In recent months, many of the more notable immigration developments have concerned the public charge ground of inadmissibility. The first rumblings occurred when the Department of State began implementing new guidelines vitiating the presumptive weight of an approvable I-864 affidavit of support. Even if a petitioner's income met or exceeded 125% of the federal poverty guideline, adjudicators were vested with greater authority to look beyond the affidavit and explore traditional factors in more detail. These traditional factors-health, age, education, income and resources-will undergo more scrutiny in determining whether an immigrant is likely to become a financial burden on the government.
Not too long after, the proverbial second shoe dropped when the Department of Homeland Security issued a proposed rule amending the current rules to render current or past receipt of designated public benefits as a negative factor in the public charge calculus. Some fear, with good reason, that rule may in time be expanded and eventually prejudice citizenship applicants.
And just recently, the Board of Immigration Appeals issued a precedential case revolving around the Affidavit of Support. Ironically, while the first two changes attempt to diminish the importance of an I-864 affidavit, this decision establishes that an affidavit of support is nevertheless required in many situations (and without it, an application is not approvable). In any event, the holding works against prospective immigrants and represents another clear sign that the public charge ground of inadmissibility will be increasingly utilized by the government to deny cases.
The case, Matter of Song, 27 I & N Dec. 488 (BIA 2018) specifically concerns applicants for adjustment of status who were initially admitted on K-1 visas, marry their petitioning spouses within ninety days, but subsequently divorce. In a previous decision, Matter of Sesay, the BIA ruled that such individuals were nevertheless eligible to apply for adjustment under 245a even if the marriage was terminated by the time the adjustment was adjudicated, provided that it was demonstrated that the marriage was entered into within ninety days after the immigrant's arrival and bona fide in nature. Matter of Song clarifies that even if the couple is divorced, the immigrant must still submit an affidavit of support from the original petitioner to establish that he or she is not inadmissible under public charge grounds. Unfortunately for Ms. Song, her ex-husband had withdrawn his I-864 prior to adjudication of her I-485 adjustment and was unwilling to submit a new one, thereby rendering her ineligible and ultimately deemed removable by the BIA. The court stated: "the plain language of the statute and regulations does not permit an exception to the affidavit of support requirements in the event of divorce and...none should be implied." Stated another way, an affidavit of support from the ex-spouse must be submitted for K-1 adjustment applicants. I-864s executed by new spouses or other family members-absent one from the original petitioner--will not discharge this requirement. In practical terms, this decision imposes a formidable obstacle for K-1 visa holders who may have timely married their sponsors in good faith but subsequently get divorced. Realistically, the US ex-spouse will be unwilling to submit an affidavit and incur financial responsibility for someone they are no longer married to. As such, many K-1s who were not able to complete the process before divorce may find adjustment of status to be not only unviable but extraordinarily risky given the new NTA policy in effect.
The above is general information only and not to relied upon as legal advice. It does not create an attorney-client relationship, nor should it be relied upon in lieu of consultation with an attorney.