Mr. S was a famous physicist in his home country, and his EB-11 petition for extraordinary ability was approved. However, because of the nature of his work, his application for adjustment of status was deemed sensitive by the US government and no action was taken on it for four years. After we filed a lawsuit for a writ of mandamus in a federal district court, the US Attorney’s office, which was responsible for defending the lawsuit, contacted USCIS. Within two weeks, USCIS approved the application for adjustment of status.
Section 212(a)(4)(A) of the Immigration and Nationality Act allows for the denial of entry to the United States of any applicant who is considered likely to become public charge at any time. This has been interpreted to mean that if an individual is likely to become “primarily dependent” on public cash assistance to maintain income levels or need “long-term care at government expense," then a public charge finding would be appropriate. With the election of President Trump, the US Government has begun to place more emphasis on enforcing this provision of the law and reinterpreting the statute to broaden its potential reach. What this means is that more and more individuals will be denied the ability to immigrate because of this provision.
The Department of State and the Department of Homeland Security are updating their rules and interpretations to make it harder for applicants with less financial resources to immigrate. The new rules are being broadened to deny potential immigrants on public charge grounds if they have in the past or are projected in the future to utilize varying assistance programs. For example, new Department of State rules consider whether the applicant received any form of public assistance in the past -not just assistance meant to maintain income levels. The bottom line is that consular and USCIS officers are being empowered with more and more authority and discretion to reject potential immigrants on public charge grounds.
The focus of this article is on visa applicants and the difficulties being encountered by them at US consular posts around the world when applying for immigrant visas.
No Waiver Available
Most troubling — and daunting — for these potential immigrants is that there is no waiver available for this inadmissibility. This contrasts with other decisions of inadmissibility, such as unlawful presence or a conviction for a crime of moral turpitude, for which a waiver is available. This means that the potential immigrant must convince the consular officer that he or she will not become a public charge; there is no alternative. Judicial review in general is not available for visa decisions, and these determinations are fact-specific, so the Department of State will not intervene in overruling a decision of a consular officer.
Affidavits of Support from Family and Friends
The difficulties are being primarily encountered by family and Diversity Lottery immigrants. One myth that we have encountered relates to the acceptance of an affidavit of support by the National Visa Center. Just because the National Visa Center has accepted an affidavit of support from a sponsor or sponsors does not mean that the consular officer will also accept this documentation as adequate. Another common problem that we have seen is that consular officers have become less willing to accept affidavits of support from non-family members. Some of this concern is understandable, as a “black market” for sponsors has developed. On the other hand, often times the affidavits of support of legitimate and compassionate family friends and church members are being rejected by consular officers without any basis whatsoever. This stands in stark contrast to previous policy, which allowed for such individuals to step in to guarantee support to the new immigrants.
Factors to be Considered
Consular officers use a “totality of circumstances” test in evaluating whether the applicant for an immigrant visa will become a public charge. The factors that are considered include age, health, family status, education level, knowledge of English, assets, resources, and other skills. In essence, the consular officer is making a determination about whether this potential immigrant has the wherewithal to successfully adjust in the United States without resorting to public assistance. A Diversity Visa applicant with a house to sell, university education, and knowledge of English will likely not be considered to become a public charge, whereas another Diversity Visa applicant without a university education, no knowledge of English and no assets may become subject to a public charge finding.
The Department of State has also reinterpreted the role of an affidavit of support. In most family-immigration cases, such an affidavit of support is required. It obliges the sponsor to maintain the beneficiary at minimum income levels and reimburse the government for any assistance received by the beneficiary. Previously, an affidavit of support meeting US poverty level guidelines alone sufficed to overcome a potential public charge decision. That is no longer the case, as an affidavit of support is now only one factor considered in the totality of circumstances test. This policy change has greatly empowered and emboldened consular officers with more discretion in denying immigrant visa applications. The number of public charge denials has skyrocketed. Unfortunately, and tragically, we have already seen this authority wielded in ways that may lead to permanent separation of families.
How Not to Fall Victim to a 212(a)(4)(A) Finding and How to Overcome it
What this means is that family immigrant and Diversity visa applicants need to plan much more thoroughly for addressing this issue at the visa interview. Applicants must try to present themselves, their skills, adaptability, and qualifications in the best positive light. Potential employment and specific career plans should be the subject of pre-interview preparations. Assets in the home country should be documented; real estate — appraised.
Sponsors in the United States need to clearly and transparently document their income and assets; “working for cash” is not acceptable. Independent contractors who “write off” much of their income with business-related expenses need to think twice about doing so. Income should be maximized for the year before immigration of family members. Long unpaid vacations can mean the difference between an approved and denied application. Job offers and affidavits of support from friends need to evidence that the relationship is truly real and legitimate and that the friends acknowledge their legal obligations.
Perhaps the lone bright spot in this deepening bureaucratic quicksand is that in the case of a public charge finding, Department of State rules allow for the submission of new evidence — without limits on time (except in DV Lottery cases). So if income or asset levels of the sponsor increase, or if legitimate job offer or co-sponsor is found, that new evidence must be considered by the consular officer. In fact, the majority of public charge findings are overcome, with the applicants receiving visas.
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