the public charge ground of inadmissibility, though more heavily focused on an applicant’s financial status and a broad range of public benefits the applicant had received or was receiving. In early November, the Department of Homeland Security (DHS) submitted a new public charge regulation for regulatory review, which would apply to adjustment of status applicants and possibly certain nonimmigrants seeking extensions or changes of status in the United States. The contents of the DHS rule are not known, including whether it mirrors the agency’s 2019 public charge rule. It is also possible that the new DHS rule could include content that mirrors this broader health review being implemented in the new State Department cable.

Immigrant visa applicants with health conditions listed in the cable reporting may be asked by U.S. consulates to provide more robust information and documentation regarding their financial status and ability to cover the cost of any treatment for health conditions. Applicants may need to establish and provide evidence of their employer-provided health insurance and/or additional detail regarding their general financial status.

Immigrant and nonimmigrant visa applicants may be subject to a more rigorous public charge inquiry in general, when applying for a visa. The public charge ground of inadmissibility requires a totality test of all relevant factors; generally, no one factor is determinative in a public charge finding.