public charge forms

Indian American actor Kal Penn takes a photo in front of the U.S. Embassy in New Delhi. U.S. consulates around the world were to begin using the new “public charge” form Oct. 15 to determine whether a potential immigrant would have to rely on assistance from the U.S. government, but several court injunctions have delayed implementation of the rule. (in.usembassy.gov photo)

American consulates around the world were to begin using the new “public charge” form Oct. 15 to determine whether a potential immigrant would have to rely on assistance from the U.S. government, but several court injunctions have delayed implementation of the rule.

The public charge rule — which was finalized Aug. 12 — is predicted to have great impact on immigrants seeking to permanently reside in the U.S. Consular officials around the globe would have to determine whether the applicant is able to demonstrate the ability to earn at least $41,000 for a family of two.

The rule would also largely bar elderly Indian immigrants who wish to immigrate to the U.S. to live with their children. Immigration advocates have noted that elderly people are unlikely to be able to demonstrate an earning capacity of any amount.

Household incomes of Indian American adult children may not be used to determine whether a parent is eligible to immigrate, as they are not yet members of the household, Doug Rand, co-founder of Boundless Immigration (boundless.com), told India-West in August, after the rule was finalized. (See earlier India-West story here: https://bit.ly/2qfso8j)

Immigration advocates and members of Congress have described the public charge rule as “cruel and inhumane.”

As the rule was about to take effect, several courts around the country hastily issued injunctions Oct. 11 delaying its implementation. The most sweeping ruling was issued by Judge George Daniels of the U.S. District Court of Southern New York who mandated a nationwide injunction so that immigrants would be treated in the same manner regardless of which state they live in.

Daniels’ ruling also prevents the Department of Homeland Security from using new or updated forms relating to public charge. US Citizenship and Immigration Services has removed forms related to the public charge rule, including the I-129, Form I-485, Form I-539, Form I-864, Form I-864 EZ, Form I-944, and Form I-945, noted the American Immigration Lawyers Association Oct. 25.

The State Department issued a bulletin Oct. 24, which did not mention the injunction on implementation of the public charge rule. The agency noted instead that it will not implement the rule at consulates abroad until the use of a new form for information collection is approved by the Office of Management and Budget.

On Oct. 24, the State Department published a 60-Day “Notice of Proposed Information Collection for its Public Charge Questionnaire,” in the Federal Register. “(This) is a necessary step to have the new information collection approved,” said the State Department.

The proposed new form is titled DS-5540. The agency said the new form will be used for immigrant visa applicants, including diversity visa applicants, and certain non-immigrant visa applicants.

“The Department seeks to better ensure that aliens subject to the public charge inadmissibility ground are self-sufficient and will not rely on public resources to meet their needs, but rather, will rely on their own capabilities, as well as the resources of sponsors,” stated the State Department, in its entry in the Federal Register.

The DS–5540 will collect information on the applicant’s health, family status, assets, resources, financial status, education, skills, health insurance coverage, and tax history. The form would also require applicants to provide information on whether they have received public benefits from a U.S. Federal, state, local entity on or after Oct. 15, 2019. Consular officers will use the completed forms in assessing whether an applicant is likely to become a public charge, and is thus ineligible for a visa.

Consular officers have discretion to require a non-immigrant visa applicant to complete the DS–5540 when the officer determines that the applicant would not be self-sufficient during his or her period of stay, states the proposed rule.

The proposed form will also be used to establish that the applicant will be covered by an approved health insurance plan within 30 days of entry into the U.S., or that the applicant possesses sufficient financial resources to cover medical costs.

The proposed rule is open for public comment until Dec. 23. It can be viewed here: https://bit.ly/2JHfneq. After the comment period ends, the State Department must answer all relevant comments before sending the rule for final approval to the Office of Management and Budget.

“Visa applicants are not requested to take any additional steps at this time and should attend their visa interviews as scheduled. We will inform applicants of any changes to current visa application procedures,” said the State Department in its Oct. 25 bulletin.

In related news, The Associated Press reports: A federal judge in Portland, Oregon, has put on hold a Trump administration rule requiring immigrants prove they will have health insurance or can pay for medical care before they can get visas.

U.S. District Judge Michael Simon Nov. 2 granted a temporary restraining order that prevented the rule from going into effect the following day. It’s not clear when he will rule on the merits of the case.

Seven U.S. citizens and a nonprofit organization filed the federal lawsuit Oct. 30 contending the rule would block nearly two-thirds of all prospective legal immigrants.

The lawsuit also said the rule would greatly reduce or eliminate the number of immigrants who enter the United States with family sponsored visas.

The proclamation signed by President Donald Trump in early October applies to people seeking immigrant visas from abroad — not those in the U.S. already. It does not affect lawful permanent residents. It does not apply to asylum-seekers, refugees or children.

The proclamation says immigrants will be barred from entering the country unless they are to be covered by health insurance within 30 days of entering or have enough financial resources to pay for any medical costs.

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