Visa Denial for “Public Charge”
Under the Immigration and Nationality Act (INA), a foreign national can be found inadmissible to the United States for both a nonimmigrant and immigrant visa for a number of reasons, one reason being that you are likely to become a public charge. If a consular officer believes an applicant is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense,” the applicant can be denied entry to the U.S.
In making that determination, an officer is required to take into account the totality of the foreign national’s circumstances at the time of the visa application, including age, health, family status, assets, resources, financial status, and education and skills. In addition, the Foreign Affairs Manual (FAM), which details Department of State regulations, was recently updated to include an additional factor — officers are now permitted to consider “past or current receipt of public assistance of any type.”
On top of the enumerated factors, an adjudicating officer may also consider an affidavit of support, which is generally submitted on behalf of an applicant with his or her immigrant visa application. This can be done using one of two forms. For foreign nationals seeking admission or adjustment as lawful permanent residents or as immediate relatives, as family-based immigrants, and as certain employment-based immigrants, the petitioning relative must file Form I-864.
Alternatively, Form I-134 may be used in any case in which the foreign national is inadmissible on public charge grounds, but he or she is not required to have Form I-864 filed on his or her behalf, such as a nonimmigrant visa application. In the past, as long as an I-864 sponsor met certain income and/or asset requirements, that alone was usually sufficient to overcome the public charge requirement. Now, however, the FAM specifies that a denial based on a public charge finding is still possible even when an application is accompanied by a qualifying Form I-864.
If you are interested in applying for an immigrant or nonimmigrant visa abroad, contact our office to schedule a consultation with one of our knowledgeable attorneys today!