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Immigrant Visa Suspension for 75 Countries: Public Charge Concerns Cited as the Reason

Posted on January 16, 2026 | Comments Off on Immigrant Visa Suspension for 75 Countries: Public Charge Concerns Cited as the Reason

On January 14, the Trump Administration announced the suspension of Immigrant Visa processing for citizens of 75 countries.  The list includes:

Afghanistan, Albania, Algeria, Antigua and Barbuda, Armenia, Azerbaijan, Bahamas, Bangladesh, Barbados, Belarus, Belize, Bhutan, Bosnia, Brazil, Burma, Cambodia, Cameroon, Cape Verde, Colombia, Congo, Cuba, Dominica, Egypt, Eritrea, Ethiopia, Fiji, Gambia, Georgia, Ghana, Grenada, Guatemala, Guinea, Haiti, Iran, Iraq, Ivory Coast, Jamaica, Jordan, Kazakhstan, Kosovo, Kuwait, Kyrgyzstan, Laos, Lebanon, Liberia, Libya, Macedonia, Moldova, Mongolia, Montenegro, Morocco, Nepal, Nicaragua, Nigeria, Pakistan, Republic of the Congo, Russia, Rwanda, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Senegal, Sierra Leone, Somalia, South Sudan, Sudan, Syria, Tanzania, Thailand, Togo, Tunisia, Uganda, Uruguay, Uzbekistan and Yemen.

This U.S. immigration policy takes effect on January 21. This is an indefinite pause with no set date for when it will end.

“The Trump administration is bringing an end to the abuse of America’s immigration system by those who would extract wealth from the American people,” the U.S. Department of State said. “Immigrant visa processing from these 75 countries will be paused while the State Department reassess immigration processing procedures to prevent the entry of foreign nationals who would take welfare and public benefits.”

What are the Exceptions?

There is an exception for dual nationals who apply with a valid passport from a country not included in the suspension.

In addition, the suspension does not restrict applicants seeking non-immigrant visas, such as B1/B2 temporary tourist or business visas, who make up the larger percentage of visa applicants. Demand for non-immigrant visas is expected to rise for the 2026 World Cup and 2028 Olympics, which the U.S. will host or co-host.

What are the Effects on U.S. Immigration?

U.S. Consulates will not issue Immigrant Visas to applicants who are from any of the 75 countries, even if they are otherwise eligible for the visa. Although they may submit their forms and documents to the DOS, their applications will not be granted while the suspension is in effect.

During the pause, the legal paths to U.S. immigration and permanent residence will be tightened. After the suspension is lifted, applicants will still have to meet long-existing eligibility requirements.

How Does This Policy Support the Trump Administration’s U.S. Immigration Stance? 

The Trump Administration has already restricted immigrant and non-immigrant visa processing for citizens of dozens of countries, many of them in Africa, Asia and Latin America. In June 2025, it imposed U.S. travel restrictions on citizens from 12 countries: Afghanistan, Chad, Congo, Equatorial Guinea, Eritrea, Haiti, Iran, Libya, Myanmar, Somalia, Sudan and Yemen.

The suspension is based on a November guidance directed to U.S. Embassy and Consulate officials to comprehensively and thoroughly vet visa applicants to demonstrate that they will not need to rely on public benefits from the U.S. government any time after they are admitted to the United States.

What U.S. Immigration Law Creates Public Charge Requirements?

Section 212(a)(4) of the Immigration and Nationality Act (INA) prohibits applicants from receiving an immigrant visa or adjusting to permanent residence if they are likely, at any time, to become a public charge. To show they are not inadmissible on this ground, a Form I-864, Affidavit of Support, filed on their behalf is required in most family-based and some employment-based immigrant visa or adjustment cases.

In his first term, Trump and his Administration introduced a new Final Rule on August 14, 2019, which amended how U.S. immigration agencies applied section 212(a)(4). The 2019 Rule gave 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 rule was set to take effect on October 15, 2019, i.e. 60 days after its publication. But federal court litigation delayed the implementation of the rule to February 24, 2020.

Then on March 9, 2021, the Public Charge rule under the prior Trump Administration was vacated and removed. USCIS and the U.S. Department of State returned to the old 1999 rule to determine whether a person is likely to become a public charge on the U.S. government.

The August 8, 2024 (08-28-2024) update in the DOS’ Foreign Affairs Manual instructs officers to consider the “Totality of Circumstances” to determine whether the applicant is likely to become a public charge. They are to consider, at a minimum, the applicant’s:

(a) Age;

(b) Health;

(c) Family status;

(d) Assets, resources, and financial status; and;

(e)  Education or skills.

A properly filed, non-fraudulent Form I-864 in cases where it is required, is normally enough to meet the INA 212(a)(4) requirements and satisfy the “totality of the circumstances” test. But the factors cited above could be relevant in usual cases in which a Form I-864 has been submitted and should also be considered in cases where a Form I-864 is not required.

The public charge rule is forward looking, so officers are instructed to focus on the applicant’s present circumstances at the time of the visa application.  A visa may not be refused based on speculation about financial issues that may occur in the future, such as a loss of job or medical emergency.

Past or current receipt of cash benefits for income maintenance by a family member of the visa applicant may be factored in only when such benefits also constitute(d) the primary means of subsistence of the applicant.

It’s not clear whether or how exactly the State Department will modify instructions relating to INA 212(a)(4) inadmissibility.

For more information, see:

Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination

Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

Immigrant Visa Process: Delays and Setbacks

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The Legal Immigrant provides general information and is for educational purposes only. It is based on U.S. immigration law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. 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, green card, immigrant petition, immigrant visa, nonimmigrant visa, public charge, The Legal Immigrant - Immigration Blog

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2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

Posted on March 24, 2021 | Comments Off on 2019 Public Charge Rule Gets Tossed; 1999 Rule is Back

On March 9, 2021 the Public Charge rule under the prior Trump Administration was vacated and removed. USCIS and the U.S. Department of State will apply the old 1999 rule to determine whether a person is likely to become a public charge on the U.S. government.

Under section 212(a)(4) of the Immigration and Nationality Act (INA), a person seeking entry to the U.S. on a visa or applying for permanent residence is inadmissible if, “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Applicants will not be granted entry or a green card if they are deemed inadmissible under section 212(a)(4).

Section 212(a)(4) does not define “public charge.” But in 1999, USCIS and DOS guidelines began to define 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.”

2019 Public Charge Rule Implemented Under Prior Trump Administration

The prior Trump Administration introduced the new Final Rule on August 14, 2019. It amended how U.S. immigration agencies applied section 212(a)(4). The 2019 Rule gave 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 rule was set to take effect on October 15, 2019, i.e. 60 days after its publication. But federal court litigation delayed the implementation of the rule to February 24, 2020.

For some time, USCIS was applying the 2019 Public Charge rule and requiring green card applicants to submit a Form I-944, Declaration of Self-Sufficiency, with financial documentation, such as a credit score report, proof of health insurance, proof of assets and resources and proof of liabilities and debts.  

Episode 9 of The Legal Immigrant podcast summarizes the beginning and end of the 2019 Public Charge Rule:

(1) Federal court challenges to implementation of the 2019 Public Charge Rule

On November 2, 2020, the U.S. District Court for the Northern District of Illinois vacated the 2019 Public Charge rule nationwide. That decision was stayed by the U.S. Court of Appeals for the Seventh Circuit. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court vacating the 2019 Public Charge Rule went into effect.

As a result, USCIS immediately stopped applying the Public Charge Final Rule to all pending applications and petitions that would have been subject to that rule. USCIS agreed to apply the 1999 Interim Field Guidance, which was in place before the Public Charge Final Rule was implemented, when adjudicating any green card applications or application for change/extension of status that was pending or received on or after March 9, 2021. 

(2) The 3 key changes under the 2019 Public Charge Rule 

(a) Expanded the definition of “public benefits”  to include previously excluded programs, such as Federally funded Medicaid with certain exclusion; Supplemental Nutrition and Assistance Program (SNAP), formerly called food stamps; Section 8 Housing Choice Voucher Program; Section 8 Project-Based Rental Assistance; and Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.

(b) Deemed applicants to be a public charge if they received one or more public benefits for more than 12 months in the aggregate within any 36-month period. 

(c) Applied the totality of the circumstances test based on age, health, family status, assets, resources, financial status, education, and skills.  One heavily weighted negative factor was 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.

The shift toward the weighing of positive factors and negative factors meant the Form I-864, Affidavit of Support, was no longer 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.

(3) The decision to stop applying the Rule under the current Biden Administration

A federal case challenging the 2019 Public Charge rule was dismissed by the U.S. Supreme Court upon the Biden Administration’s request. The new Administration has already stated it will not continue to apply the 2019 rule and will return to the 1999 rule. 

Because the Biden Administration has decided to not defend the rule, the Department of Justice will no longer pursue appellate review of judicial decisions invalidating or stopping enforcement of the 2019 public charge rule. There is no more need for advocacy groups to continue with this challenge in court. 

(4) How the decision to return to the 1999 Rule affects applications and petitions

On or after March 9, 2021, applicants and petitioners should not provide information required solely by the 2019 Public Charge Final Rule. 

For example, applicants for adjustment to permanent residence 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).

(5) What is still required to meet the INA 212(4)(a) requirements

Even though the 2019 Public Charge Rule has been tossed, statutory law regarding public charge inadmissibility is still in effect. It applies to:

(a) Applicants for immigrant visas and green cards (unless Congress has exempted them from this ground). Congress has carved out certain exemptions to the public charge ground of inadmissibility as follows:

  • Refugees;
  • Asylees;
  • Certain T and U nonimmigrant visa applicants (human trafficking and certain crime victims, respectively); and
  • Certain self-petitioners under the Violence Against Women Act.

(b)  Applicants for extension of nonimmigrant stay or change of nonimmigrant status (such applicants are subject to the rule’s public benefit condition unless the nonimmigrant classification is exempted by law or regulation from the public charge ground of inadmissibility). As of March 9, USCIS will no longer apply the separate, but related, “public benefits condition” to applications or petitions for extension of nonimmigrant stay and change of nonimmigrant status, e.g. Form I-129 or Form I-539. 

While the 2019 Public Charge Final Rule no longer applies 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. 

Family-based green card or immigrant visa applicants must still submit the Form I-864, Affidavit of Support, from the petitioner (sponsor) and joint sponsor. Petitioners are still required to submit financial documents to demonstrate they meet the income requirement to sponsor their relative in the United States.

For more information, see:

# # #

The Legal Immigrant podcast and this article provide general information only. It is based on law, regulations and policy that are subject to change. Do not consider it as legal advice for your situation. The sharing or receipt of this information does not create an attorney-client relationship.

SUBSCRIBE           CONTACT

Dyan Williams, Esq.
info@dyanwilliamslaw.com
www.dyanwilliamslaw.com

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Posted in adjustment of status, green card, immigrant visa, public charge, The Legal Immigrant - Immigration Blog

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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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Immigrant Visa Process: Delays and Setbacks

Posted on May 28, 2016 | Comments Off on Immigrant Visa Process: Delays and Setbacks

delaysIf you seek permanent residence through an immigrant petition filed by a family member or employer and you are outside the U.S. (or are in the U.S. but cannot file for adjustment of status), you must obtain your immigrant visa at the U.S. Consulate.

Known as “consular processing,” this pathway to a green card often involves delays and setbacks at all stages of the application process.

#1: WAITING FOR PETITION APPROVAL

Family-Based Immigration

In family-based immigration, only relatives who fall in specific family-based categories qualify for an immigrant visa. The first step is for a U.S. citizen or permanent resident relative to file a Form I-130 petition for you to immigrate to the U.S.

Employment-Based Immigration

In employment-based immigration, only persons who fall in designated employment-based categories qualify for an immigrant visa. A U.S. employer usually has to file a Form I-140, Immigrant Petition for Alien Worker, for you to immigrate to the U.S.  In the employment-based fourth preference(EB-4) immigrant category, the U.S. employer must file a Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant.

In some cases, the I-140 petition may be filed by the foreign national beneficiary, such as in EB-1 Extraordinary Ability and EB-2 National Interest Waiver petitions.

In the employment-based fifth preference (EB-5) immigrant category, the Form I-526, Immigrant Petition by Alien Entrepreneur, is filed by the foreign national immigrant investor.

Delays and Setbacks

Long Processing Time

Due to case volume and other factors, USCIS’ processing times for immigrant petitions vary greatly (e.g. 4 to 12 months). If there is a backlog in your visa category, USCIS may also put the petition on the backburner.

During processing, USCIS may issue a Request for Evidence (RFE) when there is insufficient information or documents to approve the petition. In some cases, USCIS may issue a Notice of Intent to Deny Petition (NOID) when it finds the beneficiary is not eligible for the benefit sought. USCIS will not approve the petition unless an adequate and timely response is submitted.

The date USCIS receives the petition, not the date USCIS approves the petition, affects when an immigrant visa becomes available in the preference categories. Nevertheless, the petition must first be approved before you may apply for an immigrant visa.

Challenges with Proving Eligibility in Family-Based Immigration

Documentary evidence

In family-based immigration, petitioners must show they have the required relationship with the beneficiary, besides presenting documentary proof of their U.S. citizenship or permanent residence.

Proving a parent-child relationship can be a problem when there is no birth certificate or when the birth certificate was registered late.

Proving a legal, bona fide marriage in spousal petitions carries challenges. The petitioner must present the requisite marriage certificate and divorce decrees (for any prior marriages), showing the marriage was legal in the place where it occurred.

Furthermore, the petitioner must provide documentary evidence establishing the marriage was entered into in good faith, for the purpose of creating a life together as spouses, and not for immigration purposes. When the petitioner lives in the U.S. while the beneficiary lives overseas, there is limited documents to present. For example, there is no joint lease, joint bills, joint tax returns or other documents that married couples who live together would normally have.

Adam Walsh Act

The Adam Walsh Child Protection and Safety Act, which was signed into law in 2006,  prohibits U.S. citizens and permanent residents who were convicted of a “specified offense” against a minor from petitioning for family members, particularly a spouse or a child. USCIS may not approve these I-130 petitions unless it finds the petitioner poses “no risk” to the family member.

Significant delays, notices of intent to deny, and decisions denying the immigrant petition often results when the Adam Walsh Act applies.

Challenges with Proving Eligibility in Employment-Based Immigration

Documentary evidence

In employment-based immigration, the petition must contain extensive, reliable documentary evidence of the beneficiary’s qualifications, including the requisite degree, academic records, and support letters from current and past employers. Those who are filing for EB-1 and EB-2 (Exceptional Ability and National Interest Waiver) classification must also provide specific evidence showing they meet the criteria.

Immigrant petitions that require job offers must also include evidence that the U.S. employer has the ability to pay the proffered wage. Examples are copies of annual reports, federal tax returns, or audited financial statements.

Labor Certification in EB-2 and EB-3 categories

Immigration petitions involving professionals with Advanced Degrees or Exceptional Abilities (EB-2, excluding NIWs) and professionals with a bachelor’s degree, skilled workers, and unskilled workers (EB-3) must be accompanied by a PERM Labor Certification issued by the Department of Labor.

Prior to filing the I-140 petition, the U.S. employer must complete a process to recruit U.S. workers and then file for the labor certification. The DOL must certify to the USCIS there are insufficient U.S. workers able, willing, qualified and available to accept the job in the area of intended employment and that employment of the foreign worker will not adversely affect the wages and working conditions of similarly employed U.S. workers.

Forwarding of Case from USCIS to NVC

Upon completing review of the immigrant petition, USCIS issues a decision. If the petition is denied, the notice will include the reasons for denying the petition and explain any rights to appeal the decision. If the petition is approved and you are applying for an immigrant visa abroad, USCIS will forward the approved petition to the U.S. Department of State’s National Visa Center (NVC).

#2: WAITING FOR INSTRUCTIONS FROM NATIONAL VISA CENTER (NVC)

Even with an approved immigrant petition, you may not start applying for an immigrant visa until one is available or is about to become available. The only category in which immigrant visas are always available is the immediate relatives (family-based) category. Immediate relatives include:

  • The spouse of a U.S. citizen
  • Minor child (under age 21) of a U.S. citizen
  • Parent of an adult U.S. citizen (age 21 or older)
  • Step-parent of an adult U.S. citizen (if the step-parent, step-child relationship began before the citizen’s 18th birthday)
  • Step-child of a U.S. citizen (if the step-parent, step-child relationship began before the step-child’s 18th birthday)
  • The spouse of a deceased U.S. citizen (if the spouse was married to the deceased U.S. citizen for at least two years and the application for permanent residence was filed within two years of the death of the U.S. citizen)

Those in the family-sponsored preference and employment-based categories must wait for their priority date to become current.

The NVC is responsible for processing immigrant visa applications before they are forwarded to the U.S. Consulate. It will send instructions to the petitioner and/or beneficiary when an immigrant visa is about to become available.

Delays and Setbacks

Backlog in the Preference Categories

The priority date marks the applicant’s place in the visa queue. In family-sponsored, preference categories, the priority date is the date USCIS received the Form I-130, Petition for Alien Relative, or in certain cases, the Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant.

In employment-based categories, the priority date is the date the Department of Labor (DOL) received the application for alien labor certification or the date USCIS received the I-140 petition (if no alien labor certification is required). In certain cases, it’s the date USCIS received the Form I-360 petition (EB-4, fourth preference category) or the Form I-526, Immigrant Petition by Alien Entrepreneur (EB-5, fifth preference category).

In October 2015, the Department of State made changes to the monthly Visa Bulletin so there are now two different dates to track: the Application Final Action Dates (AFAD) and the Dates for Filing Applications (DFA).

AFADs are the cut-off dates that determine when an immigrant visa becomes available. If your priority date is earlier than the cut-off date in the AFAD chart, or the AFAD is “current” (“C”) for the preference category and country of chargeabilty, you may receive an immigrant visa following completion of the application process.

DFAs are the cut-off dates that determine when the applicant should receive instructions from the NVC to submit documents for consular processing. When your priority date is earlier than the cut-off date in the DFA chart, you may submit required documents to the NVC, following receipt of instructions to do so.

When demand exceeds supply of visas for a given year in a given category or country, a visa backlog forms. It usually takes several years for a visa to become available.  In the F4 (brother or sister of adult U.S. citizen) category, for example, the wait for a visa to become available is usually 10+ years.

Challenges with Submitting Required Forms and Documents

At the appropriate time, the NVC will send instructions to the visa applicant to pay the appropriate fees: Form DS-260, online immigrant visa application fee, and Form I-864, Affidavit of Support fee (in all family-based immigration cases and in certain employment-based immigration cases).

After the fees are paid, the NVC will request the visa applicant to submit the required documents, including DS-260 application form and civil documents (e.g. birth certificate, police certificate, and photocopy of valid passport biographic data page) .

Visa applicants must also submit a Form I-864 and supporting financial documents proving they will not become a public charge to the U.S. government (in all family-based immigration cases, and in certain employment-based immigration cases where a U.S. citizen or permanent resident relative filed the Form I-140 petition or where such a relative has a significant ownership interest in the entity that filed the petition).

The NVC will issue a Request for Evidence if the visa applicant fails to submit all the required documents, such as his birth certificate, police certificate, and Form I-864 with supporting financial evidence.

Forwarding of Case from NVC to U.S. Consulate

The NVC will forward the immigrant visa  file to the U.S. Consulate only when it is satisfied that all required forms and documents have been submitted. The NVC may termination registration (close case) when applicants have not responded to its instructions within one year.

#3. WAITING FOR IMMIGRANT VISA INTERVIEW

After your case becomes qualified for an interview, NVC will work with the appropriate U.S. Consulate to schedule an appointment for you.

Visa interviews are normally scheduled one month in advance.  The U.S. Consulates inform the NVC of the dates they are holding interviews, and NVC fills these appointments on a first-in, first-out basis. Most interviews are scheduled within 60 days of NVC’s receipt of all required documents.

Delays and Setbacks

Completing Medical Examination

An immigrant visa cannot be issued if you do not complete the medical examination, along with required vaccinations, by an authorized panel physician in your country.

Prior to the interview, you should schedule and complete the required medical examination. Completing the medical examination after the visa interview will delay your case until the U.S. Consulate receives the results.

Completing the medical examination too soon (well before the interview) can cause delays as well. The medical report is valid for one year from the date of the medical examination. The examination must be redone if the report has expired or will expire before you enter the United States.

Failing to Appear at Visa Interview or Requesting Rescheduling

Although you usually have a month’s notice, you have no control over when the visa interview is scheduled. Failure to appear could lead to significant delays or a termination of your visa application. Requests for interview rescheduling will delay processing by several months.

#4: WAITING FOR IMMIGRANT VISA GRANT

At the visa interview, you will be expected to submit original documents or certified copies, such as your birth certificate and marriage certificate (if applicable). The consular officer will verify the authenticity of the documents and question you about your eligibility for the visa.

The U.S. Consulates have tremendous power in deciding whether to grant an immigrant visa. The doctrine of consular non-reviewability prohibits judicial review of visa denials. There is no formal appeal process to challenge a visa denial.

Delays and Setbacks

Administrative Processing

Section 221(g) of the Immigration & Nationality Act (INA) allows the U.S. Consulate to conduct further administrative processing before it issues the visa or determines whether you are eligible for the visa.

Administrative processing involves a wide range of activities. Examples are request for a Security Advisory Opinion (SAO) from the Department of State on whether the applicant poses a risk to the United States; more in-depth investigation to check for fraud; and request for review by a supervisor at the U.S. Consulate.

There is generally nothing you can do to speed up administrative processing and you are not told why it is necessary. While the delay is frustrating, cases that are otherwise approvable are rarely sent for administrative processing.

Incomplete Application

Under section 221(g) of the INA, a consular officer may refuse to grant the visa due to missing information on the application forms or missing documents. For example, when the visa application is based on a spousal petition, the U.S. Consulate may request additional documentary evidence of the bona fide nature of the marriage. In some cases, it may return the petition to USCIS for revocation if it determines the petition should not have been approved.

Inadmissibility Finding

Section 212(a) of the INA lists various grounds under which a visa applicant is inadmissible to the U.S. (i.e. barred from entering the U.S.) The most common include fraud or willful misrepresentation of material facts to gain immigration benefits; crime-related problems; unlawful presence in the U.S. lasting more than 180 days; public charge issues; and illegal re-entries into the U.S.

Waivers of inadmissibility are available for some grounds and not for others. When a waiver is available, the visa applicant must also meet the requirements to apply for it.

If the U.S. Consulate finds you are inadmissible to the U.S., it will not grant the immigrant visa unless you (a) successfully challenge the finding by filing a motion to reconsider with the Consulate or (b) obtain a waiver of inadmissibility by filing a Form I-601 and/or Form I-212 with the appropriate agency.

* * *

If all goes well, the U.S. Consulate will stamp an immigrant visa in your passport, which is normally valid for six months. It will also give you a sealed Visa Packet containing documents you must present to U.S. Customs and Border Protection at a port-of-entry (e.g. airport) upon your arrival in the United States. Do not open the sealed packet.

The CBP will verify whether  you are admissible to the U.S. before it admits you to the U.S. as a permanent resident. The CBP’s endorsement of the visa serves as temporary evidence of your immigrant status. You will be mailed your green card after you pay the USCIS Immigrant Fee.

Applying for an immigrant visa often involves delays and setbacks in all stages of the process. Work with an experienced immigration attorney to maximize your chances of obtaining an approval in the fastest time possible.

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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 legal 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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Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

Posted on April 30, 2016 | Comments Off on Form I-864: Alternatives to Meeting the Financial Requirement for Permanent Residence and Avoiding a Public Charge Determination

The Form I-864, Affidavit of Support, is key to meeting the financial requirement for permanent residence and avoiding a public charge determination in most family-based and some employment-based immigrant visa or adjustment cases. Failure to meet the I-864 requirements may cause the U.S. Consulate or USCIS to determine you will likely become a “public charge,” i.e. become primarily dependent on the U.S. government for subsistence. This ground of inadmissibility bars you from receiving an immigrant visa or green card.

The petitioner who filed the immigrant petition on your behalf must also be your sponsor who files a Form I-864 to support your immigrant visa or adjustment application. When the petitioner does not earn enough income to sponsor you, there are alternatives to meeting the financial requirement.

What income requirement must the sponsor meet? 

To qualify as a sponsor, most petitioners must show their current annual household income is at least 125% of the federal poverty level for their household size.

Sponsors who are on active duty in the U.S. Armed Forces, including the Army, Marines, Navy, Air Force, or Coast Guard, and are sponsoring a spouse or minor child, only need to earn an income of 100% of the federal poverty level for their household size. (This exception does not apply to joint or substitute sponsors).

The federal poverty level, per household size, is set once a year and is shown in the Form I-864, Poverty Guidelines.

The household size includes:

  • the sponsor
  • the sponsor’s spouse (even if they are separated or live separately)
  • the sponsor’s unmarried children under 21 (regardless of where they live)
  • any person listed as a dependent on the sponsor’s last tax return
  • the intending (sponsored) immigrant
  • any derivative beneficiaries (i.e. those without a separate I-130 petition being filed on their behalf) who are accompanying the principal beneficiary (i.e. immigrating at the same time or within six months of the principal immigrant)
  • any immigrants previously sponsored with Form I-864 (or Form I-864 EZ), Affidavit of Support.

What are the alternatives if the sponsor does not earn enough income? 

There are situations in which the petitioner does not earn enough income to sponsor the immigrant. Examples include retired U.S. citizen parents,  U.S. citizen spouses who are still attending school and do not work full time, and petitioners with large household sizes.

When the petitioner does not qualify financially as a sponsor, there are other ways to meet the financial requirement for permanent residence and avoid a public charge determination.

1. The Sponsor May Get a Joint Sponsor to File a Separate Form I-864

A joint sponsor may submit a separate Form I-864, Affidavit of Support, when the sponsor (petitioner) does not earn sufficient income. A joint sponsor does not have to be related to the sponsor or the intending immigrant. But like the sponsor, the joint sponsor must:

  • Be a U.S. citizen or national or a permanent resident.
  • Be at least 18 years old.
  • Be domiciled (live) in the United States or a territory or possession.  (If they live abroad, they may show their residence abroad is temporary and they still have a domicile in the U.S. or will establish a domicile in the U.S. on or before the date of the principal intending immigrant’s admission or adjustment of status).
  • Meet all of the financial requirements.

Joint sponsors must meet the income threshold for their household size, independently. They cannot combine their income with the sponsor’s or another joint sponsor’s income to satisfy the requirement.

Intending immigrants are allowed only one joint sponsor. In family-based preference category cases including a principal beneficiary and at least one accompanying derivative beneficiary, the sponsor may use up to two joint sponsors.

2. The Sponsor May Use the Intending Immigrant’s Income to Overcome the Income Shortage (in Limited Cases)

The sponsor may include the income from the intending immigrant, if that income will continue from the same source after immigration. The intending immigrant must also currently reside with the sponsor, unless he or she is sponsor’s spouse.

The sponsored immigrant whose income is being used to meet the income requirement does not need to submit a Form I-864A, Contract Between Sponsor and Household Member, unless a spouse and/or children is immigrating with the sponsored immigrant. In this instance, the I-864A relates to support for the spouse and/or children.

3. The Sponsor May Include Income from Certain Relatives or Dependents

Sponsors may include income from U.S. citizen or permanent resident relatives (spouse, adult child, parent, or sibling) living in their household, or U.S. citizen or permanent resident dependents claimed in their most recent federal income tax return (regardless of where they live). The relative or dependent must also earn income that meets the federal poverty level for their household size.

The relative or dependent must submit a Form I-864A, Contract Between Sponsor and Household Member, agreeing to be jointly responsible for the sponsored immigrant. They must also be at least 18 years old when they sign the I-864A.

4. The Sponsor May Supplement Income With Assets

To supplement income, the sponsor may use the value of assets that can be converted into cash within one year and without considerable hardship or financial loss to the owner. Examples are money in a bank account, stocks or bonds, the net value of a second automobile, and the net value of a home or other real estate.

The assets used must be owned by (1) the sponsor, (2) the sponsor’s U.S. citizen or permanent resident relative (spouse, adult child, parent, or sibling) who resides with the sponsor and submits a Form I-864A , Contract Between Sponsor and Household Member, or (3) the intending immigrant (regardless of where he or she lives).

The value of the assets must be at least five times the difference between the sponsor’s total household income and the current federal poverty guideline for his or her household size. The exception is when a U.S.  citizen is sponsoring a spouse or minor child.  In that case, the assets must total at least three times the difference.

The sponsor must include evidence of the value of the assets used, such as a bank account record showing the  money has been on deposit for the last 12 months, and real estate appraisals with evidence of the sum of all loans secured by a mortgage, trust deed, or any other lien on the property.

USCIS or the NVC May Issue a Request for Evidence on the I-864 Requirement

U.S. Citizenship & Immigration Services (USCIS), which adjudicates I-485, adjustment to permanent residence applications, may issue a Request for Evidence when it determines the I-864 is deficient. Currently, the National Benefits Center (NBC) — usually through contract employees – do the initial screening of the I-864 based on a checklist.

The National Visa Center (NVC), which processes immigrant visa applications before they are forwarded to the U.S. Consulate abroad, may also issue RFEs concerning the I-864.

When an RFE is issued, USCIS and the NVC stops processing the case. Interim benefits, such as employment authorization and advance parole for I-485 applicants, are also delayed until an RFE response is submitted.

If the NBC determines  the response is inadequate, it will not forward the case to the USCIS Field Office for adjudication and will deny the I-485 due to failure to provide an adequate response. Similarly, the NVC may refuse to forward the immigrant visa case to the U.S. Consulate if it determines the RFE response is insufficient.

At the adjustment interview, USCIS may ask for current evidence that the financial requirement is met. The U.S. Consulate may also ask for additional financial evidence at the immigrant visa interview.  Nevertheless, the proper submission of required forms and documents and timely, full responses to RFEs permit the case to move forward.

Can an RFE Be Issued in Error? 

RFEs are issued for a variety of legitimate reasons, such as lack of evidence of the sponsor’s current income, missing federal tax return and W2s for the most recent tax year, and mistakes in filling out the I-864. But some RFEs are issued in error, such as when USCIS or the NVC overlooks evidence that the income requirement is met.

An RFE can be issued in error when the sponsor’s Current Individual Annual Income  meets the income requirement, but the total income for the most recent tax year is less than the federal poverty level for the household size. Such RFEs ask for evidence of assets or a separate I-864 from a joint sponsor to overcome the perceived income shortage.

The regulations and USCIS policy, however, state that the sponsor’s current annual income – not income on the federal tax return for the most recent tax year – is what really counts. Current income refers to the total earnings the sponsor expects to earn from the start to the end of the calendar year.  Income includes both taxable and nontaxable income, such as certain federal or state benefits (e.g. social security retirement or disability), as well as unemployment or workers compensation.

The sponsor should submit evidence of current income (e.g. pay statements for the last six months and current letter of employment), even though this is not required initial evidence.

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For more information, read our related article, Form I-864: Key to Meeting the Financial Requirements for Permanent Residence and Avoiding a Public Charge Determination.

Consult an immigration attorney to help you meet the financial requirements for permanent residence and avoid a public charge determination. The best time to speak with an attorney is before you file for the immigrant visa or for adjustment, not after you receive an RFE.

A qualified attorney can evaluate whether the sponsor meets the income requirements and, if he or she does not, recommend alternatives to make up for the shortfall.

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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 legal 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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