U.S. Consulates Implementing New Public Charge Rule

On Monday, February 24, 2020, the U.S. Department of State will implement new policies related to the Trump Administration’s public charge rule.  The new policy is scheduled to go into effect worldwide on February 24, 2020.

Applicants for immigrant visas will now be required to complete an additional form, called the DS-5540.

The U.S. Department of State has also amended the sections of the Foreign Affairs Manual (FAM) relating to the public charge ground of inadmissibility.

The new form asks for the following information regarding the immigrant visa applicant:

  • Whether you currently have health insurance in the United States
  • Whether you will be covered by health insurance in the United States within 30 days of your entry to the United States with your immigrant visa
  • Members of your household and whether they are employed
  • Information regarding your federal tax returns within the last 3 years
  • Your current income
  • Whether you have a job waiting for you in the United States, the name of the employer, and the proposed yearly income
  • Your assets
  • Your debts
  • Public benefits you have received on or after February 24, 2020
  • Your education level
  • Your employment skills

There is at least one lawsuit challenging the U.S. Department of State’s implementation of the public charge rule.  For now, it is required for immigrant visa applicants.

Trump Expands the Travel Ban

On January 31, 2020, President Trump added six more countries – four in Africa – to the existing travel ban implemented in 2017.  The countries added to the Travel Ban are Nigeria (Africa’s most populous nation), Sudan, Tanzania, Eritrea, Myanmar, and Kyrgyzstan.

Immigrants from Nigeria, Myanmar, Eritrea, and Kyrgyzstan will not be able to obtain immigrant visas to the United States, while immigrants from Tanzania and Sudan will not qualify for the diversity visa lottery.  According to The Hill, “Four of the six affected countries are in Africa and represent 25 percent of the continent’s population.  All six have significant Muslim populations.”

The expansion of the Travel Ban does not affect the issuance of nonimmigrant visas – visas issued for tourists, students, temporary workers, and others.

The United States argues that the travel ban is needed to ensure that countries meet security requirements for travel into the United States.  The Administration has not been able, however, to answer an important question:  If the Travel Ban is to protect U.S. citizens from potential harm, then why does the expanded Travel Ban allow for nonimmigrant visas from the banned countries?

If a person wished to inflict harm upon the United States in some way, would that person choose to apply for an immigrant visa (which involves a much more restrictive and lengthy application process), or a nonimmigrant visa, which is comparatively easier to obtain?  The Administration’s decision to continue issuing nonimmigrant visas to applicants from the newly banned countries directly contradicts the purported justification for the expansion of the Travel Ban – to protect Americans from harm.

This ban will continue to result in separation of U.S. citizens and their families.  Spouses, children, parents, and siblings of U.S. citizens are subject to the ban.  Immigrants who have been waiting months or even years to reunite with their loved ones in the United States will continue to endure longer periods of separation and devastating effects.

Immigrants subject to the ban are able to apply for waivers.  Those waivers, however, are highly discretionary and decided by the U.S. consulates.  According to the Washington Post, since the rollout of the initial travel ban, only 10 percent of waivers have been granted since 2017.

Many advocates and politicians continue to speak out against the travel ban given the administration’s unclear rationale as to why certain countries are added to the list.  Senator Kamala Harris recently stated, “Trump’s travel bans have never been rooted in national security — they’re about discriminating against people of color …They are, without a doubt, rooted in anti-immigrant, white supremacist ideologies.”

The ban is likely to have an effect on the U.S. economy.  According to the New York Times, “A year after the Trump administration announced that a major pillar of its new strategy for Africa was to counter the growing influence of China and Russia by expanding economic ties to the continent, it slammed the door shut on Nigeria, the continent’s biggest economy.”

New Health Insurance Requirement for an Immigrant Visa

NOTE:  Federal court orders have temporarily blocked the implementation of this rule.  We will need to stay tuned to find out how the courts resolve the issue.

The Trump Administration recently announced a “presidential proclamation” that will take effect on November 3, 2019.  The proclamation requires certain people to show that they will obtain health insurance within 30 days of entering the United States, or that they have enough money to cover their health care costs.  The new requirement only affects certain persons who are applying for immigrant visas at U.S. consulates outside the United States.  Persons who obtain immigrant visas then become permanent residents upon admission to the United States.

Who is not subject to the new rule?

First, let’s talk about the persons who will not be affected by this new requirement.  The proclamation does not affect:

  • persons under age 18, unless they are accompanying a parent who is also applying for an immigrant visa and who is subject to the proclamation
  • children of U.S. citizens
  • persons adopted by U.S. citizens
  • parents of U.S. citizens, provided that the “sponsor demonstrates to the satisfaction of the consular officer” that his or her healthcare “will not impose a substantial burden” on the U.S. healthcare system
  • persons who are not applying for immigrant visas.

How do applicants meet the new requirement?

Applicants for immigrant visas who are subject to the new rule must convince the consular officer that they meet the healthcare requirement.  It is unclear whether the U.S. Department of State will establish standards based on the proclamation.

In order to meet the rule, applicants will need to show either (a) they will be covered by an approved health insurance policy within 30 days of entering the United States, or (b) they have enough money to pay for “reasonably foreseeable medical costs.”

The proclamation lists a variety of healthcare plans that would qualify, including:

  • an employer-sponsored plan
  • a family member’s plan
  • an unsubsidized plan from the individual marketplace
  • a short-term policy that is effective for at least 364 days
  • a catastrophic plan
  • a plan offered by the U.S. Armed Forces
  • a plan under the Medicare Program
  • any other plan that provides “adequate coverage” as determined by U.S. officials

We will need to wait and see how the U.S. consulates handle this new rule, beginning November 3, 2019.

Provisional Waivers of Unlawful Presence

If you entered the United States without inspection and have become eligible for a family-based permanent resident (green card) status, you might need to leave the United States and go to your home country for an interview at the consulate or embassy.   There are some exceptions to the requirement to leave the United States.  The officer who conducts the interview can order you to stay in your country for 3 years (if you have been in the U.S. without authorization for more than 180 days but less than a year), or 10 years (if you have been in the U.S. without authorization for more than a year).  These penalties are known as 3-year and 10-year unlawful presence bars.  If you are found inadmissible to return to the U.S., you can apply for a waiver, which is like asking for legal forgiveness.  If your application is approved, your 3-year or 10-year bar will be waived.

The law allows you to apply for a waiver after your I-130 petition is approved and before you go overseas for an interview in your home country.  Getting waivers approved is complicated, and we recommend that you have the assistance of an experienced immigration attorney to help you through the process.  If your waiver is approved, you can leave the U.S., go to the interview, and if the consular officer approves your immigrant visa, you can return to the U.S. and become a lawful permanent resident.

Now, the question is, are you eligible for a provisional unlawful presence waiver?

  • Are you at least 18 years old?
  • Are you physically present in the U.S.?
  • Do you have a qualifying immediate relative to petition for you? This would be a U.S. citizen or permanent resident who is either your spouse, your parent if you are unmarried and under 21, or your child if he or she is 21 or older.
  • Can you prove that your permanent resident or U.S. citizen spouse or parents will suffer extreme hardship if you are inadmissible to return to the U.S.?
  • Are you inadmissible on criminal, fraud, or other grounds?

If you answered yes to the first four questions and no to the last one, you probably may apply for a waiver.  If you are in removal proceedings, you can apply for the waiver only if your case has been administratively closed.  We advise you to apply as soon as possible before your case is re-calendared.

Please note that, in order to be eligible for this type of waiver, you must have a spouse or parent who is a U.S. citizen or lawful permanent resident (green card holder).

The most important aspect of the waiver is to demonstrate that your qualifying relative or relatives will suffer extreme hardship if they remain in the U.S. without you or if they follow you to your home country for the duration of the 3-year or 10-year bar.  The relative who will suffer extreme hardship does not need to be the same one who petitions for you.

The following are some examples of hardship your qualifying relative might experience if he or she stays in the U.S. without you during the 3-year or 10-year bar: He or she depends economically on your income and will not be able to provide for the household if you are overseas, he or she has a medical condition and depends on your care, he or she cares for a family member and will be unable to continue caring for that person without your support, or you are the caregiver of your qualifying relative’s child or children, and your relative cannot afford childcare if you are overseas.

In the case that your relative follows you to your country, you will need to show, for example, that your relative’s medical condition will be poorly treated or too expensive to treat in your country, your relative does not know the language of your home country, he or she is the primary caretaker of a sick family member within the U.S., your relative will not be able to work or will likely receive minimum wage in your country, he or she will be unable to continue his or her education in your country, he or she has children from a previous relationship who will not be allowed to live with you or visit due to custody issues, he or she has debt in the U.S. that cannot be paid from your country, or, last but not least, your country has a high rate of violence or is at war.  You may think of other types of financial, medical, emotional, or security-related hardship for your waiver application.

To date, our office has obtained 47 waiver approvals, including 3 applications that USCIS initially denied, but later approved on appeal.  All 47 clients received waiver approvals.  Although we cannot predict whether USCIS will approve a waiver application, we have a strong record of success.

Consular Processing: Applying for permanent residence from outside the United States

For some people who wish to become permanent residents of the United States, their best option is to do “consular processing” – attending an interview at a U.S. Consulate in another country.  For example, if you live outside the United States, or if you are not eligible to apply for permanent residence from inside the United States, you might be eligible for consular processing at a U.S. Consulate – most likely the consulate in your own country.

Under the “Resources” section of our website, we have some brief documents that outline various aspects of Immigration Law.