Changes to “Public Charge” Instructions in the U.S. State Department’s Manual Causing Anxiety for Applicants Pursuing Consular Processing
On January 3, 2018, the U.S. Department of State published revised sections of its Foreign Affairs Manual (FAM) that deal with “public charge.” These State Department instructions highlights the administration’s interest in restricting family immigration and deterring families from securing vital services. Click file below to read the published revision. These changes to “public charge” policies have caused considerable anxiety to applicants (and their attorneys)..
Some non–U.S. citizens who seek to enter the U.S. or who seek lawful permanent resident (LPR) status must show that they are not likely to become dependent on the government for cash assistance or long-term care.
The FAM provides instructions that officials in U.S. embassies and consulates abroad use to make decisions about whether to grant a person permission to enter the U.S. as an immigrant or on a nonimmigrant visa. It does not govern decisions made by immigration officials inside the U.S.
Who is affected by the revised instructions?
The revised instructions could affect those people who go through consular processing in their home country before entering the U.S. This includes people seeking nonimmigrant visas, including tourist or employment-based visas, and people seeking to be admitted to the U.S. as a lawful permanent resident.
The revised instructions do not affect the public charge determination for people already in the U.S. who apply for a green card (i.e., those who seek to adjust to lawful permanent resident status), because the State Department does not process these applications. Nor do these instructions apply to lawful permanent residents seeking U.S. citizenship.
How do the revisions change the longstanding public charge policy?
The revised instructions continue to focus on whether a person seeking to enter the U.S. is likely to become primarily dependent on cash assistance or long-term care in the future. And they continue to require that each factor (age, health, income, education, family situation, etc.) be considered in the public charge test. However, the instructions also include changes to the treatment of a sponsor’s affidavit of support, and the use of non-cash benefits by applicants, sponsors and family members.
It is too early to know how these changes will be implemented by each U.S. embassy or consular office, but our office will closely monitor how such changes are being enforced at consulates.
Affidavit of support
Under previous policy, a sponsor’s affidavit of support (Form I-864) usually overcame negative factors in a public charge determination. Now, the new instructions explicitly state that the affidavit of support is ONLY a positive factor in the totality of the circumstances test but is not sufficient on its own to overcome a public charge determination. The instructions allow officials to consider the past or current receipt of public benefits by a sponsor in determining whether the sponsor would be able to support the immigrant, depending on the type of assistance and when the sponsor received the public benefits.
Use of noncash benefits by the applicant or a family member
The revised instructions allow the receipt of noncash benefits to be considered as part of the “totality” of the person’s circumstances, if relevant in predicting whether the person will rely on cash assistance or long-term care in the future.
The new instructions also allow State Department officials to consider whether an applicant’s family member has received pubic benefits as part of the public charge test. This factor can be overcome if the applicant can demonstrate that their prospective income and assets and the income and assets of others in the family are sufficient to support the family at 125 percent of the federal poverty level.
Factors that must be considered in the public charge test
The instructions offer more details about how State Department officials should evaluate the factors that must be considered in the public charge test, such as health, age, education, skills, income, resources, and family status. Although all these factors were relevant to the public charge determination in the past, in most cases, a valid affidavit of support has been sufficient to overcome this test. As noted earlier, it is too soon to know how the new instructions will be implemented by each U.S. embassy or consular office.
Under the revised instructions, applicants — particularly those with a health condition — may need to provide proof of medical insurance or other ability to pay medical expenses in the U.S.
Applicants under the age of 18 who are not accompanying or following to join a parent or guardian could be subject to more scrutiny under the new instructions, because officials can consider their age as a negative factor in the public charge test. And applicants who are 18 or older must demonstrate skills that make them employable in the U.S. State Department officials could view applicants’ mature age as a negative factor if they believe it will hurt their chances of finding work or would increase their potential health care costs.
Education and skills
Under the new instructions, it is more likely that applicants will need to establish that they have job skills and provide information about their job history, as well as explain any periods of unemployment or job changes. They may also need to provide information about their plans for employment once they immigrate to the U.S., or whether they have a job offer.
Income, resources, and family status
The revised instructions may require both the sponsor and the applicant to meet specific income requirements. An applicant and a sponsor would each need to show that they can support the family, including a spouse and unmarried children under age 21 — at 125 percent of the federal poverty level.
United States Citizenship and Immigration Services (USCIS) Publishes a Draft of its Guidance Policy Manual that Proposes Beneficial Changes to the Term "Extreme Hardship" When Adjudicating Form I-601 and Form I-601A Provisional Waivers
Last month, U.S. Citizenship and Immigration Services (USCIS) issued draft guidance on what constitutes “extreme hardship” for purposes of an immigration waiver. The guidance is a component of the executive actions on immigration announced in November 2014. Many had hoped that the anticipated guidance could help remove obstacles to obtaining legal permanent status in the United States. The guidance a draft only and has not gone into effect. USCIS seeks public comments and feedback no later than November 23, 2015. Following review of the comments, USCIS will issue a final version. To see the draft, please look below.
The immigration laws contain several waivers that allow noncitizens to overcome certain bars to admission (such as having unlawful presence in the United States) where certain family members (called “qualifying relatives”) would suffer “extreme hardship.” Unfortunately, immigration regulations do not define the term “extreme hardship.” As a result, USCIS has failed to apply the hardship standard consistently. In a November 20, 2014 memorandum, Secretary of Homeland Security Jeh Johnson directed USCIS Director Leon Rodriguez to “clarify the factors that are considered by adjudicators in determining whether the ‘extreme hardship’ standard has been met.” In issuing such a directive, his intent was clear: “It is my assessment that additional guidance about the meaning of the phrase ‘extreme hardship’ would provide broader use of this legally permitted waiver.”
Whether the final guidance will achieve the goal of “broader use” of the waiver remains to be seen. The draft guidance, in many ways, does not veer far from current guidance, albeit limited, that the immigration courts and the Board of Immigration Appeals have provided over the years. It also seems to add unexpected detail and layers of analysis, calling into question whether implementation will be difficult and the Secretary’s goal less obtainable.
Individuals applying for a waiver today must show that there would be extreme hardship to the qualifying relative if the family were separated (i.e., the relative remained in the United States) AND if the family member relocated outside the United States. Importantly, the draft guidance does not require the applicant to show hardship in both circumstances. Rather, if the applicant can pass a threshold finding that it is “reasonably foreseeable” that the qualifying relative would either remain in the United States OR relocate abroad, he or she need not demonstrate hardship in both situations.
One place where the guidance falls short is that it fails to include a list of situations where a presumption of extreme hardship exists, i.e., certain situations that automatically would result in a finding of hardship. The November 20 Johnson memo actually directed “USCIS to consider criteria by which a presumption of extreme hardship may be determined to exist.” As the Secretary pointed out, such presumptions exist in other immigration policies. Instead, the draft guidance offered the term “special circumstances”—circumstances that “would often weigh heavily in favor of finding extreme hardship.” These special circumstances include where the qualifying relative has been granted asylum or refugee status, is disabled, or is on active military duty; where the State Department has issued a travel warning to a country of relocation; and where there is a substantial change regarding the ability to provide care of an applicant’s children.
USCIS made a good decision to publicly release the draft guidance for public comment. This is an opportunity for stakeholders to carefully review the detailed guidance and make recommendations that will help the agency to fulfill its promise of waivers that are more broadly available. Once the guidance is finalized, it will be crucial to monitor how it is implemented in the field, as that will be the true test of its success.
Call our office if you need help with Form I-601 Waiver and/or Form I-601A Provisional Waiver. Our office will inform you of such updates and assist you through the process.
There are likely millions of people abroad (and in the U.S.) "waiting in line" to become lawful permanent residents and acquire their "green card" based on a petition filed by a relative (parents, spouse, siblings) or employer. They monitor the Department of State's Visa Bulletin (here) hopelessly wondering when it will be their turn.
There are provisions in our immigration laws that make it better to be from one country over another. This has to do with the quota system that governs a major part of when person gets to immigrate to the U.S. With the exception of immediate relatives, for the most part those who immigrate to the U.S. do so under the family-based or employment-based preference system. The number of persons who can immigrate in any one year under one of the family-based or employment-based preference systems is limited. There are also caps placed concerning the number of people who can immigrate in any one year from a particular country. In effect, there is a quota system in place.
The quota system is based on a person’s place of birth, not their nationality. Immigration laws usually treat someone based on their country of birth. In some scenarios, a person can use their spouse’s place of birth instead of their own to receive an important advantage. This is called “cross-chargeability”. Unfortunately, there are a lot of people who are unaware of this concept and fail to take advantage of it.
Cross-chargeability is important because, as stated above, visas are based on quotas, and certain countries have more people applying for green cards under certain preference categories so it might take significantly longer to get a green card if you are born in one country rather than another.
For example, under family-based petitions, a married Mexican who is sponsored by his USC father. Could face about a 17-20 years waiting period for a green card. This is true for a Mexican national petitioned by a U.S. citizen sibling as well. If that Mexican were married to someone from Guatemala or Argentina (for example), the current waiting period could be cut 5-8 years.
There are other ways to qualify for cross-chargeability other than through marriage. Additionally, cross-chargeability can also be used in certain employment-based petition processes. I recommend you contact our office if you seek assistance with applying under cross-chargeability, or for more information see 8 C.F.R. § 42.12.
For more than 8 years, Immigration Attorney Mario Zapata has been assisting people with immigration, green card or visa issues. For more information on how our Orange County Immigration Law Firm can help, please call us at (714) 441-2800, email us, or visit our office at 1100 E. Orangethorpe Avenue, Suite 200C, Anaheim, CA 92801.
USCIS Policy Memorandum on CSPA Creates an Exception for Late "Sought to Acquire" Filing
The Child Status Protection Act (CSPA) remains relevant in immigration law. On June 6, 2014, a USCIS policy memorandum was published, and it broadened the definition for how a CSPA beneficiary could have “sought to acquire” immigration status. Consequently, this could benefit certain adult children who were at one time available for protection under CSPA, but may have not timely filed for the benefit and outright disqualified from benefiting from the Act. The memorandum is available to read here.
Historically, CSPA provides for a formula wherein certain beneficiaries are still considered to be children (under 21 years of age) for immigration purposes, despite having actually turned 21 years of age. Notably, to qualify for CSPA, the beneficiary must “seek to acquire” their immigration status within one year of their priority date becoming current. Prior to the memorandum, the definition of “seeking to acquire” had been defined by USCIS and the Department of State as submitting an application for an Immigrant Visa (completed DS-230 Part 1 or DS-260), an application for Adjustment of Status (I-485), or an Application for Action on an Approved Application or Petition (Form I-824). This “sought to acquire” requirement was met as long as one of these applications had been filed within one year of visa availability.
Although USCIS and the State Department had narrowly defined the “seek to acquire” requirement previously, the Board of Immigration Appeals (Board) in Matter of O. Vasquez, held that an “extraordinary circumstances” exception can be applied in situations where the child has not met one of the three designated application procedures. Moreover, the USCIS Policy Memorandum references Matter of O. Vasquez, and officially provides guidance into the “extraordinary circumstances” exception. As a result, if an individual meets under the exception, USCIS may approve a CSPA request, even if they failed to take appropriate action on the case within the standard time limits.
The USCIS memorandum describes the criteria by which an immigration adjudicator can use discretion in excusing the one-year deadline by which to have “sought to acquire”. In essence, officers are to make extraordinary circumstances determinations on a case-by-case basis, under a totality of the circumstances. The memorandum reads that an adjudicator should exercise discretion in favor of the beneficiary if:
1. the circumstances were not created by the individual’s own action or inaction;
2. the delay was reasonable under the circumstances; and
3. the circumstances were directly related to the failure to act within the one-year period.
USCIS has not released a complete list of potential scenarios which would justify CSPA protection for a child who seeks to acquire residency beyond one year. The agency has, however, provided some examples of circumstances which might warrant a favorable exercise of discretion and a finding that CSPA protection is merited based on extraordinary circumstances. These circumstances include:
(a) Legal disability, such as mental impairment
(b) Serious illness or mental / physical disability during the one-year period
(c) Ineffective assistance of counsel
(d) Timely filing rejected by the USCIS followed by a prompt, corrected filing
(e) Death or serious illness or incapacity of legal representative or immediate family member
NOTE: The Memo is also retroactive in its effect, holding that cases denied solely due to late a filing after June 8, 2012, can be reopened.
CSPA provisions has been a highly litigated issued in immigration history, and the delays in immigrating due to the lack of such protection has caused families great anguish. Immigration law is complex and constantly evolving through case law and USCIS policy. Potential beneficiaries/applicants must act quick to avoid “aging out” from immigration benefits. Anyone who believes they or their children (or grandchildren) may benefit from the recent USCIS memorandum covering the “extraordinary exceptions” should seek advice from a qualified immigration attorney and not delay in getting answers.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.