A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, February 5, 2018

Stricter "Public Charge" Requirements for U.S. Immigrant and Non-immigrant Visas

An applicant for an immigrant visa or nonimmigrant visa to enter the United States is subject to a number of grounds of inadmissibility such as previous immigration or criminal violations.  Public charge is one of such basis for disallowing a foreigner from receiving a U.S. visa.  Simply put, if the person is likely to become a financial burden of the U.S. government, then her visa will be denied.  Recent changes in the State Department's Foreign Affairs Manuel (FAM) make it more difficult for visa applicants to prove that she is not likely to become a public charge. 

The Immigration Act provides five factors for consideration regarding the issue of public charge, including (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.  Further, the U.S. government may also consider any affidavit of support provided by sponsors.  However, for many years, the overseas consular officers and the U.S. immigration officers have relied mostly on the affidavits of support (I-864 form) executed by financial sponsors as proof that the visa applicant will not burden the U.S. society.

The recent changes in the FAM have provided new guidance to the consular officers on this important issue:

1) Under the new guidance, the consular officers must examine the visa applicant’s “age, health, family status, assets, resources, financial status, education, and skills" in all cases.  The Form I-864 affidavit of support is only a positive factor to consider; an I-864 alone is insufficient proof of satisfying the public charge requirements in most cases.  All relevant factors will be considered in the totality of circumstances. 

2) In fact, the consular officer has to consider the likelihood that the sponsor will actually provide financial support to the visa applicant. Hence, if the financial sponsor is not a close family member, it is possible to argue that the financial sponsor may not be willing to support the immigrant.

3) Several groups of visa applicants have been identified for heightened scrutiny including children, the aged, the unemployed, retired persons, the disabled, or those who have health conditions.

4) For children under the age of 18 who are not accompanying or following to join a parent/guardian will be subject to heightened scrutiny. 

5) For applicants aged 18 or older, they need to show that they have employable skills in the U.S.  For the elderly applicants, consular officers may view their age as a negative factor to the extent that it affects their employability and potential need for healthcare.

6) For those who have certain health issues, their ability to work, the likelihood of future medical expenses, or their ability to support themselves and their dependents will be considered. The new guidance even suggests that applicants with health issues may have to provide proof of medical insurance or other proof of ability to pay for any potential medical expenses in the United States.

7) The visa applicant's education, employment history, and offer of U.S. employment may also be considered, requiring them to provide supporting documents in these regards.

8) Non-immigrant visa applicants (e.g., F-1, B-1/B-2) are also subject to the public charge ground of inadmissibility. According to the new guidance, consular officers "should not recommend for an NIV waiver an applicant who is ineligible on this [public charge] ground as a matter of policy.”

9) Consular officers are also asked to consider whether or not the visa applicant or a family member in the applicant’s household is currently or has received “public assistance of any type" from state, federal, or local sources.  Previously, receipt of non-cash benefits (e.g., food stamps, medicaid, etc.) were specifically excluded for consideration.   Further, if a financial sponsor has received a means-tested benefit (e.g., housing, food stamps, etc.) within the past three years, the consular officer will review the sponsor’s current ability to provide financial support to the visa applicant.

No doubt these changes mean tougher adjudication standards for visa applications.  But it is important to note that these are merely policy changes but not changes in the statute.  It will also take some time to observe how each consulate office implements these changes.  

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