Law Office of Joseph Muller

USCIS Updates Policies Related to False Claims of U.S. Citizenship

Last updated on May 3, 2020

Paperwork

USCIS announced changes to its policy manual on April 24, 2020. These changes relate to “false claims to U.S. Citizenship,” a type of issues that many prevent immigrants from entering the United States or becoming Lawful Permanent Residents. It can also result in removal (deportation) as well as other negative effects. These changes are the first implementation of USCIS’ guidance on this subject into the USCIS Policy Manual, which is slowly replacing the Adjudicator’s Field Manual.

This guidance is primarily for adjudicators to decide whether or not an applicant has made a false claim to U.S. Citizenship, but it is also very useful for attorneys and others who want to understand how USCIS will be enforcing the often-confusing immigration laws. One of the most noteworthy changes is that USCIS is formally implementing the Board of Immigration Appeals decision in Matter of Zhang, 27 I&N Dec. 569 (BIA 2019). That opinion generally stated that there was not an intent requirement for establishing that someone has made a false claim to U.S. Citizenship. That means that it is easier for the government to deny people for false claims because they do not have to establish every individual person’s intent.

There are still a number of other components to determining whether or not a false claim has been made. Immigrants and legal practitioners should not necessarily concede a false claim finding and should argue that claims must still be willful and knowing. They may also want to argue outside the statute itself with due process and constitutional claims. Notably, Matter of Zhang did not overtly overrule any precedent decisions and the facts of the case are extremely unusual, essentially involving the purchase of a legitimate but unlawfully obtained certificate of naturalization. Most false claims instead involve oral or written statements of one kind or another, such as to a border patrol officer or in a form I-9.

Review the changes at the USCIS Policy Manual, Volume 8, Part K.

Matter of Zhang, 27 I&N Dec. 569 (BIA 2019)Download

USCIS Allowing Flexibility for Changes of Status Requests

Last updated on May 3, 2020

US Citizenship

USCIS announced on April 13, 2020, that a certain level of flexibility will be applied, on a case-by-case basis, in processing changes of status and late applications. It is still important to timely-file if at all possible, but in certain circumstances, such as someone becoming ill and unable to file a request, those requests might still be accepted. Applicants should not assume that this flexibility will be granted automatically, but instead should provide evidence of the particular circumstances in their case.

These allowances are already permitted under existing law and regulations. Additionally, USCIS is allowing entrants on the Visa Waiver Program to obtain an extension called “satisfactory departure” if they are unable to leave. Because of the serious impact that late departure can have on future immigration options, it is always important to speak with an attorney in these kinds of situations.

Read the full announcement below.

The Department of Homeland Security (DHS) recognizes that there are immigration-related challenges as a direct result of the coronavirus (COVID-19) pandemic. We continue to carefully analyze these issues and to leverage our resources to effectively address these challenges within our existing authorities. DHS also continues to take action to protect the American people and our communities, and is considering a number of policies and procedures to improve the employment opportunities of U.S. workers during this pandemic.

Generally, nonimmigrants must depart the United States before their authorized period of admission expires. However, we recognize that nonimmigrants may unexpectedly remain in the United States beyond their authorized period of stay due to COVID-19. Should this occur, the following options are available for nonimmigrants:

Apply for an Extension. Most nonimmigrants can mitigate the immigration consequences of COVID-19 by timely filing an application for extension of stay (EOS) or change in status (COS). U.S. Citizenship and Immigration Services continues to accept and process applications and petitions, and many of our forms are available for online filing.

If You File in a Timely Manner. Nonimmigrants generally do not accrue unlawful presence while the timely-filed, non-frivolous EOS/COS application is pending. Where applicable, employment authorization with the same employer, subject to the same terms and conditions of the prior approval, is automatically extended for up to 240 days after I-94 expiration when an extension of stay request is filed on time.

Flexibility for Late Applications. USCIS reminds petitioners and applicants that it can consider delays caused by the COVID-19 pandemic when deciding whether to excuse delays in filing documents based on extraordinary circumstances.

Under current regulations and as noted on our Special Situations page, if a petitioner or applicant files an extension of stay or change of status request (on Forms I-129 or I-539) after the authorized period of admission expires, USCIS, in its discretion, may excuse the failure to file on time if it was due to extraordinary circumstances beyond their control, such as those that may be caused by COVID-19. The length of delay must be commensurate with the circumstances. The petitioner or applicant must submit credible evidence to support their request, which USCIS will evaluate on a case-by-case basis. These special situations have been used at various times in the past, including for natural disasters and similar crises.

Please see 8 CFR 214.1(c)(4) and 8 CFR 248.1(c) for additional information on late requests to extend or change status. In addition, please see our Form I-129 and Form I-539 pages for specific filing and eligibility requirements for extensions of stay and changes of status.

Flexibility for Visa Waiver Entrants. Visa Waiver Program (VWP) entrants are not eligible to extend their stay or change status. However, under current regulations, if an emergency (such as COVID-19) prevents the departure of a VWP entrant, USCIS in its discretion may grant a period of satisfactory departure for up to 30 days. Please see 8 CFR 217.3(a). For those VWP entrants already granted satisfactory departure and unable to depart within this 30-day period because of COVID-19 related issues, USCIS has the authority to temporarily provide an additional 30-day period of satisfactory departure. To request satisfactory departure from USCIS, a VWP entrant should call the USCIS Contact Center.

For other policy updates, operational changes, and other COVID-19 information, please visit uscis.gov/coronavirus.

https://www.uscis.gov/news/alerts/covid-19-delays-extensionchange-status-filings

USCIS Announces Flexibility in Responding to Agency Requests

Last updated on May 3, 2020

US Citizenship

On May 1, 2020, USCIS announced that it was extending measures to allow for flexibility in responding to certain agency requests. These requests are frequently made to request additional evidence or allow for appeals and motions to reconsider and reopen. Read the full announcement below.

In response to the coronavirus (COVID-19) pandemic, U.S. Citizenship and Immigration Services is extending the flexibilities it announced on March 30 to assist applicants and petitioners who are responding to certain:

Requests for Evidence;
Continuations to Request Evidence (N-14);
Notices of Intent to Deny;
Notices of Intent to Revoke;
Notices of Intent to Rescind and Notices of Intent to Terminate regional investment centers; and
filing date requirements for Form I-290B, Notice of Appeal or Motion.

Notice/Request/Decision Issuance Date

This flexibility applies to the documents listed above if the issuance date listed on the request, notice, or decision is between March 1 and July 1, 2020, inclusive.

Response Due Date

USCIS will consider a response to a request or notice listed above received within 60 calendar days after the response due date set in the request or notice before taking action. USCIS will consider a Form I-290B received up to 60 calendar days from the date of the decision before it takes any action.

For More Information

USCIS will provide further updates as the situation develops and will continue to follow the Centers for Disease Control and Prevention’s guidance. Please visit uscis.gov/coronavirus for the latest facts and other USCIS updates.

Kind regards,

Public Engagement Division

U.S. Citizenship and Immigration Services

https://www.uscis.gov/news/alerts/uscis-extends-flexibility-responding-agency-requests

Electronic Filing with the Immigration Courts

Last updated on April 13, 2020

Stacks of Papers

The US Immigration Courts are still dominated by paper-based filings, as they have been for many years. The Executive Office for Immigration Review, EOIR, has been developing a system for electronic filings that it calls EOIR Court and Appeals System (ECAS). This system has been in a testing phase in some courts, but was not being generally rolled-out to all courts.

Due to the Coronavirus Pandemic, EOIR decided to implement another method of electronic filing for the short term. It is not clear what the long-term plan is for this option but likely EOIR will disable the email addresses once the ECAS system is fully operational.

The most up-to-date information can be found at EOIR’s website. The current instructions for use of this system as of April 13, 2020, are as follows:

General Information for Email Filing

  • Failure to follow the guidelines listed below may result in the rejection of your submitted document filing. If your submission is rejected, you will be notified by email with a request to correct the issue and refile the document.
  • The subject of your email must contain the nature of the filing, the alien registration number, the date of the next hearing, and the initials of the immigration judge assigned to the case. Example: A filer of a motion to continue with a case with alien registration number 012345678 and a hearing date on 01/02/2021 would input, “Motion to Continue – 012345678 – 01/02/2021” in the subject line of the email. If the filer knows the hearing is scheduled before Judge William A. Jones, the subject would be, “Motion to Continue – 012345678 – 01/02/2021 – WAJ”
  • While multiple documents for the same case may be submitted in one email, do not combine separate submissions into one file. Each document type must be submitted separately and include the type of filing in the file name.
  • You remain responsible for service on the opposing party.
  • Submit certificate of service with every filing in the same email.
  • All electronically-filed documents must meet the requirements of filings outlined in the Immigration Court Practice Manual. Further, an electronically filed document cannot be larger than 25 megabytes (MB). For submissions that would be larger than 25 MB, please follow the below steps:
    • split the document into multiple files so no portion is larger than 25 MB;
    • name each document so that it is clear they should be matched with the other portions. Example: 5678_1234ABC_Brief_Part1; 5678_1234ABC_Brief_Part2
  • Files must be a minimum resolution of 300dpi.
  • File formats accepted are PDF and JPEG. We cannot accept other file formats.
  • Do not include links to non-EOIR websites in your submissions.
  • Filings with more than one page must include page numbers.
  • If scanning and attaching a document, pages must appear right-side-up.
  • The filing party must maintain the originals of any documents that are electronically filed and must make the originals available for production, if so ordered, or for inspection upon request by a party.

Information for Attorney Email Filings

  • If you have opted-in to ECAS, do not use email in lieu of filing through ECAS.
  • Name your file with the last four digits of your client’s alien registration number, your EOIR ID, and the type of filing.

Example: Attorney Johnson, EOIRID 1234ABC, with client 012345678, filing an asylum application would name the document: 5678_1234ABC_AsylumApplication

Non-Attorney Respondent Email Filings

Name your file with the last four digits of your alien registration number, your last name, and the type of filing.

Example: Jane Smith, alien registration number 876543210, filing a motion to expedite, would name the document: 3210_Smith_MotionToExpedite

Example: Submitting an asylum application and country conditions evidence, attach the application with the file name 5678_1234ABC_AsylumApplication in one file and the country conditions with the file name 5678_1234ABC_CountryConditions.  

Current Court Email Addresses for Filings

Immigration CourtEmail Address for Filing*
AdelantoAdelanto.Immigration.Court@usdoj.gov
ArlingtonArlington.Immigration.Court@usdoj.gov
Atlanta – W. PeachtreeAtlantaPeachtree.Immigration.Court@usdoj.gov
Atlanta – Ted Turner DriveAtlantaTedTurnerDrive.Immigration.Court@usdoj.gov
AuroraAurora.Immigration.Court@usdoj.gov
BaltimoreBaltimore.Immigration.Court@usdoj.gov
BataviaBatavia.Immigration.Court@usdoj.gov
BostonBoston.Immigration.Court@usdoj.gov
BuffaloBuffalo.Immigration.Court@usdoj.gov
CharlotteCharlotte.Immigration.Court@usdoj.gov
ChicagoChicago.Immigration.Court@usdoj.govChicagoDetained.Immigration.Court@usdoj.gov
ClevelandCleveland.Immigration.Court@usdoj.gov
ConroeConroe.Immigration.Court@usdoj.gov
DallasDallas.Immigration.Court@usdoj.gov
DenverDenver.Immigration.Court@usdoj.gov
DetroitDetroit.Immigration.Court@usdoj.gov
El PasoElPaso.Immigration.Court@usdoj.gov
El Paso SPCElPasoSPC.Immigration.Court@usdoj.gov
ElizabethElizabeth.Immigration.Court@usdoj.gov
EloyEloy.Immigration.Court@usdoj.gov
Falls Church Immigration Adjudication CenterFCIAC.Immigration.Court@usdoj.gov
FishkillFishkill.Immigration.Court@usdoj.gov
FlorenceFlorence.Immigration.Court@usdoj.gov
Fort Snelling**FortSnelling.Immigration.Court@usdoj.gov
Ft. Worth Immigration Adjudication CenterFWIAC.Immigration.Court@usdoj.gov
HarlingenHarlingen.Immigration.Court@usdoj.gov
HartfordHartford.Immigration.Court@usdoj.gov
HonoluluHonolulu.Immigration.Court@usdoj.gov
HoustonHouston.Immigration.Court@usdoj.gov
Houston – S. GessnerHoustonGessner.Immigration.Court@usdoj.gov
ImperialImperial.Immigration.Court@usdoj.gov
Kansas CityKansasCity.Immigration.Court@usdoj.gov
Los Angeles – N. Los Angeles StreetLALosAngeles.Immigration.Court@usdoj.gov
Los Angeles – Olive StreetLAOlive.Immigration.Court@usdoj.gov
Los Angeles – Van Nuys BoulevardLAVanNuys.Immigration.Court@usdoj.gov
LaSalleLaSalle.Immigration.Court@usdoj.gov
Las VegasLasVegas.Immigration.Court@usdoj.gov
MemphisMemphis.Immigration.Court@usdoj.gov
MiamiMiami.Immigration.Court@usdoj.gov
Miami KromeKrome.Immigration.Court@usdoj.gov
New OrleansNewOrleans.Immigration.Court@usdoj.gov
New York – BroadwayNYBroadway.Immigration.Court@usdoj.gov
New York – Federal PlazaNYFederalPlaza.Immigration.Court@usdoj.gov
New York – VarickNYVarick.Immigration.Court@usdoj.gov
NewarkNewark.Immigration.Court@usdoj.gov
OakdaleOakdale.Immigration.Court@usdoj.gov
OmahaOmaha.Immigration.Court@usdoj.gov
OrlandoOrlando.Immigration.Court@usdoj.gov
Otay MesaOtayMesa.Immigration.Court@usdoj.gov
OteroOtero.Immigration.Court@usdoj.gov
PearsallPearsall.Immigration.Court@usdoj.gov
PhiladelphiaPhiladelphia.Immigration.Court@usdoj.gov
PhoenixPhoenix.Immigration.Court@usdoj.gov
Port IsabelPortIsabel.Immigration.Court@usdoj.gov
PortlandPortland.Immigration.Court@usdoj.gov
SacramentoSacramento.Immigration.Court@usdoj.gov
SaipanSaipan.Immigration.Court@usdoj.gov
Salt Lake CitySaltLakeCity.Immigration.Court@usdoj.gov
San AntonioSanAntonio.Immigration.Court@usdoj.gov
San DiegoSanDiego.Immigration.Court@usdoj.gov
San FranciscoSanFrancisco.Immigration.Court@usdoj.gov
San JuanSanJuan.Immigration.Court@usdoj.gov
SeattleSeattle.Immigration.Court@usdoj.gov
StewartStewart.Immigration.Court@usdoj.gov
TacomaTacoma.Immigration.Court@usdoj.gov
TucsonTucson.Immigration.Court@usdoj.gov
UlsterUlster.Immigration.Court@usdoj.gov
YorkYork.Immigration.Court@usdoj.gov

*  Emails submitted to this email inbox will not receive a response. The exclusive purpose of the email inboxes is receipt of filings.

** Please note that the Fort Snelling Immigration Court was formerly known as the Bloomington Immigration Court. The location has not changed.

Matter of K-S-E-, Decision by the Board of Immigration Appeals on April 10, 2020

Last updated on April 10, 2020

On April 10, 2020, the Board of Immigration Appeals issued a new published decision titled Matter of K-S-E-. This decision deals with the issue of whether an asylum-seeker is prohibited from obtaining asylum because of “firm resettlement” in another country. The Board decided that an offer of permanent residency, even if not desired or accepted, is enough to bar someone from obtaining asylum in the United States.

The firm resettlement bar is one of the exceptions that make someone ineligible for asylum under Section 208(b)(2)(A) of the Immigration and Nationality Act. Some of the exceptions apply to criminal activity and persecution of other people, but there is also a relatively uncommon bar for people who have been firmly resettled in another country. The intent of the exception is to prevent someone from getting asylum when they can live in another country where they will not be persecuted.

The question is what firm resettlement actually entails and just how much of a possibility that someone could live in another country should preclude them from getting asylum. Matter of K-S-E- involved an applicant for asylum who did not even have the right to live in another country, but rather a potential path to obtaining a period of stay in Brazil. He had not applied for it nor received any actual permission. But the Board found that it was enough that the opportunity existed and that it appeared relatively certain that if he had applied for it, he should have received it.

Read Matter of K-S-E-, 27 I&N Dec. 818 (BIA 2020)Download

USCIS Proposing Changes to Form I-864

Last updated on April 10, 2020

Paperwork

USCIS is proposing revisions to its affidavit of support forms, including the widely-used form I-864. You can review the proposed changes here:

I-864 with proposed changesDownload

The changes are consistent with the implementation of the public charge rule and attempts to restrict family-based immigration. That is being done principally through requesting more and more sensitive information which tends to discourage people from completing the process. Although the changes may seem small individually, each change imposes new and burdensome requirements that on the whole restrict people from applying for benefits and create new ways to deny them benefits. Some noteworthy changes in this proposed revision include:

  • Relationship between sponsor and the immigrant is now being requested, consistent with USCIS and DOS tending to prefer family as sponsors even though it is not legally required
  • Sponsor bank account information is now required. This extremely sensitive information will undoubtedly discourage people from wanting to complete this form.
  • Soliciting more information about previously sponsored immigrants
  • Optional credit report information
  • Greatly expanded sponsor certification portion that more clearly explains the sponsor’s legal obligations
  • Requires a sponsor to have the form notarized

You can review the proposed changes and submit a comment here.

USCIS Updates Eligibility Information for Liberians Applying for Green Cards Under LRIF

Last updated on April 7, 2020

Green Cards

USCIS updated its policy manual on April 7, 2020, to include additional information and eligibility requirements for Liberians and family applying for green cards under the Liberian Refugee Immigration Fairness Act (LRIF). The new policy guidance provides clarity on who qualifies for residency under the law and explains how USCIS interprets other provisions of this new law.

You can review the USCIS policy guidelines for LRIF at https://www.uscis.gov/policy-manual/volume-7-part-p-chapter-5

USCIS Extends Office Closures Through May 3

Last updated on April 5, 2020

Virus

USCIS announced on April 1, 2020, that it would extend the closure of its offices due to the coronavirus pandemic. At this time, USCIS plans to reopen its offices on May 4th. While public-facing offices are being closed, USCIS is still processing applications at its other offices. Read the announcement below.

On March 18, U.S. Citizenship and Immigration Services temporarily suspended in-person services at its field offices, asylum offices, and application support centers (ASCs) to help slow the spread of coronavirus (COVID-19). USCIS offices will begin to reopen on May 4 unless the public closures are extended further. Employees in these offices are continuing to perform mission-essential services that do not require face-to-face contact with the public.

USCIS will continue to provide limited emergency services. Please call the Contact Center for assistance with emergency services.

USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by the extended temporary closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the temporary office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if the office in your jurisdiction has been reopened before reaching out to the USCIS Contact Center.

Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please also visit uscis.gov/coronavirus for updates.

USCIS Issues Automatic Extensions for RFEs and NOIDs

Last updated on March 27, 2020

Paperwork

USCIS announced on March 27, 2020, that it was automatically extending Requests for Evidence (RFEs) and Notices of Intent to Deny (NOID) deadlines for certain people. These deadlines are common for people applying for benefits, such as adjustment of status, where USCIS asks them to submit additional evidence for the case or indicates that the agency intends to deny an application. This notice only extends deadlines for RFEs and NOIDs dated between March 1 and May 1, 2020, so it is prospective in nature. The extensions are for 60 days after the response deadline listed in the RFE or NOID.

It is recommended to save the mailing envelope for any such notice because there are common problems that arise in these circumstances, such as undated letters.

USCIS Announcement of RFE and NOID Deadline ExtensionsDownload

BIA Decision in Matter of R-A-V-P-

Last updated on June 27, 2020

Executive Office for Immigration Review

On March 18, the Board of Immigration Appeals (BIA) published a decision about the “flight risk” element of immigration bonds. BIA precedent requires that individuals demonstrate they are not a danger to the community nor a risk of flight for them to even be able to pay an immigration bond. Here, the BIA was addressing the second element.

In this case, the BIA stated that:

The Immigration Judge properly determined that the respondent was a flight risk and denied his request for a custody redetermination where, although he had a pending application for asylum, he had no family, employment, or community ties and no probable path to obtain lawful status so as to warrant his release on bond.

Matter of R-A-V-P-, 27 I&N Dec. 803 (BIA 2020)

This is a negative decision for anyone asking an immigration judge for the ability to post a bond rather than remain detained during removal proceedings. It shows that while most people are usually able to get a bond even for serious criminal charges, the same is not true for immigration. Immigration judges will effectively review the actual case for relief, whether it’s asylum, cancellation of removal, or something else. If the judge doesn’t think that case looks likely to be approved, they simply write that the individual is a flight risk and bond is denied. Immigrant advocates will have to do their best to distinguish their cases from this one in order to get an immigration bond for their clients.

USCIS Closing Offices Through April 1, 2020

Last updated on March 17, 2020

Virus

US Citizenship and Immigration Services (USCIS) announced that it is closing several types of public-facing offices in response to the Coronavirus outbreak. The following types of offices are impacted:

  • Field offices, which conduct interviews and sometimes naturalization ceremonies
  • Application Support Centers, where applicants go to have fingerprints and biometrics taken
  • Asylum offices

Further announcements will clarify when those offices will reopen and anyone with an interview, appointment, or ceremony should receive a letter explaining both the cancellation and the rescheduled date.

Read the full announcement below:

USCIS Temporarily Closing Offices to the Public March 18-April 1

Effective March 18, U.S. Citizenship and Immigration Services is suspending in-person services at its field offices, asylum offices and Application Support Centers (ASCs) to help slow the spread of Coronavirus Disease 2019 (COVID-19). This suspension of services will be effective until at least April 1. In the meantime, USCIS will provide limited emergency services. Please call the Contact Center for assistance with emergency services.

USCIS field offices will send notices to applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure. USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When the interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview. When USCIS again resumes normal operations, USCIS will automatically reschedule ASC appointments due to the office closure. You will receive a new appointment letter in the mail. Individuals who had InfoPass or other appointments must reschedule through the USCIS Contact Center once field offices are open to the public again. Please check to see if your field office has been reopened before reaching out to the USCIS Contact Center.   

Education and precautions are the strongest tools against infection. Get the latest facts by visiting the Centers for Disease Control and Prevention’s COVID-19 website. Continue to practice good health habits, refrain from handshakes or hugs as greetings, and wash hands and clean surfaces appropriately.

USCIS will provide further updates as the situation develops and will continue to follow CDC guidance. Please also visit uscis.gov/coronavirus for updates.

https://www.uscis.gov/news/alerts/uscis-temporarily-closing-offices-public-march-18-april-1

New Public Charge Rule for Immigrants Applying for Green Cards Outside the United States with Embassies and Consulates

Last updated on February 23, 2020

US Embassy Nairobi

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.

Form DS-5540Download

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.