The Department of State (DOS) has amended the Foreign Affairs Manual (FAM) to provide current guidance on the agency’s interpretation of the public charge ground of inadmissibility. The agency amended the FAM in 2018 in advance of publishing an interim final regulation a year later, both of which radically changed its long-standing interpretation of public charge. On July 29, 2020, a district court in New York enjoined the DOS from “enforcing, applying, implementing, or treating as effective” either its final rule or its 2018 FAM guidance. Make the Road New York et al v. Blinken, et al, 1:19-cv-11633 (S.D.N.Y.). As a result, the agency revised the FAM on Oct. 1, 2020, but it failed to restore much of the language that existed prior to the 2018 changes. The latest FAM changes do restore much of that language and became effective March 25, 2021. They are available on the agency’s website.

Definition of Public Charge

DOS is mirroring U.S. Citizenship and Immigration Service (USCIS) in its current definition of the term “public charge.” Both agencies are now following the Field Guidance published in the Federal Register by the Immigration and Naturalization Service on May 26, 1999.

DOS defines it as “likely to become primarily dependent on the U.S. Government for subsistence.” The change is significant in that it restores the words “primarily dependent,” which means that at least half of the applicant’s financial needs must come from the federal government, and the word “subsistence,” which is defined very narrowly. Only two types of benefit programs would qualify: (1) those providing public cash assistance for income maintenance; or (2) institutionalization for long-term care at government expense. The latter is defined as “care for an indefinite period of time for mental or other health reasons, rather than temporary rehabilitative or recuperative care even if such rehabilitation or recuperation may last weeks or months.”

Only three programs qualify as public cash assistance for income maintenance: Supplemental Security Income (SSI) for seniors or people with disabilities; Temporary Assistance to Needy Families (TANF), not including any supplemental cash or non-cash benefits; and (3) state or local cash assistance that provides for income maintenance (general assistance or general relief). Supplemental TANF programs that should not be considered include “transportation or child care benefits paid in cash, or one-time emergency payments…to avoid the need for on-going cash assistance.” It is very unlikely that any immigrant visa applicant would qualify for these federal or state needs-based cash benefit programs.

No other public benefits received by the immigrant visa applicant will be considered. This means that neither Medicaid, the Supplemental Nutrition and Assistance Program (SNAP or food stamps), or federal housing programs will be considered, as they were under the enjoined DOS public charge rule. Nor will any other cash or non-cash benefit program received by the applicant. The new FAM language also reminds consular officials that no benefits received by any member of the applicant’s family who is not applying for an immigrant visa will be considered. The only exception is when the family member’s receipt of benefits “also constitute(d) the primary means of subsistence of the applicant.”

Standard

The consular officials are to apply a “totality of the circumstances test” that involves weighing five statutory factors as well as the affidavit of support, described below. But it is the circumstances existing at the time of the immigrant visa interview — not hypothetical ones that may occur in the future — that control. The officers are warned that they “must be able to point to circumstances which make it not merely possible, but likely, that the applicant will become a public charge.”

Five Statutory Factors

The five statutory factors are the applicant’s age, health, family status, assets/resources/financial status, and education/skills. Regarding health, which will be measured by the results of the panel physician’s medical report, the consular official must consider any prognosis that indicates the applicant will be unable to work or will require institutionalization. Family status simply means the household size or the number of dependents the applicant will be supporting. The age and education/skills factors run together: if the applicant is 16 years or older, then the officer should consider any education and work-related skills he or she has acquired that will enable him or her to be self-sufficient.

Consideration of the financial resources factor depends on whether an affidavit of support has been submitted. If so, the consular officer will usually not need to determine whether the applicant has access to extensive personal resources. The only exception is if, after consideration of the other four factors, the likelihood that the applicant will be self-sufficient “is marginal at best.” In that case, it becomes more important that the sponsor has demonstrated the ability and likelihood of providing adequate financial support. If an affidavit of support is not required, then the applicant’s income should equal or exceed 100 percent of the Federal Poverty Guidelines (FPG) for his or her household size. Financial resources that can be considered include bank deposits, stocks and bonds, real estate, insurance policies, and business investments. Evidence of a job can also be submitted in the form of “a notarized letter of employment, in duplicate, on letterhead stationery attesting to the offer of prearranged employment.”

Weight Given to Affidavit of Support

The most important element in the public charge analysis is actually a sixth statutory factor: the required submission of a legally sufficient affidavit of support. Without that, the applicant must be found inadmissible for public charge. Fortunately, the FAM raises the prominence of the Form I-864 above the other five factors by restoring the critical pre-2018 language: “A properly filed, non-fraudulent Form I-864, should normally be considered sufficient to satisfy the INA 212(a)(4) requirements.”

This means that absent “significant public charge concerns” or “an unusual case,” the consular officer should: (1) not question the sponsor’s intent nor his or her ability to provide the necessary financial support in the future; or (2) put much if any weight on the other five factors as they apply to the applicant. Significant public charge concerns could include the sponsor’s advanced age, serious medical condition, or inability to work due to health-related reasons.

The five factors should be considered part of the “totality of the circumstances” analysis in cases where an affidavit of support is not required, and the public charge ground of inadmissibility applies. These cases include applications filed by widow(er)s, children who will derive citizenship upon immigrating, and those who have satisfied the 40-qualifying-quarters requirement. They could also include employment-based applicants, diversity visa lottery winners, and fiancé(e)s.

While the consular officer is allowed to consider whether the sponsor or the sponsor’s family member has received a means-tested benefit (e.g., SSI, TANF, SNAP, Medicaid, or the Child Health Insurance Program) within the last three years and, if so, analyze the sponsor’s ability to provide financial support for the intending immigrant, there is currently no question on the Form I-864 that asks for this information. The Instructions to Form I-864 include the following Q and A: “Does Receipt of Means-Tested Public Benefits Disqualify Me From being a Sponsor? No. Receipt of means-tested public benefits does not disqualify anyone from being a sponsor, however, means-tested public benefits cannot be accepted as income for the purposes of meeting the income requirement.”

The FAM includes additional language implying that the intending immigrant’s income can be included in the sponsor’s total household income whenever the applicant “has worked in the same job he or she will have after entry as an immigrant.” This interpretation is at odds with that of USCIS as well as the regulations, which require that for the intending immigrant’s income to be counted: (1) he or she must be residing with the sponsor or be the sponsor’s spouse, and (2) that any income earned in the United States must come from “authorized employment,” meaning work performed while the applicant had an employment authorization document. 8 CFR §§ 213a.1 (definition of household income), 213a.2(c)(2)(i)(C)(1).

Final Thoughts

Restoring much of the pre-2018 FAM language defining public charge is a welcome move on the part of this administration and removes one more obstacle put in place by the prior administration. The improvements include reestablishing the lead role to be played by the affidavit of support, limiting when the other five statutory factors should be considered, reiterating that the applicant’s receipt of only three cash assistance programs can be considered, restoring the applicant’s need to satisfy 100 percent of FPG rather than 125 percent when no affidavit of support is required, and stressing that the intent of the sponsor — including that of any joint sponsor — is irrelevant and should not be questioned given the legally binding nature of the contract.

Nevertheless, the FAM guidance could be improved by removing language making it harder to satisfy the public charge test for those qualifying for an exception to the affidavit of support. For example, widows, children of U.S. citizens, and those who have earned 40 qualifying quarters will have to submit more evidence and be subjected to more scrutiny than their counterparts who can submit a Form I-864. This may lead to some who are exempted from the affidavit of support electing to file one anyway.

The FAM language could also be tightened with respect to when the consular official should weigh the five statutory factors if the applicant has submitted a legally sufficient affidavit of support. In one section the FAM implies that absent “significant public charge concerns,” the officer does not need to consider them. But in another section it states that the officer “must consider at a minimum the applicant’s” standing with respect to the five factors.

Finally, although it is unclear when and how the sponsor’s or the sponsor’s family members’ receipt of public benefits would arise in the course of the immigrant visa interview, such receipt should be irrelevant as to the likelihood of the applicant becoming a public charge. Confirming that use of benefits by the sponsor or sponsor’s family members is irrelevant would be consistent with the pre-2018 policy, the current forms and the new administration’s goals. Maintaining this paragraph would make it difficult to address the harmful chilling effect of the policies that prevented U.S. citizens, lawful permanent residents and their family members from seeking health care and other critical services during the pandemic.

* Tanya Broder of the National Immigration Law Center assisted with this article.