Proving Income, Support Levels is Increasingly Important, to Avoid "Public Charge" Inadmissibility, Get a U.S. Green Card/Immigrant Visa

What more do visa applicants need to prove to satisfy U.S. immigration authorities that they are not inadmissible as a likely "public charge"?

** LEGAL UPDATE **

Any applicant for a family-based visa in the United States must prove that he or she doesn't fall into one of the grounds of "inadmissibility," for example as a likely public charge--someone who will probably need financial assistance from a government body in order to live above the poverty line. (See I.N.A. § 212(a)(4).) The primary way that the government has assessed this for the last several years is to require immigrants' U.S. citizen or green-card-holding sponsors to sign a Form I-864 Affidavit of Support on their behalf and provide accompanying proof of sufficient income and assets.

The I-864 Affidavit of Support is a contract, enforceable in a court of law. Under its terms, if the sponsor fails to provide adequate support to the immigrant, then either the relevant government agency or the immigrant can sue the sponsor to provide that support (or reimbursement, in the case of the government agency).

With a serious legal obligation like that, one might think that the I-864 would by itself be enough to weigh in favor of visa/green card approval. Although not every sponsor is lucky enough to live above the U.S. poverty line, immigrants whose sponsors don't have sufficient financial resources commonly find another family member or friend to sign an additional affidavit on their behalf.

But recent reports, particularly from the attorneys of immigrants coming through the U.S. Consulate in Ciudad Juarez, Mexico, indicate otherwise. Consular officials have apparently been denying an increasing number of visa applications on public charge grounds, despite the U.S. sponsor having filed an I-864 that was, on its face, adequate.

In particular, it appears that the U.S. consulate in Mexico has been relying on a recently revised section of the Foreign Affairs Manual, 9 FAM 302.8-2(B)(2), which states that although the I-864 is a positive factor in testing whether the person is likely to become a public charge, consular officers must still consider the "totality of circumstances." That means they must take into account factors such as age, health, family status, assets, resources, and financial status, and education and skills before deciding that the applicant is not inadmissible as a likely public charge.

Whether this will become a pattern at all U.S. consulates remains to be seen. In Mexico, at least, many of the denials seem to have been in cases where a joint sponsor was brought in who wasn't a close relative, or where the applicant had spent time in the U.S. unlawfully and had obtained approval of an I-601A provisional unlawful presence waiver from U.S. Citizenship and Immigration Services (USCIS) before departing the United States for the consular interview.

If you are immigrating to the U.S. through a family member and your case for being financially self-supporting is at all marginal, for example you are elderly, have no relevant U.S. job skills, or have significant health problems, consult an experienced U.S. immigration attorney before attending your consular interview.

Effective Date: April 12, 2018