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New Public Charge Law Will Also Apply to Consular Cases | Form DS-5540

| Feb 21, 2020 | Green Cards |

Applicants for permanent residence should be aware that the new public charge guidelines are intended to apply to all applicants for admission. Technically speaking, the new I-944 Declaration of Self Sufficiency and revised guidelines will be going into effect February 24, 2020, for nearly all adjustment of status applicants (that is, applicants who are applying for their green cards from within the US.)

However, the Department of State, which regulates consular cases (cases which are processed by the National Visa Center and sent to US consulates abroad), is seeking emergency OMB approval to implement its own interim final rule on public charge by the same date. The DOS’s interim rule closely aligns with DHS’s version and essentially incorporates the same calculus to be used by USCIS officers: namely, a totality of circumstances approach that takes a number of factors into consideration including the applicant’s age; health; family status; assets, resources, financial status; and education and skills. It also adopts the same heavily weighted negative and positive factors which can positively or negatively impact an officer’s determination. In both cases, what we are seeing here is a dramatic shift in focus from a sponsor’s financial ability to support the intending immigrant to the applicant’s ability to take care of him/herself and not rely on government assistance. Going forward, whether in the context of a consular case or adjustment of status application, the I-864 Affidavit of Support-while still relevant-will no longer carry the dispositive weight it once had.

As part of the new process, intending immigrants abroad will likely have to complete a new form intended to address their financial health and viability. In fact, the Department of State has already released a draft version of Form DS-5540 which will likely its version of USCIS’s Form I-944. Thankfully, it does not appear as onerous or invasive as its domestic counterpart, but that is little consolation considering how much information it does ask, as well as documentation which will likely be required. DS-5540 requires applicants to disclose the following:

· Household size, including names, ages, jobs of each member

· US income tax information and whether the applicant has filed taxes within the      last three years

· The applicant’s assets (value in US dollars)

· The applicant’s debts/liabilities (value in US dollars)

· Whether the applicant has requested or received certain public benefits

· The applicant’s education and skills

Although the form is only four pages, compared to the I-944 (which consists of eighteen pages), it virtually requests the same information as the I-944 and will likely prove as problematic for intending immigrants abroad.

With all these changes, we are headed into unknown territory fraught with uncertainty and unpredictability. Applicants who are young, unemployed, elderly, or suffering from medical issues should be prepared to encounter resistance and adequately demonstrate how any positive factors outweigh the negative factors.

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.

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