The new public charge rule requires immigrant and non-immigrant visa applicants to provide a detailed DS-5540 public charge questionnaire in order to determine whether they are likely to become a public charge at any time in the future. While a K-1 visa is officially a non-immigrant visa allowing for single entry and requiring applicants to file for adjustment of status once inside the United States, a K-1 visa is a hybrid between a non-immigrant and an immigrant visa.

While K-1 visa applicants do not submit a Form I-864 Affidavit of Support, and a Form I-134 is only required if the interviewing consular officer deems it useful, the new public charge rule allows consular officers to request a K-1 visa applicant to complete a DS-5540 to assist in evaluating the likelihood that the applicant will become a public charge.

9 FAM 302.8-2(B)(4) (U) Applying INA 212(a)(4) to Nonimmigrants

d. (U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating the likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.

While the request for a Form DS-5540 is discretionary, because the new rule provides consular officers with broader powers to request additional financial documentation from an K-1 visa applicant, K-1 visa applicants should be prepared to submit the form as part of their K-1 visa consular processing.

For more information on DS-5540 Public Charge Questionnaire, contact and schedule a consultation session with a U.S. immigration attorney in Ho Chi Minh City, Manila and Taipei.