Public Charge Injunction affects on the Fiance Visa Process

A NY judge has placed a nationwide injunction on the public charge “final rule” during the period of which COVID-19 is declared a “national health emergency”.

If you remember, earlier this year President Trump got this wish granted on the “wealth test” — an update on the public charge laws requiring all incoming immigrants to be self-sufficient and have things like health insurance when they arrive.

Well, the Judge who placed the injunction (block) said that this law discouraged people from seeking coronavirus-related medical help because they feared it may affect their immigration status as a result of using public benefits OR having the disease.

Following the injunction order, the USCIS have said they will make changes to their procedures and implement them as soon as possible. They published an update on their website (www.uscis.gov).

So, what exactly does this mean for YOU and your fiance visa case now and in the future?

Well, as long as COVID-19 is declared a “national health emergency”, it means plenty of changes:

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Form I-944, Declaration of self-sufficiency, is NOT REQUIRED

…It’s not required if you apply for adjustment of status (I-485 for a green card) starting July 29, 2020… until the point COVID-19 is not declared a “national health emergency” anymore.

Those who have already applied for the I-485 before this date and still have not been adjudicated will not be held to the strict “final rule”. Going forward, the form I-944 will be ignored by the USCIS if anyone mistakenly submits it with the I-485 (there will be no penalty to you if you do).

If you’re not aware, this form I-944 requires a huge disclosure of an applicant’s financial information, debts, liabilities, income sources, education, even credit scores and reports. It’s meant to give the USCIS a “full picture” of your situation so they would determine if you’re self-sufficient or not. This form proved to be vague and often difficult to comply with.

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Health Insurance

Part of the “final rule” declared it a strong “positive weighted factor” to have health insurance for all incoming immigrants as part of the assessment to be self-sufficient.

Now, there may be a possible elimination of this for both the K visa interview and the Green card process. With the blockage on “final rule”, this requirement may also fall out of importance (although it may theoretically still be requested by an officer under the “totality of circumstances”).

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Form DS-5540

Lastly, it’s possible that there’s an elimination of form DS-5540 — a form introduced when Trump ‘s “final rule” was granted asking K visa applicants about self-sufficiency and health insurance. First of all, this form wasn’t required by everyone; it was up to the Embassy or the interviewing officer to request it from you specifically before your K visa interview.

Secondly, most K visa didn’t even get a chance to hear about this form because when it was introduced, COVID-19 forced Embassies to close. So, it’s like it never existed… In any case, with the injunction on the final rule, it means the form may be eliminated altogether. We are not sure at this point.

The minimum income level will still be 125%.

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How long will this injunction remain?

It’s difficult to predict how long the halt of the “final rule” will last. We don’t know at this point. Remember, the injunction is in place as long as COVID-19 is declared a “national health emergency”.

It’s possible the US may continue the blockage longer. Or it’s possible that other parties may challenge and overturn the rule in the future.

So — considering the fact that the world is still turned upside down due to COVID-19, it’s impossible to tell what we will see.