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Does the Public Charge Rule Apply to Non-Immigrant Visas?

Welcome back to the Immigration Lawyer Blog, where we discuss all things immigration. In this video, attorney Jacob Sapochnick answers a frequently asked question: does the public charge rule apply to non-immigrant visas?

Overview:

One of our subscribers asks: I am applying for a student visa at the US Embassy, does the public charge rule apply to me?

Please bear in mind that the answer to this question applies to all non-immigrant visa types including but not limited to tourist visas, fiancé visas, exchange visitor visas, etc.

In general, all applicants seeking admission to the United States are subject to the public charge ground of inadmissibility under INA § 212(a)(4) unless specifically exempted by law.

As it relates specifically to individuals seeking a non-immigrant visa at a U.S. Embassy abroad the public charge rule will apply.

At the time of the non-immigrant visa interview the government official will have discretionary power to determine whether the applicant is “likely at any time to become a public charge” by looking at the totality of the circumstances of the application.

A person is likely to be a “public charge” in the eyes of the government if they are “more likely than not” to receive any of the following benefits for more than 12 months in the aggregate within any 36-month period:

  • Supplemental Social Security Income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • Medicaid
  • Non-Emergency Medicaid
  • Supplemental Nutrition and Assistance Program (SNAP)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance and
  • Certain other forms of subsidized housing.

Additionally, in the case of non-immigrants, embassy officials specifically look to see whether the applicant has strong ties to their home country, whether the stay is only of a temporary nature, whether the applicant has the sufficient financial ability to support their stay in the United States, and whether the applicant will be covered by health insurance in the United States within 30 days of their entry.

How will embassy officials determine whether I will be a public charge?

At the time of your visa interview the officer will review your DS-160 application, your supporting documentation, as well as the required Form DS-5540 Public Charge Questionnaire that must be completed by all applicants seeking a non-immigrant visa.

Form DS-5540 asks various questions about the applicant’s health insurance, their household size, assets, resources, financial status, education and skills, and their receipt of public benefits (if any).

In summary, the public charge rule does apply to non-immigrant visas. Applicants must be very careful to ensure they have all of the necessary documentation to prove their financial ability and to succeed in obtaining their visa.

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