As we discussed last week, the Department of State took swift action to implement its own Final Rule on Public Charge Inadmissibility. Since February 24, 2020, all consular immigrant visa cases are now subject to the new guidelines, the intent of which are to essentially deny admission to individuals who are likely to become dependent on the government for assistance. Going forward, applicants will now to have complete the DS-5540 as part of the immigrant visa process. On that form, the applicant must disclose his/her household size; assets; debts/liabilities; and education/skills, among other things. In addition, applicants should be prepared to furnish supporting documentation including but not limited to proof of health insurance and tax return transcripts if the applicant filed taxes in the US. (If a family unit is applying together, only one DS-5540 is required.)
One question which individuals currently awaiting their interviews are grappling with is whether they too will be required to complete this new form. In particular, these are applicants who have already finished submitting their documents to the National Visa Center via the CEAC system and received “completion letters.” As of this writing, the anecdotal evidence seems to indicate that those whom NVC has already found to be “documentarily qualified” have not been asked to complete the questionnaire. Understand, however, that the rule just became effective on February 24, and procedures are subject to change to align with the new policy.
The prudent course of action for all applicants, regardless of whether NVC has found them documentarily qualified, is to be ready to submit the DS-5540 if necessary. Even if awaiting an interview, it is entirely possible that some applicants may be contacted before their interviews to complete the DS-5540 and upload it to CEAC, or bring with them to the interview. It is also very likely that some applicants will be asked to complete the questionnaire at the end of the consular interview if an officer determines that there is a public charge issue.
It should be noted that although the DS-5540 is mainly applicable to immigrant visas, consular officers are also authorized to require those applying for non-immigrant visas to complete if there are any public charge concerns.
In short, anybody who is not already a US Citizen intending on coming to the US should expect to undergo the Administration’s immigration “wealth test.” Even lawful permanent residents are not necessarily exempt from this ground of inadmissibility and can, under certain circumstances, potentially trigger legal questions as to their admissibility.
The public charge regulations are extraordinarily complex, with different rules coming from different sources and different rules applying within different contexts. To understand how this new rule impacts you or a family member, please contact our office for a Public Charge Consultation. The above is general information only. It is not specific legal advice nor intended to create an attorney client relationship. If you need advice, please consult with an attorney.