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Courts Block Implementation of New Public Charge Rules: What this Means to the Visa Applicant

On August 14, 2019, the Department of Homeland Security (DHS) released its new public charge rules that was to take effect on October 15, 2019. However, prior to the expected effectivity date, five courts issued nationwide injunctions temporarily prohibiting the implementation of the new public charge rules.

New Public Charge Rules

Meanwhile, on October 11, 2019, Department of State (DOS) amended its rules and aligns it with the definition of public charge under the August 14, 2019 policy of the DOS.

These rules are still in the interim and no final rules are in effect although draft forms have been released in anticipation of the changes (Form I-944 and DS5540).

While the initial impact is that consular officers or immigration officers are bound to follow the existing rules, has it actually affected how visa applications are being adjudicated on public charge issues? Let’s examine the case of Jerry.

Jerry was petitioned by her U.S. citizen mother 10 years ago. The visa petition is now current, and that Jerry was scheduled for a visa interview. His petitioner mother submitted an Affidavit of Support but has insufficient income. A Joint Affidavit of Support was executed by Jerry’s best friend, Ray, also a U.S. citizen. Ray as the joint sponsor has a business and has enough income. At the visa interview, the consular officer did not approve the visa application until documents are submitted that Ray will make good of his commitment to support Jerry. Why is it that additional information is being required from co-sponsors/joint sponsors? Isn’t it that new public charge rules are not yet effective?

Likelihood of Becoming a Public Charge

There are several grounds for denying visa applications. Among them are fraud/misrepresentation, certain commission of illegal acts or prior criminal convictions. Likelihood of becoming a public charge (INA 212(a)(4)) is one of the many reasons for denying visas based on family petitions. Unlike other grounds for denial, likelihood of becoming a public charge is prospective in nature. A person will be deemed to be a public charge if there is a likelihood that s/he will rely on government benefits as his/her main source of support.

Consular Processing v. Adjustment of Status

Public charge policy guidance applies differently for a visa applicant at the U.S. consulate/embassy abroad (consular processing) and for visa applicants inside the United States (adjustment of status). The rules that apply to consular processing are governed by the Department of State (DOS) policy while that of adjustment of status are governed by the Department of Homeland Security (DHS) policy.

In both consular processing and adjustment of status, the rule in place is found in the 2018 DOS policy guidance and the 1999 DHS policy guidance respectively. Under the latter, while other factors are taken into account in determining public charge, an affidavit of support is usually sufficient to overcome the finding of public charge.

Insufficient Affidavits of Support

DOS amended rules as of January 2018 and uses the totality of circumstances test in determining whether one is likely to become a public charge. It is worthy to note that for consular processing, the 2018 policy guidance uses the totality of circumstances test and that an Affidavit of Support is just one of the factors to be considered in determining whether an applicant is likely to become a public charge. Applicant’s age, health, family status, assets, resources, financial status, education and skills are taken into account too. Hence, diminished weight is given to an affidavit of support.

When there is a joint sponsor, a consular officer will evaluate the likelihood that this joint sponsor will voluntarily meet his/her obligations under the affidavit of support. That is the reason why sometimes, the relationship between the joint sponsor and the applicant is asked during the interview. And if there is no family relationship between them there will be a probability that the joint sponsor will not follow through with the obligation under the affidavit of support.

In the case of Jerry, it may be appropriate to document his joint sponsor’s willingness to comply with his obligations under an affidavit of support. Although preliminary injunctions are in place right now prohibiting the implementation of the new public charge rules, application of existing rules have been strictly enforced. Visa applicants must prepare sufficient documentation addressing other factors that are taken into account under the totality of circumstances test.

(Atty. Lourdes S. Tancinco is an immigration attorney based in San Francisco CA and a partner at the Tancinco Law Offices. She may be reached at law@tancinco.com, www.tancinco.com, facebook/tancincolaw, or at 1-888-930-0808)

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