Do you know how the public charge inadmissibility policy affects you?

There has been a lot of talk lately about the current administration’s proposed changes to the public charge ground of inadmissibility at INA § 212(a)(4), including discussions of leaked versions and the purportedly imminent publication of the actual proposed regulatory changes, possibly as soon as later this month or next. For the time being, nothing has changed in regards to the public charge ground of inadmissibility for adjustment of status cases.

However, guidance pertaining to public charge inadmissibility in the Foreign Affairs Manual (FAM), governing consular processing cases, was revised in January 2018. These changes have already gone into effect, and practitioners are starting to see more visa denials based on public charge inadmissibility at the consular interview. This practice alert aims to summarize changes practitioners are starting to see in how public charge is being evaluated in consular processing immigrant visa cases, and to provide recommendations for how to prepare clients who will be consular processing in light of these changes. These changes in public charge policy mean that all consular processing cases will require additional documentation and preparation on this issue.

Some of the changes, to be discussed in greater detail below, that practitioners have started seeing:

  • Finding of public charge inadmissibility notwithstanding a qualifying Affidavit of Support, now that the affidavit of support is no longer sufficient on its own to refute public charge inadmissibility;

  • Finding of public charge inadmissibility notwithstanding a qualifying Joint Sponsor Affidavit of Support, based on the consular officer’s doubts the joint sponsor will follow through on their promise to financially support the immigrant visa (IV) applicant; and

  • Revocation of a previously approved Provisional Unlawful Presence Waiver when a consular officer determines the IV applicant may be inadmissible under the public charge ground.

Note these are emerging issues and the State Department’s application of these provisions may change. The information provided is for general informational purposes only.