On July 29, 2020, the United States District Court for the Southern District of New York issued nationwide temporary injunctions related to the Department of Homeland Security’s (DHS) and Department of State’s (DOS) public charge rule in the Immigration and Nationality Act (INA). Since February 24, DHS and DOS have required and applied the new public charge rule with the more expansive definition of public charge to curb immigration to the United States. See our blog to learn about the impact of the court’s order on USCIS public charge rule.
Citing COVID19, the court has since ordered DHS and DOS to suspend the rule. As a result, DHS and DOS are operating under the old definition and protocols for the time being. This means that immigrant visa applicants and non-immigrant visa applicants no longer must worry about filling out or answering questions about the DS-5540 “Public Charge Questionnaire” that the agencies had instituted earlier in 2020.
The DS-5540 is a questionnaire previously required for all immigrant visa applicants that collected information from applicants on their personal health, healthcare coverage, the size of their household/family, personal assets, financial status, and more. DHS and DOS would use the answers on this form to evaluate the circumstances in determining whether an applicant would fit the public charge definition. This document was not required for non-immigrant visa applicants such as K1 fiance visas, but the agencies may still ask them questions from the form.
The DS-5540 form only required proof of health insurance and IRS tax returns if applicants answered “yes” to those questions, but consular offices were within their bounds to request documentation demonstrating adequate funds and or resources by submitting certain documents. These included, but were not limited to, 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.
What does this mean for current or future immigration applicants? The DS-5540 form was an information-gathering tool to help support public charge determinations, arming DHS and DOS with the necessary information to deny applicants from coming to the United States. As of right now, visa applicants are not required to present a DS-5540, nor should they.
As with most immigration issues under the Trump administration, the rules and their application can change quickly. We will stay on top of these changes and keep you informed to the best of our abilities. Contact the Francis Law Center if you need help applying for an immigrant or non-immigrant visa or have questions about the suspension of the DS-5540 questionnaires and what it might mean for your case.
This information is intended to educate and should not be taken as legal advice.
Written by Francis Law Center Staff Alex Gelhar