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.
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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.

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