With no fanfare and little public notice, the Department of State (DOS) has amended the Foreign Affairs manual (FAM) to increase the burden of satisfying the public charge ground of inadmissibility for both immigrant and nonimmigrant visa applicants. Under rules in place since the affidavit of support requirement was implemented in December 1997, consular officials have accepted the Form I-864 as the primary – and in almost all cases the only – form of evidence to establish that the immigrant visa applicant is not “likely at any time to become a public charge.” That could soon change, depending upon how consular officials incorporate the new FAM instructions. They now require officials to weigh a number of additional factors relating to the visa applicant rather than looking only at the sponsor’s financial status. The new FAM section can be accessed at: https://fam.state.gov/fam/09FAM/09FAM030208.html#M302_8

On September 30, 1996, when the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) was enacted, Congress amended the public charge ground of inadmissibility to both add the Form I-864 affidavit of support requirement and define the factors to be taken into account when deciding whether an applicant has met this burden. Section 212(a)(4)(B) of the INA states:

• (i) In determining whether an alien is excludable under this paragraph, the consular officer or the Attorney General shall at a minimum consider the alien's- (I) age; (II) health; (III) family status; (IV) assets, resources, and financial status; and (V) education and skills.
• (ii) In addition to the factors under clause (i), the consular officer or the Attorney General may also consider any affidavit of support under section 213A for purposes of exclusion under this paragraph.

Those five factors had been considered by both the DOS and the Immigration and Naturalization Service (INS) for at least two decades prior to their being codified in the statute in 1996. Up until that date, most officers required intending immigrants to demonstrate the ability, through an offer of employment or demonstrated work history, to earn at least 100 percent of the poverty income guidelines for their household size. It was common for officers in those days to require low income applicants to submit an affidavit of support, Form I-134. This was typically executed by the U.S. citizen or LPR petitioner or a close family member. These affidavits stated that the sponsor would support the intending immigrant for a three-year period; several courts, however, held these affidavits to be legally unenforceable. Sponsors supplemented these affidavits with income tax returns and bank statements.

But in the mid-1990s, some officers required additional proof that the intending immigrant and all family members – including U.S. citizen children – demonstrate that they were not receiving and had not received any form of public assistance. If they had received it, some officers conditioned the granting of their application on proof that they had repaid the value of these public benefits. This resulted in many U.S. citizen children living in mixed households being dropped from supplemental food and health-related programs because the parents feared that receipt of these benefits would jeopardize their immigration status or eligibility for immigration benefits.

This lack of clarity and uniformity – and even overreaching on the part of some officers – resulted in the INS’s promulgating a memorandum, field guidance, and a proposed rule in the Federal Register in 1999 that clarified the meaning of the term “public charge.” The DOS issued a cable to its consulates providing similar instructions. That cumulative guidance has been helpful in establishing clear standards for interpreting this ground of inadmissibility and deportability. It has also been helpful in clarifying the relationship between public charge and the receipt of certain public benefits.

According to the memorandum, field guidance, and proposed rule, a non-citizen has become a public charge for inadmissibility or deportability purposes if he or she has become “primarily dependent on the government for subsistence, as demonstrated by either (i) the receipt of public cash assistance for income maintenance or (ii) institutionalization for long-term care at government expense.” 64 Fed. Reg. 28689 (May 26, 1999). The Service defined the term “public cash assistance for income maintenance” as including only three forms of benefits: (1) Supplemental Security Income (SSI) for the aged, blind, and disabled; (2) Temporary Assistance for Needy Families (TANF) cash assistance; and (3) state and local cash assistance programs, usually known as general relief or general assistance. Id. at p. 28692.  Programs that support persons who are institutionalized for long-term care, including Medicaid, are typically provided to those in a nursing home or mental health institution. The proposed rule explained that “institutionalization for short periods of rehabilitation” does not fit this definition.

The intending immigrant’s receipt of non-cash benefits should not be taken into account when considering whether he or she is likely to become a public charge. The INS and DOS developed a list of programs that should not be considered in weighing whether the intending immigrant had satisfied the public charge ground.

The memorandum, field guidance, and proposed rule also pointed out that the determination of the likelihood of becoming a public charge is a prospective test and should include consideration of all of the factors set forth in the statute, as well as prior administrative decisions and regulations implementing the Immigration Reform and Control Act of 1986. These make up what is called the “totality of the circumstances test.” 64 Fed. Reg. 28689 (May 26, 1999). Any officer who intends to deny an application based on public charge must weigh the five statutory factors and “specifically articulate the reasons for the officer’s determination.” Past or even current receipt of one of the three cash assistance programs does not automatically mean that the person is likely to become a public charge in the future. Rather, it is just one of the factors taken into consideration when making the forward-looking determination. When the applicant received the benefits and for how long a period will determine how much weight these factors should be given. Past receipt by the intending immigrant of non-cash benefits (other than institutionalization for long-term care), however, should not be considered.

For the last 20 years, the State Department’s reading of the changes to INA § 212(a)(4) has been to focus attention on the sponsor and look at the sufficiency of the Form I-864. FAM 302.8-2(B) defines public charge, and it used to contain the now-deleted paragraph:

• A properly filed, non-fraudulent Form I-864 in those cases where it is required, should normally be considered sufficient to meet the INA 212(a)(4) requirements and satisfy the totality of the circumstances analysis.

This language was repeated in another now-deleted section of FAM 302.8-2(B) where it informed consular officers to accept the Form I-864 as satisfying the public charge analysis and not question the credibility of the sponsor “unless there are significant public charge concerns relating to the specific case, such as if the applicant is of advanced age or has a serious medical condition.”

When examining the visa applicant’s financial resources, another deleted section stated:

• An alien who must have Form I-864, will generally not need to have extensive personal resources available unless considerations of health, age, skills, etc. suggest that the likelihood of his or her ever becoming self-supporting is marginal at best. In such cases, the degree of support that the affiant will be able and likely to provide becomes more important than in the average case.

The new FAM 302.8-2(B) requires the consular officers “in every case” (emphasis in original) to examine the visa applicant’s “age, health, family status, assets, resources, financial status, education, and skills.” While the Form I-864 affidavit of support alone used to be sufficient proof of satisfying the public charge test in most cases, it is now merely “a positive factor.” Another change in the FAM is the addition of language encouraging the consular officer to consider the likelihood that the sponsor will support the visa applicant. The effect of all of this is to relegate the Form I-864 to a supporting rather than a lead role in the public charge analysis. New language even states “a properly filed and sufficient, non-fraudulent Form I-864, may not necessarily satisfy the INA 212(a)(4) requirements, but may provide additional evidence in the review of public charge determination.”

In addition to certainly lengthening the time for the consular interview and requiring the intending immigrant to submit more documentation, the changes to the FAM also make certain applicants more vulnerable to refusal on public charge grounds. These include children, the aged, the unemployed, retired persons, the disabled, or those who have health conditions.

Regarding age, the FAM now states that applicants under the age of 18 who are not accompanying or following to join a parent/guardian will be subject to heightened scrutiny, since their age “is a negative factor in the totality of the circumstances.” Those aged 18 or older must demonstrate “what skills [he or she has] to make him or her employable in the United States.” For those of advanced age, consular officers may view it as a “negative factor, if [they] believe it adversely affects the person’s employability and may increase the potential for healthcare costs.”

Regarding certain health issues, those “which might affect employment, increase likelihood of future medical expenses, or otherwise affect the applicant’s ability to adequately provide for himself or herself or dependents should increase the burden on the applicant to provide evidence that they will not become a public charge.” The FAM goes on to suggest that applicants with health issues submit proof of medical insurance or other ability to pay medical expenses they may incur in the United States.

Regarding family status, the number of derivatives – spouse and unmarried children under 21 – will also be factored in. If the applicant has a “significant” number of dependents, that “may be a negative factor, because greater resources are required to avoid relying on public assistance and benefits from the government. An applicant generally should at least be able to support the number of dependents at 125 percent of the Federal Poverty Guidelines.” The DOS is therefore requiring both the sponsor and the principal beneficiary to satisfy the 125 percent of poverty test, which may result in the applicant’s having to submit prior tax returns, proof of assets, and evidence of current and future income.

The applicant’s education and work experience has been something that consular officers could look into, though they rarely did. Now it is more likely that applicants will need to establish their job skills and evidence their job history, and at the same time explain any periods of unemployment or frequent job changes. This will likely result in their having to submit evidence of employment plans once they immigrate or any tentative job offers.

Nonimmigrant visa (NIV) applicants are also subject to the public charge ground of inadmissibility. The most notable change in the FAM deals with their eligibility for the broad and generous waiver of most grounds of inadmissibility. The FAM states that consular officers “should generally not recommend for an NIV waiver an applicant who is ineligible on this [public charge] ground as a matter of policy.”

Finally, the new FAM puts more emphasis on finding out whether the applicant or a family member in the applicant’s household is currently or has received “public assistance of any type" from state, federal, or local sources. While the FAM maintains the distinction between cash and non-cash benefits, and states that the latter should not be considered as public cash assistance or income, it then goes on to add that these supplemental benefits “may only be considered as part of the totality of the applicant’s circumstances in determining whether the an applicant is likely to become a public charge.” Specifically deleted was prior language prohibiting the consideration of past or possible future use of non-cash or supplemental assistance programs. In other words, receipt of food stamps (SNAP), the Child Health Insurance Program (CHIP), Women, Infants and Children (WIC), Medicaid, or other health and medical benefits – while not given the same weight as cash assistance programs – may still be taken into account.

The present circumstances (health, marital status, employment status) will be the most important consideration if the applicant is currently receiving or has received public benefits in the past. If the circumstances have changed significantly since the applicant received public benefits, that would weigh against a public charge finding; if they are similar, “it would be a strong factor in favor of a public charge finding.”

It is unlikely that visa applicants would have accessed means-tested benefits – Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), non-emergency Medicaid, SNAP, or CHIP – due to federal alienage restrictions. But it is possible that their U.S. citizen children may have accessed them. Receipt of public benefits by a dependent family member is a “heavily negative factor in the totality of the circumstances.” Similarly, if the U.S. citizen or LPR sponsor or any member of his or her household has received a means-tested benefit within the past three years, the consular officer must review the sponsor’s current ability to provide the level of support needed, taking into consideration the kind of assistance provided and the dates received.

It is too early to tell whether and to what degree each consular post will change the way they apply the public charge ground of inadmissibility. Bear in mind that the definition of public charge published in the May 1999 Federal Notice has not been amended. Nor have the Form I-864 or the DS-260 to add questions regarding current or past receipt of public assistance. But the new FAM language illustrates the Trump administration’s effort to screen out those who might access public benefits upon gaining LPR status. This latest move heralds possible future regulatory changes to public charge that could affect adjustment of status applicants and perhaps the deportability of those who have become dependent on cash benefits after immigrating. We may even see changes in immigrants’ access to federal public benefits and a tightening of sponsors’ liability should the sponsored immigrant access any of them. Be watchful of how these FAM changes are affecting the consular interviews of your clients and keep us informed.