FAM Public Charge Provisions

AILA, CLINIC, and NILC Clarify Public Charge Provisions in FAM

In January 2018, The Department of State revised the public charge provisions in the Foreign Affairs Manual (FAM). Now, instead of a properly completed, nonfraudulent Affidavit of Support (I-864) being sufficient means to meet the totality of the circumstances analysis, Affidavits are merely a “positive factor.”

This means that overcoming the public charge provision is now much more difficult. Whereas before, as stated in a 1998 Department of State Cable, officers could operate under the “presumption that the applicant will find work [as an able-bodied, employable individual] coupled with the fact that the I-864 is a legally enforceable contract will provide in most cases a sufficient basis to accept a sponsor’s or joint sponsor’s technically sufficient [Affidavit of Support] as overcoming the public charge ground;” now, officers will weigh it as merely one more piece of evidence.

On September 12, 2018, the American Immigration Lawyers Association, the Catholic Legal Immigration Network, Inc., and the National Immigration Law Center teleconferenced with members of the DoS to clarify the change in 9 FAM 302.8-2(B).

Public Charge Issues, Addressed

AILA, CLINIC, and NILC raised the concern that the public had not been properly informed. To address this, the DoS is currently encouraging consular posts to ensure they include information about public charge. DoS is also trying to ensure the messaging is consistent and clear for the public.

Another concern of AILA, CLINIC, and NILC’s was rejection of joint sponsors’ Affidavits on the sole basis of the lack of familial relation despite 9 FAM 302.8-2(C)(7), which states joint sponsors can be a friend or their party who is not necessarily financially connected with the sponsor’s household. DoS assured the organizations that that is still the case. Cases in which those seemed to be grounds for rejection were overturned, or there were other reasons that justified rejection.

Consular officers will be assessing whether or not the joint sponsor truly intends to comply with the Affidavit. This is despite the 1998 cable that averred the Affidavit’s status as a legally enforceable contract. The revised public charge provisions seem to undercut the 1998 cable’s item 4.

Public Charge findings revoke provisional unlawful presence waiver

Under the new provisions once an individual is found to be inadmissible on public charge grounds, their I-601A provisional unlawful presence waiver are then revoked based on the finding. DoS confirmed this is the case and that it happens automatically.

To be clear, not every I-601A will be revoked on a visa refusal. Specifically, if the officer has deficient documentary evidence and refuses the visa on those grounds, the waiver will remain in place. It is only revoked when the officer has determined they have enough evidence to fully determine whether or not the applicant will become a public charge. Of course, if the officer believes that the individual is still unlikely to be able to overcome the public charge provision, even with additional evidence, the visa can still be refused on public charge grounds rather than deficient documentary evidence, ultimately resulting in a revocation of the I-601A.

For further information

See also how Public Charge grounds have been expanded.

This blog post does not serve as legal advice and does not establish any client-attorney privilege. Do not take any action based on the information contained in this post without consulting a qualified immigration attorney. If you have any questions, please do not hesitate to contact our legal team directly.

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This information comes from AILA Doc. Nos. 18092632 and 98061558.