FAQ on New Public Charge Rules – Part 2: Trouble ahead for Older Immigrants, Diversity Lottery Winners, and Immigrants without Job Offers, English Skills, or University Education

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On February 22, we published Part 1 of this FAQ. Since then, the Department of State, including all embassies and consular posts outside the United States, implemented the new rules.

What practical changes have gone into effect?

It is still too early to know exactly what each embassy and consulate will require from immigrant visa applicants.  However, in the few weeks since the rules went into effect, it appears that embassies and consulates processing immigrant visas are requiring 1) the completion and submission of the Form DS-5540 and 2) asset and income documents confirming the information in the Form.   The new Form DS-5540 asks about the immigrant visa applicant’s 1) age: 2) health; 3) household size; 4) assets; 5) current and future income; 6) liabilities; 7) past usage of public benefits in the US, if any; 8) education; and 9) trade/vocational skills. Documents confirming assets, such as real estate appraisals and bank statements covering up to 12 months, are being required in some cases.

What specifically will be considered?

There is no scientific formula used by consular officers to determine whether someone will become a public charge. Rather, they use what is called a “totality of circumstances” test, weighing positive and negative factors to make a final determination. Obviously, this is all very subjective. Applicants with similar qualifications may end up with different results: one consul may find one applicant to be a public charge, another consul may issue the visa. The factors considered are as follows:

  1. Age – if the applicant for an immigrant visa is under the age of 18 or over the age of 61, this will be considered a negative factor because of their inability to work or difficulties in finding a job.
  2. Health – if the applicant is likely to require extensive medical care or care that will interfere with the applicant’s ability to work or study after admission to the United States, this will also be considered a negative factor. On the other hand, if one is able to secure health insurance or has the financial ability to cover medical expenses, then this will be considered as a positive.
  3. Family Size – if the applicant has a large family applying for immigrant visas, this will be considered a negative factor. A small family will be considered a positive factor.
  4. Assets/Income/Liabilities – the question is tied to the official poverty levels in the United States. For a family of 4, the minimum income level in the US is $32,750 or assets valued at least $163,750.  If the applicant’s income is minimal and there is no job offer in the US, this will be considered a negative factor. If the applicant has current income or a job offer in the US at 2 ½ times the minimum income level, or substantial, liquid, transferable assets, this will be considered a positive factor.  Immigrants moving to the United States based on an employment-based category, approved petition, and a job offer will also have an easier time meeting their burden.  EB-5 investors should also not have a problem here.
  5. Education and Skills – there are various considerations here, including education level, employment history, knowledge of English, and vocational skills.  If the applicant is considered to be a person who may have a hard time finding work in the US, this will be a negative factor. In contrast, a person with a university education, strong employment history, and knowledge of English will be viewed positively.

What about Nonimmigrants?

Individuals applying for nonimmigrant visas to visit or study in the US must also satisfy the consular officer that he or she will not become a public charge.  A consul could also ask for the completion of Form DS-5540 and supporting documentation.  However, in cases in which the consul may suspect that the nonimmigrant visa applicant will become a public charge, the consul will most likely deny these individuals under Section 214(b).  If the applicant is seeking medical treatment in the US, then asset and sponsor information will be considered.

Are there any waivers available?

Unlike those with a criminal history or those that have serious immigration violations (misrepresentations, alien smuggling, unlawful presence), there are no waivers available for immigrant visa applicants who have been denied as a likely public charge.  In theory, there is a nonimmigrant waiver available for nonimmigrant visa applicants, but because these applicants will be denied under 214(b), the consul will not reach the question of a nonimmigrant waiver.

The rules are complex and very subjective.  So what is the bottom line?

The bottom line is that before starting the immigration process, one should make an assessment of whether this could become a problem. Once the immigrant petition is filed, an intent to immigrate has been expressed and it may be difficult to receive any new visitor visas as a result.  It is always better to consult with a lawyer before a problem arises: to objectively evaluate, plan and strategize going forward. At the end of the process, will the applicant receive the visa or be considered a public charge? Who is the consul at the Embassy who will be making the final decision? How strict or liberal is the consul in interpreting the very subjective public charge rules?  If one decides to proceed, what steps can be taken during the immigration process to make the immigrant visa applicant more adaptable, more employable, more skilled for his/her future life in the US? Attending English courses or computer classes? Working for a Western company? Arranging a job offer in the US? Sending out resumes to potential employers? What other obstacles may there be?  What if the immigrant visa applicant is already retired?

Please feel free to contact us to discuss your situation.