Last week witnessed the release of the much-dreaded final rule pertaining to the public charge ground of inadmissibility. To say that the new policy is a drastic reworking of the current practice is an understatement. The policy changes not only significantly expand the contours of what is considered a public charge but potentially arm adjudicators with additional tools to deny individuals seeking admission into the US. Since the Department of State has already implemented its own draconian public charge regulations, these new changes primarily affect people who are applying for family-based admission in the US, notably adjustment of status applicants. It also impacts certain non-immigrants requesting a change or extension of stay in the US.
Over the last year, there has been alarming uptick of consular cases denied on public charge grounds. Under this ground, a visa may be refused if the "applicant is likely, at any time after admission, to become primarily dependent on the US Government (federal, state, or local) for subsistence. Under new Department of State guidelines, the Affidavit of Support, in and of itself-even where the petitioner meets 125% of the poverty guideline level-is no longer dispositive. While a strong affidavit may serve as a positive factor, a whole host of other factors should be taken into consideration by the consular officer, including the visa applicant's "age, health, family status, assets, resources, financial status, education, and skills."
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.
In nearly all family based immigration cases, the petitioner must execute an I-864 Affidavit of Support form. The "affidavit" is essentially a contract between the sponsor and the US government that the sponsor has sufficient income to maintain the intending immigrant at 125 percent of the Federal Poverty Guideline (new guidelines are released annually). As has been mentioned before in various articles devoted to this topic, this is a very serious obligation that continues even if the parties in a marriage based scenario divorce. One subject which does not receive as much attention, but which is equally important though, is how a sponsor can fulfill his/her obligations if he or she does not meet the financial threshold to sponsor the intending immigrant.
Last week, USCIS released the 2016 HHS Poverty Guidelines. As expected, the numbers have risen slightly. It is critical to look at the most current poverty guidelines for each year, as they determine whether a sponsor will be able to demonstrate sufficient income to satisfy the Affidavit of Support requirements (I-864). In most family based cases, the petitioner must show that he/she earns at least 125% of the HHS Poverty Guidelines, which is determined by the number of people in the petitioner's household. The new guidelines are as follows:
In the case where a petitioner passes away before a beneficiary is able to immigrate, the I-130 is normally cancelled. Under certain circumstances, the case may still continue through approval of a humanitarian reinstatement request. These requests, unfortunately, are not automatically granted. There must be a strong demonstration of humanitarian factors that would warrant USCIS reinstating the cancelled petition with the original priority date. Furthermore, even if those grounds can be shown, there must also be a Substitute Sponsor waiting in the wings who is ready, willing, and financially able to incur the obligations involved with the I-864, Affidavit of Support.
One often-overlooked requirement of the affidavit of support is that the petitioner maintain a domicile in the United States. This issue comes into play when the petitioner, usually a United States Citizen, is living abroad and does not currently live or reside in the US.