Mr. M’s I-601 immigrant waiver application and request for reconsideration were denied. He was permanently barred from the US for a material misrepresentation in obtaining a visa to be present for the birth of his child in the United States. As a result of the bar, he was living with his two small US citizen daughters in his home country, while his wife worked in the US and visited the family every two months. We submitted an appeal to the USCIS Administrative Appeals Office showing the extreme hardship that the family was dealing with as a result of the separation. After reviewing the evidence, the AAO approved the appeal, and Mr. M and his children were re-united with Mrs. M in the US.
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 “
In 2018, both the Department of State and the Department of Homeland Security are updating their rules 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
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
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
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
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
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
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