State Department alters “public charge” guidelines to penalize more immigrants

The U.S. Department of State, in line with the restrictive immigration goals set by the Trump administration, has formally amended the Foreign Affairs manual (FAM) to instruct consular officials to apply a much stricter rubric as to whether visa applicants satisfy the public charge ground of inadmissibility. The FAM is the guiding document for all organizations and employees associated with the State Department. The new language orders officials to heighten scrutiny of, and increase the burden of evidence on, both immigrant and nonimmigrant visa applicants as to the question of their ability to support themselves and all dependents.

Until recently, consular officers primarily focused attention on the ability of a visa applicant’s sponsor(s)’ ability to provide financial support. With the new changes, the sponsor’s affidavit will become a supportive document, and the majority of weight will be places on the immigrant or nonimmigrant applicant’s financial, work, and public assistance history. Consular officers have been instructed to apply the new standards for determining public charge likelihood for applicants “in every case” without exception.

Potential negative factors may include:

●       Age: applicants under the age of 18 who are not joining a parent/guardian, as well as those whose advanced age may make them less employable. This may include retirees.

●       Health: health issues that may affect employability or the ability to support one’s self and/or dependents, or that will incur medical expenses, will be judged negatively and applicants may be required to show proof of health insurance or ability to pay. This may include the disabled or those with chronic illnesses.

●       Family Status: the number of derivatives, including spouse and unmarried children under age 21, may be considered a negative factor if “significant” enough that doubt is cast on the applicant’s ability to financially support them, as determined by the consular official.

●       Work/Education History: applicants will have to establish a detailed education and work history, including explanations of gaps, in order to establish employability. They will also have to show plans for future employment in the United States.

●       Skills: those aged 18 or older must show what skills they posses that would make them employable in the United States. Consular officers are encouraged to determine whether the applicant will be supported by the sponsor.

●       Public Assistance: if the applicant or a dependent family member—including permanent residents and U.S. citizens—receives or has received public assistance, it may be counted against them. Cash benefits will be weighted more than noncash benefits, but all are potential negatives, particularly if there has been no positive change in circumstances. If a petitioning sponsor or joint sponsor has received means-tested benefits at any point in the past three years, the consular officer must review their current ability to provide support.

These changes are already having a significant effect on visa applicants whose cases are currently being processed at consulates. Consular interviews are taking longer and requiring more evidence from the applicant, and the number of applicants being refused entry on public charge grounds is increasing. This is particularly disastrous for nonimmigrant visa applicants, who can be refused a waiver of inadmissibility if determined to be a likely public charge.

For a more detailed breakdown of these changes, please see: https://cliniclegal.org/resources/state-department-redefines-public-charge-standard