In 2018, the U.S. Department of State amended the “Public Charge” sections of its Foreign Affairs Manual (FAM), making it more difficult for foreigners, including Vietnamese citizens, to overcome the public charge ground of inadmissibility and obtain U.S. Visas. Because the public charge ground of inadmissibility applies to almost all visa types, this new change could result in many more visa denials. If you are applying for a U.S. visa or have been denied for a U.S. visa under the public charge ground of inadmissibility (INA 221(g) or INA 212(a)(4)), please continue reading.
Legal Background:
The “public charge” ground of inadmissibility is codified in section 212(a)(4)(A) of the Immigration & Nationality Act (INA) and states that any foreign national who is likely to become a public charge is inadmissible to the United States. Simply stated, this means that a foreigner who is likely to become dependent on the U.S. government for survival must be denied when applying for a U.S. visa or Green Card, 64 FR 28676.
In determining whether a foreigner is likely to become a public charge, the reviewing officer must at least consider the following factors: age, health, family status, financial status, education, and skills, INA § 212(a)(4)(B)(i). In addition, if applicable, an affidavit of support must be considered, INA § 212(a)(4)(B)(ii); see also 22 C.F.R. § 40.41(a).
Note that there are some exclusions to this ground of inadmissibility, including for refugee and asylum applicants. As for the FAM, it contains directives and guidance for Department of State personnel, providing consular officers with the guidance needed to make informed decisions based on U.S. immigration law and regulations, 9 FAM 101.1-1.
Changes to the “Public Charge” FAM:
The major change to the “Public Charge” FAM is in the value placed upon a properly filed Affidavit of Support, Form I-864. An Affidavit of Support is required for most family-based and some employment-based immigrants. In sum, an Affidavit of Support is a contract between a sponsor and the U.S. government stating that the sponsor agrees to use his/her financial resources to support the intending immigrant(s).
The old “Public Charge” FAM required the consular officer to conclude that, “A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to overcome the INA 212(a)(4) requirements,” 9 FAM 302.8-2(B)(2)(c) (amended 2018). In addition, the credibility of an offer of support from a person who meets the definition of a sponsor and who has verifiable resources is not a factor – the affidavit is enforceable regardless of the sponsor’s actual intent and should not be considered by you, unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition,” 9 FAM 302.8-2(B)(2)(c) (amended 2018). And the old “Public Charge” FAM re-iterated that, “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,” 9 FAM 302.8-2(B)(3)a.(2) (amended 2018).
In contrast, the new “Public Charge” FAM now states that, “A properly filed, non-fraudulent Form I-864 in those cases where it is required, is a positive factor in the totality of the circumstances. The applicant must still meet the INA 212(a)(4) requirements and satisfy the ‘totality of the circumstances’ analysis,” 9 FAM 302.8-2(B)(2)a.(3). The new FAM further states that, “A properly filed and sufficient, non-fraudulent Form I-864, may not necessarily satisfy the INA 212(a)(4) requirements, but may provide additional evidence in the review of public charge determination,” 9 FAM 302.8-2(B)(3)b.(1)(a). Therefore, under the new FAM, a properly filed Affidavit of Support, alone, will no longer be sufficient to overcome the public charge ground of inadmissibility.
In addition, the new “Public Charge” FAM now states that the consular officer may now consider the likelihood that the sponsor will actually support the applicant in determining public charge, 9 FAM 302.8-2(B)(3)b.(1)(b). This is in sharp contrast to the old FAM which basically prohibited the consular officer from evaluating the sponsor’s credibility and actual intent of providing support to the foreign national.
Consequences of the “Public Charge” FAM Changes:
The changes to the “Public Charge” FAM give Consular Officers much more room to deny applicants for visas based upon the public charge ground of inadmissibility. Applicants will no longer be able to simply rely on a properly filed Affidavit of Support to overcome the public charge ground of inadmissibility. Visa applicants will have to be prepared to answer more questions regarding their health, family status, financial status, and education and skills to show that they will not become public charges. Applicants will also have to be ready to provide more evidence in these areas than before.
Furthermore, Consular Officers can now inquire into the intent of the sponsor to evaluate whether the sponsor actually intends to support the intending immigrant. Intending immigrants should be ready to answer questions on this topic when asked at the visa interview. Visa applicants should also more carefully choose their sponsors to ensure that they are not denied for a visa under the public charge determination for having a sponsor who does not actually intend to support the intending immigrant. Unfortunately, visa applicants have to be more thorough and careful than ever in applying for U.S. visas.
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