FAM Update Increases Risk of Denial for “Public Charge”

The U.S. Department of State (DOS) has updated the Foreign Affairs Manual (FAM) with regard to how consular officers should analyze whether a foreign national will be considered a public charge. This update to the FAM also addresses the use of affidavits of support, which may be particularly impactful in certain immigrant visa cases.

Background on Public Charge as a Ground of Inadmissibility

Under U.S. immigration law, a foreign national generally is considered inadmissible, and therefore will not be issued a visa to enter the United States, if the consular officer believes the visa applicant is likely to become a public charge. Public charge is defined as a person who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

Totality of Circumstances and Prior Use of Public Assistance

The FAM dictates that an officer must take into account the totality of the foreign national’s circumstances at the time of the visa application. An officer must consider age, health, family status, education and skills, assets, resources, and financial status. The recent update to the FAM provides more detailed guidance to officers to be used when assessing these factors.

The FAM now provides that an officer may consider whether a foreign national has ever received public assistance of any type in the past when assessing whether that foreign national is likely to become a public charge in the future. Importantly, the update specifically indicates that the overall determination must be made based on present circumstances.

Use of Affidavit of Support a Factor to Determine Public Charge

In addition to the enumerated factors, an officer may also consider whether an affidavit of support has been submitted on behalf of the applicant when determining whether an individual likely will become a public charge. This revision to the FAM, however, clarifies that an affidavit of support does not necessarily prevent the officer from denying the applicant on public charge grounds.

In applying for a nonimmigrant visa, and for certain categories of immigrant visas, a third party, such as a friend or relative, may complete a form I-134 affidavit of support for the foreign national to submit with a visa application. But, there is no general requirement that an I-134 affidavit be included with an application, and, in fact, submitting such an affidavit is not always advisable. See the MurthyDotCom NewsBrief, Form I-134 Affidavit of Support for B-1/B-2 Visitor Visas (03.Oct.2016) for more details.

Factors to Consider with Form I-864 Affidavits of Support Cases

For nearly all family-based immigrant visa cases, and a small percentage of employment-based immigrant visa cases, a form I-864 affidavit of support must be submitted, usually by the foreign national’s U.S. citizen immediate relative/s. Historically, as long as the I-864 sponsor met a certain income and/or asset threshold, this alone generally was sufficient to overcome the public charge requirement. Under this revision to the FAM, however, a denial based on a public charge finding still is possible.

The update instructs the officer to take the I-864 affidavit into consideration, but also cautions that it should only be “… one factor in the totality of the applicant’s circumstances.” One example given of when such an affidavit may not suffice is if the foreign national is in poor health, incapable of working, and is likely to incur substantial medical costs.

Conclusion

The update to the FAM provides additional clarification regarding factors that consular officers should consider when determining whether a foreign national could become a public charge. This update has the potential to present problems for some immigrant visa applicants where an I-864 is required.

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