The Trump Administration is aiming to broaden the definition of who is likely to become a public charge. One who is likely to become a public charge can be refused a visa to enter the United States or denied adjustment of status to permanent residence within the United States. This proposal is still in draft format and has not yet become a rule. However, when it becomes a rule, foreign nationals who rely on government benefits will be found inadmissible under the public charge ground. Current policy allows officials to consider only two types of public benefits that would result in a negative public charge determination: cash assistance for income maintenance and institutionalization for long-term care at government expense.
While the proposed regulatory change is under review, the State Department’s Foreign Affairs Manual (FAM) has already made it easier to find visa applicants inadmissible under the public charge ground. Under INA 212(a)(4), a foreign national seeking to be admitted to the United States as either a nonimmigrant or an immigrant will be found inadmissible if he or she is likely to become a public charge at any time. The law allows officials to look at a foreign national’s age, health, family status, assets, resources and financial status; and education and skills. Pursuant to INA 213A, a properly executed affidavit of support by a US sponsor, Form I-864, may overcome a public charge determination in all family immigration and in some employment-based cases. An I-864 clearly constitutes a contract between the sponsor and the government.
The State Department FAM (amended on 1/3/2018) broadened the ability of a consular officer to make a public charge determination, rendering it easier to refuse an immigrant visa. Specifically, new FAM provides: “In General: In making a determination whether an applicant is inadmissible under INA 212(a)(4)(B), in every case you must consider at a minimum the applicant’s: Age; Health; Family status; Assets, resources, and financial status; and Education and skills. These factors, and any other reasonable factors considered relevant by an officer in a specific case, will make up the “totality of the circumstances” that you must consider when making a public charge determination. Value of the Affidavit of Support: A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the “totality of circumstances” analysis, which requires the consideration of the factors listed in paragraph (1) above.” Under the new FAM guidance, a properly executed Form I-864 will only be considered “a positive factor in the totality of circumstances” even though it is a binding enforceable contract that allows the government agency to claim reimbursement of the cost of the benefit that was provided to the foreign national. Compare the new language with the January 19, 2017 version of the public charge definition in the FAM, which stated: “a properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” analysis. Nevertheless, the factors cited above could be given consideration in an unusual case in which a Form I-864 has been submitted and should be considered in cases where Form I-864 is not required.” Under the new FAM guidance, a non-fraudulent I-864 will no longer be considered sufficient to overcome the public charge requirements under INA 212(a)(4). A DOS official confirmed that the I-864 is now just one part of the holistic determination, which includes family ties, work history, health issues and other factors. DOS will look behind the affidavit of support if the consular officer believes that the sponsor is not likely to comply with his or her obligations.
Applicants should no longer assume when they process their green card at a US consulate that an I-864 will be deemed to overcome a public charge finding. The green card applicant must also demonstrate his or her own history of employment, or ability to obtain employment, along with prior tax filings. The visa applicant must also be ready to demonstrate a meaningful relationship with a co-sponsor, if there is one. Finally, the I-864 must be accompanied by the required corroborating documentation pertaining to the sponsor such as tax returns, employment documents and evidence of assets, if applicable.