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WHAT IS THE NEW PUBLIC CHARGE RULE AND HOW DOES IT IMPACT CONSULAR PROCESSING APPLICATIONS?

WHAT IS THE NEW PUBLIC CHARGE RULE AND HOW DOES IT IMPACT CONSULAR PROCESSING APPLICATIONS?

Since the end of February 2020 applicants who apply for lawful permanent residence (a “green card”) either through the Department of State or who are here in the U.S. and apply with U.S. Citizenship and Immigration Services – are subject to a new rule to decide who is considered a “Public Charge” (someone who is likely to need financial help from the U.S. government) at any time in the future. They will use information about your past to determine whether you could become a “Public Charge.”

The immigration laws as they are written require applicants who apply for a green card through consular processing (or outside the country) to demonstrate financial self-reliance.  This used to be done solely by demonstrating that the applicant has a petitioner and/or sponsor who is willing to essentially sign a binding contract that he or she will not allow the applicant to become a financial burden to the U.S. government (solely through Form I-864).

The new public charge rule now focuses on the immigrant visa or non-immigrant visa applicant and not the sponsor.  In addition to Form I-864, Affidavit of Support, discussed above, applicants must file Form DS-5540, Public Charge Questionnaire. This form is used for any and all visa applications at the consulate and not just applications for permanent residence.  The form looks at whether the applicant has the ability to become financially self-sufficient. However, generally speaking, the new public charge rule is applicable to all family-based applications.

A public charge now means someone who is likely to receive certain government public benefits at any time in the future.  The immigration office will look at many factors to determine whether the applicant will become a public charge.  The office will look at the following:

  • Age – whether the applicant is at an employable age;
  • Health – whether an applicant has a medical condition that impacts care, school attendance, or ability to work;
  • Family Status –whether the applicant has a large household size (smaller households would be considered better);
  • Assets and Financial Status –is the applicant’s household income 125% above the federal poverty level and can cover his or her own medical expenses, evidence of bank statements, proof that he or she has not received public benefits, and can he or she submit proof of private health insurance;
  • Education and Skills –whether the applicant has adequate education and skills to maintain employment (must show high school diploma, English language proficiency, employment history, occupational skills certificates); and
  • Visa Classification Sought and Expected Period of Admission – non-immigrant visa holders are considered less likely to become public charges than immigrant visa holders and as a result immigrant visa applicants need to submit more proof; and
  • Signed Affidavit of Support – proof that the applicant has a financial sponsor (Form I-864 discussed above).

Applicants will be required to bring documents to the interview showing that he or she meets the above standards. It is still unclear how much weight the Department of State will place on each factor listed above.  There are still a lot of things unknown.  Unfortunately, when an applicant is applying for an immigrant visa or nonimmigrant visa from the consulate if he or she is found to be a public charge there is no waiver to overcome this.   Immigration attorneys will learn more about how the new rule is interpreted as the year progresses. To further discuss consular processing and the DS5540, feel free to call Kasturi Law, LLC at 630-392-8101.

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