visas

Public Charge Final Rule

UPDATE: As of February 24, 2020, the public charge rule has been implemented nationwide after the Supreme Court stayed the limited state-wide injunction in Illinois against the Department of Homeland Security.  At the same time, the Department of State also began implementing its amended public charge rule, and visa applicants from abroad should prepare Form DS-5540 ahead of their visa interview in case the consular officer requests it.  For more information read the announcement on the Department of State's website.    On January 30, 2020 the USCIS announced that it will resume enforcing the Inadmissibility on Public Charge Grounds Final Rule (“Final Rule”) and begin implementing it on February 24, 2020. Foreign nationals who are applying for visas and green cards from within the United States — through a process known as “Adjustment of Status” — will be subject to the Final Rule starting on February 24, 2020.  For visa applicants who are outside of the country, the Final Rule has not yet been implemented. The Department of State announced in October 2019 to delay enforcement until they first finalized their own information collection form and changes that they would need to make to their policy manual. The Final Rule had originally become effective on October 15, 2019 but was enjoined due to litigation after lawsuits were filed to prevent the Trump Administration’s attempt to enforce the Public Charge rule, which was seen as an effort to expand the government’s ability to deny access to green cards or visas for legal immigrants who would become dependent on public assistance. On January 27, 2020, the U.S. Supreme Court lifted the injunction and allowed the Final Rule to go forward, with exception to the State of Illinois, where the Final Rule remains enjoined. This article offers information concerning the Final Public Charge Rule, what factors will be taken into consideration, and which individuals are likely to be affected by the change. Background on the Public Charge Rule Who is subject to the public charge inadmissibility ground? Unless specifically exempted by Congress, all foreign individuals seeking immigrant or nonimmigrant visas abroad are subject to the public charge inadmissibility ground, as are individuals seeking admission to the United States on immigrant or nonimmigrant visas, and individuals seeking to adjust their status. In certain cases, even lawful permanent residents returning from a trip abroad will be subject to inadmissibility determinations, depending on the circumstances. Immigrants who have been exempted by Congress from the public charge ground of inadmissibility include refugees, asylees, and Afghans and Iraqis with special immigrant visas. For a general overview and developments in this area read our previous articles here.

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Understanding the Visa Bulletin

Introduction United States employment and family-based permanent visas, green cards, are limited each year by number and by country of origin. In 2019, there will be no more than 226,000 family-sponsored visas and no more than 140,000 employment-based visas. The United States further limits employment and family-based immigration by only allowing 7% of visa to originate from one country. This is not a quota and the United States is not required to admit a specified number of foreign nationals from one country, but rather a ceiling and the United States cannot admit more than 7% of the total visas issued to foreign nationals from one country. In 2019, approximately 25,620 visas are equivalent to 7%. The system creates a backlog and visas are awarded on a first come, first serve basis.  To address the backlog, the Department of State and the USCIS created a complex system of priority dates. When a priority date is current, a foreign national may apply for permanent residence. Current means that a foreign national’s individual priority date would be on or before the date published in the monthly Visa Bulletin. Paying close attention to the priority dates is important for establishing permanent residency under the employment or family visa categories.

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