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.
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.
I watch the news almost on a daily basis, and it’s very seldom that the news coverage goes without a violent crime being committed against someone. As a Hispanic viewer who is concerned with the perception of my race, I am always interested to hear whether the suspect is Hispanic. However, the next concern is whether the victim is Hispanic or possibly a foreign national of some other region. Specifically, I wonder whether the victim (and family members) will be informed of a “silver lining” to such dark cloud – they may qualify for a U-Visa. Far too many immigrants are unaware of the U-Visa and the benefits it may provide to them and their family.
A U-visa allows immigrants and their families to stay in the U.S. for four years and apply for permanent residency on humanitarian grounds. These benefits and pathway to legalization extend out to the victim (direct or indirect), and certain relatives (ie. Spouses, children, and sometimes siblings and parents). Since it was signed into law in 2000, the U-visa program has been hailed as a strategy to improve relations between police and immigrants. Supporters say it allows undocumented immigrants to report crimes more freely, gets criminals off the streets, and makes women and children safer. But the U-visa program has never run smoothly. The federal government took nearly seven years to implement rules for the program. Officials didn't issue the first one until 2008, and then only after a lawsuit from activist groups.
Since 2008, federal authorities have granted 10,000 U-visas a year to entice undocumented immigrants to assist police and prosecutors. To apply for a U-visa, immigrants need local law officers to verify they were victims of domestic violence, rape, attempted murder or other serious crimes. The process is started by getting local police, the district attorney's office or a judge to sign paperwork confirming they were victims of serious crimes and have cooperated with investigators and prosecutors. Then, documents go to U.S. Citizenship and Immigration Services (USCIS), who conduct background checks and decide whether to issue the visa. Immigration officials typically took 6-9 months to approve or deny an application, but that processing time has increased to approximately 12-15 because the system is backlogged.
This program has benefited thousands of people, and its continued success has led to more applicants and longer delays. The longer one takes to apply, the longer it will take to have their application processed and approved. More than 25,000 people nationwide applied for U-visas in fiscal 2013 compared with roughly 6,800 in 2009, according to the USCIS, which handles the requests. On December 11, 2013, USCIS approved the statutory maximum 10,000 petitions for U-1 nonimmigrant status (U visas) for fiscal year 2014. This marked the fifth straight year that USCIS had reached the statutory maximum since it began issuing U visas in 2008. USCIS News.
U-Nonimmigrant Status may even be granted to individuals with prior orders of removal, certain criminal convictions, and other immigration violations, including false claim of U.S. citizenship. In fact, I remain the attorney on a case involving a loving mother seeking to return to the U.S. on a U-Nonimmigrant Visa to care for her four (4) U.S. citizen children. You can read the OC Weekly article here.
For more information regarding a U-Visa I encourage you to go here. USCIS also provides valuable information about the U-Visa here.
I have assisted dozens of victims and their family members obtain their U-Nonimmigrant status, followed by their lawful permanent residence status 3-4 years later. If you, a friend, or family member has been the victim of a violent crime, I encourage you to schedule an office appointment with me, an experienced immigration attorney.
Blessed by Arrabally: DACA and TPS Recipients Who Entered the Country Illegally May Be Eligible for Green Cards
For those who entered without inspection and were later granted Temporary Protected Status (TPS) or now qualify for TPS, you may be able adjust your status by means of applying for advance parole. Also, Dreamers who qualified for, and received deferred action” under the Deferred Action for Childhood Arrivals (DACA) program, you may also apply for advance parole.
Specifically, for those TPS or deferred action (DACA) recipients who previously entered the U.S. without inspection and are immediate relatives (child or spouse) of U.S. citizens may benefit greatly by applying for and using Advance Parole. Advance parole allows you to exit and re-enter the United States with your advance parole document. The Board of Immigration Appeals in a recent case, Matter of Arrabally and Yerrabelly, 25 I&N Dec. 771 (BIA 2012), held that “[a] departure under advance parole does not trigger the inadmissibility ground under 212(a)(9)(B)(i)(II).” Therefore, leaving the United States under advance parole does not trigger inadmissibility and you will be able to re-enter, this time with inspection.
Consequently, without the ground of inadmissibility being triggered under Arrabally, such recipients will now become eligible for adjustment of status (“green card”) because they will have been “paroled” into the United States within the meaning of INA §245(a). So for those DACA and TPS recipients who are married to a U.S citizen, or qualify as children of U.S. citizens, travel on advance parole may have the dual benefits of eliminating exposure to the unlawful presence ground of inadmissibility and creating eligibility to adjust status in the United States. For more information on this topic, feel free to go here.
I have had much success in getting clients their green cards as a result of having traveled outside the U.S. and returning with the use of Advance Parole. If you feel you may benefit from such process, please consult with experienced immigration attorney, as not all cases are the same. Prior departures and entries may still effect your eligibility to file for adjustment of status. This must be discussed with an attorney. Immigration law is a complex topic that is constantly evolving. Moreover, it is important that the advice you receive is up to date.
Mario Zapata is an immigration attorney practicing out of Orange County, CA and represents clients nationwide.