The new Public Charge Rule is going into effect both inside and outside the United States for many immigrants applying for immigrant visas. Inside the United States, the process is called Adjustment of Status. Outside the United States, it is usually called consular processing. USCIS controls the applications for Adjustment of Status and has issued a new form I-944 Declaration of Self-Sufficiency to obtain the information required to decide if someone will become a public charge. The US Department of State has issued a new form as well, DS-5540, requiring much of the same information.

Changes to DOS Guidance on the Public Charge Rule

The US Department of State maintains the Foreign Affairs Manual (FAM), which describes its procedures and policies. The FAM has been updated to include new policies regarding the Public Charge Rule and the new form DS-5540.

The FAM guidance on the Public Charge ground is available at https://fam.state.gov/FAM/09FAM/09FAM030208.html

Pending cases will need to complete a form DS-5540

(U) Informing Applicants of Required Documentation: Post will necessarily process some cases that were documentarily qualified by NVC or KCC prior to the effective date of the public charge rule or without the DS-5540. To help ensure a smooth transition, you should make every effort to inform applicants in advance of the visa interview of supporting documents that will help you resolve a public charge determination. This could include a request that applicants complete and upload the DS-5540 to the CEAC, or bring it with them to the interview. Posts may also request applicants bring with them to the interview supporting financial documents or other documentation post knows would be relevant. Ideally, you should be in a position to assess whether applicants are ineligible for visas under INA 212(a)(4) at the end of the initial visa interview, assuming that the applicant has made reasonable efforts to submit the evidence originally requested. Applicants who you determine are more likely than not to become a public charge at any time after admission even after the presentation of additional evidence, should be refused under INA 212(a)(4) instead of INA 221(g); however, you must provide applicants an opportunity to provide a completed DS-5540 before you refuse an application under INA 212(a)(4). Adequate time and effort spent prior to and during the initial interview can save work for the post and the applicant in this respect.

The form DS-5540 may be required for nonimmigrants as well

(U) Nonimmigrants: You may request a nonimmigrant visa applicant to complete the Form DS-5540 in any case where you believe additional information is necessary to determine whether the individual’s assets, resources, and financial status are sufficient to address any concerns about eligibility on public charge grounds. Alternatively, you may ask the applicant(s) any or all of the questions from Form DS-5540 necessary for you to make the public charge determination (including orally).

Only one form DS-5540 is required for a family unit applying together

(U) Immigrant Visa Applicants: All immigrant visa applicants subject to INA 212(a)(4) must complete and submit a Form DS-5540, Public Charge Questionnaire. (If a family unit applies together, only one form is required). The DS-5540 provides information to assist you in determining whether the applicant is more likely than not to become a public charge, based on the totality of the applicant’s circumstances. Unless specified on Form DS-5540, applicants are not required to submit supporting documentation. However, if you determine documentary evidence is necessary, you may request an applicant to establish the adequacy of financial resources by submitting, for example, evidence of bank deposits, ownership of property or real estate, ownership of stocks and bonds, insurance policies, or income from business investments, as well as those of any household members.

Children under 14 need a parent to complete the form DS-5540

(U) NOTE: If the principal applicant is under 14 years of age, the DS-5540 should be completed and signed by the applicant’s parent, legal guardian, or other individual over the age of 14 with a legitimate interest in the applicant.

Applicants who are not required to submit a form I-864 may still need to complete the form DS-5540

(U) Applicants Without Sponsors: Not all immigrant visa categories require or permit the applicants to have a sponsor (e.g., the diversity visa). As in other IV cases, you should review the totality of these applicants’ circumstances to assess the likelihood of their becoming a public charge. In the case of a DV applicant, the DV program requires a certain level of education or work experience (see 9 FAM 502.6-3), which are minimum standards and must be considered in the totality of the DV applicant’s circumstances to determine his or her likelihood of becoming a public charge at any time in the future. These applicants are not permitted to submit form I-864; thus, consular officers will rely on Form DS-5540, Public Charge Questionnaire, and consider the totality of circumstances to make a public charge determination.

(U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.