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.
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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.

Health
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.

Age
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.

Speculation that in the coming days President Trump will end the Deferred Action for Childhood Arrivals (DACA) program has been growing stronger by the minute. If DACA were to end, it could happen in a variety of ways.

First Possibility: Allow DACA to sunset, and allowing those who presently have DACA and a work permit (with validity periods up to two years) to maintain such protection/benefits until it expires.

Second Possibility:  DACA could be terminated and previously issued deferrals of deportation and work permits would be immediately invalidated, and thereby placing the nearly 800,000 DACA recipients at risk for deportation.

Third Possibility:  Being of the greatest concern would be that DACA applicants’ personal information, including addresses will be shared with Immigration and Customs Enforcement (ICE). Although it unclear whether ICE would be legally permitted to use information from DACA application for the purposes of immigration enforcement, I feel somewhat confident that ICE lacks the resources to go after every DACA recipient. Nevertheless, everyone should acknowledge this is a possibility and so should prepare themselves for every scenario.

United We Dream (UWD) has provided tips on how DACA beneficiaries may protect themselves should they find themselves at risk of being apprehended by ICE. The following is a summary from their recommendations.

Do Not Open Your Doors— ICE cannot come into your home without a warrant signed by a judge, or you (or someone) giving them permission to enter the home.. With your door shut, ask ICE to slide the signed warrant under the door or push it up against a window. so that it may be reviewed.

Exercise Your Right to Remain Silent — It’s important for you to remain silent and ask to speak to your attorney. Simply tell the immigration officer: “I am exercising my fifth amendment right and choosing to remain silent until I speak to my attorney.”

Do Not Sign Anything Before Speaking to an Attorney — ICE and Customs Border Protection (CBP) may attempt to pressure or coerce you into signing your own deportation order. This is also known as a voluntary departure. Do not sign anything that they give you without first speaking to an attorney.

Record Your Encounter — Take note of badge numbers, name of officers, the number of agents, time, type of cars they used, and exactly what happened. Reporting this information will help advocates determine whether any rights violations occurred.

Report Your Encounter — UWD runs a hotline for people to report activity of ICE, CBP, or any other enforcement agencies. Report the activity by calling the hotline at 1–844–363–1423.

Contact an Immigration Lawyer — Get a trustworthy immigration attorney and explore all options to fight your case. If detained, you might be able to pay to be released on bond.

Protect Your Assets— If you bought a vehicle, home, or have a business, prepare a plan for how you will maintain them if you lose your job or are put into deportation proceedings.

Empower Others to Inquire About Your Case— Prepare a Third Privacy Waiver Form with your attorney or BIA representative. This form allows a third party of your choice (congressional office, another person that is not a family member, a non-profit organization) to request any information about your detention, immigration or deportation case from an immigration enforcement agency like ICE, CBP, or U.S. Citizenship and Immigration Services.

Prepare Your Documents— Make a folder of documents that will prove your physical presence as far back as you can. Make a copy of the front and back of your important documents such as passports, work permits, social security cards, drivers’ licenses, leasing contracts, G-28 form, Third Party Waiver, and keep the copies and originals in a safe place.

Make Plans for your Children— If you have children (under the age of 18), whether or not they are U.S. citizens, take the time to have emergency guardianship papers in place. This will provide you with peace of mind knowing how your child will be cared for if you are detained or deported. Apply for, renew, and keep safe their valid passports.

Prepare a Phone Tree— In case of detention, you need to have one person who can connect and activate all of your support system — family, teachers, mentors, and friends who will support you and your loved ones.

The coming days will be difficult, but being prepared in case DACA ends is a powerful step that can be taken to protect you and your family.