Category Archives: immigrant petition

U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

Posted on January 17, 2020 | Comments Off on U.S. Embassy Vacates INA 212(a)(6)(C)(i) Charge and Issues Immigrant Visa: A True Success Story

After initially refusing our request to vacate the INA 212(a)(6)(C)(i) charge against our client, the U.S. Embassy reconsidered its decision and issued the Immigrant Visa. Persistent follow-ups led to the applicant being cleared of the inadmissibility bar and receiving the visa for admission as a permanent resident. No Form I-601 waiver was needed because the Embassy dislodged the INA 212(a)(6)(C)(i) finding it made in error.

Two years before attending his Immigrant Visa interview, the applicant had sought a K-1 fiance visa at the U.S. Embassy, based on his then-engagement to a U.S. citizen. At the K-1 visa interview, the U.S. consular officer determined his relationship with the K-1 petitioner was not genuine, but entered into solely for U.S. immigration benefits.

The Embassy returned the approved Form I-129F petition to USCIS for further review and revocation. Instead of issuing a Notice of Intent to Revoke, USCIS issued a termination notice almost 6 months later stating the 4-month validity period on the Form I-129F approval notice had expired, but the U.S. citizen fiance may file a new petition for the applicant. By that point, they had ended their relationship and called off the engagement. No further evidence was submitted to prove the bona fide nature of the relationship.

Prior to the K-1 visa application, our client’s mother had filed a Form I-130 immigrant petition for him. USCIS approved the petition within five months, but he had to wait several years for the priority date to become current so he could apply for an Immigrant Visa.

At his Immigrant Visa Interview, he received a refusal worksheet charging him with INA 212(a)(6)(C)(i), as an applicant who sought to procure a visa by fraud or willful misrepresentation of a material fact. The Embassy noted that in adjudicating his K-1 fiance visa application, the relationship was found to not be credible.

Following the Immigrant Visa refusal due to fraud/willful misrepresentation, a close relative of the applicant contacted me for a consultation. After confirming the relationship with the K-1 petitioner was genuine but just did not work out, I agreed to represent the applicant and his mother (the Form I-130 petitioner).

I explained the applicant had the option to file a Form I-601 waiver application, as instructed by the U.S. Embassy. To get this waiver, he needed to prove to USCIS that his mother would suffer extreme hardships if he were denied admission to the United States. The long processing time and the high evidentiary standards made this a challenging path to take. The I-601 filing fee of $930 was also a factor to consider.

Because the applicant had proof of a bona fide relationship with the K-1 petitioner that was not previously submitted to USCIS or to the U.S. Consulate — and USCIS never revoked the Form I-129F approval but instead issued a termination notice — I counseled the applicant on another option, i.e. file a Motion to Reconsider and Rescind Inadmissibility Finding Under INA 212(a)(6)(C)(i) with Request for Immigrant Visa directly with the U.S. Embassy. The applicant and his family decided to go with the Motion instead of the I-601 application.

It took several months for the applicant and his family to gather all the written testimonies and documents I had recommended they provide to support the Motion to Reconsider. With this evidence and my legal memorandum arguing how the INA 212(a)(6)(C)(i) charge was made in error, I filed a request with the U.S. Embassy to reconsider the inadmissibility finding and grant the Immigrant Visa.

Upon its first review of our Motion to Reconsider and Rescind Inadmissibility Finding, the Embassy sent a reply within a week, in which it stated the applicant made a material misrepresentation in a prior K-1 visa application and was permanently ineligible to receive a visa. It added it would not accept any further evidence or appeal regarding the visa application and instructed the applicant to file for an I-601 waiver of inadmissibility.

Two weeks later, with the applicant’s consent, I submitted a Request for Supervisory Review to the U.S. Embassy, asking it to confirm whether the Motion to Reconsider was duly reviewed and highlighting the errors in the inadmissibility finding. The Embassy replied it was reviewing my inquiry and there was no guarantee on how long it would take to get a response. It again instructed the applicant to file for an I-601 waiver.

After months of waiting and sending follow-up inquiries, we finally received a response from the U.S. Embassy stating it had completed a supervisory review to reconsider this case and there has been no change to the original officer’s adjudication. It noted the applicant may file for a waiver.

A few weeks later, I filed a Request for Advisory Opinion with the Visa Office (U.S.Department of State’s Office of Legal Affairs in the Directorate of Visa Services). In particular, I asked them to review the legal question regarding whether the U.S. Embassy properly applied INA 212(a)(6)(C)(i) when it denied the Immigrant Visa in this case. I provided them with a copy of the Motion to Reconsider, including the legal memorandum and supporting evidence. The Visa Office responded it had followed up on my inquiry and the case was under review.

Several months later, the Visa Office sent an update that the U.S. Embassy provided instructions to the applicant to proceed with his Immigrant Visa application. The Embassy instructed him to submit an updated Form I-864, Affidavit of Support, and financial support documents. It further requested he complete a DNA test to verify the biological relationship with his mother (the Form I-130 petitioner).

After complying with the U.S. Embassy’s instructions, the applicant finally received his Immigrant Visa. He was admitted to the United States as a lawful permanent resident to join his mother and other close relatives who were eagerly waiting for this reunion.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in immigrant petition, immigrant visa, immigration fraud, K-1 visa, success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Posted on January 10, 2020 | Comments Off on U.S. Consulate Lifts INA 212(a)(6)(C)(i) Bar and Grants Immigrant Visa: A True Success Story

Within 21 days of receiving our Request for Supervisory Review of Immigrant Visa Refusal and Renewed Motion to Reconsider and Rescind Inadmissibility Finding under INA 212(a)(6)(C)(i), the U.S. Consulate removed the lifetime bar and instructed our client to continue the immigrant visa process. Ultimately, he received his Immigrant Visa after the new police certificate and updated proof of his U.S. citizen petitioner’s U.S. domicile and financial support were provided. Because the U.S. Consulate agreed to lift the fraud charge, no Form I-601, Application for Waiver of Inadmissibility, was required.

Born stateless, the applicant used to hold a refugee travel document that contained a visitor visa when he was a child. After he acquired citizenship in a country where he was not born, the applicant used the new passport to obtain a second visitor visa and traveled to the United States for a temporary recreational stay.

Despite being married to a U.S. citizen, he complied with the terms of his visitor visa and did not overstay the authorized period or apply for a marriage-based green card within the United States. Based on the approved Form I-130 immigrant petition filed by his U.S. citizen wife, he sought to become a permanent resident through an Immigrant Visa application at the U.S. Consulate overseas.

At the initial Immigrant Visa interview, the applicant presented his passport for visa stamping. About two months later, the U.S. Consulate conducted a re-interview in which it asked about the process he used to acquire the citizenship and obtain the passport. He explained the legal channels he used to get both. Nonetheless, the U.S. Consulate charged him with section 212(a)(6)(C)(i)(fraud/willful misrepresentation of material fact to gain a U.S. immigration benefit), upon noting it was unable to verify his acquired citizenship or the authenticity of the passport when it contacted the government authorities.

The U.S. Consulate instructed him to file a Form I-601, Application for Waiver of Inadmissibility, to be excused from the inadmissibility charge. A section 212(a)(6)(C)(i) finding prohibits applicants from receiving an Immigrant Visa without first getting an I-601 approval from USCIS.

Two months after the visa refusal, the applicant contacted me for the first time to discuss his options. In our Skype (video) consultation, I explained that one solution was to file a Form I-601 application, as the U.S. Consulate instructed. To receive the waiver, he would need to prove the extreme hardships his U.S. citizen wife would suffer if he is denied entry to the United States as a permanent resident. I noted there is never any guarantee the waiver will be granted due to the high standard of proof and the discretion involved in the decision-making.

I further pointed out that if he did not commit fraud or willfully misrepresent material facts to gain the prior B1/B2 visitor visa, the Immigrant Visa, or any other U.S. immigration benefit, he could file a Motion to Reconsider and Rescind Inadmissibility Finding with the U.S. Consulate. If such a motion is granted and the section 212(a)(6)(C)(i) bar is lifted, the I-601 waiver is not required for the visa to be issued.

The client opted to go with the request to reconsider the inadmissibility charge. After we entered into a representation agreement, I counseled him on the information and documents he needed to present to show he did not engage in fraud or willfully misrepresent material facts to receive any U.S. immigration benefit.

To support the Motion to Reconsider, I prepared a legal memorandum describing how the applicant used proper channels to obtain the passport and why the submission of this passport to the U.S. Consulate was actually immaterial to his eligibility for the Immigrant Visa, as well as the prior visitor visas he received.

Five days after receiving the Motion to Reconsider, the U.S. Consulate issued a response stating the section 212(a)(6)(C)(i) bar would remain and the applicant needed to file for an I-601 waiver. The Consulate noted the applicant had no concrete evidence to support his explanation on how he acquired the citizenship. The Consulate added that during its checks with the government authorities, it was determined beyond reasonable doubt the applicant misrepresented his case and deliberately provided false information and documents to receive an immigration benefit. They added he did not rescind his false statements when given the opportunity to do so.

In the Request for Supervisory Review and Renewed Motion to Reconsider and Rescind Inadmissibility Finding, I stressed the important points the U.S. Consulate missed when it issued the response affirming the section 212(a)(6)(C)(i) charge.

In reply to this Request and Renewed Motion, the U.S. Consulate sent a response 21 days later stating the section 212(a)(6)(C)(i) charge had been lifted. Five months later — following the completion of administrative processing — my client received the Immigrant Visa to join his wife in the United States, without needing to file for and obtain an I-601 waiver.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in adjustment of status, green card, immigrant petition, immigrant visa, immigration fraud, INA 212(a)(6)(C)(i), success story, The Legal Immigrant - Immigration Blog, waiver, willful misrepresentation

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Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

Posted on October 26, 2019 | Comments Off on Timely Response to Request for Evidence + In-Depth Preparation for I-751 Interview = A True Success Story

The USCIS Field Office in Minneapolis approved our clients’ joint Form I-751 petition to remove conditions on residence, even though they lived apart in different states during the marriage and had just moved in together at the time of the interview. A timely response to the Request for Evidence and in-depth preparation for the I-751 interview were essential to getting the approval.

When the U.S. citizen’s I-130 petition and the beneficiary’s I-485 green card application were approved years earlier, the couple resided together. But the beneficiary later moved to another state where job opportunities were better and the living expenses were lower. The couple lived apart for about three years following their marriage. The U.S. citizen delayed relocating with his spouse to fulfill family obligations in his home state. In the meantime, they made a few trips to visit each other and kept up long-distance communication through telephone calls and text messages.

Explanatory Response to Request for Evidence

On their own, the couple filed the joint Form I-751 petition with their tax returns and a few affidavits as supporting evidence. The conditional resident contacted me, for the first time, when she received a Request for Evidence from USCIS instructing her to submit more evidence to show she and her spouse entered the marriage in good faith and continue to share a life together.

USCIS noted the evidence should include proof of children as a result of the marriage, evidence of joint residence, documents showing combined financial resources, and affidavits from third parties who have direct knowledge of the relationship.

In the consultation, I described the documentary evidence to submit in lieu of a joint residential lease, joint bills and other proof of a shared residence. I also noted that detailed affidavits from the couple were necessary to explain the compelling reasons for living separately in different states and their concrete plans to move in together where the conditional resident lives.

The Service may waive the interview requirement only when the documentary evidence is enough to support an approval without question. Because the conditional resident and her U.S. citizen spouse would continue to live in separate states at the time the RFE response was due, I explained that an interview with USCIS was likely.

Maintaining separate residences is a serious negative factor to consider when evaluating the bona fide nature of a marriage. USCIS will not approve an I-751 without an interview when there is no proof of a joint residence.

Falsely claiming to live together is a foolish and risky action to take. This makes the conditional resident subject to being charged with INA 212(a)(6)(C)(i)(fraud or willful misrepresentation of material fact to gain U.S. immigration benefits), which is a lifetime inadmissibility bar to receiving permanent residence. In addition, USCIS may conduct an investigation – such as search open source records and make unannounced visits to the claimed residence – to verify whether the couple really lives together. Such investigations may occur at any time while the petition is pending.

Thorough Preparation for I-751 Interview

Eight months after the RFE was issued, USCIS sent the conditional resident an interview notice to complete the Form I-751 processing. At that point, the U.S. citizen had recently relocated and entered into a new lease agreement with his spouse for their shared residence.

The couple contacted me for representation at the I-751 interview. Before agreeing to attend the interview as counsel, we had a telephone consultation in which we discussed the status of their relationship, the re-establishment of their joint residence, and the potential concerns and questions the USCIS officer would likely have at the interview.

I also counseled them on the additional documentary evidence to submit at the interview. This included their joint residential lease, joint bank account statement, joint utility bill, and home property insurance.

After thoroughly preparing them for what to expect, I attended the interview with them a few days later. The USCIS officer interviewed them separately and asked a variety of questions on the premarital courtship, marital history, living arrangements, medical conditions, family dynamics, reasons for the separate residences, the U.S. citizen’s relocation, and current home they share. Their testimonies were credible and overall consistent with each other.

Removal of Conditions on Permanent Residence Following Completion of I-751 Interview

At the end of the interview, the USCIS officer issued a notice stating the petition has been recommended for approval and an approval notice would be mailed if final approval is granted.

A week later, the couple received the official Form I-797, Approval Notice removing the conditions on residence. The 10-year green card was also mailed in a separate correspondence. Because the applicant had received her conditional residence four years ago and remains married to the U.S. citizen petitioner, she already meets the continuous residence requirement for naturalization (U.S. citizenship).

Separate Residences During Marriage Creates an Obstacle to Receiving I-751 Approval

The years of maintaining separate residences made it harder for this otherwise bona fide married couple to receive an I-751 approval. Without evidence of their trips to visit each other and long-distance communications, as well as their own affidavits and third-party affidavits describing their marriage, the interview would have been tougher.

Further preparation on the testimonies and documentary evidence to present at the I-751 interview was also critical to getting the conditions on permanent residence removed. It was important for them to tell the truth about the separate residences instead of offer fabricated information about their living arrangements. Falsifying evidence is one of the quickest ways to end up with inconsistencies and a denial.

With guidance from counsel, the conditional resident received an I-751 approval despite living separately from her U.S. citizen spouse for several years during the marriage.

This is a true success story.

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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Posted in bona fide marriage, green card, I-751, immigrant petition, marriage fraud, success story, The Legal Immigrant - Immigration Blog

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Well-Documented Form I-751 Petition (After Divorce) + Full Preparation for Interview = A True Success Story

Posted on September 20, 2019 | Comments Off on Well-Documented Form I-751 Petition (After Divorce) + Full Preparation for Interview = A True Success Story

A USCIS Field Office in Ohio approved our client’s Form I-751 petition with request for waiver of joint filing requirement, despite her not living with the U.S. citizen (who had petitioned for her CR1 spousal immigrant visa) after she arrived in the United States as a conditional resident.

Her detailed affidavit describing the premarital courtship, married life abroad, and reasons the relationship ended in divorce was key to getting a timely approval. Her being fully prepared for the I-751 interview was another driving factor. 

Divorce and No Joint Residence with U.S. Citizen Petitioner After CR1 Spousal Immigrant Visa was Granted

The couple met in the United States while the client was in lawful, nonimmigrant status. At the end of her stay, they departed to her home country, where they married and lived together for a few months. The U.S. citizen filed an I-130 petition for her, but moved back to the United States before the immigrant visa process was completed.

Their relationship was rocky from the start. Marriage counseling and other good-faith efforts to resolve their marital problems did not help. The U.S. citizen petitioner, however, did not withdraw the I-130 or his I-864 affidavit of financial support.

At the CR1 spousal immigrant visa interview, the U.S. consular officer asked very few questions and granted the application. The client became a conditional resident upon her arrival in the United States. She received a conditional green card set to expire within 2 years because her immigrant status was based on a marriage that was less than two years old.

A few weeks after she landed in the United States, she contacted the U.S. citizen petitioner to let him know she was in the country. He was not interested in maintaining their marriage and asked for a divorce. They went their separate ways when he made it clear the relationship was over.

After three years of being legally married to the U.S. citizen and one year following the grant of her conditional residence, she received the court order terminating the marriage.

Individual Form I-751 Petition with Request for Waiver of Joint Filing Requirement

The client contacted me for the first time after she arrived in the United States as a conditional resident and before the divorce occurred. In the consultation, I explained that to get the conditions removed and maintain lawful permanent residence, she normally needed to file a joint I-751 petition with the spouse before the two-year card expires, and no earlier than 90 days before the expiration.

I noted there are only three types of waivers (exceptions) to the joint filing requirement. We determined the most appropriate option was to file for the waiver based on divorce (good faith/divorce waiver), after the divorce proceeding was completed.

I counseled her to start gathering evidence of their married life, including documents showing joint residence abroad, photographs of the two of them together, text messages and emails they exchanged with each other, third-party declarations attesting to the good faith nature of their marriage, a supporting affidavit from the U.S. citizen petitioner, and her own affidavit describing in detail their relationship history and the reasons for the divorce.

Following the divorce, the client contacted me again for full representation in her Form I-751 petition with request for waiver of joint filing requirement. We submitted the petition with the documentary evidence she had collected based on my advice. I included a legal memorandum explaining how she qualified for the I-751 waiver, including the concrete steps she took to salvage a marriage that was beyond repair.

Removal of Conditions on Permanent Residence Following Attorney Appearance at Out-of-State I-751 Interview

Although Dyan Williams Law PLLC is based in Minneapolis, Minnesota, I represent clients from all across the United States and around the world in U.S. immigration matters, which is governed by federal laws, regulations and policies.  I-751 interviews are scheduled at the USCIS Field Office with jurisdiction over the residence of the applicant who, in this case, is in Ohio. 

The day before the I-751 interview, I flew out to Ohio to prepare the client for possible questions from the USCIS officer and address concerns she had about the pending petition. 

When we appeared for the I-751 interview, the USCIS officer asked questions about when and how the couple met, their life together abroad, and the circumstances that led to the divorce.

Because the officer had reviewed the client’s detailed affidavit prior to the interview, she already had a good understanding of the relationship history. The officer also took note of the U.S. citizen petitioner’s affidavit confirming the marriage was based on love and intent to build a life together, but ultimately he no longer wanted to be in the relationship. 

At the end of the interview, the USCIS officer informed us she had no issues with the I-751 petition. In essence, she determined the marriage was entered into in good faith, even though it did not last and  there was no joint residence after the CR1 immigrant visa was granted.

The USCIS officer handed us a Notice of Interview Results stating, “Your case is being held for review. At this time, USCIS does not require any further information or documents from you…” She added that we would receive, in the mail, a decision or a request for evidence if more information or documents was needed. 

Within a week, we received the USCIS Field Office’s Notice of Removal of Conditional Basis of Lawful Permanent Resident stating the (10-year) green card would be mailed and the request for removal of conditions on permanent residence has been approved. The USCIS National Benefits Center in Lee’s Summit, Missouri also issued the official Form I-797C, Notice of Action approving the I-751 petition. The applicant received her 10-year green card directly from USCIS. 

Divorce from the U.S. Citizen Petitioner and Lack of Joint Residence During Marriage Make it More Difficult to Get an I-751 Approval

A combination of factors made it possible for the applicant to get an I-751 approval even though she divorced the U.S. citizen petitioner and did not live with him after she arrived in the United States on the CR1 visa. Without proper counselling, an I-751 applicant in this type of situation is highly likely to get a denial and end up in removal proceedings before the Immigration Court.  

The I-751 applicant made a wise decision to discuss her options with skilled counsel prior to getting divorced and before her conditional residence expired. My guidance helped her to know when to initiate divorce proceedings, what documentary evidence to gather, and how to file for removal of conditions on residence after divorce. 

The legal memorandum submitted with the I-751 petition and counsel’s preparation for and appearance at the interview were also significant. If the applicant had not submitted her detailed affidavit with an explanation letter from counsel in support of the I-751 petition, and had no counsel present at the interview, the questions from the USCIS officer would have likely been a lot tougher. 

The applicant had the backup option of filing for a green card based on her second marriage to another U.S. citizen. This current marriage is solid and includes joint residence throughout the entire marital relationship. But I explained that a new I-130 petition and green card or immigrant visa application only had to be filed if her I-751 petition was denied and her permanent residence was terminated. 

Instead of needing to start from scratch, she received an I-751 approval and had the conditions on her permanent residence removed. She remains a lawful permanent resident who will meet the continuous residence requirement for naturalization (U.S. citizenship) within 5 years of when she was initially granted the (2-year) green card. 

This is a true success story. 

Cheers,

Dyan Williams

Founder & Principal Attorney
Dyan Williams Law PLLC
(612) 225-9900
info@dyanwilliamslaw.com

###

This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

 

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Posted in adjustment of status, bona fide marriage, green card, I-751, immigrant petition, immigrant visa, success story, The Legal Immigrant - Immigration Blog, waiver

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2019 Public Charge Rule: 3 Key Changes

Posted on August 17, 2019 | Comments Off on 2019 Public Charge Rule: 3 Key Changes

On August 14, the U.S. Department of Homeland Security (DHS) published the Final Rule on the public charge inadmissibility ground, which amends the regulations for section 212(a)(4) of the Immigration & Nationality Act (INA).

Highly controversial and several months in the making, the Final Rule gives U.S. Citizenship & Immigration Services (USCIS) more discretionary power to deny Form I-485, green card requests, and Form I-129 and Form I-539 applications to change status or extend status, on the public charge ground.

The new rule is set to take effect on October 15, 2019, i.e. 60 days after its publication.

[UPDATE: A temporary injunction — resulting from federal court litigation – delayed the implementation for USCIS. The new rule is set to take effect on February 24, 2020, and will apply to all applications/petitions to USCIS that are postmarked on or after that date.]

It will affect applications filed (received by the agency) or postmarked on or after the implementation date. The U.S. Department of State (DOS) is expected to further revise the Foreign Affairs Manual (FAM) to incorporate DHS’ new public charge rule. 

[UPDATE, February 2020: On January 27, 2020, the U.S. Supreme Court, in a 5-4 vote, lifted the temporary injunction that stopped USCIS from implementing the new public charge rule, while litigation over its legality continues. Earlier, on October 11, 2019, federal judges in three separate cases enjoined USCIS from enforcing the rule and postponed the effective date until there is final resolution in the cases. With the latest U.S. Supreme Court ruling, USCIS may now enforce the Final Rule nationwide.]

[UPDATE, August 2020: On July 29, 2020, the U.S. District Court for the Southern District of New York enjoined the DHS from enforcing, applying, implementing, or treating as effective the new public charge rule for any period during which there is a declared national health emergency in response to the COVID-19 outbreak. The nationwide injunction temporarily blocks the implementation of the February 2020 Public Charge Rule. In the interim, USCIS will apply the old 1999 Public Charge Rule to Form I-485, I-129 and I-539 applications filed on or after July 29, 2020.]

[UPDATE, March 2021: Following federal court litigation, USCIS announced, “On or after March 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).”]

Public Charge Inadmissibility Ground Under Section 212(a)(4)

The long-existing section 212(a)(4)(A) makes a person inadmissible to the U.S. if he or she is “likely at any time to become a public charge.”  Whether a person is barred from the U.S. on public charge ground depends on the totality of the circumstances.

Section 212(a)(4)(B) of the INA instructs USCIS and U.S. consular officers to consider the following factors:

  • Age
  • Health
  • Family status
  • Assets; resources; and financial status
  • Education and skills

The Form I-864, Affidavit of Support, from the petitioner (sponsor) or joint sponsor is also an important factor to consider in certain immigrant visa or green card cases.

The statute does not define “public charge.” But since 1999, USCIS and DOS guidelines have defined it to mean a person who is or is likely to become “primarily dependent” on the U.S. government for subsistence, as shown by the receipt of “public cash assistance for income maintenance” or “institutionalization for long-term care at government expense.”

There is no waiver for immigrants ineligible under INA 212(a)(4).  While a waiver is legally allowed for nonimmigrants ineligible under INA 212(a)(4), consular officers generally do not recommend such waivers as a matter of policy, especially when the visa in question requires non-immigrant intent under INA 214(b).

The 2019 Final Rule involves a new definition of public charge and includes 3 key changes:

1) Expands the range of public benefits that may be considered when determining whether applicants who have received or are currently receiving benefits are inadmissible on public charge ground.

Under the Final Rule, public benefits are no longer limited to mean cash assistance programs, such as Supplemental Security Income (SSI), Temporary Assistance to Needy Families (TANF), and state general relief or general assistance. The term “public benefit” has expanded to include previously excluded programs, such as:

  • Federally funded Medicaid (with certain exclusions, e.g. receipt of Medicaid for emergency care; services funded by Medicaid but provided under the Individuals with Disabilities Education Act; school-based services provided to persons who are at or below the oldest age eligible for secondary education as defined by state or local law; Medicaid benefits received by a person under age 21; and Medicaid benefits received by pregnant women and women for up to 60 days after giving birth.)   
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program 
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation) 
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

2) Creates a single duration-based threshold for the receipt of public benefits as part of the definition of public charge.

The Final Rule notes that an applicant is a public charge if he or she receives one or more public benefits for more than 12 months in the aggregate within any 36-month period. USCIS notes, for example, the receipt of two benefits in one month counts as two months.

The rule applies not only to green card or immigrant visa applicants. It also requires applicants seeking a change or extension of nonimmigrant status to show they have not (since initially obtaining the status) received public benefits for more than 12 months in total in any 36-month period.

Any duration (and amount) of public benefits received may be considered in the totality of the circumstances test.  Adjudications officers will only consider benefits received by the applicants and will not take into account benefits used by their children or other family members.

3) Defines “heavily weighted positive factors” that reduce the likelihood of becoming a public charge and “heavily weighted negative factors” that increase the likelihood of becoming a public charge. 

Among the heavily weighted negative factors is having received or been approved to receive one or more public benefits for more than 12 months in total within the 36-month period prior to applying for admission to the U.S., a green card, or a status change or extension.

Other negative factors include being younger or older than working age; having a health condition that is likely to require extensive treatment and lacking private health insurance or the means to pay medical costs; having limited income or resources; not being employed, a full-time student or a primary caregiver; previously found inadmissible on public charge grounds; and using or previously using public benefit programs.

Heavily weighted positive factors include the applicant’s household has financial assets or resources of at least 250% of the federal poverty level, or the applicant earns an income of at least 250% of the federal poverty level for the household size.

Other positive factors are the applicant is authorized to work, is gainfully employed, and has private health insurance that is not subsidized by the Patient Protection and Affordable Care Act.

The shift toward the weighing of positive factors and negative factors means the Form I-864, Affidavit of Support, can no longer be relied on as sufficient proof – by itself – to demonstrate the applicant would not become a public charge in immigration cases that require the Affidavit of Support.

[UPDATE, March 2021: The 2019 Public Charge Final Rule was scrapped and the 1999 Interim Field Guidance is back under the Biden Administration. USCIS and the U.S. Department of State will apply the 1999 rule in determining whether an applicant meets the INA 212(a)(4)(Public Charge) requirement to be admitted to the United States.]

Introduction of Form I-944, Declaration of Self-Sufficiency

USCIS introduced the new Form I-944, Declaration of Self-Sufficiency, which collects information on the applicant’s family status; assets, resources and financial resources; and education and skills. More information is in the Form I-944 instructions.

When the Final Rule goes into effect, Form I-485 adjustment of status/green card applicants will need to submit a completed Form I-944 with supporting documents. Applicants requesting a change or extension of status through a Form I-129 or Form I-539 may also have to file a completed Form I-944 if USCIS elects to require one in a Request for Evidence.

[UPDATE, January 2020: Starting on February 24, 2020, the U.S. Department of State (DOS) will implement the Final Rule and may require Immigrant Visa applicants and K-1 visa applicants to complete the Form DS-5540, Public Charge Questionnaire. This form requests information on the visa applicant’s household size and income, assets, liabilities, education, job skills, health, and receipt of public benefits. Read the Form DS-5540 instructions for more information.

[UPDATE, August 2020: A nationwide injunction from the U.S. District Court for the Southern District of New York enjoined the DHS from enforcing the February 2020 Public Charge rule in response to the COVID-19 outbreak. In the interim, Form I-485 applications that are filed on or after July 29, 2020 do not have to be accompanied by the Form I-944.]

[UPDATE, March 2021: Following federal court litigation, USCIS announced, “On or after March 9, 2021, applicants and petitioners should not provide information required solely by the Public Charge Final Rule. That means that applicants for adjustment of status should not provide the Form I-944, Declaration of Self-Sufficiency, or any evidence or documentation required on that form with their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).”]

Posting of Public Charge Bonds

Section 213 of the INA provides for the posting of a public charge bond in cases where applicants need to demonstrate they will not become a public charge. The Final Rule states that applicants who are initially found likely to become a public charge by USCIS may be offered the opportunity to post a public charge bond of at least $8,100.

The bond may be terminated only upon the immigrant’s death, permanent departure from the United States, five years as a lawful permanent resident, or naturalization. The bond will be breached if the immigrant receives public benefits for more than 12 months in total within any 36-month period.

Statutory Exemptions Still Apply

Congress exempted certain classes of immigrants from the public charge inadmissibility ground. The Final Rule includes provisions recognizing the classes of individuals who are exempt, e.g. refugees, asylees, widow(er)s of U.S. citizens, VAWA self-petitioners, and Afghans and Iraqis with special immigrant visas.

2019 Final Rule Will Add Complexities

The public charge inadmissibility ground applies to persons requesting admission to the United States as an immigrant or nonimmigrant. It does not apply to permanent residents filing for naturalization (Form N-400) or to conditional permanent residents applying to remove the conditions on their residence (Form I-751).

When possible, persons who are seeking to adjust to permanent resident status or extend or change status should file their applications before the new public charge rule goes into effect.

The new Public Charge Rule gives adjudications officers broader discretionary power in determining whether a person is inadmissible on the public charge ground. This will likely to increase processing times, create confusion over eligibility and filing requirements, and add complexities in applications, especially during the initial stages of implementation. 

[UPDATE, March 2021: While the 2019 Public Charge Final Rule will no longer apply to pending applications and petitions as of March 9, applicants still have to show they will not become a public charge to the U.S., based on 1999 guidelines.]

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This article provides general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for any individual case or situation. Each case is different and case examples do not constitute a prediction or guarantee of success or failure in any other case. The sharing or receipt of this information does not create an attorney-client relationship.

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