On August 21, Judge Jeannette Vargas, writing for the U.S. District Court for the Court of the Southern District of New York, vacated the Department of State’s (DOS) January 14, 2026, policy suspending, effective January 21, 2026, the issuance of immigrant visas to nationals of 75 countries.1 The policy explained that DOS deemed aliens from those 75 countries to pose a high risk of utilizing welfare or becoming public charges, which is a ground of inadmissibility to the United States under the Immigration and Nationality Act (INA).
The 75 countries were selected in accordance with public assistance and welfare-use statistics from the Council of Economic Advisors, which calculated the percentage of immigrant households receiving some form of public assistance by country of origin. All countries restricted were nations where the percentage of households receiving assistance in the United States was great than 30 percent (with the exception of certain countries for foreign policy reasons).
Judge Vargas concluded, however, that the policy was contrary to law because it violated the INA’s prohibition against restricting immigration benefits from aliens “based solely on their nationality”. Moreover, Judge Vargas held that the policy unlawfully overrode consular officer discretion and decision-making authority that must dictate whether an immigrant visa is granted or denied.
DOS wrote that the visa restriction was intended to be a “pause” in issuances while the department undergoes “a full review of all policies, regulations, and guidance to ensure the highest level of screening and vetting of every visa applicant”. Its announcement instructed officers to continue to conduct interviews and fully assess each applicant for all possible ineligibilities, but that noted that “Applicants from these countries are at a high risk for becoming a public charge and recourse to local, state, and federal government resources in the United States.”
Section 221(g) of the INA governs when consular officers must refuse a visa. That provision includes when an alien is inadmissible under section 212 of the INA, or any other provision of law, or when the alien fails to establish his or her eligibility to receive the visa. Section 212(a)(4)(A) of the INA goes further to render an alien inadmissible if they are “likely at any time to become a public charge”.
Congress did not define the term “public charge” or how the federal government should interpret the phrase “at any time likely to become a public charge”. Congress, however, has required that the government consider at least five specific factors when making this determination. These factors are an alien’s (1) age; (2) health; (3) family status; (4) assets, resources, and financial status; and (5) education and skills. The executive branch and numerous courts have interpreted this inadmissibility ground to require a totality of the circumstances analysis, meaning that, generally, no one factor should be determinative of whether an alien is inadmissible under INA § 212(a)(4), other than a qualifying affidavit of support if one is required.
I recently wrote about DHS’s rulemakings and guidance governing their public charge inadmissibility determinations. Its guidance, however, does not bind DOS consular officers’ adjudications abroad.
DOS’s visa issuance restriction applied to all aliens from these countries, regardless of the specific immigrant visa category. The INA, however, also provides that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”.
The pause in visa issuances was reminiscent of the Biden administration’s 100-day deportation pause that was announced on January 20, 2021, to allow DHS to “conduct a review of policies and practices concerning immigration enforcement”. That policy was quickly challenged by the State of Texas and enjoined by a federal court in Texas v. United States, et al., 6:21-cv-0003 (S.D. Texas). Writing for the District Court for the Southern District of Texas, Judge Drew B. Tipton found that the pause conflicted with the APA and removal requirements in INA § 241.
End Note
1 The 75 countries identified in the announcement are Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, The Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia and Herzegovina, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Cote d’Ivoire, Cuba, Democratic Republic of the Congo, Dominica, Egypt, Eritrea, Ethiopia, Fiji, The Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyz Republic, Laos, Lebanon, Liberia, Libya, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, North Macedonia, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan, and Yemen.