DOS Updates on Public Charge guidance for consular officers

Since the 2019 public charge rule has been vacated, the Department of Homeland Security (DHS) has updated its guidance to consular officers on how to proceed in the meantime.  According to this new guidance, consular officers are to apply the pre-2019 public charge standard when adjudicating applications.  This is consistent with President Biden’s Executive Order (Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans), which includes requiring that DHS and USCIS immediately review all actions related to the implementation of the public charge ground of inadmissibility.  If the reviews performed pursuant to this Executive Order result in further policy changes, USCIS and DHS will issue additional guidance updates.

DHS has reinstated Form I-864W, Request for Exemption for Intending Immigrant's Affidavit of Support, which allows certain applicants to seek an exemption from the affidavit of support requirement, including the following applicants:

(1)    individuals who have earned or can receive credit for 40 quarters of coverage under the Social Security Act (SSA),

(2)    children who will become U.S. citizens upon entry to the United States,

(3)    self-petitioning widow(er)s, and

(4)    self-petitioning battered spouses and children. 

These applicants will be required to submit Form I-864W if seeking an exemption from the affidavit of support requirement.  Applicants who request this exemption should include Form I-864W with other supporting documents as part of the immigrant visa application or bring the form to the visa interview appointment with the consular officer.  DHS has announced that applicants “are not required to complete, nor should they present, the DS-5540, Public Charge Questionnaire”.