Visa Lawyer Blog
In this post, we will discuss Form DS-5540, a mandatory public charge questionnaire that must be completed by all foreign nationals seeking an immigrant visa at a U.S. Consulate or Embassy abroad and some non-immigrant visa applicants.
What is Form DS-5540, Public Charge Questionnaire?
Shortly after the publication of the public charge rule in the Federal Register, the government published a separate rule requiring applicants seeking immigrant visas, including diversity visas, at a Consulate abroad, to complete Form DS-5540, except for certain types of immigrants exempt from the public charge ground of inadmissibility such as self-petitioners under the Violence Against Women Act (VAWA) and Afghan and Iraqi interpreters applying for special immigrant visas.
In addition, the government has given consular officers broad discretion to require nonimmigrant visa applicants to complete DS-5540, if for example the officer determines more information is needed regarding the applicant’s ability to financially support themselves following entry into the United States, without depending on the government’s assistance, or if the consular officer is not satisfied with the information provided by the applicant.
Therefore, consular officers have the power to request nonimmigrant visa applicants to complete DS-5540.
The DS-5540 solicits information that helps consular officers determine whether applicants are subject to the public charge visa ineligibility ground (section 212(a)(4) of the Immigration and Nationality Act) and will not rely on certain specific public resources upon entering the United States.
How is Form DS-5540 Used?
Through the DS-5540, the Department will collect information in a standardized format regarding an applicants’ ability to financially support themselves following entry into the United States, without depending on government assistance.
The Department will use the information provided on the DS-5540 to assess, based on the totality of an applicant’s circumstances, whether it is more likely than not that the applicant will become a public charge at any time in the future, after the alien’s admission to the United States. Such a determination would make the applicant ineligible for a visa under section 212(a)(4) of the Immigration and Nationality Act.
Why is Form DS-5540 Required?
With the passage of the public charge rule, 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. This includes aliens seeking immigrant and non-immigrant admission at a U.S. Consulate or Embassy abroad.
What does Form DS-5540 ask?
Form DS-5540 asks questions that primarily pertain to the applicant’s health, family status, assets, resources, financial status, education, skills, health insurance coverage, and tax history. The DS-5540 also requires applicants to provide information on whether they have received certain specified public benefits from a U.S. Federal, state, local or tribal government entity on or after October 15, 2019.
Who must complete Form DS-5540?
All immigrant visa applicants including those applying as immediate relatives, in family-based preference categories, in employment-based preference categories, and other categories of aliens including diversity visa applicants. In addition, non-immigrant visa applicants may be required to complete Form DS-5540 at the consular officer’s discretion.
Overview:
Only one form is required for a family that applies for their visas on the same petition, so long as they are interviewing as a family unit. For a family applying together, only the principal visa applicant needs to complete the form.
The following immigrant visa applicants may be required to submit the DS-5540:
- All immediate relative immigrant visa applicants, except for children (IR2, IR3, IR4, IH3, and IH4). However, stepchildren in the IR2 category will still be required to complete the form.
- The principal applicant for all family-based preference immigrant visas and any follow-to-join derivatives who do not accompany the principal applicant (F1, F2A, F2B, F3, F4).
- The principal applicant for all employment-based preference immigrant visa applicants, including most special immigrant visa applicants and any follow-to-join derivative family members.
- The principal applicant for all diversity visa applicants.
- Any nonimmigrant visa applicant if instructed to do so by a consular officer. For applicants under the age of 14 years old, a parent, legal guardian, or other party with “legitimate interest in the applicant” may complete and sign the DS-5540 on behalf of the applicant.
Who is Exempt from submitting DS-5540?
Certain aliens are exempt from the public charge ground of inadmissibility (and visa ineligibility).
To view the complete list of exempt aliens please click here.
For more information about the public charge ground of inadmissibility please click here.