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Update on Implementation of New Public Charge Rule

26 Feb

Applicants for nonimmigrant and immigrant visas may be found inadmissible to the United States on “public charge” grounds if it is determined that they are likely to become a public charge in the future.  In October, 2019, the U.S. Department of State published a new rule defining “public charge” and the process consular officers will follow when evaluating applicants for potential inadmissibility on “public charge” grounds.  The regulation was previously forestalled by legal action, but a recent U.S. Supreme Court decision now permits the State Department to move forward with implementation of the new “public charge” definition and documentary requirements.  Recently U.S. Citizenship & Immigration Services (USCIS) implemented a similar rule.  Both new rules are effective beginning February 24, 2020.

The State Department has created a new Form DS-5540 which will be required of certain applicants for immigrant and nonimmigrant visas.  Additionally, consular officers will be required to take into account a number of factors impacting whether an applicant may become a public charge applying a “totality of the circumstances” test.  Some factors will be weighted more heavily than others, but no one factor will be determinative except the absence of a sufficient Affidavit of Support when one is required by regulation.  Officers will consider the applicant’s age, health, family status, financial status, education and skills, and prospective visa classification.

Nonimmigrants who meet the requirements for issuance of a work-authorized nonimmigrant visa normally would not be considered likely to become a public charge; however, consular officers may require them to complete the Form DS-5540 and submit supporting documents if they have reason to suspect the applicant may become a public charge.

Applicants who are required or requested to complete the Form DS-5540 should contact their Foster immigration attorney for advice and consultation.  Foster will provide additional updates on the Government’s implementation of the new public charge rules and handling of public charge issues via our firm’s website at