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Refusal of Visas Based on “Public Charge” Ground

For many years, an Affidavit of Support is an essential document before a visa may be issued to an applicant seeking to enter the United States. What happens if the the affidavit of support is found to be insufficient? Why are many visa applicants now being denied despite submission of Affidavits of Support? What are the new changes in policy regarding public charge?

Public Charge Finding

A non citizen may become a public charge for inadmissibility or deportability if s/he has become primarily dependent on the government for subsistence or is proven to have (1) received public cash assistance for income maintenance or (2) institutionalization for long term care at government expense. Only 3 types of public cash assistance benefits are referred to become a public charge: (1) Supplemental Security Income or SSI for the aged, blind and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance, and (3) state and local cash assistance programs known as general assistance.

Affidavits of Support Plus Other Factors

Before new policies took place, an Affidavit of Support should be sufficient to overcome a public charge ground for denial of the visa. This is a document executed by the Petitioner who will attest that she has sufficient assets and income to support the visa applicant. If the petitioner is unable to show financial capacity to support, a co-sponsor may submit an affidavit of support. The petitioner or the sponsor shall demonstrate that she has the means to maintain an annual income equal to at least 125 percent of the Federal poverty line. In addition, she has to agree to provide support to maintain the sponsored visa applicant at an annual income that is not less than 125 percent of the Federal poverty income line.

Early this year, the U.S. Department of State changed the policy on Affidavits of Support. It added now a provision on 9 FAM 302.8-2(B)(2) that states that an Affidavit of Support is one of the positive factors taken into account in the totality of the circumstances test and is not in itself sufficient to protect an individual from a public charge determination. The other factors that are to be taken into account are the applicant’s age health, family status, assets, resources, financial status, education and skills.

In addition to the totality of circumstances test that is currently being used, it is anticipated that in the next few months, the new public charge policy of the Department of Homeland Security will be published and implemented. The worst part of the new rule that is USCIS will count benefits received by the petitioner U.S. citizen and take it against the visa applicant to show a finding of public charge.

In applying the amendments to the public charge policy, using the totality of circumstances test, there are cases now where a visa applicant is denied for public charge ground upon finding that the co-sponsor who executed the affidavit of support has no familial relationship to the visa applicant. This means that if the co-sponsor is a friend and not the relative of the visa applicant, even if there is proof of sufficient means to support the applicant, visa applications are being denied.

While this new policy is being implemented, there is no basis under the law to require a co-sponsor to be a relative. INA § 213A(f) or 8 CFR§213a.2 does not include a relationship requirement for a joint sponsor. In addition, the visa applicant should not be denied outright of their visas if initially there is a public charge finding. There should be an opportunity to augment the record by submitting additional evidence to show that the applicant will not be reliant on government welfare upon arrival in the United States. A visa applicant improperly denied based on public charge finding should not simply accept the decision without seeking a reconsideration and having the opportunity to submit additional documents to contest the denial.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw, or through this website.)

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