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ResourcesVisa & Immigration LawUS Immigration LawImmigrant Visa Applications at a US Embassy: New DS-5540 Form

Immigrant Visa Applications at a US Embassy: New DS-5540 Form

Transcript of the above video:

As the title of this video suggests, we are discussing US Visa Applications at US Embassies outside the United States. 

In recent days contemporaneous to this video, we have been hearing things about new changes to what is called a Public Charge rule. There is a lot of stuff floating around about totality of circumstance test, the I-944 form, means-tested benefits associated with being in the United States, etc. I haven't done a video yet on those topics and I am doing them, I am making them as we speak. I am crafting them behind the scenes for lack of better term I guess I am not making them as we speak specifically but they are being made contemporaneously with this video. 

That being said this video is specifically about a new form, the DS-5540. Now the I-944 form generally pertains to those cases which are processing in the United States so things like an adjustment of status in the US or a change of status in the US to Immigrant status, in the context oftentimes or at least for purposes of this channel of US Family Visa benefits. 

The purpose of this video though and the DS-5540 is this Public Charge rule has gone abroad for lack of a better term; it has gone international. So the Public Charge rule applies in the United States in a slightly different context than it does abroad but Department of State has received authorization to go ahead and implement the rules regarding the new Public Charge Rule and this DS-5540 form is the manifestation of this new regulatory regime. So it is a public charge questionnaire and just FYI this stuff is coming at us relatively fast. We are in kind of a state of flux when it comes to these issues. 

So this public charge questionnaire, it asks a lot of stuff. It asks: do you have health coverage in the United States? Will you be covered by Health Insurance within 30 days of entry in the United States? Things like household size, assets, resources and financial status, types of income, types of assets, types of liability, have you ever been on public assistance before? So that is usually means-tested benefits but things like SNAP (Supplemental Nutrition Assistance Program), TANF (Temporary Assistance for Needy Families), housing choice voucher programs and it allows you to list the types of benefits etc.  It has educational questions, graduated high school, occupational skills, and various certification questions. 

So there is a great deal going on with respect to this and I can't get exhaustive in this video. I just wanted to get this out as quickly as we could because this DS-5540 is going to start having a substantial impact on cases processing, not only through the US Embassy here in Bangkok, but also around the world as this form should start being used relatively quickly. 

It is also my understanding that the discretionary authority placed on the Consular Officers is going to change a little bit with respect to the issue of Public Charge. Now we definitely know how this is going to work with respect to Immigration USCIS Officers in the United States and the discretion basically is there is now an adjudicatory point of fact which needs to be undertaken by the Immigration Officer wherein they have to look to see if there is any chance that they think you may prospectively be put on some of these means-tested benefits; again SNAP and TANF, Section 8 housing, etc.  It is my understanding as at the time of this video, WIC and Medicare Part D are not part of the framework that they use when adjudicating this but is also my understanding Consular Officers are also going to be empowered with this same level of discretion. So they have to be for lack of a better term, assured that you are not at risk of going on to one of these benefit programs if you are in the United States an immigrant spouse status. So things like to CR-1 and the IR-1 Visa are going to be impacted by this. I think they are going to be impacted by this quite soon because these rules have just come down and they are now in effect. We sort of have had the metaphorical Sword of Damocles over our head with respect to this for some time and not to mix metaphors but the “other shoe has now dropped” because the Supreme Court has upheld the validity of these regulatory changes. So we have to deal with the change to the Public Charge rules and again the manifestation of that out here in the Consular processing world with respect to Embassies and Consulates abroad is the DS-5540. 

We will make other videos on this channel regarding this topic specifically and I will kind of for lack of a better term backtrack and get into the I-944 and some of the other things having to do with Public Charge rule changes but for Consular processing which we do a lot of out here because we are based outside of the United States, for Consular processing, the DS-5540 is going to be where the rubber hits the road with respect to the public charge rules in a US immigration context.