Individuals seeking to immigrate to the United States must normally demonstrate that they will not be a “public charge”-that is, that they will not become primarily dependent on the government for subsistence (usually in the form of public cash assistance for income maintenance or institutionalization for long-term care at government expense). Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), officers have traditionally considered the following factors:
· Age
· Health
· Family status
· Assets
· Resources
· Financial status
· Education and skills
Practically speaking, though, the Affidavit of Support, Form I-864, has usually proven dispositive. If the petitioner’s income met or exceeded 125% of the federal poverty guidelines, officers would usually be satisfied that there was no public charge issue.
Very recently, however, the Department of State quietly amended the Foreign Affairs Manual to implement a stricter standard regarding the public charge ground of inadmissibility. In short, consular officers are now directed to evaluate a number of additional factors beyond the petitioner’s financial status, including the finances of the visa applicants themselves and their ability to prove that they will not require public assistance if granted admission to the US. This change potentially affects and endangers several groups of applicants who do not have job skills or education; a stable work history; as well as those with no developed prospects of employment in the US. As a result, children, retired people, disabled people, as well as those with health issues may now face an increased burden in proving to an officer’s satisfaction that they will not drain governmental funds and resources. The new regulations go so far as to consider advanced age as a “negative” factor, while those under 18 must demonstrate what skills they possess would lead to employment. Those with health problems may need to furnish proof that they have health insurance or sufficient ability to take care of their medical costs in the US.
All these new changes essentially vitiate the I-864 and reduce it now to merely a factor in the final analysis. Given the wide breath of factors that an officer may now evaluate, this is a very significant development in family-based immigration, which is already endangered. Given the current administration’s posture towards “chain migration,” this revamped public charge standard may prove an effective tool to stymie the migration of “extended” family who would otherwise qualify under the old standard. Of course, since these changes are so new, we may not see the practical effects until the protocols are implemented; furthermore, each consulate will likely have its own quirks and emphases, so there will invariably be different experiences across the board. One consulate may expect to see job offer letters, while another may not deem it necessary for an average case. Generally speaking, though, in this era of “extreme vetting,” immigrant applicants should expect heightened scrutiny on a granular level, which can now delve into their finances and their ability to support themselves, a determination that is increasingly subjective now that the I-864 has depreciated.
The above is general information only and not to be relied upon as legal advice. It does not create an attorney client relationship nor should it be relied upon as advice in lieu of consultation with an attorney.