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State Department FAM Changes Impact Family Immigration

In yet another change to the Foreign Affairs Manual, the US Department of State has altered how consular officers determine applicability of the “public charge” ground for inadmissibility in family-based immigration cases. This ground requires that the right to enter the US be denied to anyone who can’t convince the consular officer that they won’t require public assistance in the US, based on a “totality of the circumstances” standard.

The statutory considerations for this “totality of the circumstances” standard included age, health, family status, assets, resources and financial status, education and skills.

In all family-based cases, an I-864 Affidavit of Support must be submitted by the petitioner pledging financial support for the individual sponsored and – as this was a binding contract between the petitioner and the federal government – providing the government recourse in case public assistance was needed. The petitioner, although required to sign an I-864 in any event, also needed to meet a certain income requirement in order for their I-864 to be relied upon. This was defined as 125% of the federal poverty guideline for a household of that person’s size (the petitioner, plus their household/dependents, plus anyone an I-864 was signed for in the past, plus the individual being sponsored).

If the income requirement wasn’t met directly by the petitioner, I could be met by adding the income of the sponsored individual if in the US and lawfully working ( a separate contract, the I-865, was needed for this), but using assets of the petitioner (if either three or five times the income requirement, depending on who was being sponsored), or by getting a separate I-864 from a “Joint Sponsor” – another US citizen or permanent resident who met the income requirement for a household of their size.

Under the FAM as it existed until now, an I-864 from a petitioner who met the income guidelines – or one who didn’t but could meet the requirement through one of the above alternatives – was considered sufficient to meet the “public charge” requirement and satisfy the totality of the circumstances test. The change eliminates the guidance that tells consular officers that the I-864 is sufficient in itself, compelling them to look independently at five statutory factors even where a petitioner and/or joint sponsor has signed an I-864 and has sufficient resources under the statute to support the sponsored foreign national.

The change means that it may be more difficult to bring parents in particular to the US, as they may be retired and not have their own independent earning capacity while still needing a larger degree of medical care. It also makes it tougher for anyone who at any point received non-means-tested public assistance.

This represents one of several recent changes to the Foreign Affairs Manual – the State Department’s instruction manual for its consular officers adjudicating nonimmigrant and immigrant applications abroad – within the last six months or so, all intended to make the application process more restrictive. A legal presumption of fraud when an individual enters on a visa then does something inconsistent with the intent legally required for that visa within 30 or 60 days of entry has been extended to a 90-day rule – potentially creating a much greater risk of committing fraud. Additional language has been inserted to compel consideration of vaguely defined impacts on US worker wages when adjudication applications for many common employment-based visas.