Integrity Legal

Posts Tagged ‘Public Charge’

1st March 2020

In recent months, both Thai and American immigration systems have been in a state of flux. In some ways the systems have become more streamlined, but in other ways it is becoming more difficult to navigate these systems. The Trump administration has been implementing policies which make immigration to the United States more difficult, as a practical matter. Recently, these prerogatives are starting to have an impact on the ground in Thailand, Laos, Cambodia, and ASEAN as a whole. For example, Myanmar has been placed upon a list of countries banned from traveling to the USA. As a result, Myanmar nationals will not be able to enter the USA, nor will such nationals be granted visas to travel to the USA. If and/or when this ban will be lifted remains to be seen.

Meanwhile, there has been a great deal of discussion surrounding the administration’s implementation of new public charge rules in relations to immigrant visas for the USA. It is clear that there will be a direct impact upon those who are seeking family based immigrant and non-immigrant visas to the United States. For example, those seeking a CR-1 visa or an IR-1 visa will need to deal with the DS-5540 Public Charge Questionnaire when undertaking Consular Processing of their cases at the US Embassy or US Consulate in the jurisdiction in which the applicants reside. Concurrently, it is also clear that those who travel to the United States on a K-1 visa or a K-3 visa will need to deal with the I-944 form as part of the implementation of public charge adjudication during adjustment of status to lawful permanent residence (a.k.a. “Green Card” status”).

A question posed to this blogger recently: When seeking a K visa abroad, will I need to fill out a DS-5540? The answer to this question is not overly clear at first glance. This blogger did some research and came upon the following information in the Foreign Affairs Manual:

9 FAM 302.8-2(B)(4) (U) Applying INA 212(a)(4) to Nonimmigrants

d. (U) Alien Seeking Admission as K Nonimmigrants: K nonimmigrants and their petitioners are not permitted to complete form I-864. You may request a K applicant complete Form DS-5540 to assist in evaluating likelihood of becoming a public charge. Note that K applicants will again be assessed under the public charge ineligibility by USCIS at the time of adjustment of status where the K nonimmigrant seeking adjustment of status will be required to submit a Form I-864.

It is clear that non-immigrant visas are not the same thing as immigrant visas, but K visas are an odd hybrid creature in the immigration world and their posture in these matters can be somewhat fluid. Note that the FAM states the adjudicating officer “may request a K applicant complete Form DS-5540,” but it is not required. Meanwhile, it goes on to note that the applicant is not allowed to file an I-864 and that the issue of public charge we be adjudicated again at the adjustment of status phase of the process. Is this wording designed to allow American Embassies and Consulates leeway to not require K visa applicants to file a DS-5540? Perhaps, the practical implications of the public charge rule at the US Embassy in Thailand, Laos, and Cambodia remain to be personally witnessed by this blogger, but rest assured as soon a there is further clarification we will follow up on those developments.

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5th May 2011

It recently came to this blogger’s attention that the United States Citizenship and Immigration Service (USCIS) has recently updated some of the information with regard to that agency’s official fact sheet pertaining to I-864 affidavits of support. To quote directly from the official website of USCIS:

In determining inadmissibility, USCIS defines “public charge”as an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.” See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999). In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Those reading this blog are encouraged to click on the hyperlinks above to read more and gain insight into the issues associated with the I-864 affidavit of support.

It should be noted that the issues associated with the I-864 affidavit of support are significant and should not be overlooked by those seeking immigration benefits. Furthermore, the issues associated with the I-864 affidavit of support pertain not only to USCIS in the United States, but also impact the Consular processing phase of U.S. Immigration process for those who are seeking United States immigrant visas, such as the IR-1 visa and the CR-1 visa, abroad. Meanwhile, seekers of visas such as the K-1 visa (for fiancees of US Citizens) must submit a similar document to a US Embassy or US Consulate abroad in the form of an I-134 affidavit of support. Bearing this in mind, the reader should take note of the fact that the issues surrounding the I-864 affidavit of support are likely to come to the forefront for K-1 visa holders when they eventually apply for adjustment of status to lawful permanent residence.

There was an interesting notation on the aforementioned website:

Note: In general, lawful permanent residents who currently possess a “green card” cannot be denied U.S. citizenship for lawfully receiving any public benefits for which they are eligible.

The reader is encouraged to bear in mind the fact that the above quotation is speaking in generalities, but the issue of naturalization in the context of the affidavit of support may be of interest to Americans thinking about bringing a loved one to the USA. The reason that Americans may find the issue of naturalization interesting when discussing family immigration stems from the fact that upon a foreign spouse’s naturalization to US Citizenship, the encumbrances placed upon the American Citizen within the provisions of the affidavit of support are extinguished as upon becoming a United States Citizen a previous foreign national becomes eligible in their own right for government benefits (where applicable). Therefore, the previous sponsor(s) are no long liable to the United States government should the newly-naturalized citizen take government benefits.

For related information please see: Certificate of Citizenship or Child Citizenship Act.

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