March 15th, 2019
PUBLIC CHARGE DETERMINATION – THE NEW ROADBLOCK TO AN IMMIGRATION STATUS
Immigrants seeking admission to the U.S. will now face new challenges, as the Trump administration has proposed new guidelines in determining whether a visa applicant is likely to become a “public charge.” Under current guidance from U.S. Citizenship and Immigration Services (USCIS) and the Department of State, a public charge refers to a person who is primarily dependent on the government for support. The purpose of the public charge determination is to prevent people, who are likely at any time to require governmental support, from being admitted to the United States. This determination is not only very broad in nature, but it is also at the discretion of the consular officers, leaving room for very different application and results at each consulate. Furthermore, it appears USCIS may incorporate some of these changes into its adjudication of applications to adjust status (green card applications) for applicants already present in the U.S.
When determining whether someone is likely to become a public charge, consular officers are required to take into account certain factors such as the person’s age, health, family status, assets, resources, financial status, education, and skills. A leaked draft of the proposed regulation states that additional factors will now be considered or weighed differently, including whether the person has ever used certain governmental programs or benefitted from certain tax deductions.
To make matters worse, the Department of State’s Foreign Affairs Manual (FAM), which provides regulatory guidance for consular officers, has already made changes to its public charge determination. The change notates that “a properly filed, non-fraudulent Form I-864 [Affidavit of Support] in those cases where it is required, is a positive factor in the totality of the circumstances that you must consider when making a public charge determination.” This is a substantial deviation from previous practice. In the past, a properly filed Form I-864 Affidavit of Support was generally considered sufficient to satisfy the “totality of the circumstances” analysis such that approval based on this form was customary.
Unfortunately, these changes will undoubtedly increase the number of applicants denied admission to the U.S., and for many applicants these changes will require a new approach and additional documentation at consular and USCIS interviews.
Attorneys at Stern & Curray are watching this issue carefully. If you have questions about these changes and how they might affect your immigration case, please call us and schedule a consultation.